Sylwia Kaczmarek v Secretary of State for Work and Pensions (2008) EWCA Civ 1310

The appellant, Ms Kaczmarek (K), sought to challenge the decision by the Social Security Commissioner that she was not entitled to income support. She had conceded that she did not qualify for this benefit under UK law, because EEA nationals who working or studying and were otherwise self sufficient were excluded but argued that her right to this benefit derived from articles 12 and 18 of the EC Treaty (Nice). The basis of her argument was that she had been lawfully resident in the UK for three years prior to submitting a claim for income support and that, for most of this time, she had been economically active as a student or worker so could demonstrate the level of social integration required by the European Court of Justice in the case of Trojani (C-456/02) to show lawful residence ‘for a certain time’. Her interpretation of ‘for a certain time’ meant demonstrating that it was not an insignificant period of time. As someone who could therefore demonstrate lawful residence and settled status, she argued that, it would be disproportionate (contrary to article 18) to deny the right of residence, and an entitlement to income support.

The Court rejected this interpretation of Trojani, instead they believed that the ECJ had specified that an economically inactive migrant could rely on article 12 only where they could demonstrate that they possessed a resident permit or could satisfy the host state that they had been resident in the country for the required time specified as the qualifying period to give rise to an entitlement for a resident permit. The court believed that to interpret Trojani as widely as K was suggesting would be undesirable as it would result in uncertainty requiring a subjective evaluation of a person’s entitlement on a case by case basis. They highlighted that it was preferable for eligibility criteria to be set by regulation.  The Court held that the Commissioner had also been correct to dismiss the application on the article 18 point as the relevant EC directive had clearly excluded such class of persons from entitlement. Where a directive was silent on entitlement article 18 may be of assistance, but it was not for national courts and tribunals to disapply specific restrictions detailed within directives based purely on the wording of article 18. The Court also recognised that the relevant directive was now replaced by 2004/38 requiring a 5 year period of lawful presence for the economically inactive before they could qualify for permanent residence and, whilst this did not apply to this specific case as it did not come into force until April 2006, it was clear indication of proportionality. Therefore the Court did not accept K’s argument that to deny her a right of residency when she had been in the UK for only 3 year and was economically inactive was disproportionate and contrary to article 18.

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