England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Mitchell
ICL 40142

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/11/2012

Lord Justice Hughes:

1. This appeal from the County Court in a Housing Act case depends on the extent to which migrants from EU countries are entitled to benefit support in this country. The defendant council determined that the claimant was not entitled to housing provision under the homelessness provisions of Part VII of the Housing Act 1996. The Reviewer, to whom he applied under ss 202-203, agreed. The Circuit Judge, to whom he appealed on a point of law under s 204, held that the Reviewer had not made any error of law. He now has permission to bring this second appeal to this court.
2. There appears to be no doubt that Mr Samin is homeless within the meaning of the Act. The issue in the case is whether he is or is not entitled to the benefit of the Act. In summary, he is if he is a migrant worker from another EU country, exercising his EU rights as an Austrian citizen to work in another country. Otherwise he is not. The UK regulations which govern his situation transpose an EU Directive. As will be seen, in the end the test for eligibility is whether he is or is not "temporarily unable to work as a result of an illness or accident": see Reg 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, 2006 No 1003. The Council and the Reviewer determined that he was not. The question for this court is whether the Reviewer made an error of law in doing so or was entitled in law so to determine.
3. There is it seems no document setting out any instructions or assertions from Mr Samin, but there are records of what he has told various people enquiring about his situation, including the Council which had a duty under s 184 of the Housing Act to make enquiries into his claim. He was born in Iraq in 1960 and so is 52. He married there. After something like 10 years service in the Iraqi army, he and his wife together with their 5 or 6 children left that country in about 1992 and sought asylum in Austria. His application was granted and he achieved Austrian citizenship in about 1993. His account is that he worked in various situations in Austria although there is no documentation or other confirmation, nor is there any evidence for how long. At some stage his marriage broke down and he became completely estranged not only from his wife but from all their children. In December 2005 he left Austria and travelled alone to England, where he has lived since, also alone. He has told various interviewers that he worked for a period of about 10 months in all. His last job was as a part-time office cleaner working 16 hours per week. He lost that job in 2006. He has told people who have enquired that he was "asked to leave", but no more than that is known. He has not worked since. He has also said in the past that he worked for about three months "painting" before doing the office cleaning job, although what kind of work that was, assuming it occurred, is obscure.
4. Mr Samin has been assessed by a number of people for the purpose of this application and otherwise. He is in poor health. His principal illness is clinical depression of some longstanding, which is attributed by those who have treated him mainly to prolonged traumatic experiences in the Army, in the course of one or more of the wars in which Iraq was then engaged. He reports severe nightmares and flashbacks, feelings of hopelessness, confusion and lack of concentration, all of which led to the diagnosis of chronic PTSD together with clinical depression. He has attempted to take his own life since he has been in England, by overdosing on his medication. That was in or about 2007 but the report of his principal treating clinical psychologist, Ms Smit, considered in August 2010 that he was in very low mood and, although with no present plans to harm himself, remained a moderately high risk of suicide in the medium term. He is socially isolated with no family or other social contacts at all. At the time of that report he had had about eight months of 1:1 psychological support counselling. It seems that that came to an end at or about that time, either for want of resources or because it was not accomplishing anything in the absence of stable accommodation. The depression aside, he is not in good health at all. He has diabetes, high blood pressure leading to transient ischaemic attacks and kidney stones. He has also reported a need for physiotherapy to one of his legs. He is maintained on a cocktail of drugs which include anti-depressants.
5. After an initial short period living in a room in North London, Mr Samin took a private tenancy of a self-contained one room studio flat – in, it appears, about June 2006. He lived there until the Summer of 2010 when he received a lawful notice to quit, which resulted in his having to give up possession in August of that year. The occasion for the notice to quit is not in evidence. It cannot have been non-payment of rent because the rent of £150 per week was then being paid by Housing Benefit, and there is no suggestion that he in any way brought eviction upon himself. That led to the application to the Council for housing under the homelessness provisions of Part VII of the Housing Act 1996.
6. Since he lost the part-time office cleaning job in 2006, Mr Samin has not worked at all. He signed on at the job centre for a while until sometime in 2007 but since then has not been looking for work. Since losing the job he has been supported by State benefit, initially jobseekers' allowance but since 2007 either income support or incapacity benefit. Housing Benefit has paid his rent, and his medical needs have been provided by the National Health Service.
7. Such evidence as there was as to the prognosis was contained in the evidence of Ms Smit, the treating psychologist, together with a short endorsing note from Mr Samin's GP, some assertions on behalf of Mr Samin by his solicitors and his own statement of his current position to the Reviewer.
8. Ms Smit concluded in Summer 2010 that Mr Samin had no social contacts and no routine to his life, even as to eating and sleeping. She advised that complete recovery was unlikely, given the events which he had experienced. It was possible, she said, that with a more stable environment he might improve his mood but she suspected that he "will continue to have a significant degree of dysfunction." That view was shared by his General Medical Practitioner, Dr Tate, who advised that "complete recovery is unlikely but he can improve." At much the same time (September 2010) Ms Smit directly addressed the question of any possible return to work. She said this:

"In my opinion if Mr Samin was able to obtain secure and stable accommodation this will impact positively on his mental health but it is not the sole factor underlying his difficulties… With an improvement in his home situation, and ability to engage in appropriate treatment I would expect that Mr Samin's mental health would improve and with further support from a suitable agency I would expect that he could return to some form of fruitful employment. However this is not something that is likely for him in the present context, or in the short-term."

It was no doubt true that the uncertainty over accommodation would worsen Mr Samin's depression, but equally plain that this could not be the main factor. His depression was chronic. It originated over 20 years earlier. He had been unable to work for some four years before there was any threat to his home.

9. Mr Samin has had solicitors acting from the outset of his application. They said, on his behalf, in a letter to the Council on 31 Aug 2010:

"…there is no prospect in the immediate or long-term future of our client securing employment, in view of his health condition."

That seems to have been said in the context of refuting a suggestion that Mr Samin needed assistance to obtain employment, but it was clearly a considered response nevertheless. True it is that only the following day the Solicitors said something quite different, namely that

"…there is a prospect of our client returning to work in the future."

Quite how it came about that those two directly contradictory statements were made was not explained, either in the second letter or subsequently. The Reviewer did not refer to either. She did, however, speak to Mr Samin himself. By then it was over a year later, in November 2011. There was still no sign of his seeking work. He told her that he did not (then) feel able to return to work. The Reviewer knew that the psychological counselling course had finished some months previously, and that there was no sign of the wholly unspecified form of 'agency support', of which Ms Smit had spoken a year earlier, materialising. He has been specifically assessed to see whether he needs care in managing his affairs or in daily living and he does not.

The law

10. This case does not concern the various questions which often arise under the Housing Act when an application for accommodation is made under the homelessness provisions. It depends on whether Mr Samin is or is not eligible for the social benefit support given by those provisions. It is not necessary to trace the statutory route to the test, which is agreed. To summarise, via the Immigration Act 1988, s 7(1), the Housing Act 1996 s 185, and the Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006, 2006 No 1294, the test of eligibility depends on whether or not Mr Samin meets the test of a "qualified person" provided by Regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, 2006 No 1003 ("the domestic Regulations"). Regulation 6 provides:

"6 (1) In these Regulations 'qualified person' means a person who is an EEA national and in the United Kingdom as –

(a) a jobseeker;

(b) a worker;

(c) a self-employed person;

(d) a self-sufficient person; or

(e) a student.

(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph 1(b) if

(a) he is temporarily unable to work as the result of an illness or accident;

(b) he is in duly recorded involuntary unemployment after having being employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and

(i) he was employed for one year or more before becoming unemployed;

(ii) he has been unemployed for no more than six months; or

(iii) he can provide evidence that he is seeking employment in the UK and has a genuine chance of being engaged;

(c) he is involuntarily unemployed and has embarked on vocational training; or

(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

(3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(4) For the purposes of paragraph (1)(a) 'jobseeker' means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged."

These same tests are made, by a variety of regulations, to apply to many State benefits, such as council tax benefit, income support, employment and support allowance, and housing benefit.

11. The derivation of this test is EU law. The relevant present Directive is Directive 2004/38/EC ("the Directive"). In very broad terms this, like earlier European law, seeks to reconcile two objectives which are potentially in tension with one another. One is to promote the free movement of labour within the EU. The other is to preserve the principle that migration should not unreasonably burden the social security and benefits system of the destination country. For many years European Community law has thus given freedom of movement to those who are pursuing their occupations but has permitted restrictions on the payment of benefits to those who migrate but who are not, in broad terms, either economically active or otherwise self-supporting.
12. These paired objectives are stated in the Recitals to the Directive, which include the following:

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.

(3) Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.

(10) Persons exercising their right of residence should not, however, become an unreasonable burden on the social assistance system of the host Member State during an initial period of residence. Therefore the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions.

(16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host Member State should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self-employed persons or job-seekers as defined by the Court of Justice save on grounds of public policy or public security."

13. The Directive sets out to achieve its objectives by providing a sliding scale of rights for migrant workers according to their circumstances and the length of time they have been in the destination country. The domestic Regulations faithfully transpose the Directive although they adopt a slightly different grammatical form. The sliding scale works broadly like this:

i) All citizens of one EU country are entitled to free entry to any other, without any formality or visa beyond the production of a passport: Article 5. The domestic Regulations duly provide for this rule in Regulation 11.

ii) All such citizens (and their accompanying families) are entitled, without more, to reside in the destination country for 3 months; there is no requirement to be working: Article 6. This is reflected in the domestic Regulations by Regulation 13.

iii) Beyond three months the right to reside is given to those who are, by one means or another, self-supporting and thus no burden on the State benefit systems of the destination country. This is accomplished by Article 7 of the Directive, reflected in Regulation 14 of the domestic Regulations, read with the concept of "qualified person" set out in Regulation 6 (above) and of "worker" in Regulation 5. Article 7 is the key Directive provision for present purposes, as Regulation 6 is the key domestic provision. The right to reside is given to workers, self-employed persons, those who have the resources to support themselves, and those who are otherwise sufficiently supported. Then, by Article 7(3) the Directive tackles the circumstances of those who are basically employed or otherwise self-supporting but who are temporarily out of work. It provides:

"7(3) For the purposes of paragraph 1(a), a Union citizen who is no longer a worker or self-employed person shall retain the status of worker or self-employed person in the following circumstances

(a) he/she is temporarily unable to work as the result of illness or accident."

There follow other categories of person who retain their status despite loss of work. For present purposes the relevant provision is Article 7(3)(a) which as can be seen is duly repeated verbatim in Regulation 6(2)(a) of the domestic Regulations.

iv) Once a person has lived in the destination country for five years, qualifying throughout under Article 7, he achieves a right of permanent residence under Article 16. By Article 17, the same applies to those who have lived in the destination country for various shorter periods where they meet additional conditions, such as having passed the locally stipulated retirement age or having become permanently incapacitated. Articles 16 and 17 of the Directive are reflected in Regulation 15, read with Regulations 5 and 6.

14. The point in the present case can thus be stated shortly enough. It is whether the Reviewer was or was not entitled to determine, as she did, that Mr Samin was not "temporarily unable to work as the result of…illness."
15. It is to be noted that Article 7, whilst it refers to a worker who is "temporarily" unable to work, neither provides a definition of that word, nor contains any contrasting expression; in particular Article 7 nowhere refers to any inability to work which is "permanent". However, Article 17, in the context of claims to permanent residence, does. It is obvious that a right to reside permanently means a right to remain for ever. But Article 17 does not only use the word 'permanent' in that context. Article 17(1)(b) deals with the case of the worker who has resided in the destination country for less than five years but has suffered an incapacity to work which is "permanent"; such a person qualifies for permanent residence on the basis of shorter presence, and indeed qualifies automatically if the incapacity is the result of an accident at work. Thus the Directive does contain the juxtaposition, albeit not directly side by side, of the expressions "temporarily" and "permanent" in relation to incapacity to work. The same is true of the domestic Regulations, where Regulation 5(3)(a) similarly refers to "permanent incapacity to work", en route to the right to reside permanently.
16. Regulation 6(2)(a) has been considered in the English courts.
17. The point first arose in SSHD v FMB [2010] UKUT 447 in the Immigration and Asylum Chamber of the Upper Tribunal. There the question arose because the claimant was a member of the family of a Swedish citizen. She claimed the right of permanent residence under Regulation 15 on the basis of her father's status. Thus the case turned on whether he had been a qualifying person within Regulation 6 for the relevant period of 5 years. He had been a teacher for about two years and then had been unable to work through illness for nearly four years, when he became a student. The Immigration Judge who had heard the evidence had characterised father's absence from work as 'temporary'. The Upper Tribunal (Blake J) held that he was entitled to do so. In so holding, the Upper Tribunal accepted the argument that 'temporary' was to be contrasted with 'permanent', citing the appearance of the latter word in Article 17 and Regulation 5 (see above). It did not itself rule on whether the claimant's father was temporarily or permanently unable to work; it simply held that this was a question of fact and that the Immigration Judge had made no error of law in treating the inability as temporary. That certainly involved accepting that a four year absence from work may be capable of being temporary, but goes no further than that. It appears that the father was awaiting newly available prescription medication. It follows that the Upper Tribunal was not purporting to lay down any rule for when a condition is temporary and when it is permanent.
18. In De Brito v SSHD [2012] EWCA Civ 709 the relevant worker had given up work in July 2005 with a painful leg. In due course the condition was diagnosed as chronic osteomyelitis. After, but not before, the diagnosis, it was clear that his incapacity to work was permanent. He sought the permanent right to reside, relying on Regulation 15(1)(c), which would avail him only if he had achieved two years working residence before the permanent incapacity arose. The Upper Tribunal had held that the incapacity had been, objectively judged, permanent from the outset and thus that the claimant had not got the necessary two years qualification. It asked itself the question whether on all the available evidence there had been realistic prospects of the claimant returning to the labour market. The claimant's case before the Court of Appeal was principally that an absence is temporary when the claimant himself reasonably thinks it is. This Court disagreed and held that the test is objective. The court also adopted the dichotomy formulated in FMB between temporary incapacity on the one hand and permanent incapacity on the other, observing that which any particular case is amounts to a question of fact. It helpfully observed that (a) the fact that a person has not in fact worked does not necessarily mean that the incapacity is permanent; there might be another reason for not working, and (b) conversely what looks likely to be permanent incapacity may not be if for example one is waiting for surgery or new medication (as in FMB). It approved the testing of a temporary incapacity by asking whether there were realistic prospects of a return to work. It held that the Upper Tribunal had clearly been entitled to conclude that in this case the incapacity had always been permanent. There is no inconsistency between FMB and de Brito; each turns on its facts.
19. In Konodyba v Royal Borough of Kensington and Chelsea [2012] EWCA Civ 982 the claimant suffered from a paranoid personality disorder together with depression and anxiety. The personality disorder in particular meant that she was unable to engage with any care which might have helped. She had been in that condition for some four years. The Housing Act reviewer had determined that her inability to work was not temporary. This court held that he was entitled so to conclude. En route to that conclusion it too accepted the dichotomy between temporary and permanent incapacity, and the relevance of the test whether there was a realistic prospect of return to the labour market. Giving the judgment agreed by all members of the court, Longmore LJ said this:

"22. If a person is unlikely to be able to work in the foreseeable future there are no realistic prospects of her being able to return to work. Mr Stack went on to say: 'I cannot concur with your solicitor's view that your prospects of becoming self-employed in the foreseeable future is a realistic one.' I cannot think that Mr Stack's use of the words 'foreseeable future' connotes any error of law. After all…. no-one can be expected to peer into the unforeseeable future. It is also important that decisions of housing reviewing officers are not combed over to find errors of law when the same legal concept can be expressed in varying ways.

23. Ultimately the question whether Dr Konodyba was temporarily unable to work is a question of fact."

Mr Samin's argument

20. For Mr Samin, Mr Carter submits:

i) that the Reviewer did not ask the question whether there were realistic prospects of a return to work;

ii) that if she had done so, the answer would have had to be that there were such prospects; but

iii) that in any event that is the wrong question because the test to be gathered from the European jurisprudence is whether there is "any chance" of a return to work; and

iv) that if this court does not accept that last proposition, it ought to refer the question to the CJEU for determination there.

Decision

21. It is perfectly clear that, as Mr Carter says, the purpose of the Directive is to confirm and indeed enhance free movement of workers between member States. That is indeed shown by Recitals (1) to (3), on which Mr Carter relied heavily, and by others. There is no difficulty in accepting that it is an underlying principle of European law that the self-sufficient should be entitled to move freely, with their families, between member States. But as the recitals also show, this is not an unqualified principle. The qualification is that States are not obliged to make their separate and disparate social benefits schemes available to those who have come from other States unless it is incidental to their right to free movement for the purpose of supporting themselves and their families by work or otherwise. Recitals (1) – (3) cannot be read without reading also (10) & (16). The Directive does not give unlimited right of residence in State A to the citizens of State B. It insists on the right being given where, in essence, the citizen is self-supporting. In order to achieve this, it continues the right where there is temporary interruption to self-support, but not otherwise, at least until there has been 5 years' residence. That is underlined by the Court of Justice in two of the cases on which Mr Carter relied before us, and elsewhere. For example, in Ziolkowski v Land Berlin C-424/10, the Grand Chamber of the CJEU said this at paragraph [40]:

"…for periods of residence of longer than three months, the right of residence is subject to the conditions set out in Article 7(1) of Directive 2004/38 and, under Article 14(2), that right is retained only if the Union citizen and his family members satisfy those conditions. It is apparent from recital 10 in the preamble to the Directive in particular that those conditions are intended, inter alia, to prevent such persons becoming an unreasonable burden on the social assistance system of the host Member State."

The fifth chamber made a similar observation in Orfanopolous v Land Baden-Wurttemberg C-482/01; [2005] 1 CMLR 18 at [49]:

"So far as concerns migrant workers who are nationals of a Member State, their right of residence is subject to the condition that the person remains a worker or, where relevant, a person seeking employment, unless they derive that right from other provisions of Community law."

22. Mr Carter contends that the "any chance of return to work" test derives from a succession of cases, namely Bozkurt v Staatssecretaris van Justitie C-434/93 (6 June 1995), Nazli v Stadt Nurnberg C-340/97 (10 February 2000), and lastly Dogan v Sicherheitsdirektion fur das Bundesland Vorarlberg C-383/03, [2005] 3 CMLR 45 (7 July 2005). None of those cases addresses the meaning of Article 7(3)(a) of the Directive; indeed none of them concerns the Directive at all. They do concern the bi-lateral treaty between the EU and Turkey and the terms on which Turkish workers can work in Member States, which are set out in Decision 1/80 of the Association Council (19 September 1980). Under Article 6 of that Decision, a Turkish worker who is duly registered as belonging to the labour force of a Member State gains progressively stronger rights to take employment as his period of working there lengthens. After one year's employment he is entitled to renewal of his permit to work so long as he stays with the same employer. After three years' employment he has a qualified right to take work with a different employer in the same occupation. After four years' employment, he has the right to take paid work of any kind. Nowhere does the Decision scheme use the expression 'temporary'. There is, however, a provision in Article 6 that annual holidays "and absences for reasons of maternity or an accident at work or short periods of sickness" shall be treated as periods of legal employment, whilst "long absences on account of sickness" shall not.
23. To these three cases, Mr Carter added Orfanopoulos v Land Baden-Wurttemberg (supra; 29 April 2004). That did concern the Directive (or, strictly, its predecessors). It principally concerned the rules for expulsion on public policy grounds but Mr Carter submits that principles applicable to Article 7(3)(a) can be derived from it.
24. In Bozkurt a Turkish international lorry driver was held to be employed in the Member State (the Netherlands). He was, however, undoubtedly permanently disabled from work. The question asked of the Court was:

"..does the Turkish worker retain that right of residence….if he becomes permanently and completely incapable of work ?"

The answer to that was 'no', plainly because the Decision provided a right to work and not a general right to migrate or reside. In giving that answer at [39] the court did hold that Article 6 of the Decision did not cover a Turkish worker who has "definitively ceased to belong to the labour force of a Member State", and it did refer, by contrast, to the provisions of Article 6 dealing with "short periods" of sickness. It was not, however, in any sense concerned with where the line between short periods and long periods of sickness fell to be drawn, because the accepted fact was that Mr Bozkurt was permanently and completely disabled. In any event, the terms of Article 6 of the Decision are not identical to those of Article 7 of the Directive.

25. Nazli concerned a Turkish worker who had resided and worked in Germany for well over ten years and had under Article 6 of the Decision an unfettered right to work in any field. He had been convicted of a drugs offence for which a suspended sentence had been passed after a period of about a year's remand in custody. The question was whether his right to work and to reside in order to do so had been forfeited by the period on remand. The answer was that it had not. At [38] the court treated the period on remand as a temporary incapacity to work. At [44] it held that once the indefinite right to work had arisen under Article 6 of Decision 1/80 it was not forfeited by such temporary incapacity although it would be by a person who "definitively ceased to be duly registered as belonging to the labour force". It would also, it held, be forfeit if the person concerned did not find a new job within a reasonable time.
26. Orfanopoulos concerned two EU citizens, each with very long residence indeed in Germany, who had been sent to prison for criminal offences; both were long-standing drug addicts. Germany had a domestic provision for automatic removal of those who had been sentenced to terms beyond a particular threshold. The issue was whether such a provision conformed to European law and in particular to the limited powers of expulsion on public policy grounds. The CJEC held that automatic expulsion did not conform; there had to be individual case by case consideration. Mr Carter points out that in the course of a preliminary review of the legal position, the Court referred at [50] to Nazli and to the fact that imprisonment does not mean that the prisoner does not continue to belong to the labour force of the Member State, provided that he actually finds another job within a reasonable time after release. He adds that the court observed at [64] that the principle of freedom of movement for workers must be given a broad interpretation.
27. Orfanopoulos was decided under the predecessors of the Directive with which the present case is concerned. They provided for migration rights for EU citizens in a form similar to the present Directive, but not for the right of permanent residence after five years which now arises under Article 16 (see [13(iv)] above). It follows that it is correct that the citizens under consideration in Orfanopoulos were, like Mr Samin, dependent on their rights as workers.
28. Dogan was another imprisonment case involving a Turkish worker. Mr Dogan had lived and worked in Austria for no less than 27 years. He had been sentenced to three years' imprisonment. Just as in Nazli, the question was whether he had thereby forfeited his unlimited right to work under the Decision. Nazli was applied and the answer was likewise that he had not. Mr Carter relies upon [23] where the court said this:

"…except where the person concerned has definitively ceased to be duly registered as belonging to the labour force of the host Member State because objectively he no longer has any chance of rejoining the labour force or has exceeded a reasonable time-limit for finding new employment after the end of his prison term, the national authorities can restrict the rights which he derives from Article 6(1), third indent, of Decision 1/80 as regards residence and employment only on the basis of Article 14(1)…"

The emphasis is supplied to identify the origin of Mr Carter's proposition that the European jurisprudence establishes that the test of what is temporary inability to work for the purposes of Article 7(3)(a) of the Directive is whether there is an absence of "any chance" of return to work.

29. However, at [15] the Court emphasised that Mr Dogan had accrued rights to take work of any kind indefinitely. It said that it is only during the phase in which rights are being acquired under Article 6 of the Decision (by lawful employment for the various qualifying periods) that the effect of interruptions fall to be considered. It is to be noted that Mr Samin's case is one arising during the period of acquisition of rights. On the other hand, the court re-iterated the proposition that in order to retain worker status a person whose work is interrupted must succeed in finding another job within a reasonable time of the interruption coming to an end. Dogan is therefore a long way from a decision on the specific words of Article 7(3)(a) of the Directive: "temporarily unable to work as a result of illness or accident."
30. None of these cases involved any attempt to construe those particular words, with which we are here concerned. There is, however, some general assistance to be derived. It is clear that European law attaches considerable importance to the broad interpretation of the right of free movement for workers. It follows from the cases that incidental interruptions in employment do not undermine the retention by workers of their status as such. The approach to imprisonment, which is not specified in Article 7, illustrates this; unsurprisingly, the approach to imprisonment is the same for the EU citizen relying on the Directive as for the Turkish worker relying on Decision 1/80. It is, however, the continuation of the status of worker which is the key to the rights under Article 7; that is apparent for example from the (judicial) rule frequently repeated that a worker would cease to be such if, after a temporary interruption to work by imprisonment, he failed to obtain another job within a reasonable time. Next, the European cases support the antithesis which emerges from the English cases between temporary interruptions in employment on the one hand and permanent interruptions on the other. Thirdly, although these cases were not cited to the English courts in de Brito or Konodyba, they are entirely consistent with the approach there set out, which is that it is normally sensible to ask whether there is a realistic prospect of the individual returning to work. Although Mr Carter would have us substitute the question whether there is "any chance" of his doing so, he did not contend that any chance, however remote or improbable, would suffice, nor that a worker remains temporarily unable to work until all possibility of a return to work has been eliminated. Indeed, so to hold would expand 'temporary' inability to work to almost every case. The passing reference to "any chance" in Dogan was clearly not meant to be a definitive test for the meaning of Article 7(3)(a), but there is in the end no difference of any significance between Mr Carter's formulation and that of de Brito and Konodyba.
31. This court is bound by de Brito and Konodyba. We have considered the European cases in some depth because they were not referred to in either decision. If, having done so, there remained a doubt about the proper approach to the meaning of Article 7(3)(a) we ought to refer it to the CJEU. It is important that the application of domestic provisions based on Article 7(3)(a) should be applied consistently across the Union. There is, however, no room for any sensible doubt. The Article, and Regulation 6(2)(a) of the domestic Regulations, contain a specific test, namely whether the interruption is a temporary one or is not. Temporary is to be contrasted with permanent. The question is one of fact in every case; plainly the circumstances which will fall to be examined will vary infinitely. It will generally be helpful to ask whether there is or is not a realistic prospect of a return to work. It will generally not be helpful to ask if the interruption is indefinite; an indefinite absence from work may well not be temporary, but it might be, for example if an injured man is awaiting surgery which can be expected to restore him to fitness to work, but the date when it will be available is uncertain. This approach to the legislation, explained in de Brito and Konodyba, is entirely consistent with the objectives of the Directive as explained in its recitals and in the European cases.
32. There is considerable danger in substituting a different expression for the words which have been, deliberately, used in the Directive and the domestic Regulations. The danger is illustrated by Mr Carter's submission that, on the assumption that de Brito and Konodyba correctly asked the question whether there were reasonable prospects of a return to work, that entailed the adoption of Swain v Hillman [2001] 1 All ER 91. In that case, this court had to consider the provisions of the Civil Procedure Rules which deal with the circumstances in which a party to litigation can, in effect, be prevented from continuing by summary judgment or, on application to appeal, by refusal of permission. The expression used in the Rules is "real prospect" of succeeding. In that context, in Swain v Hillman this court held that a real prospect is to be contrasted with a fanciful one. Mr Carter suggested that this gloss on the words of the Civil Procedure Rules ought to be read across to the question asked in de Brito and Konodyba whether there were "realistic prospects" of a return to work. That would, however, be a gloss on a gloss and is simply not helpful. The context is different. Whether a litigant is sufficiently meritless to be driven from the seat of judgment is not the same as whether an EU citizen retains the status of worker. There may in many cases, and probably in this one, be no difference between a realistic prospect of a return to work and a prospect which is not a fanciful one, but the test in the legislation, both English and European, is the simpler one of whether the interruption to work is temporary or not: no more, no less.
33. For the same reason Mr Carter's further submission, that when answering the question one should have regard to the degree of integration which the worker has achieved, should be rejected. Of course it is true that the underlying principle of the European and English legislation alike is to accord rights of increasing strength as the integration of the EU citizen progresses. That is the principle which underlies the sliding scale of rights set out in the Directive and summarised at [13] above. So, where the question arises whether the generally stated power of expulsion on public policy grounds is exercisable or not, it is plainly right to take into account the level of integration and this is expressly stipulated by Article 28 of the Directive. But this general principle is already given effect by the specific provisions of Article 7. There is no occasion to add it as a further step required of those whose job it is to determine whether an absence from work is temporary or not, and to do so would both complicate their task and render outcomes potentially inconsistent. The Article 7(3)(a) question will after all normally arise only in the case of a limited class of integration, namely those who have been in the destination State for something more than three months but less than five years.
34. In the present case, the Reviewer did not specifically ask herself whether Mr Samin's inability to work was permanent or not, nor did she expressly pose the question whether there was a realistic prospect of his returning to work. That was because the decisions in de Brito and Konodyba were not then available to her. She asked herself the statutory question, namely whether his inability to work was or was not temporary. That was the right question. The Judge was right to hold that, in the context of this case, her decision that it was not temporary was also a decision that it was permanent. Moreover, if she had posed the question in terms of a realistic prospect of return to work, her decision would undoubtedly have been the same. Mr Samin has, sadly, scarcely worked at all in the time he has been in the UK. His principal disabling illness is plainly of very long standing and the prospect of it changing after more than twenty years sufficiently to get him into work can only be regarded as unrealistic. Treatment has been tried and has failed. Ms Smit's rather theoretical reference to "support from a suitable agency", even then only in the uncertain and undefined future, does not alter this fact when there is neither agency nor support and no plan which has any realistic prospect of altering Mr Samin's condition to one in which he is fit for employment. It is wholly unrealistic, and therefore legally wrong, to categorise Mr Samin as a worker who is continuing to exercise his occupation but temporarily interrupted by illness.
35. It is a melancholy truth that this decision does necessarily remove from Mr Samin support from which he would greatly benefit. That is, however, the inevitable consequence of the carefully calculated scheme of the Directive. Given that permanent incapacity to work which arises before two years of work have been accomplished will generally mean that the claimant is not entitled to most of the benefits of the State in which he wishes to settle, it will inevitably happen that those in greatest need of support (ie those who are permanently unable to work) will be those who are not entitled to it in the new country, although they remain entitled to the support systems available in their own country. Mr Samin would undoubtedly be a very significant call on the social benefits systems of the UK if he were entitled to them. In fact, however, he is not.
36. For these reasons, I would dismiss this appeal.

Lord Justice Etherton:

37. I agree.

Lord Justice Tomlinson

38. I also agree.