Mirga v Secretary of state for Work and Pensions

This is an appeal from the decision of the Upper Tribunal (Administrative Appeals Chamber: Upper Tribunal Judge Rowland) with permission granted by Kitchin LJ on 14 June 2012. The Upper Tribunal set aside the decision of the Wakefield appeal tribunal of 23 July 2007 but substituted its own decision to the same effect, namely that the appellant is not entitled to Income Support from 4 August 2006. Mr Drabble QC on the appellant's behalf seeks to have this determination overturned, essentially on the ground that it violates the principle of proportionality as vouchsafed by the law of the European Union.

Granting permission to appeal Kitchin LJ summarised the background of the case as follows:

On 11 November 2006 the Secretary of State refused the application for Income Support. The Upper Tribunal described the ground of refusal as follows:

“She was a 'person from abroad' with an applicable amount of nil because she had no right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland, with the consequence that she could not be treated as habitually resident in any of those territories (see regulations 21 and 21AA of the Income Support (General) Regulations 1987”

The statutory route to this decision may be explained as follows:

This appellant does not on the face of it have a right to reside within the meaning of regulation 21AA(2). She is what is called an "A8 national": that is, a national of one of the ten new member states other than Cyprus and Malta which acceded to the European Union on 1 May 2004 by force of the Treaty on Accession signed at Athens on 16 April 2003. The treaty was implemented in domestic law by the European Union (Accessions) Act 2003.

Under the Accession (Immigration and Worker Registration) Regulations 2004 (the A8 regulations) a national of an A8 state working in the United Kingdom during the accession period is an accession state worker requiring registration (see regulation 2.1). He ceases to be an accession state worker requiring registration if he works legally in the United Kingdom without interruption for a period of 12 months falling wholly or partly after 30 April 2004 (regulation 2.4), but he will only be treated as working legally in the United Kingdom during that period if he is working for an authorised employer (regulation 2.7B). Then regulation 5.2 provides:

The appellant was not working for an authorised employer at the time when she applied for Income Support, nor as I understand it had she by then completed 12 months’ registered employment so as to take her outside the requirements of the Workers Registration Scheme (“the WRS”) under the A8 regulations. She did not have, as I have said, on the face of it a right of residence under regulation 21AA(2) of the Income Support Regulations because she was not a worker (see regulation 6 of the Immigration EEA Regulations 2006 implementing the Citizenship Directive). She was therefore a "person from abroad" not being taken out of that class by regulation 21AA(4)(f)(i) of the 1987 regulations; hence the refusal of Income Support.

Mr Drabble submits that this result was disproportionate and therefore offensive to European Union Law on the facts of the appellant's case. As for those facts, this is what he says in his grounds and skeleton:

I should add that in the end it was at the centre of Mr Drabble's submissions to us today that were his client to be required to return to Poland, it is possible that she might suffer breaches of Article 7 of the European Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (in short, the rights to private and family life) by virtue, putting it broadly, of having her life in the United Kingdom together with that of her small child disrupted after so long a residence here. I will return to that.

An assault, in part on proportionality grounds, on the Workers Registration Scheme relating to A8 nationals was made in Zalewska v Department of Social Development [2008] 1 WLR 2602 in the House of Lords. That case also concerned a Polish national. She sought employment in Northern Ireland. At length she was refused Income Support. Though she had been in employment in the United Kingdom without interruption for 12 months over the relevant period, she had at one stage failed to reregister with a new employer and therefore had not for the whole of the time worked for an authorised employer.

On the proportionality issue Lord Hope of Craighead said this at paragraph 31:

In his skeleton argument for the Secretary of State (paragraph 29) Mr Coppell cites these passages from Lord Hope's speech in Zalewska:

It was accepted by the appellant in Zalewska that the aims of the WRS were legitimate. Lord Hope, with whom Lord Carswell and Lord Brown agreed, held that the requirement to register a first employment and to reregister upon a change of employment was proportionate to these aims (see paragraphs 36 and 44) as was the consequence of a failure to register, namely the denial of access to Income Support. What Lord Hope called the "debatable ground" on the proportionality issue was in fact quite narrow. Mr Drabble was only attacking the requirement that A8 nationals must reregister on a change of employment within 12 months (see paragraph 37), but it is plain in my judgment that their Lordships in the majority upheld the proportionality of the scheme as a whole. Referring to an earlier decision of Commissioner Rowland, now Upper Tribunal Judge Rowland who sat in the Upper Tribunal in the present case, Lord Hope said this:

“44.

…I think that he was right to have regard to the need for a system which imposed some degree of pressure on A8 state nationals to register their employment, on the desirability of up-to-date statistics and means of verification, and on the problems that devising other possible sanctions for a failure to register or re-register might give rise to. The right that the Accession Treaty gives to regulate access to the labour market during the accession period carries with it the right to ensure that the terms on which access is given are adhered to. Regulation of the right of access and monitoring its exercise are appropriate and necessary consequences of making that right available. Furthermore, it does not seem to me that there is any difference in principle between the consequences of late registration, which have not been criticised as disproportionate, and those that flow from a failure to re-register. They are the result, in both cases, of the same basic failure. The terms on which access is given have not been adhered to, so the rights that flow from it are not available. This may come with a cost, depending on the person's circumstances. But, for the reasons that the Commissioner gave and the other reasons that I have mentioned in the previous paragraphs of this opinion, I do not think that the consequences in either case when examined in their whole context are unreasonable or disproportionate.”

Lord Brown made it crystal clear that his reasoning was directed to the scheme as a whole. In paragraph 65 he said:

In his skeleton argument Mr Drabble asserted that Zalewska had to be considered in light of the judgment of the Court of Justice of the European Union in Rottmann [2010] ECR 1-000. In that case the court upheld a Member State's right to withdraw the nationality of that state from a citizen of the EU on the ground that it had been obtained by deception provided that the decision to withdraw observed the principle of proportionality. Mr Drabble cited paragraph 5 of the court's judgment in Rottmann which, with respect, I need not read, given the thrust of the argument as it has been conducted before us today. The submission was formulated in the Practice Direction Statement at paragraph 18 thus: the Upper Tribunal in the present case was bound to consider whether the refusal to recognise a right of residence and/or the refusal of Income Support was proportionate in the particular circumstances in which the appellant found herself. Zalewska, it was said, should be regarded as directed to that claimant's circumstances, and so regarded it falls to be distinguished from the present case.

It is in my judgment wholly impossible to read Zalewska as an ad hominen decision. As I have shown, the majority were addressing the WRS in principle. In fairness Mr Drabble in his oral submissions today did not with any emphasis submit otherwise.

I add this. The argument, as it was originally advanced, would surely mean that any refusal of Income Support for a failure of full compliance by an A8 national with the terms of the WRS would potentially be subject to challenge on proportionality grounds by reference to the individual facts. That would, to say the least, gravely undermine the scheme and plainly cannot stand with the Zalewska decision.

However, today Mr Drabble puts the matter somewhat differently. He seeks to rely, as I have anticipated, on his client's fundamental rights as now enshrined in Article 7 of the Charter and Article 8 of the Strasbourg Convention; in short, the right to respect for private and family life. This was centre stage in his argument. This is how he put it. He founded principally on Article 20 of the EC treaty, from which there is no derogation in the accession treaty. Article 20.1 and 2 provide as follows:

Mr Drabble submitted that the United Kingdom could only deny his client a right of residence as they have done if it was contemplated that she would, or could at any rate, be returned to Poland; but in her circumstances that might violate Article 7 of the Charter or Article 8 of the Convention. In order to ascertain whether such violations would occur it would be necessary to restore the matter to the tribunal for relevant facts to be found. However, on the premise that there might be such violations, the denial of a right of residence, submitted Mr Drabble, must be unlawful. The appellant ought therefore to be treated as having a right of residence under and for the purposes of regulation 21AA(ii) of the 1987 General Regulations. Mr Drabble criticised Upper Tribunal Judge Rowland for failing to confront this analysis, and in effect side-lining the fundamental rights issues as if they were matters only for decision by the immigration authorities.

Mr Drabble's submission means that the WRS scheme would be legally ineffective in relation to any person whose return to their home state would or might violate such fundamental rights as are given by Article 7 or Article 8. I should notice that while legal effect was only given to the charter by the Lisbon treaty and that postdated the appellant's claim for Income Support, nevertheless it is clear -- and Mr Drabble drew our attention to this -- that the fundamental right to family life is one of the principles of EU law: see Zambrano [2011] Vol II Common Market Law Reports 46 at paragraph 54, Advocate General Sharpston's opinion citing Carpenter [2002] Vol 2 CMLR 64. See also Dereci [2012] 1 CMLR 45 at paragraph 69. Mr Drabble draws attention moreover to Baumbast [2002] 3 CMLR 23, in particular at paragraphs 91 and 93. At paragraph 91 the court said:

Mr Drabble submits in short that to insist on the full rigour of the WRS provisions in a case such as that of his client, and accordingly deny her the status of a right of residence under Article 20, risks being disproportionate in the event that her return to Poland would involve a violation of the fundamental rights to which I have referred.

I have considered whether this argument ought to be entertained at all; it was not run before the first tribunal, or indeed in truth before the Upper Tribunal, at least in the developed form now presented to us by Mr Drabble. No facts have been found on the merits of any actual or potential violation of Article 7 or 8. In Miskovic [2011] EWCA Civ 16 Elias LJ said this at paragraph 69:

Despite these difficulties I have, for my part, concluded that we ought to address Mr Drabble's argument in principle. Other cases may arise engaging the same regime following the accession treaty, although as I have said the transitional period is now long completed.

It seems to me that a useful starting point in considering these submissions is what was said by Maurice Kay LJ in Kaczmarek [2008] EWCA Civ 1310 at paragraph 5:

“The provisions are labyrinthine but, to cut a convoluted story short, she [the appellant] was a "person from abroad" pursuant to paragraph 17 of Schedule 7 to the Income Support (General) Regulations 1987 and, although her presence in this country was lawful - unless and until removal pursuant to regulation 21(3) of the Immigration (European Economic Area) Regulations 2000 [now regulation 19 of the Immigration European Economic Area Regulations 2006] — she did not enjoy the right to reside here at the material time because she was not a "qualified person" as defined by regulation 5 of the 2000 Regulations [Regulation 6 of the 2006 regulations]. To be qualified, she would have had to be, for example, a worker, a self-employed person, a self-sufficient person or a student at the material time and she was not. In short, her lack of a right to reside (which is not the same as lawful presence) disqualified her from access to income support. Essentially, domestic legislation confined qualification to EEA nationals who are economically or educationally active or otherwise self-sufficient. Those who do not qualify are able to remain here lawfully but subject to removal.”

The importance of this passage for the purposes of addressing Mr Drabble's argument is the distinction there made between lawful presence in this country and a right to reside here. This appellant was lawfully present until and unless removed under regulation 19 of the 2006 regulations. That provides by paragraph 3:

The appellant then was lawfully present under the 2006 regulations and, as it happens, was not removed, nor was any step taken to remove her under regulation 19; but she did not have a right to reside under regulation 21AA(2) of the General Regulations. That was because she was not a "qualified person" under regulation 6 of the EEA regulations, not being a worker. If the Home Office had sought to remove her, it is common ground that she would have enjoyed a right of appeal against the decision to remove, at which she would have been entitled to raise any argument available to her based on fundamental rights arising out of European Union Law or the law of the Strasbourg Convention. However, in my judgment none of this requires that she be accorded a right of residence within the meaning of regulation 21AA of the General Regulations 1987. In short, the protection of her fundamental rights did not require that she be accorded such a "right of residence".

These further points are important and should be noted. The provision of social security is not a characteristic of the Article 8 right (see the case of Carson [2003] EWCA Civ 797 paragraphs 26 to 28), though it is fair to say, and I have already referred to it in passing, that Mr Drabble's assertion is not that the deprivation of Income Support itself would constitute a violation of her fundamental rights but rather the disruption of her life in the United Kingdom. However, all that would depend on evidence if the matter were gone into.

I note also what was further said by Maurice Kay LJ in Kaczmarek at paragraph 22. Maurice Kay LJ, citing the Commissioner in the Kaczmarek case, said this:

Moreover, it seems to me that in the end Mr Drabble's submissions, ingenious though they undoubtedly are, cannot effectively withstand Zalewska. As I have said, the House of Lords there held that overall the WRS regime was proportionate to the aim in view. It was submitted in Zalewska that the consequences of applying the full rigour of the regime to Mrs Zalewska would be very harsh. That did not, however, prevail, and it did not prevail because the proportionality of the regime was upheld in general. So far as Mr Drabble submits today that someone in his client's position is left in what he called a legal limbo not having a right to reside, that is an appeal to hardship which in my judgment cannot survive the Zalewska decision.

Mr Drabble also submitted that the justification in the case of Patmalniece [2011] Vol 1 WLR 783 of indirectly discriminatory provisions concerning right to residence, namely a justification based on the avoidance of benefit tourism, cannot run where the appellant's return to her home country would violate fundamental rights. But the legislation concerning rights to residence was generally justified in Patmalniece, certainly by reference to the benefit tourism issue; however it remained so justified whether or not the individual could or should be regarded as a benefit tourist.

In sum, I consider that the answer to this case rests firstly in the Zalewska decision and secondly in the distinction drawn by Maurice Kay LJ between lawful presence and right to reside. I pay tribute to the tenacity and ingenuity of Mr Drabble, but for the reasons I have given I would dismiss the appeal.

I agree.

I also agree.