Mirga v Secretary of state for Work and Pensions

Factual and Procedural Background

This is an appeal from the decision of the Upper Tribunal (Administrative Appeals Chamber) where the Upper Tribunal Judge set aside the decision of the Wakefield appeal tribunal but substituted its own decision that the Appellant was not entitled to Income Support from 4 August 2006. Permission to appeal was granted by Kitchin LJ on 14 June 2012.

The Appellant is a national of an A8 state who came to the United Kingdom as a child in 1998, returned to Poland in 2002 after asylum refusal, and then returned to the UK in 2004 following Poland's accession to the European Union. The Appellant’s father worked initially but stopped due to depression following the death of the Appellant’s mother. The Appellant herself worked registered and unregistered jobs between 2005 and 2006, became pregnant at age 17, left home in June 2006, found rented accommodation and unregistered work, and claimed Income Support in August 2006. The claim was refused by the Secretary of State on 11 November 2006 on the basis that the Appellant was a "person from abroad" without a right of residence and therefore not habitually resident for Income Support purposes.

The statutory framework defines a "person from abroad" as someone without a right to reside in the UK or associated territories, with exceptions linked to certain categories of workers under the Immigration (European Economic Area) Regulations 2006 and the Accession (Immigration and Worker Registration) Regulations 2004 (the "Workers Registration Scheme" or "WRS"). The Appellant did not meet the criteria for a right to reside under these regulations at the time of her claim.

Legal Issues Presented

1. Whether the refusal of Income Support to the Appellant, an A8 national without a right of residence under the relevant regulations, was disproportionate and contrary to European Union law principles, particularly the principle of proportionality.
2. Whether the Appellant’s fundamental rights under Article 7 of the European Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights (rights to private and family life) required recognition of a right of residence despite non-compliance with the Workers Registration Scheme.
3. Whether the Workers Registration Scheme and related regulations are lawful and proportionate in their application to A8 nationals, considering relevant case law including Zalewska v Department of Social Development.

Arguments of the Parties

Appellant's Arguments

• The refusal of Income Support was disproportionate under European Union law given the Appellant’s personal circumstances, including pregnancy, estrangement from her father, and long residence in the UK since childhood.
• The denial of Income Support forced the Appellant into destitution and reliance on social services.
• The Appellant’s fundamental rights to private and family life under Article 7 of the Charter and Article 8 of the Convention would be violated if she were returned to Poland, thus she should be treated as having a right of residence under regulation 21AA(2) of the Income Support Regulations.
• The Upper Tribunal erred by not addressing these fundamental rights arguments properly, effectively sidelining them as immigration matters.
• The Workers Registration Scheme should not apply rigidly where it would result in breaches of fundamental rights.

Respondent's Arguments

• The Workers Registration Scheme and related regulations were legitimate and proportionate measures enacted pursuant to the Accession Treaty and EU law to regulate access to the UK labour market and social security system.
• Case law, particularly Zalewska, upheld the proportionality of the WRS, including the requirement to register and reregister employment to maintain worker status and associated rights.
• The Appellant did not have a right to reside under the relevant regulations as she was not a worker for an authorised employer and had not completed 12 months’ registered employment.
• The distinction between lawful presence and right to reside is important; lawful presence does not equate to entitlement to Income Support.
• Fundamental rights arguments do not require the conferral of a right of residence under the Income Support Regulations, as protection of such rights would be available through removal proceedings and appeals.
• Allowing proportionality challenges to undermine the WRS on an individual basis would jeopardize the scheme’s effectiveness.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Zalewska v Department of Social Development [2008] 1 WLR 2602	Upheld the proportionality of the Workers Registration Scheme and the requirement for A8 nationals to register employment to maintain worker status and access social benefits.	The court relied heavily on Zalewska to affirm that the WRS was a proportionate measure and that individual hardship claims did not undermine the scheme.
Rottmann [2010] ECR 1-000	Member State's right to withdraw nationality subject to the principle of proportionality.	Referenced by the Appellant to support proportionality arguments but not found directly applicable to the facts.
Kaczmarek [2008] EWCA Civ 1310	Distinction between lawful presence and right to reside under EU and domestic law.	Used to emphasize that lawful presence does not entitle a claimant to Income Support absent a right to reside.
Baumbast [2002] 3 CMLR 23	Limits on national measures must comply with EU law principles, especially proportionality.	Supported the legal framework on proportionality but did not alter the outcome under the WRS.
Patmalniece [2011] Vol 1 WLR 783	Justification of indirectly discriminatory provisions concerning right to residence based on prevention of benefit tourism.	Confirmed justification of legislation regardless of individual benefit tourism status.
Carson [2003] EWCA Civ 797	Social security is not a characteristic of Article 8 right to family life.	Clarified that deprivation of Income Support alone does not constitute a breach of fundamental rights.
Dereci [2012] 1 CMLR 45	Reinforced fundamental rights principles under EU law.	Referenced to support fundamental rights arguments raised by the Appellant.
Miskovic [2011] EWCA Civ 16	Appellate courts may consider fresh points of law not argued below, but with reluctance if further fact-finding is required.	Discussed regarding the introduction of fundamental rights arguments at this stage without factual findings.

Court's Reasoning and Analysis

The court began by affirming the statutory framework that denies Income Support to persons from abroad who lack a right of residence, as defined in the Income Support Regulations and related Immigration (European Economic Area) Regulations. The Appellant did not have a right of residence as she was not a worker for an authorised employer nor had she completed 12 months of registered employment to qualify under the Workers Registration Scheme.

The court examined the proportionality of the WRS in light of the House of Lords decision in Zalewska, which upheld the scheme as a legitimate and proportionate means of regulating access to the UK labour market and social benefits for A8 nationals. The court emphasized that individual hardship claims, such as those presented by the Appellant, do not undermine the overall proportionality of the scheme.

The court distinguished lawful presence from the right to reside, noting that the Appellant was lawfully present but did not have the requisite right to reside for Income Support purposes. It was also noted that fundamental rights protections under Articles 7 and 8 would be relevant in removal proceedings, where the Appellant would have an opportunity to raise such arguments, but these rights do not translate into a right of residence under the Income Support Regulations.

The court considered the Appellant’s fundamental rights arguments but found no basis to grant a right of residence on that ground absent factual findings, which were not present. The court also rejected the notion that the WRS scheme should be ineffective where return to the home state might violate fundamental rights, as this would conflict with established case law and the legislative scheme.

Ultimately, the court concluded that the refusal of Income Support was lawful and proportionate, and that the appeal must be dismissed.

Holding and Implications

DISMISSED

The court dismissed the appeal, affirming the decision that the Appellant was not entitled to Income Support due to the absence of a right of residence under the applicable regulations. The ruling confirms the proportionality and lawfulness of the Workers Registration Scheme as a regulatory measure for A8 nationals’ access to social security benefits. No new precedent was established; rather, the decision reinforced existing case law distinguishing lawful presence from the right to reside and confirmed the limited scope of fundamental rights arguments in this context without factual findings. The direct effect is that individuals in similar circumstances remain subject to the WRS requirements and may be denied Income Support if they do not meet those criteria.