Rules denying housing assistance to EU former workers not discriminatory

Tuesday 29 March 2016

Samin v Westminster City Council, Mirga v Secretary of State for Work and Pensions [2016] UKSC 1, [2016] 1 WLR 481, SC.

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Samin v Westminster City Council, Mirga v Secretary of State for Work and Pensions [2016] UKSC 1, [2016] 1 WLR 481, SC.

S was an Austrian citizen who came to the UK in 2005. He worked sporadically for ten months, mostly in part-time employment, but stopped work in 2006 owing to various physical and mental health problems. In 2010 he applied to Westminster as homeless. Westminster refused to assist him on the footing that he was not eligible for assistance within the meaning of s185 Housing Act 1996. This decision was upheld on review and on appeal.

The Court of Appeal dismissed a second appeal holding that S did not have a right of residence under the Immigration (European Economic Area) Regulations 2006, SI 2006/1003: he had not retained his ‘worker’ status for the purposes of those regulations as there was no realistic prospect of his return to work and so he could not be regarded as ‘temporarily unable to work’ within the meaning of regulation 6(2)(a).

S appealed, arguing that the refusal to provide him with homelessness assistance constituted ‘discrimination on grounds of nationality’ which was prohibited by article 18 TFEU and that the denial of assistance in his case was disproportionate. The Supreme Court dismissed his appeal. Article 18 did not confer a general right not to be discriminated against and was limited to ‘the scope of application of the Treaties’.

An EU citizen can claim equal treatment with the nationals of an EU country only if he or she is able to satisfy the conditions for lawful residence in that country. Since S was not a worker, he was not exercising his treaty rights, did not have a right to reside under Immigration (European Economic Area) Regulations 2006 and could not avail himself of the anti-discrimination provisions. The question of proportionality did not arise.

Click here for the judgment.

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