Supreme Court

Mirga v Secretary of State for Work and Pensions (Secretary of State for Communities and Local Government and another intervening)

Samin v Westminster City Council

[2016] UKSC 1; [2016] WLR (D) 33

2015 March 9, 10

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Reed JJSC

European Union — Freedom of movement — Right to reside — Equal treatment — Polish citizen not acquiring right to reside under workers registration scheme and refused income support — Whether national legislation excluding European Union citizens from social assistance benefits despite such benefits being available to nationals of host state in breach of fundamental rights of European Union citizens — Whether European Union legislation precluding national legislation — Income Support (General) Regulations 1987 (SI 1987/1967) — Parliament and Council Directive 2004/38/EC — FEU Treaty, art 21(1)FEU

Local government — Homeless persons — Migrants from European Union member states — Austrian citizen entering United Kingdom to reside — Health problems adversely affecting ability to work — Local authority refusing application for housing as homeless person after eviction from private tenancy — Whether entitled to housing as European Union migrant — Housing Act 1996 (c 52), Pt VII — Parliament and Council Directive 2004/38/EC — FEU Treaty, art 18FEU


The claimant in the first case was born in Poland in 1988 and following Poland’s accession to the European Union she came to live in the United Kingdom with her parents and siblings in 2004. From April to November 2005 she was employed in work which was registered work within the meaning of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219). In February 2006 she became pregnant and she did unregistered work for three months. In August 2006 she claimed income support under the Income Support (General) Regulations 1987. The Secretary of State refused the claim and the First-Tier Tribunal upheld that decision. The Upper Tribunal affirmed the decision of the Secretary of State on the ground that the claimant did not have a right of residence in the United Kingdom since she had not performed registered employment for a continuous period of at least 12 months and was therefore excluded from income support. The Court of Appeal upheld the decision of the Upper Tribunal. The claimant appealed on the ground that she was a worker whose work had been temporarily interrupted by her pregnancy and that there was a violation of her right to reside freely within a member state as accorded by art 21(1) FEU of the FEU Treaty since by the denial of income support she would be forced to return to Poland.

The claimant in the second case was born in Iraq in 1960. In 1992 he successfully claimed asylum in Austria and in 1993 he was granted Austrian citizenship. He came to the United Kingdom in 2005 and for ten months he worked occasionally, mainly in part time employment. He did not work after 2006 and ceased to look for work in 2007. In 2010 he applied to the local authority under Part VII of the Housing Act 1996 for housing as a homeless person. The local authority refused his application on the ground that he was a person from abroad who was not eligible for housing assistance because he did not have the right of residence in the United Kingdom. That decision was affirmed by the county court and by the Court of Appeal. The claimant appealed on the ground that the refusal to provide him with housing assistance constituted “discrimination on grounds of nationality” which was prohibited by article 18FEU of the FEU Treaty.


On the claimants’ appeals —

Held, appeals dismissed. (1) The right accorded by article 21(1)FEU of the FEU Treaty, although fundamental and broad, was qualified and was subject to conditions and limitations and to measures adopted to give them effect including Parliament and Council Directive 2004/38/EC. A significant aim of the Directive was that European Union nationals from one member state should not be able to exercise their right of residence in another member state so as to become an unreasonable burden on the social assistance system of another member state. Rights of residence after three months were limited to those who were workers, job-seekers. self-employed, students or who had sufficient resources and health insurance so that they did not become a burden on the social assistance system of the host member state. The right of European Union citizens to equal treatment in host member states was subject to secondary law, and social assistance could be refused where appropriate. Neither claimant had worked for 12 months in United Kingdom and therefore they could not claim to be workers, nor were they jobseekers, self-employed, students or self-sufficient, and so hey could validly be denied a right of residence and therefore could be excluded from social assistance under article 21(1)FEU. Although the denial of social assistance might cause the claimant in the first case to leave the United Kingdom there was no question of her being expelled from the United Kingdom. Even if a refusal of social assistance resulted in a European Union citizen leaving a host member state, the Directive could not be read as treating that as a species of constructive expulsion. The Directive distinguished between the right of residence and an act of expulsion. The right of residence was not intended to be available too easily to those who needed social assistance from the host member state. Article 18FEU did not constitute a broad general right not to be discriminated against and it only came into play when there was discrimination in connection with a right in one of the Union treaties. Therefore it was clear that neither claimant was entitled to income support and housing assistance respectively (paras 43 – 47, 56, 57).

(2) Where a national of another member state was not a worker, self-employed or a student, and had no, or very limited, means of support and no medical insurance, it would severely undermine the whole thrust and purpose of the Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence or the right against discrimination was invoked. However, even if there were an exceptional category of cases where proportionality could come into play, neither of the claimants came within it, so the appeal on the grounds of proportionality also failed (paras 69, 70).

Cases considered

Dano v Jobcenter Leipzig (Case C-333/13) [2015] 1 WLR 2519, ECJ and Jobcenter Berlin Neukolln v Alimanovic (Case C-67/14) [2016] 2 WLR 208, ECJ applied.

Baumbast v Secretary of State for the Home Department (Case C-413/99) [2003] ICR 1347, ECJ distinguished.

Pensionsversicherungsanstalt v Brey (Case C-140/12) [2014] 1 WLR 1080, ECJ considered.

Appellate history

Decisions of the Court of Appeal [2012] EWCA Civ 1468, [2012] EWCA Civ 1952 affirmed.


Richard Drabble QC and Zoe Leventhal (instructed by Public Law Project) for the claimant in the first case.

Richard Drabble QC and David Carter (instructed by Miles & Partners LLP) for the claimant in the second case.

Jason Coppel QC and Amy Rogers (instructed by Treasury Solicitor) for the Secretary of State for Work and Pensions and for the Secretary of State for Communities and Local Government, intervening.

Ian Peacock (instructed by the City Solicitor, Westminster City Council) for the local authority.

Marie Demetriou QC and Jennifer MacLeod (instructed by Ashurst LLP) for the AIRE Centre, intervening.

Reported by: Shiranikha Herbert, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.