Return To Work Realistic?

Samin v Westminster City Council [2016] UKSC 1

Simon represented Mr Samin in his attempt to retain his status as a “worker” under the Immigration (European Economic Area) Regulations 2006.

Mr Samin, an Austrian national since 1993 after he fled Iraq and claimed asylum, travelled to the UK in 2005 and worked as a cleaner for about 10 months. Suffering multiple physical illnesses and long standing clinical depression, Mr Samin had not worked since but had received housing benefit, income support and incapacity benefit.

Mr Samin’s GP believed that in stable accommodation and with support from a “suitable agency”, his mental health might improve such that he could eventually return to gainful employment.

Westminster’s reviewing officer disagreed, determining that Mr Samin’s incapacity was more permanent, meaning he did not retain his worker status so did not have a right to reside in the UK and was not eligible for assistance.

Mr Samin argued that this decision did not take into account whether he had a realistic prospect of returning to work, the deciding factor in two earlier Court of Appeal cases: De Brito and Konodyba. However, the reviewing officer made her decision prior to these cases and, with medical evidence revealing that Mr Samin’s depression pre-dated his homelessness and that there was little prospect of him returning to employment, her decision, in this case was found to be lawful.

Both the County Court judge and the Court of Appeal upheld the reviewing officer’s decision. The case is of particular interest because of its wider implications: whether someone is temporarily unable to work is a matter of fact; whether someone is a “worker”, for the purposes of an EU directive, is potentially a matter of judgement for the local authority. Unless consistent criteria are applied across the EU, national courts may introduce an element of discretion into such eligibility decisions.

Mr Samin obtained permission to appeal to the Supreme Court and argued 1.that the UK’s right to reside rules discriminate against EU nationals exercising their right of free movement and 2. the refusal of homelessness assistance was disproportionate under EU law. The Supreme Court gave its judgement in January 2016 and held that there was no discrimination in Mr Samin’s case, and that refusal of assistance was not disproportionate. While the CJEU (the Court of Justice of the European Union) had held that refusal of social benefits may in some situations be disproportionate, this did not apply to economically inactive European citizens seeking homelessness assistance in the UK.