The quartet of homelessness cases in the Supreme Court over the last year reached its final instalment this month. Following its judgments in Nzolameso (out of borough placements held to be unlawful), Hotak (re-writing the test for vulnerability), Haile (a surprising decision on the scope of intentional homelessness) comes the long-awaited decision in Samin v Westminster. In a short judgment, the court unanimously 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.
Mr Samin is an Austrian citizen of Iraqi orgin. He arrived in the UK in 2005. He did some work over a period of 10 months after his arrival, but has not worked since 2006, and has not looked for work since 2007. He suffers from poor health. He applied to Westminster for assistance as a homeless person in 2010. The council decided that he was a "person from abroad who is not eligible for assistance" because he did not have a right to reside in the UK. That decision was upheld on review, by the county court, and then by the Court of Appeal.
Every national of an EU member state is also a "citizen of the Union" with a right to move and reside freely (subject to certain limitations and conditions). The Treaty on the Functioning of the European Union prohibits any discrimination on the grounds of nationality, in so far as it is within the scope of the Treaties.
EU Directive 2004/38 sets out, and regulates, the right to reside in other member states of the Union. After an initial period of three months, citizens of other member states have a right to reside if they are (a) workers or self-employed persons, or (b) have sufficient resources not to become a burden on the social assistance system of the host state. A person retains their worker status if s/he is temporarily unable to work as a result of illness or accident, or if s/he has worked for a year and is involuntarily unemployed and registered as a jobseeker.
The EU Directive is transposed into domestic law by the European Economic Area Regulations 2006 ("the EEA Regulations"). The EEA Regulations state that "qualified persons" have a right to reside in the UK as long as they remain qualified. The categories of qualified person include "jobseekers", "workers", "self-employed persons", "self-sufficient persons" and "students". The EEA Regulations also confer a "permanent right of residence" on former workers who have retired having worked in the UK for 12 months, and those who have stopped working as a result of permanent incapacity, having resided in the UK for two years.
A local housing authority is only obliged to assist homeless persons who are "eligible for assistance." The Allocation of Housing and Homelessness Regulations 2006 ("the Homelessness Regulations") provide that a person from abroad is eligible for assistance if s/he is a "qualified person" under the EEA Regulations.
It was accepted that Mr Samin was not a "worker" and neither had he retained that status (because he had not worked for 12 months before becoming permanently incapacitated). He was therefore not a "qualified person" under the EEA Regulations, and so could not be "eligible" under the Homelessness Regulations.
Mr Samin argued that his ineligibility for assistance amounted to unlawful discrimination on grounds of nationality, because a UK citizen in the same position as him would be eligible. Alternatively, it was argued that the council should have investigated whether it would be proportionate to refuse to assist Mr Samin, based on whether to do so would have represented an unreasonable burden on the UK's social assistance system.
Neither argument was accepted by the court. The Treaty does not provide a free-standing right not to be discriminated against. Within the scope of the Treaty (which contains limitations and qualifications on the right to move and reside freely) Mr Samin was not being discriminated against. Essentially, the Treaty allows for UK non-workers to be treated more favourably than non-workers from other member states, in respect of their eligibility for social (in this case, housing) assistance.
The court examined recent European case law which confirmed that a citizen of another member state can only claim equal treatment with citizens of the host member state if s/he can satisfy the conditions for lawful residence (in other words if s/he is residing in accordance with the Treaty, or "exercising a Treaty right"). Given that Mr Samin was not residing in accordance with the Treaty he was not being treated unequally on account of his nationality.
In relation to proportionality, the court stated that where a national of another member state is not a worker and has no or very limited means, then it would undermine the purpose of the Directive and would impose an unreasonable burden on the host member state were it to have to carry out, in every case, a proportionality exercise in relation to its proposed refusal of housing assistance.
Mr Samin's appeal was joined with an income support related challenge (Mirga v Secretary of State for Work and Pensions). Ms Mirga argued that because her removal from the UK would infringe her right to respect for her home and private life (Article 8 European Convention on Human Rights) her right to reside (and hence entitlement to income support) cannot be restricted, because to do so may mean that she cannot continue to live in the UK). This argument was also rejected by the court.
What this means for authorities
This judgment will be welcomed by local authorities. Questions about whether a person is a "worker" (and whether they have retained that status) or "self-sufficient", are complex enough. The judgment confirms that in all but the most exceptional of cases:
- the less favourable treatment of economically inactive nationals of other member states will not amount to unlawful discrimination under the Treaty;
- authorities are not required to undertake an assessment of whether it would be proportionate to refuse housing assistance to an ineligible person; and
- the refusal of housing assistance to an ineligible person will not amount to an interference with that person's Article 8 rights.
How Bevan Brittan can help
Bevan Brittan's housing team regularly advises local authorities on their housing duties and functions. Our team has a wealth of experience advising and acting in homelessness reviews and appeals. We can also act as a 'critical friend', ensuring that homelessness strategies and policies comply with the relevant law and guidance, and can advise on making section 184 and review decisions as robust as possible.