COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONERS
COMMISSIONER D J MAY QC, COMMISSIONER J M HENTY AND HIS HONOUR JUDGE MARTIN QC
CIS/3573/2005, CH/2484/2005 AND CPC/2920/2005
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LLOYD
LORD JUSTICE MOSES
|NADIFA DALMAR ABDIRAHMAN
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
|NADIFA DALMAR ABDIRAHMAN
|- and -
|(1) LEICESTER CITY COUNCIL
(2) SECRETARY OF STATE FOR WORK AND PENSIONS
|ALI ADDOW ULLUSOW
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
Philip Sales Q.C. and Jason Coppel (instructed by the Office of the Solicitor, Department for Work and Pensions) for the Secretary of State for Work and Pensions
Leicester City Council was not represented
Hearing dates: 19 and 20 June 2007
Crown Copyright ©
Lord Justice Lloyd:
"(3) Subject to paragraphs (3F) and (3G), in Schedule 7
"person from abroad" means a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is
(a) a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;
(b) 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; or
(c) a person who has been granted exceptional leave to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State; or
(d) a person who is not a person subject to immigration control within the meaning of section 115 (9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of his deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom;"
"(3G) In paragraph (3), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."
The Appellants' immigration position
"(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain)."
"(1) A person shall not under the principal Act require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972."
"(1) Subject to regulation 21(1), an EEA national must be admitted to the United Kingdom if he produces, on arrival, a valid national identity card or passport issued by an EEA State."
Regulation 14 dealt with the right of residence:
"(1) A qualified person is entitled to reside in the United Kingdom, without the requirement of leave to remain under the 1971 Act, for so long as he remains a qualified person."
"A person may be removed from the United Kingdom
(a) if he is not, or has ceased to be,
(i) a qualified person"
"a European national who has, or may have, ceased to be a qualified person in fact, but who has not been given and overstayed a limited leave to remain and has not been informed that the Secretary of State has decided that he should be removed, does not belong to a category of persons "not lawfully here" who are not to be regarded as "persons" for the purposes of section 62/63 of the Housing Act 1985."
"The appellants had no right of residence in this country, and no right to remain here indefinitely. It does not follow that they were here unlawfully and that no duty was owed to them under the Act."
"Regulation 14 of the Immigration (European Economic Area) Regulations 2000 gives an EEA national an entitlement to reside in the United Kingdom "without the requirement for leave to remain under the 1971 Act" for as long as he remains a qualified person. If he ceases to be a qualified person, it follows that he no longer has an entitlement to reside in the UK, and that he does from then on require leave to remain under the 1971 Act. It seems to me that such a person is clearly "subject to immigration control" for the purposes of the Homelessness (England) Regulations 2000. Mr Ismail and Ms Abdi may well never have been qualified persons. There is, however, no reason to treat their status in this respect as being different from that of an EEA national who once was, but is no longer, a qualified person."
"Each of the Contracting Parties undertakes to ensure that nationals of other Contracting Parties who are lawfully present in any part of its territory to which this Convention applies, and who are without sufficient resources, shall be entitled equally with its own nationals and on the same conditions to social and medical assistance … provided by the legislation in force from time to time in that part of its territory."
"Residence by an alien in the territory of any of the Contracting Parties shall be considered lawful within the meaning of this Convention so long as there is in force in his case a permit or such other permission as is required by the laws and regulations of the country concerned to reside therein."
"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."
"Whereas beneficiaries of the right of residence must not become an unreasonable burden on the public finances of the host Member State"
"Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community Law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during the period of their residence."
i) Case C-85/96 Martinez Sala concerned discriminatory requirements under German law, whereby a Spanish national residing in Germany was only entitled to certain social security benefits if in possession of a particular document proving her right to reside in Germany for the relevant period. She had had residence permits for previous periods and had applied for a renewed permit, and she was in fact authorised to reside in Germany.
ii) Case C-184/99 Grzelczyk related to the right of residence of students to which a different Directive applies (93/96). The court, at paragraph 41 of its judgment, noted the different nature of the relevant provisions, and the reasons for such different treatment.
iii) In Case C-413/99 Baumbast the court had to consider article 1(1) of Directive 90/364, in circumstances where the claimant (a German national) had lived and worked in the UK for a long time, and had retained his home there, with his family, after his work came to an end, even though he himself then worked abroad, so that he was not present in the UK as a worker or work-seeker. He had never had recourse to social benefits, and he and the family were covered by sickness insurance in Germany. He and the family had had residence permits but his application for a renewal of his permit was refused on the ground that his sickness insurance was not adequate because it did not cover emergency treatment in the UK. He sought to establish that he had a direct right of residence under article 18, and that to refuse him a residence permit on the ground that the sickness insurance would not cover emergency treatment in the UK would be disproportionate and therefore unlawful under EU law. The Court upheld this argument. As regards the principles, it said, at paragraphs 84 to 86:
"84. As regards, in particular, the right to reside within the territory of the Member States under Article 18(1) EC, that right is conferred directly on every citizen of the Union by a clear and precise provision of the EC Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, Mr Baumbast therefore has the right to rely on Article 18(1) EC.
85. Admittedly, that right for citizens of the Union to reside within the territory of another Member State is conferred subject to the limitations and conditions laid down by the EC Treaty and by the measures adopted to give it effect.
86. However, the application of the limitations and conditions acknowledged in Article 18(1) EC in respect of the exercise of that right of residence is subject to judicial review. Consequently, any limitations and conditions imposed on that right do not prevent the provisions of Article 18(1) EC from conferring on individuals rights which are enforceable by them and which the national courts must protect (see, to that effect, Case 41/74 Van Duyn  ECR 1337, paragraph 7)."
Applying those principles to the facts, at paragraphs 92 to 94 it concluded:
"92. In respect of the application of the principle of proportionality to the facts of the Baumbast case, it must be recalled, first, that it has not been denied that Mr Baumbast has sufficient resources within the meaning of Directive 90/364; second, that he worked and therefore lawfully resided in the host Member State for several years, initially as an employed person and subsequently as a self-employed person; third, that during that period his family also resided in the host Member State and remained there even after his activities as an employed and self-employed person in that State came to an end; fourth, that neither Mr Baumbast nor the members of his family have become burdens on the public finances of the host Member State and, fifth, that both Mr Baumbast and his family have comprehensive sickness insurance in another Member State of the Union.
93. Under those circumstances, to refuse to allow Mr Baumbast to exercise the right of residence which is conferred on him by Article 18(1) EC by virtue of the application of the provisions of Directive 90/364 on the ground that his sickness insurance does not cover the emergency treatment given in the host Member State would amount to a disproportionate interference with the exercise of that right.
94. The answer to the first part of the third question must therefore be that a citizen of the European Union who no longer enjoys a right of residence as a migrant worker in the host Member State can, as a citizen of the Union, enjoy there a right of residence by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities and, where necessary, the national courts must ensure that those limitations and conditions are applied in compliance with the general principles of Community law and, in particular, the principle of proportionality."
iv) In Case C-456/02 Trojani, the questions had been referred to the court by a Belgian court on the basis that Mr Trojani had no right derived from national law to reside in Belgium, so as to raise the issue whether he could derive such a right directly from article 18. However, at the hearing in the European Court of Justice, it became apparent that he did have a temporary residence permit under Belgian law. Unlike Mr Baumbast, Mr Trojani was not self-sufficient; his claim was to the minimex, a minimum subsistence allowance. Without regard to the Belgian residence permit, the court considered that he had no right of residence: see paragraphs 33 to 36:
"33. … it follows from Article 1 of Directive 90/364 that Member States can require of the nationals of a Member State who wish to enjoy the right to reside within their territory that they themselves and the members of their families be covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of that State during their period of residence.
34. As the Court has previously held, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality (Baumbast and R, paragraph 91).
35. It follows from the judgment making the reference that a lack of resources was precisely the reason why Mr Trojani sought to receive a benefit such as the minimex.
36. In those circumstances, a citizen of the Union in a situation such as that of the claimant in the main proceedings does not derive from Article 18 EC the right to reside in the territory of a Member State of which he is not a national, for want of sufficient resources within the meaning of Directive 90/364. Contrary to the circumstances of the case of Baumbast and R (paragraph 92), there is no indication that, in a situation such as that at issue in the main proceedings, the failure to recognise that right would go beyond what is necessary to achieve the objective pursued by that directive."
However, Mr Trojani's possession of the residence permit made all the difference, as is apparent from the last sentence of the answer given in paragraph 46 to the second question referred to the court:
"Consequently, the answer to the second question must be that a citizen of the Union who does not enjoy a right of residence in the host Member State under Articles 39 EC, 43 EC or 49 EC may, simply as a citizen of the Union, enjoy a right of residence there by direct application of Article 18(1) EC. The exercise of that right is subject to the limitations and conditions referred to in that provision, but the competent authorities must ensure that those limitations and conditions are applied in compliance with the general principles of Community law, in particular the principle of proportionality. However, once it is ascertained that a person in a situation such as that of the claimant in the main proceedings is in possession of a residence permit, he may rely on Article 12 EC in order to be granted a social assistance benefit such as the minimex."
In respect of the position without regard to the national residence permit, the court adopted the same answer as had been suggested by Advocate-General Geelhoed in an illuminating Opinion. He made the point, at paragraph 18, that the difference in treatment of economic and non-economic migrants has a mainly pragmatic basis:
"So long as social security system have not been harmonised in terms of the level of benefits, there remains a risk of social tourism, i.e. moving to a Member State with a more congenial social security environment."
At paragraph 70 he observed that "the basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State". That is borne out by the preamble to Directive 90/364, quoted at paragraph  above.
v) In Case C-138/02, Collins, the claimant sought jobseeker's allowance which was refused on the basis that he was not habitually resident in the UK (under the Jobseeker's Allowance Regulations 1996). The court held that it could be legitimate for a Member State to impose a residence requirement as a condition of entitlement to such an allowance, so long as it was proportionate, not going beyond what was needed in order to establish a connection between the claimant and the employment market in the Member State in question.
vi) In Case C-209/03, Bidar, entitlement to student loans was at issue, so that the relevant Directive was 93/96. Moreover, it was not in dispute that the claimant had a right of residence.
"The convention is one of those public Acts of State of Her Majesty's Government of which HM judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by inquiry of the appropriate department of Her Majesty's Government. Where by a treaty Her Majesty's Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty's Government has taken steps by way of legislation to fulfil its treaty obligations. Once the government has legislated, which it may do in anticipation of the coming into effect of the treaty as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to whether or not they carry out Her Majesty's treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines Ltd v Murray), and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty's own courts. If the terms of the legislation are not clear, however, but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption."
"Mr Aaronson also relied on what Diplock LJ said in Salomon v Comrs of Customs and Excise  2 QB 116, 143, to the effect that, where a statutory provision was "not clear" and was "reasonably capable of [bearing] more than one meaning", the court should favour "the meaning which is consonant" with the UK's treaty obligations. This principle is of less weight in a case such as the present where there is no question, as in Salomon, of the legislative provision in issue, namely section 788 of the 1988 Act, having been enacted to give effect to a specific treaty obligation. In this case, section 788, while enacted to enable the UK's treaty obligations under DTCs generally to have effect in domestic law, was plainly not designed to give effect to any specific obligation or even any specific Convention. Nonetheless, the point would have some force here on the counter-factual hypothesis that the claimants succeed on the first issue."
Article 12 of the Treaty: discrimination
"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on the grounds of nationality shall be prohibited."
"The problem is in all significant respects a problem of foreign nationals either coming to this country (benefit tourism) or outstaying their leave to be here (irregular status) in order to take advantage of the priority housing status accorded to homeless families. Measures directed at this, I accept, require no explicit justification, whether because they are an aspect of immigration control or because they are an obviously legitimate response to a manifest problem."
Housing benefit and council tax benefit
"… A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable …"
""person from abroad" also means any person other than a person to whom paragraph (5) applies who
(e) is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose no person shall be treated as not habitually resident in the United Kingdom who is"
and then four sub-paragraphs follow, which are identical to paragraphs (a) to (d) of regulation 21(3) in the income support regulations (see paragraph  above).
"In this regulation, for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."
"(1) Subject to paragraph (2) a person is to be treated as not in Great Britain if he is not habitually resident in the United Kingdom … but for this purpose, no person is to be treated as not habitually resident in the United Kingdom who is"
[The regulation continues by setting out circumstances which do not apply to the instant case.]
"(2) For the purposes of treating a person as not in Great Britain in paragraph (1) no person shall be treated as habitually resident in the United Kingdom … if he does not have a right to reside in the United Kingdom …"
The EEA Agreement
Lord Justice Moses
"the basic principle of Community law is that persons who depend on social assistance will be taken care of in their own Member State" (paragraph 70).