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UK Supreme Court Judgment in Patmalniece

21 March 2011

On Wednesday 16 March 2011 the Supreme Court handed down its judgment in the Patmalniece case, involving the application of the right-to-reside test to certain benefits in the UK. The AIRE Centre intervened in the case, in which the Supreme Court found that the right-to-reside test was lawful.

On 16 January the Supreme Court handed down its judgment in the Patmalniece case, which concerned the right-to-reside test which restricts certain EU migrants’ access to certain benefits in the United Kingdom.

Background to the Case

The case involved State Pension Credit, but has implications for other benefits as well.  UK legislation restricts access to certain benefits by imposing a habitual residence test on those benefits.  The habitual residence test has two components:

  • an ‘actual’ habitual residence test, which is a factual enquiry about whether the UK (or Great Britain, in the case of State Pension Credit) is the place where the person is in fact habitually resident; and
  • a right-to-reside test.

British and Irish citizens automatically pass the ‘right-to-reside’ part of the test in all cases, but must show that they are actually habitually resident to receive those benefits to which the test applies.  Other EU citizens, on the other hand, do not necessarily pass the right-to-reside test; they must show that they have a right to reside (usually in accordance with the Immigration (European Economic Area) Regulations 2006).  Certain EU migrants – including workers, self-employed persons, and their family members – have a right to reside for benefits purposes and, by virtue of that right to reside, are assumed to be actually habitually resident as well, and so are eligible.

The Supreme Court’s Judgment

The appellant argued that it was unlawful to apply the right-to-reside test to State Pension Credit because that benefit (like Income Support and income-based Jobseeker’s Allowance) is a ‘social security’ benefit (specifically, a ‘special non-contributory benefit’) under what used to be EU Regulation 1408/71, now Regulation 883/04.  Those Regulations prohibit discrimination based on nationality in relation to the benefits to which they apply.  The appellant in this case argued that because British and Irish citizens, but not other EU nationals, always pass the right-to-reside test, there is nationality discrimination. 

The Justices decided, by a majority of four to one, that although the test is discriminatory, it constitutes indirect discrimination, and that indirect discrimination is justified in these circumstances by the need to protect public funds.  Lord Walker, dissenting, thought that the discrimination was not justified, because ‘the provisions… are probably aimed at discriminating against economically inactive foreign nationals on the grounds of nationality. Whether or not that was the intention of those who framed them, they have that effect' (para 79).

The AIRE Centre’s View

The AIRE Centre intervened in the case to provide the Supreme Court with information about the relevant EU law principles.  It was the AIRE Centre’s view that EU law on the free movement of persons does not foresee EU migrants who have been exercising residence rights in the UK being left destitute here when British Citizens in the same circumstances would get support.  The only option, in the AIRE Centre’s view, was for the UK to grant such individuals benefits and then determine if the person is no longer exercising residence rights in this country and might therefore – exceptionally, and in compliance with EU law rules including the principle of proportionality – no longer have the right to be in the UK.  Baroness Hale (paragraph 107 of the judgment) noted the AIRE Centre's view that for individuals without a right to reside, it is not permissible to 'starve them out' by denying them benefits; the only option, we submitted, may be to expel them in some circumstances.  In brief, the AIRE Centre believes that it is not permissible to refuse benefits to EU migrants and their family members who have been exercising residence rights in the UK.  The correct way to handle these situations we submitted was for the UK to provide such individuals with benefits on a non-discriminatory basis.  The authorities would then be free to consider whether such an individual still meets the conditions set out in EU and domestic law to reside in the UK and, if (s)he did not, to take proceedings to expel that person.  Such expulsions, we believe, however, would stilll be rare, as they must comply with EU law principles, including the principle of proportionality.  Whilst the UK continues to refuse benefits to EU nationals by applying the right-to-reside test, the AIRE Centre also believes it is unlawful to expel them on the basis that they are not exercising residence rights.  Unfortunately, however, this is exactly what is happening now in a pilot scheme the UK Border Agency has launched.  Our views on this issue are set out in a factsheet we put together with MRN and ILPA and in an article the AIRE Centre's Assistant Director wrote in the Jounal of Immigration, Asylum and Nationality Law, Volume 24, No 3 (2010), pages 246-256. 

The AIRE Centre also agreed with the appellant that the right-to-reside test, as applied to benefits such as State Pension Credit which are social security benefits in EU law, is unlawful because it is discriminatory.  The current rules have resulted in a significant population of homeless or otherwise destitute EU migrants in the UK, many of whom have been living in this country for some time and have worked here in the past.  Again, the AIRE Centre believed that this was not what EU law envisioned.

Advising EU Migrants After Patmalniece

Although the right-to-reside aspect of the habitual residence test will remain in place following the judgment, the AIRE Centre believes that in a large number of cases it is misapplied.  We therefore encourage advisers to continue to get in touch with us to discuss cases.  The appellant in Patmalniece was in a particularly difficult situation in relation to the right-to-reside test: she had come to the UK as an asylum seeker and had never worked or been self-employed in this country, nor did she have any family members here.  Many individuals who have worked or who have other EU national family members in the UK will be entitled to benefits but may be wrongly refused.  The right-to-reside test as it is set out in domestic law may not cover all EU migrants who are, as a matter of EU law, entitled to benefits; for example, the AIRE Centre is involved in cases about the rights of previously self-employed accession nationals to access income-based Jobseeker’s Allowance whilst pursuing further self-employed activity.  The European Commission is also discussing with the UK authorities some aspects of the restrictions on benefits for EU migrants in this country.

If you wish to discuss the Patmalniece case please contact Adam Weiss (aweiss@airecentre.org).

You may also wish to see the AIRE Centre and Migrants’ Rights Network’s briefing on the changes coming in on 1 May 2011 for A8 nationals.

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