Eligibility decision not discrimination or disproportionate

The UK Supreme Court recently considered issues around eligibility of certain foreign nationals for certain benefits and housing assistance.

In Samin v Westminster City Council [2016] UKSC 1 the Supreme Court dismissed the appeal which sought to incorporate a proportionality requirement into the statutory test for eligibility, and to argue that the test itself was discriminatory under EU law.

Person from abroad who is not eligible for housing

Mr Samin was born in Iraq, but was subsequently granted Austrian citizenship. Following the breakdown of his marriage, he moved to the UK, where he worked sporadically, often in part-time employment. On losing a tenancy which he had occupied for four years, Mr Samin applied to the council for homelessness assistance. Mr Samin had not worked since 2006 and had not actively sought work since 2007. After making inquiries, the Council found that he was a person from abroad who is not eligible for housing assistance. This decision was upheld on review and was, eventually, upheld by the Court of Appeal.

A doctor’s report described Mr Samin as “socially isolated and (suffering)… from poor mental health, principally from clinical depression and post-traumatic stress disorder. Having attempted to kill himself in the past, he remains a moderately high risk of suicide in the medium term. He also suffers from diabetes, hypertension and kidney stones, and he needs physiotherapy”.

Relevant legislation

This case concerned The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006. The equivalent legislation in Northern Ireland is The Allocation of Housing and Homelessness (Eligibility) Regulations (Northern Ireland) 2006, which limit entitlement to housing accommodation and housing assistance in Articles 3 and 4. Eligibility cases also require consideration of The Immigration (European Economic Area) Regulations 2006.

The appellant’s case also relied on Article 18 and Article 21 of The Treaty on the Functioning of the European Union (TFEU).  Article 18 prohibits any discrimination on grounds of nationality in so far as it is within the scope of the Treaties.  Article 21 guarantees every citizen of the Union the right to move and reside freely within the territory of the member states “subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect”

EU Directive 2004/38/EC (“the 2004 Directive”) is concerned with the right of citizens of the Union and their family members to move and reside freely within the territory of the member states” and includes the provision that persons exercising their right of residence  should not become “an unreasonable burden” on the host member state

Was refusal to provide assistance unlawful discrimination and proportionate?

Mr Samin’s argument to the Supreme Court was twofold:

1. Mr Samin argued that the refusal of housing assistance to him constituted unlawful discrimination in breach of article 18 of the TFEU, even though he may not have had a right of residence in the UK and
2. Mr Samin argued that there should have been an investigation as to whether it was proportionate to refuse him housing assistance, in particular on the ground that it represented an unreasonable burden of the UK social assistance system.

The Supreme Court unanimously rejected the appeal on both grounds.

It held that the Article 18 right, which Mr Samin relied on, “does not constitute a broad or general right not to be discriminated against. First, its ambit is limited to “the scope of the Treaties”, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU Treaty. Secondly, the article 18 right is “without prejudice to any special provisions contained [in the Treaties]”.

The Court held that “Where a national of another member state is not a worker, self-employed or a student, and has no, or very limited, means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Samin), it would severely undermine the whole thrust and purpose of the 2004 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 indeed the right against discrimination) was invoked.

The right against discrimination on grounds of nationality conveyed by Article 18 of the Treaty on the Functioning of the European Union (TFEU) is not a broad or general right and is limited to the scope of the Treaties and subject to other provisions contained in the Treaties. Once it has been established that an authority is entitled to refuse assistance under domestic legislation, the authority is not obliged to carry our further investigations in to the proportionality of its decision.

Learning points for advisers and caseworkers

Although this appeal was dismissed, the judgment leaves open a possibility that, in some “exceptional circumstances” or “extreme cases” proportionality could come in to play.

As a Supreme Court decision, this judgment is binding on decision makers in Northern Ireland.

It is often difficult to determine the eligibility of foreign nationals to social assistance, including homelessness assistance.  Housing Rights provides a valuable training course focusing on the various pieces of legislation in this area and looking at the developing case law which will influence and inform decisions on eligibility.  The course will next run in June 2016.  Contact Housing Rights on 028 9024 5640 to find out more or reserve a place.