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As I understood Mr Coxs argument, he did not seriously question the proposition that the Secretary of States reasons are objectively justifiable. Ratio |
The purpose of regulation 2 of the 2002 Regulations is to ensure that the claimant has achieved economic integration or a sufficient degree of social integration in the United Kingdom or elsewhere in the Common Travel Area as a pre-condition of entitlement to the benefit. Ratio |
The effect of article 4(2a) of Regulation 1408/71 is that social assistance benefits such as state pension credit share features with social security. Ratio |
But I agree with the Court of Appeal that the widening of the scope of Regulation 1408/71 does not preclude a justification of indirect discrimination which is based on the nature of the benefit: para 51. Ratio |
The Secretary of States justification lies in his wish to prevent exploitation of welfare benefits by people who come to this country simply to live off benefits without working here. Ratio |
That this is a legitimate reason for imposing the right of residence test finds support in Advocate General Geelhoeds opinion in Trojani v Centre Public dAide Sociale de Bruxelles [2004] 3 CMLR 820, para 70 that it is a basic principle of Community law that persons who depend on social assistance will be taken care of ... |
The more difficult question is whether this justification is independent of the nationality of the persons concerned. Ratio |
A finding that the conditions in regulation 2 are indirectly discriminatory on grounds of nationality provides the context for a consideration of this question. Ratio |
Inevitably the two questions are bound up together. Ratio |
But the fact that the difference in treatment is based indirectly on grounds of nationality cannot be permitted to lead inevitably to the conclusion that a justification for it cannot be regarded as independent of the nationality of the persons concerned. Ratio |
Otherwise the test for its justification which the court has laid down would be incapable of ever being met. Ratio |
The approach which the test invites at this stage is to examine the justification on its own merits without regard to its indirect discriminatory consequences. Ratio |
The justification is founded on the principle that those who are entitled to claim social assistance in the host Member State should have achieved a genuine economic tie with it or a sufficient degree of social integration as a pre-condition for entitlement to it. Ratio |
In Kaczmarek v Secretary of State for Work and Pensions [2008] EWCA Civ 1310, [2009] 2 CMLR 85, para 2, Maurice Kay LJ said that if a citizen of one Member State who is lawfully present in another Member State can, without difficulty and whilst economically inactive, access the social security benefits of the host Stat... |
The rules that regulation 2 of the 2002 Regulations lays down are intended to meet this problem. PRE |
There are various ways in which the pre-condition for entitlement can be achieved under its provisions. PRE |
They are not exclusively dependent on the nationality of the persons concerned. PRE |
I think that there is force in Mr Coxs point that the persons to whom the Secretary of State was directing attention in his statement in response to concerns raised by the Social Security Advisory Committee were persons who were not nationals of the United Kingdom. Ratio |
The context for the Secretary of States remarks was the perception that nationals of other Member States would take advantage of the right of free movement to access income-related benefits. Ratio |
But even nationals of the United Kingdom must satisfy the test of habitual residence in order to be entitled to state pension credit: see para 26, above. Ratio |
The same is true of Commonwealth citizens who have a right of abode here under section 2 of the Immigration Act 1971 and persons with a right of residence in the United Kingdom granted pursuant to that Act. Ratio |
The principle on which the Secretary of States justification relies underlies the EU rules as to whether, and if so on what terms, a right of residence in the host Member State should be granted. Ratio |
This is the issue to which Council Directive 90/364 EEC is directed. Ratio |
In that context there is no prohibition on discrimination on grounds of nationality under EU law. Ratio |
So there is no need to be concerned with the question whether the approach that is taken there can be justified on grounds that are independent of nationality. Ratio |
Three questions then arise. Ratio |
The first is whether the Secretary of States justification can be regarded as relevant in the present context. Ratio |
The second is whether it is a sufficient justification given the effect of the rules that regulation 2 of the 2002 Regulations lays down. Ratio |
The third is whether it is independent of the nationality of the person concerned. Ratio |
The first and second questions can be taken together. Ratio |
The justification is relevant because the issues that arise with regard to the grant of a right of residence are so closely related to the issues that are raised by the appellants claim to state pension credit. Ratio |
They are, at heart, the same because they are both concerned with a right of access to forms of social assistance in the host Member State. Ratio |
It is also a sufficient justification, in view of the importance that is attached to combating the risks of what the Advocate General in Trojani v Centre Public dAide Sociale de Bruxelles [2004] 3 CMLR 820, para 18 described as social tourism. Ratio |
As for the third question, the answer to it depends not just on what the Secretary of State himself said in his statement (see paras 37-38, above), but also on the wording of the regulation and its effect. Ratio |
They show that the Secretary of States purpose was to protect the resources of the United Kingdom against resort to benefit, or social tourism by persons who are not economically or socially integrated with this country. Ratio |
This is not because of their nationality or because of where they have come from. Ratio |
It is because of the principle that only those who are economical or socially integrated with the host Member State should have access to its social assistance system. Ratio |
The principle, which I take from the decision in Trojani, is that it is open to Member States to say that economical or social integration is required. Ratio |
A persons nationality does, of course, have a bearing on whether that test can be satisfied. Ratio |
But the justification itself is blind to the persons nationality. Ratio |
The requirement that there must be a right to reside here applies to everyone, irrespective of their nationality. Ratio |
For these reasons I would hold that the Secretary of State has provided a sufficient justification, and that it is independent of the nationality of the person concerned. Ratio |
It follows that the indirect discrimination that results from regulation 2 of the 2002 Regulations was not made unlawful by article 3(1) of Regulation 1408/71. Ratio |
Irish nationals Ratio |
Citizens of the Republic of Ireland have, as Irish nationals, a right to reside in the Republic of Ireland by virtue of their Irish citizenship. Ratio |
So they meet the requirement of regulation 2(2) of the 2002 Regulations, even though they do not have a right to reside in the United Kingdom and are not habitually resident here. Ratio |
It is enough that they are habitually resident in Ireland. Ratio |
So, if they are in Great Britain too, they have the same right to state pension credit as United Kingdom nationals who are habitually resident in the United Kingdom and in Great Britain. Ratio |
The appellant submits that, as entitlement to state pension credit is extended to Irish nationals, it is discriminatory not to extend it to nationals of all other Member States. ARG |
As regulation 2(2) treats Irish citizens as if they were United Kingdom citizens, Latvian citizens too should be so treated by the operation of Regulation 1408/71. ARG |
This is because that Regulation abolished all discrimination based on nationality and, in consequence, the domestic measure is to be disregarded. ARG |
Mr Cox summarised his point graphically in his closing submission. ARG |
He said that it was not open to the United Kingdom to give Irish nationals a free pass to state pension credit simply by showing their passports, while starving out nationals of the other Member States. ARG |
The provision for Irish citizens in regulation 2 is protected by article 2 of the Protocol on certain aspects of article 14 EC (now article 26 TFEU) to the United Kingdom and Ireland, commonly referred to as the Protocol on the Common Travel Area. Ratio |
Having first been annexed to the Treaty of Amsterdam, it is now annexed to the Treaty on the Functioning of the European Union and the Treaty on European Union as Protocol (No 20). Ratio |
It states that the United Kingdom and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories. Ratio |
It also provides that nothing in articles 26 and 77 of the Treaty on the Functioning of the European Union or in any other provision of that Treaty or of the Treaty on European Union or in any other measure adopted under them shall affect any such arrangements. Ratio |
Mr Lewis said that the appellants argument gave rise to four questions: (1) Does the fact that different arrangements are made for Irish nationals than for nationals of other Member States undermine the policy justification for not extending the benefit to the other Member States? (2) Is this permitted by the Protocol?... |
For economic, historical and social reasons Ireland is simply different from the other Member States. ARG |
Recognising these differences did not undermine the policy justification for treating the other Member States differently. ARG |
I do not think that Mr Cox had any answer to that submission. Ratio |
Indeed he said that he did not seek in any way to affect the operation of regulation 2(2) in respect of Irish citizens. Ratio |
The appellants case was that, as a citizen of Latvia, she was entitled to the same treatment as they receive under the arrangements that are protected by the Protocol. Ratio |
The points in issue, therefore, are those focussed by the second, third and fourth questions. Ratio |
The key words in the Protocol are those which indicate that the arrangements between the United Kingdom and Ireland that are protected by it are those relating to the movement of persons between their territories. Ratio |
The principle of international law which precludes a State from denying its own nationals the right to enter its territory and reside there must be complied with in applying those arrangements: Case C-171/96 Roque v Lieutenant Governor of Jersey [1998] 3 CMLR 143, paras 38-39. Ratio |
Mr Cox submitted that the arrangements with which the 2002 Regulations were concerned were not related to movement of persons between Ireland and the United Kingdom. Ratio |
This was because an Irish citizen who had never set foot in Ireland and arrived in the United Kingdom could meet the requirement simply because he had a right to reside in Ireland. Ratio |
Mr Lewis said that the situation referred to was wholly exceptional. Ratio |
In any event, such a person would not, on arrival, satisfy the requirement as he would not be habitually resident either in the United Kingdom or in Ireland. Ratio |
Looking at the matter realistically, it was plain that the arrangements with which the 2002 Regulations were concerned did facilitate free movement of persons between the two countries. Ratio |
It did not limit the entitlement of Irish nationals to state pension credit to those who were economically active. Ratio |
It facilitated the free movement of persons, not just workers. Ratio |
Mr Cox submitted that there was no arrangement between the United Kingdom and Ireland protected by the Protocol because the provision made by each country for the others nationals was not reciprocal. ARG |
Mr Lewis accepted that different rules as to entitlement to social security applied in Ireland. ARG |
The Irish legislation does not provide an exemption for United Kingdom nationals or provide that residence in the United Kingdom is to be treated as residence in Ireland, as it is to be presumed unless the contrary is shown that a person is not habitually resident in the State unless he has been present in the State or... |
But he submitted that absolute reciprocity was not required for an arrangement to fall within the protection of the Protocol. ARG |
The arrangements could be one way only, so long as they related to the free movement of persons between the two countries. ARG |
I think that some measure of reciprocity is contemplated by the Protocol. Ratio |
But, as these are arrangements between two sovereign States, it would be going too far to insist on a precise match between the arrangements on one side of the Irish Sea and the other. Ratio |
The words of article 2 do not suggest that the arrangements must meet this test to attract its protection. Ratio |
Mr Cox submitted that, as it derogated from fundamental Community law principles, the Protocol fell to be construed strictly. Ratio |
But in my opinion the rather loose word arrangements indicates that it is for the two States themselves to determine what would best suit the overall objective of promoting free movement between their territories, while taking account of each countrys different economic and social circumstances. Ratio |
I would hold therefore that there is sufficient reciprocity between the respective conditions for entitlement, and a sufficient connection between the social security arrangements on either side and the aim of promoting free movement between the two countries, for the arrangements in regulation 2 of the 2002 Regulation... |
The third and fourth questions on Mr Lewiss list do not need to be answered. Ratio |
I would reject the appellants argument that she is entitled to be treated in the same way as Irish nationals. Ratio |
Conclusion RPC |
I would hold that regulation 2 of the 2002 Regulations is indirectly discriminatory, but that the condition that it lays down is objectively justifiable on grounds independent of the appellants nationality. RPC |
I would dismiss the appeal. RPC |
Lord Hope has given a full and clear summary of the facts and the relevant national and EU legislation. Ratio |
I can proceed at once to the three issues identified in para 20 of Lord Hopes judgment. Ratio |
Direct or indirect discrimination? Ratio |
The judgment of the Court of Appeal now under appeal was, by a strange coincidence, delivered on the same day (25 June 2009) as the opinion of Advocate General Sharpston in Bressol v Gouvernement de la Communaut Franaise (Case C73/08) [2010] 3 CMLR 559. Ratio |
The Court of Appeal did not therefore have the opportunity of considering it. Ratio |
The Advocate Generals opinion and the judgment of the Grand Chamber of the Court of Justice (delivered on 13 April 2010) are discussed in paras 30-34 of Lord Hopes judgment. Ratio |
As he says, the difference between the Advocate Generals opinion and the Grand Chambers judgment is profound. Ratio |
The opinion (paras 43-58) sets out a lengthy, scholarly and closely- reasoned discussion of the difference between direct and indirect discrimination. Ratio |
The Grand Chamber made no reference to this discussion. Ratio |
It treated the case as one of indirect (and therefore potentially justifiable) discrimination without explaining why the Advocate General was wrong to treat the case as direct discrimination. Ratio |
Lord Hope (para 33) reads the judgment as treating the second cumulative condition (as to the right to remain permanently in Belgium) as having been subsumed into the first condition, but I confess that I cannot discern that subtlety in the judgment. Ratio |
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