Court of Appeal
Published December 4, 2008
Kaczmarek v Secretary of State for Work and Pensions
Before Sir Anthony Clarke, Master of the Rolls, Lord Justice Maurice Kay and Lord Justice Stanley Burnton
Judgment November 27, 2008

A citizen of a European Union member state who had no right to live in the United Kingdom under domestic or European law, even though she was lawfully present, was not eligible for income support.

The Court of Appeal so held, dismissing the appeal of the applicant, Sylwia Kaczmarek, against the decision of Mr Mark Rowland, a social security commissioner, who, on November 5, 2007, allowed the appeal of the Secretary of State for Work and Pensions from the decision on February 20, 2006, of the Independent Appeal Tribunal which had allowed her appeal against the refusal of the application she made on May 26, 2005, for income support.

Miss Nathalie Lieven, QC and Mr Ranjiv Khubber for Ms Kaczmarek; Mr Jason Coppel and Ms Deok-Joo Rhee for the secretary of state.

LORD JUSTICE MAURICE KAY said that Ms Kaczmarek was from Poland which at the material time was a European Economic Area country.

She entered and remained in this country lawfully, but after a period as a student and in employment, she became economically inactive and was incapable of supporting herself. She made a claim for income support.

A social security commissioner decided that she was ineligible. It was common ground that she was not entitled to income support under the domestic legislation. It was her case that her entitlement arose under articles 12 and 18(1) of the EU Treaty.

A similar contention was advanced unsuccessfully in Abdirahman v Secretary of State for Work and Pensions ([2008] 1 WLR 254). Miss Lieven sought to distinguish Abdirahman.

Essentially domestic legislation confined qualification to income support to those EEA nationals who were educationally or economically active or otherwise self-sufficient. Those who did not qualify were able to remain here lawfully but were subject to removal.

By article 12 of the EU Treaty, discrimination on the ground of nationality was prohibited. Article 18(1) conferred on EU citizens, subject to limitations and conditions, a right to freedom of movement within the EU.

Ms Kaczmarek maintained that at the time of her claim she had been lawfully resident in this country for three years; that for the majority of that time she had been active as a student or an employee; and that she had demonstrated the kind of social integration contemplated by the European Court of Justice when propounding a test of lawful residence “for a certain time”: see Trojani v Centre Public d’Aide Sociale de Bruxelles (Case C-456/02) ([2004] ECR I-7573).

Essentially Ms Kaczmarek’s case was that it was disproportionate to deny a right of residence, and thereby entitlement to income support, to a person who was lawfully resident and as substantially settled as she was.

In Abdirahman the appellants were economically inactive EEA nationals who were lawfully present in the United Kingdom and seeking to access a number of social security benefits by reliance on articles 12 and 18. Unlike Ms Kaczmarek, they could not point to a background of study and work in this country.

It was held in Abdirahman that article 12 did not extend to cases where no right of residence existed either under the relevant domestic law or the Treaty.

Further, article 18 did not create a right of residence in another member state for an EU citizen where the limitations imposed by Council Directive 90/364/EEC of June 28, 1990 on the right of residence (OJ 1990 L180/26) were not satisfied; those limitations were proportionate to the legitimate objective of protecting the public finances of the host member state.

The question in relation to article 12 in the present case was whether the reference to lawful residence “for a certain time” in paragraph 43 of Trojani opened the door to eligibility based on residence of unspecified but significant duration and of a type which evidenced a degree of social integration in the host state.

His Lordship concluded that it did not. The reference to “a certain time” was a reference to specific qualifying periods which gave rise to an express right of residence. Eligibility was primarily and more appropriately a matter for normative regulation rather than discretion or subjective evaluation on a case-by-case basis.

In relation to article 18, the question was whether it was disproportionate to deny a right of residence to a person in Ms Kaczmarek's position.

Council Directive 90/364/EEC expressly confined the right of residence to cases where nationals of other member states and their families were covered by sickness insurance in respect of all the risks in the host state and during their period of residence had sufficient resources to avoid becoming a burden on the social assistance system of the host member state. Limitations necessarily implicit in a Directive could not be removed by reliance on article 18(1).

Lord Justice Stanley Burnton and the Master of the Rolls agreed.

Solicitors: Fisher Meredith LLP; Solicitor, Department of Work and Pensions.

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