QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of (1) GEANINA MIRELA FRATILA
(2) RAZVAN TANASE
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
THE ADVICE ON INDIVIDUAL RIGHTS IN
EUROPE (AIRE) CENTRE
Sir James Eadie QC, Julie Anderson and George Molyneaux (instructed by Government Legal Department) for the Defendant
Charles Banner QC and Yaaser Vanderman (instructed by Herbert Smith Freehills LLP) for the Intervener
Hearing dates: 18th and 19th February 2020
Crown Copyright ©
MR JUSTICE SWIFT
(1) The 2019 Social Security Regulations, and Universal Credit
"9. — Persons treated as not being in Great Britain
(1) For the purposes of determining whether a person meets the basic condition to be in Great Britain, except where a person falls within paragraph (4), a person is to be treated as not being in Great Britain if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.
(3) For the purposes of paragraph (2), a right to reside does not include a right which exists by virtue of, or in accordance with—
(a) regulation 13 of the EEA Regulations or Article 6 of Council Directive No. 2004/38/EC;
(aa) regulation 14 of the EEA Regulations, but only in cases where the right exists under that regulation because the person is–
(i) a qualified person for the purposes of regulation 6(1) of those Regulations as a jobseeker; or
(ii) a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;
(b) regulation 16 of the EEA Regulations, but only in cases where the right exists under that regulation because the person satisfies the criteria in regulation 16(5) of those Regulations or article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of their rights as a European citizen); or
(c) a person having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—
(i) Appendix EU to the immigration rules made under section 3(2) of that Act; or
(ii) being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act.
(4) A person falls within this paragraph if the person is—
(a) a qualified person for the purposes of regulation 6 of the EEA Regulations as a worker or a self-employed person;
(b) a family member of a person referred to in sub-paragraph (a) within the meaning of regulation 7(1)(a), (b), or (c) of the EEA Regulations;
(c) a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of the EEA Regulations;
(d) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967;
(e) a person who has been granted, or who is deemed to have been granted, leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is—
(i) discretionary leave to enter or remain in the United Kingdom,
(ii) leave to remain under the Destitution Domestic Violence concession, or
(iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;
(f) a person who has humanitarian protection granted under those rules; or
(g) a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 and who is in the United Kingdom as a result of their deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom."
The material amendment for the purposes of the Claimants' case is the new regulation 9(3)(c)(i), added by the 2019 Social Security Regulations, and underlined above.
(2) Appendix EU to the Immigration Rules
"EU14. The applicant meets the eligibility requirements for limited leave to enter or remain where the Secretary of State is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:
Condition. Is met where
1. a) The applicant is:
(i) a relevant EEA citizen; or
(ii) a family member of a relevant EEA citizen; or
(iii) a family member who has retained the right of residence by virtue of a relationship with a relevant EEA citizen; or
(iv) a person with a derivative right to reside; or
(v) a person with a Zambrano right to reside; and
(b) The applicant is not eligible for indefinite leave to enter or remain under this Appendix solely because they have completed a continuous qualifying period of less than five years
2. (a) The applicant is:
(i) a family member of a qualifying British citizen; or
(ii) a family member who has retained the right of residence by virtue of a relationship with a qualifying British citizen; and
(b) The applicant was, for any period in which they were present in the UK as a family member of a qualifying British citizen relied upon under sub-paragraph (c), lawfully resident by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6 of the EEA Regulations); and
(c) The applicant is not eligible for indefinite leave to enter or remain under this Part of this Appendix solely because they have completed a continuous qualifying period in the UK of less than five years."
In this way, paragraph EU14 provides a limited right to remain in the United Kingdom to EU nationals who, before the end of the transition period, have begun to live in the United Kingdom. This limited right to remain enables such persons to remain until such time as they have 5 years' continuous residence, enabling them to apply for settled status.
(3) The Claimants
(1) The Claimants' case
(2) A case of discrimination on grounds of nationality?
1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.
2. By way of derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families."
On this analysis the Claimants' case fails both because direct reliance on Article 18 TFEU is not possible, and because any claim of discrimination on grounds of nationality based on article 24 of the Citizens' Rights Directive would fail because of the derogation in article 24(2). The Secretary of State submits that the Claimants' inability to found a claim directly on Article 18 TFEU is supported by the judgments of the CJEU in Dano and in Alimanovic. She submits that it is to be inferred from the reasoning in those cases that the reasoning of the CJEU in Grzelczyk and Trojani is no longer good law. Since both parties have made detailed submissions by reference to this run of CJEU case law, I will consider each case in a little detail.
"39. In the context of the present case, it should be examined more particularly whether, despite the conclusion in para.  above, a citizen of the Union in a situation such as that of the claimant in the main proceedings may rely on Art.12 EC, under which, within the scope of application of the Treaty and without prejudice to any special provisions contained therein, all discrimination on grounds of nationality is prohibited.
40. In the present case, it must be stated that, while the Member States may make residence of a citizen of the Union who is not economically active, conditional on his having sufficient resources, that does not mean that such a person cannot, during his lawful residence in the host Member State, benefit from the fundamental principle of equal treatment as laid down in Art.12 EC.
41. In that connection three points should be made.
42. First, as the Court has held, a social assistance benefit such as the minimex falls within the scope of the Treaty.
43. Secondly, with regard to such benefits, a citizen of the Union who is not economically active may rely on Art.12 EC where he has been lawfully resident in the host Member State for a certain time or possesses a residence permit.
44. Thirdly, national legislation such as that at issue in the main proceedings, in so far as it does not grant the social assistance benefit to citizens of the European Union, non-nationals of the Member State, who reside there lawfully even though they satisfy the conditions required of nationals of that Member State, constitutes discrimination on grounds of nationality prohibited by Art.12 EC."
Thus, since Mr Trojani was lawfully resident in Belgium, he could rely on Article 12 EC to assert that refusal to pay him the minimex was unlawful when that benefit would be paid to a Belgian national in the same circumstances.
"56. By its second and third questions, which it is appropriate to examine together, the referring court asks, in essence, whether article 18FEU, article 20(2)FEU, article 24(2) of Directive 2004/38 and article 4 of Regulation No 883/2004 must be interpreted as precluding legislation of a member state under which nationals of other member states who are not economically active are excluded, in full or in part, from entitlement to certain "special non-contributory cash benefits" within the meaning of Regulation No 883/2004 although those benefits are granted to nationals of the member state concerned who are in the same situation."
It is clear from paragraphs 60 – 62 of the judgment that the Court approached this case on the basis that Mrs Dano was exercising rights under the Citizens' Rights Directive and for that reason, considered the case by reference to article 24 of that Directive rather than Article 18 TFEU
"60. In this connection, it is to be noted that article 18(1) FEU prohibits any discrimination on grounds of nationality "Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein". The second sub-paragraph of article 20(2) FEU expressly states that the rights conferred on Union citizens by that article are to be exercised "in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder". Furthermore, under article 21(1) FEU too, the right of Union citizens to move and reside freely within the territory of the member states is subject to compliance with the "limitations and conditions laid down in the Treaties and by the measures adopted to give them effect": Pensionsversicherungsanstalt v Brey (Case C-140/12)  1 WLR 1080, para 46 and the case law cited.
61. Thus, the principle of non-discrimination, laid down generally in article 18FEU, is given more specific expression in article 24 of Directive 2004/38 in relation to Union citizens who, like the applicants in the main proceedings, exercise their right to move and reside within the territory of the member states. That principle is also given more specific expression in article 4 of Regulation No 883/2004 in relation to Union citizens, such as the applicants in the main proceedings, who invoke in the host member state the benefits referred to in article 70(2) of the Regulation.
62. Accordingly, the court should interpret article 24 of Directive 2004/38 and article 4 of Regulation No 883/2004."
The Court's conclusion (at paragraphs 80 – 81) was that because on the facts Mrs Dano did not qualify for a right of residence under the Citizens' Rights Directive, she could not invoke the non-discrimination provision at article 24 of that Directive.
(3) Direct or indirect discrimination?
"44. Thus, the national legislation at issue in the main proceedings creates a difference in treatment between resident and non-resident students.
45. A residence condition, such as that required by that legislation, is more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other Member States, whose residence is generally in a Member State other than Belgium (see, by analogy, Meeusen v Hoofddirectie vad de Informatie Beheer Groep (C-337/97) … at  and , and Hartmann  ECR I-6303 at ).
46. It follows, as the Belgian Government moreover admits, that the national legislation at issue in the main proceedings affects, by its very nature, nationals of Member States other than Belgium more than Belgian nationals and that it therefore places the former at a particular disadvantage.
The justification for the unequal treatment
47. As stated in  of the present judgment, a difference in treatment, such as that put in place by the decree of June 16, 2006, constitutes indirect discrimination on the ground of nationality which is prohibited, unless it is objectively justified."
The Court approached the case as one of indirect discrimination. On the facts, its conclusion was that the Belgian Government had not justified the restriction imposed.
"34. The court concluded that, looked at in this way, the national legislation created a difference in treatment between resident and non-resident students. A residence condition, such as that required by this legislation, was more easily satisfied by Belgian nationals, who more often than not reside in Belgium, than by nationals of other member states, whose residence is generally in a member state other than Belgium. It followed that the national legislation affected nationals of member states other than Belgium more than Belgian nationals and placed them at a particular disadvantage which was indirectly discriminatory. The second cumulative condition—as to the right to remain permanently in Belgium-which the Advocate General said was necessarily linked to a characteristic indissociable from nationality and directly discriminatory, was subsumed into the first when the two conditions were treated cumulatively. The fact that the court then went on to consider whether the difference in treatment was objectively justified makes it plain beyond any doubt that it considered the case to be one of indirect, rather than direct, discrimination."
"28. Mr Cox for the claimant submitted that the requirement to have a right to reside here discriminated directly between citizens of the United Kingdom on the one hand and citizens of other member states on the other. It was a clear case of discrimination on the basis of nationality: Hoeckx v Openbaar Centrum voor Maatschappelijk Welzijn Kalmthout  ECR 973, para 24. That being so, article 3(1) of Regulation 1408/71 required that discrimination to be eliminated by deeming the claimant to be a British citizen for the purposes of entitlement to state pension credit. I do not think that it is as simple as that when regulation 2 of the 2002 Regulations is read as a whole. The requirement which everyone must satisfy is that they are "in Great Britain". The test which regulation 2 lays down is a composite one. Some United Kingdom citizens will be able to say that they are in Great Britain. Some will not. That is true also of nationals of other member states. No doubt it will be more difficult in practice for nationals of other member states to meet the test. But not all United Kingdom nationals will be able to meet the test either.
29. In James v Eastleigh Borough Council  2 AC 751 a rule that those who were not of pensionable age had to pay for admission to a public swimming pool was held to directly discriminate between men and women because their pensionable ages were different. In that case there was an exact match between the difference in pensionable ages and the rule, as the right to free admission depended upon a single criterion – an exact coincidence, as Baroness Hale of Richmond JSC puts it: see para 91, below. The statutory pensionable age alone determined whether the person had to pay or not. As Lord Ackner put it, at p 769, if you were a male you had, vis-à-vis a female, a five-year handicap. This was true of every male, not just some or even most of them. That is not so in the present case. There is no such exact match. The composite test is one that some UK nationals may fail to meet too because, although they have a right of residence, they are not habitually resident here. Furthermore, we are not required in this case to say whether this amounts to direct discrimination in domestic law. The question for us is whether it amounts to direct discrimination for the purposes of article 3(1) of Regulation 1480/71."
His conclusion (at paragraph 35 of his judgment) was that because the composite test was "more likely to be satisfied by a United Kingdom national than by a national of another member state" the effect of regulation 2 of the 2002 Regulations was indirect discrimination, not direct discrimination.