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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohamed, R (on the application of) v London Borough of Harrow [2005] EWHC 3194 (Admin) (13 December 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/3194.html Cite as: [2005] EWHC 3194 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		13th December 2005

1. MR JUSTICE JACKSON: This judgment is in nine parts, namely:

Part 1	Introduction.
Part 2	The legislative framework.
Part 3	The facts.
Part 4	The present proceedings.
Part 5	Did the defendant err in law in concluding that the claimant was not a worker or work seeker?
Part 6	Did the defendant err in deciding that the claimant did not have a right to reside in the United Kingdom under articles 17 to 18 of the EC Treaty?
Part 7	Did the defendant err in deciding that the claimant did not fall within paragraph 3(b) of schedule 3 to the 2002 Act?
Part 8	Can the claimant succeed on any of her five grounds of claim?
Part 9	Conclusion

.

Part 1 . Introduction
2. This is a claim for judicial review of a decision made by the defendant local authority to the effect that the claimant is not eligible to receive interim accommodation under section 188(3) of the Housing Act 1996.
3. A crucial feature of this case is that the claimant is a Dutch national and is therefore a national of a state in the European Economic Area. The European Economic Area ("EEA") comprises all EU states, together with Iceland, Liechtenstein and Norway. The EEA was created by the Treaty of Oporto signed on 2nd May 1992. The purpose of the EEA is to facilitate the free movement of goods, services, persons and capital between different EEA states. Another crucial feature of this case is that the claimant is an EU citizen with the rights conferred upon her by the treaties and subordinate legislation of the EU.
4. In the course of this judgment, I shall refer to the European Court of Justice as "the ECJ".
5. Before I delve into the circumstances of the present case, it is first necessary to set out the legislative framework.
Part 2 . The legislative framework
6. Part 7 of the Housing Act 1996 (the 1996 Act) makes provision for the homeless. Section 184 of the 1996 Act provides:

"(1) If the local housing authority have reason to believe that an applicant may be homeless or threatened with homelessness, they shall make such inquiries as are necessary to satisfy themselves -

(a) whether he is eligible for assistance, and

(b) if so, whether any duty, and if so what duty, is owed to him under the following provisions of this Part...

(3) On completing their inquiries the authority shall notify the applicant of their decision and, so far as any issue is decided against his interests, inform him of the reasons for their decision."

Section 188 of the 1996 Act provides:

"(1) If the local housing authority have reason to believe that an applicant may be homeless, eligible for assistance and have a priority need, they shall secure that accommodation is available for his occupation pending a decision as to the duty (if any) owed to him under the following provisions of this Part...

(3) The duty ceases when the authority's decision is notified to the applicant, even if the applicant requests a review of the decision (see section 202).

The authority may secure that accommodation is available for the applicant's occupation pending a decision on review."

7. Section 202 of the 1996 Act enables an applicant to seek a review of an unfavourable decision. Section 204 of the 1996 Act provides:

"(1) If an applicant who has requested a review under section 202 -

(a) is dissatisfied with the decision on the review, or

(b) is not notified of the decision on the review within the time prescribed under section 203,

He may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision...

"(4) Where the authority were under a duty under section 188, 190 or 200 to secure that accommodation is available for the applicant's occupation or had the power under section 195(8) to do so, they may secure that accommodation is so available -

(a) during the period for appealing under this section against the authority's decision, and

(b) if an appeal is brought, until the appeal (and any further appeal) is finally determined."

It can be seen from the foregoing provisions that a housing authority has a power, but not a duty, to provide interim accommodation during two periods. First during the period of any review under section 202, secondly during the period of any appeal to the county court under section 204. I shall refer to these two powers compendiously as the "interim power to accommodate".

8. If a local authority acts unlawfully in the exercise of its interim power to accommodate (for example by failing to consider relevant factors), then the resulting decision may be challenged. If the decision was made under section 188(3), the challenge is brought in the Administrative Court by way of judicial review. If the decision was made under section 204(4), then any challenge is brought in the county court in accordance with section 204A of the 1996 Act.
9. Let me turn now to some EU law which is relevant to the issues in this case. The EC Treaty (which is part of the EU Treaty) includes the following:

"Article 12

"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited ..."

Article 17:

"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby."

Article 18:

"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect."

Article 39:

"1. Freedom of movement for workers shall be secured within the Community.

2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.

3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;

(b) to move freely within the territory of Member States for this purpose;

(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;

(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

4. The provisions of this article shall not apply to employment in the public service."

It should be noted that Article 39 was formerly Article 48 of the EC Treaty, and it is so referred to in the cases which I shall be citing.

10. On 15th October 1968, the Council of the European Communities issued Regulation (EEC) 1612/68 concerning the freedom of movement of workers within the Community. I shall refer to this as "Regulation 1612/68". Title I of Part 1 of Regulation 1612/68 is entitled "Eligibility for Employment" and it comprises Articles 1 to 7. These articles enable a national of any Member State to apply for and obtain employment in any other Member State. These articles are therefore of benefit to persons seeking employment. I shall refer to such persons as "work seekers." In this judgment, I shall refer to the 7 articles which comprise Title 1 of Part 1 of Regulations 1612/68 as "Title I".
11. Title II of Part 1 of Regulation 1612/68 is entitled "Employment and Equality of Treatment" and it comprises Article 7 to 9. I shall refer to the three articles which comprise Title II of Part 1 of Regulation 1612/68 as "Title II". Article 7 provides:

"1. A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment;

2. He shall enjoy the same social and tax advantages as national workers ..."

The remainder of Title II gives further rights to workers who are nationals of one Member State but employed in another Member State.

12. Regulation 1612/68 is subsidiary legislation which gives effect to Article 39 of the EC Treaty. Although Article 39 refers only to workers, Regulation 1612/68 confers benefits both on work seekers and on workers. I shall refer to the benefits conferred on work seekers as "title I rights" and the benefits conferred on workers as "title II rights."
13. The term "worker" is sometimes, but not always, used by the ECJ as a compendious term which embraces both work seekers and workers. I shall not follow this course. Instead, I shall use the terms "worker" and "work seeker" as separate and distinct terms. When quoting from ECJ judgments, however, I shall indicate whether I believe that court to be using the word "worker" (a) in the narrow sense, or (b) in the extended sense to embrace both worker and work seeker.
14. On 15th October 1968, the Council of the European Communities issued Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families. I shall refer to this as "directive 68/360". Directive 68/360 includes the following provisions:

Article 1:

"Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation (EEC) No 1612/68 applies."

Article 4:

"1. Member States shall grant the right of residence in their territory to the persons referred to in Article 1 who are able to produce the documents listed in paragraph 3.

2. As proof of the right of residence, a document entitled 'Residence Permit for a National of a Member State of the EEC' shall be issued. This document must include a statement that it has been issued pursuant to Regulation (EEC) No 1612/68 and to the measures taken by the Member States for the implementation of the present Directive. The text of such statement is given in the Annex to this Directive.

3. For the issue of a Residence Permit for a National of a Member State of the EEC, Member States may require only the production of the following documents;

- by the worker:

(a) the document with which he entered their territory;

(b) a confirmation of engagement from the employer or a certificate of employment ..."

Article 6 of Directive 68/360 provides that a resident permit "must be valid for at least five years from the date of issue".

15. On 28th June 1990, the Council of the European Communities issued Council Directive 90/364/EEC on the right of residence. I shall refer to this as "Directive 90/364." Directive 90/364 includes the following provisions, Article 1:

"1. Member States shall grant the right of residence to nationals of Member States who do not enjoy this right under other provisions of Community law and to members of their families as defined in paragraph 2, provided that they themselves and the members of their families are covered by sickness insurance in respect of all risks in the host Member State and have sufficient resources to avoid becoming a burden on the social assistance system of the host Member State during their period of residence.

"The resources referred to in the first subparagraph shall be deemed sufficient where they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant and, where appropriate, the personal circumstances of persons admitted pursuant to paragraph 2.

"Where the second subparagraph cannot be applied in a Member State, the resources of the applicant shall be deemed sufficient if they are higher than the level of the minimum social security pension paid by the host Member State ..."

Article 2:

"1. Exercise of the right of residence shall be evidenced by means of the issue of a document known as a 'Residence permit for a national of a Member State of the EEC', the validity of which may be limited to five years on a renewable basis. However, the Member States may, when they deem it to be necessary, require revalidation of the permit at the end of the first two years of residence. Where a member of the family does not hold the nationality of a Member State, he or she shall be issued with a resident document of the same validity as that issued to the national on whom he or she depends.

"For the purpose of issuing the residence permit or document, the Member State may require only that the applicant present a valid identity card or passport and provide proof that he or she meets the conditions laid down in Article 1."

16. Let me now turn to UK domestic legislation. On 2nd October 2000, the Immigration (European Economic Area) Regulations 2000 came into force. I shall refer to these as "the Immigration Regulations". The Immigration Regulations implement directive 68/360 and directive 90/364 as well as other directives. Regulation 2(1) of the Immigration Regulations provides:

"In these Regulations... 'EEA national' means a national of an EEA State.

'EEA State' means a State, other than the United Kingdom, which is a Contracting Party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992[7] as adjusted by the Protocol signed at Brussels on 17th March 1993[8]."

Regulation 3(1) of the Immigration Regulations provides:

"In these Regulations -

(a) 'worker' means a worker within the meaning of Article 39 of the EC Treaty ...

(e) 'self-sufficient person' means a person who -

(i) has sufficient resources to avoid his becoming a burden on the social assistance system of the United Kingdom; and

(ii)is covered by sickness insurance in respect of all risks in the United Kingdom."

Regulation 5 of the Immigration Regulations provides:

"(1) In these Regulations, 'qualified person' means a person who is an EEA national and in the United Kingdom as -

(a) a worker ...

(e) a self-sufficient person ...

(2) A worker does not cease to be a qualified person solely because -

(a) he is temporarily incapable of work as a result of illness or accident; or

(b) he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office."

Regulation 12 of the Immigration Regulations provides that an EEA national has a right to be admitted to the UK. Regulation 14 provides that a qualified person has a right to remain in the UK for as long as he remains a qualified person. Regulation 18 of the Immigration Regulations provides:

"(1) Subject to the following paragraphs and to regulations 20 and 22(2), a residence permit must be valid for at least five years from the date of issue.

"(2) In the case of a worker who is to be employed in the United Kingdom for less than twelve but more than three months, the validity of the residence permit may be limited to the duration of the employment.

"(3) In the case of a seasonal worker who is to be employed for more than three months, the validity of the residence permit may be limited to the duration of the employment if the duration is indicated in the document confirming the worker's engagement or in a certificate of employment."

Regulation 19 of the Immigration Regulations provides:

"(1) Subject to paragraphs (2) and (3) and to regulations 20 and 22(2), a residence permit must be renewed on application.

(2) On the occasion of the first renewal of a worker's residence permit the validity may be limited to one year if the worker has been involuntarily unemployed in the United Kingdom for more than one year."

Regulation 21 provides:

"(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 12 if his exclusion is justified on grounds of public policy, public security or public health ...

(3) A person may be removed from the United Kingdom -

(a) if he is not, or has ceased to be -

(i) a qualified person; or

(ii) the family member of a qualified person;

(b) if he is a qualified person or the family member of such a person, but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health."

17. The Nationality, Immigration and Asylum Act 2002 came into force on various dates in 2002 and 2003. I shall refer to this statute as "the 2002 Act". Section 11 of the 2002 Act is entitled "Unlawful presence in United Kingdom". Section 11(2) provides:

"A person is in the United Kingdom in breach of the immigration laws if (and only if) he -

(a) is in the United Kingdom,

(b) does not have the right of abode in the United Kingdom within the meaning of section 2 of the Immigration Act 1971,

(c) does not have leave to enter or remain in the United Kingdom (whether or not he previously had leave),

(d) is not a qualified person within the meaning of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326)(person entitled to reside in United Kingdom without leave)(whether or not he was previously a qualified person),

(e) is not a family member of a qualified person within the meaning of those regulations (whether or not he was previously a family member of a qualified person)".

Section 54 of the 2002 Act provides that schedule 3 shall have effect. Schedule 3 to the 2002 Act disentitles certain persons, who are present in this country but not British citizens, from receiving specified welfare benefits. Paragraph 1(1) of Schedule 3 provides:

"A person to whom this paragraph applies shall not be eligible for support or assistance under...

(g) section 17, 23C, 24A or 24B of the Children Act 1989 (c.41)(welfare and other powers which can be exercised in relation to adults)...

(j) section 188(3) or 204(4) of the Housing Act 1996 (c.52)(accommodation pending review or appeal)".

Paragraphs 4, 5, 6 and 7 of Schedule 3 set out four classes of persons to whom paragraph 1 applies. These persons are described in the four paragraph headings as "Ineligible Persons". I shall use the same term.

18. Paragraph 5 of Schedule 3 provides:

"Paragraph 1 applies to a person if he -

(a) has the nationality of an EEA State other than the United Kingdom,

or

(b) is the dependent of a person who has the nationality of an EEA State other than the United Kingdom."

Persons who fall within paragraph 5 of Schedule 3 constitute the second class of ineligible persons.

19. Paragraphs 2 and 3 of schedule 3 set out exceptions to the operation of paragraph 1. The relevant provision for present purposes is paragraph 3 which provides:

"Paragraph 1 does not prevent the exercise of a power or the performance of a duty if, and to the extent that, its exercise or performance is necessary for the purpose of avoiding a breach of ...

(b) a person's rights under the Community Treaties."

20. Let me now draw the threads together. Ineligible persons who can invoke paragraph 3(b) of Schedule 3 escape the operation of paragraph 1(1). In other words, such persons, despite being classified as ineligible, can still require a local authority to consider whether to exercise the interim power to accommodate in their favour.
21. That is a sufficient account of the statutory framework. It is now time to set out the facts of the present case.
Part 3 . The facts
22. The claimant is a Dutch national, originally from Somalia. She is a divorcee with one adult son and two younger children, now aged five and four. The claimant came from the Netherlands to the UK on her own in July 2003, bringing £3,000 in savings. The claimant stayed in London with a friend. The claimant started working in a grocery shop in September 2003. This employment was for half of each day on five days per week, making a total of 20 hours per week. In January 2004, the claimant changed employment. She left the grocery shop and started to work in a coffee shop. The rates of pay were better at the coffee shop but the hours were somewhat less, being 18 hours per week. The claimant was made redundant from the coffee shop in June 2004, and she has not worked since then. The claimant has been registered as unemployed at the Job Centre Plus since August 2004.
23. In July 2004, the claimant's two youngest children arrived in the United Kingdom. In October 2004, the claimant and the two children moved into a flat at 110 Wamford Road, Kenton, Middlesex. At this time, the claimant was in receipt of income support and housing benefit. The housing benefit covered about 80 per cent of the rent, leaving a shortfall of some £200 per month. Unfortunately, the claimant's payment of rent fell into arrears and in September 2005, the claimant was facing imminent eviction.
24. The claimant applied to the defendant for housing under part 7 of the Housing Act 1996. By a letter dated 1st September 2005, the defendant rejected the claimant's application on the ground of her immigration status. This letter constituted a decision under section 184 of the 1996 Act.
25. By a letter dated 16th September 2005, the claimant's solicitor requested a review of that decision, pursuant to section 202 of the 1996 Act. On the last page of that letter, the claimant's solicitor requested the defendant to accommodate the claimant and her children in the exercise of the defendant's power under section 188(3) of the 1996 Act. By a reply sent on the same day, the defendant refused that request.
26. On 20th September 2005, the claimant's solicitor wrote to the defendant renewing the request for accommodation pursuant to section 188(3) of the 1996 Act, pending the outcome of the review under section 202. In that letter, the claimant intimated a claim for judicial review if the defendant did not accede to the request. Upon receipt of this letter, the defendant immediately agreed to accommodate the claimant for the period 20th to 29th September, whilst consideration was given to the detailed arguments set out in the claimant's solicitor's letter. On 20th September, the claimant and her children were placed in bed and breakfast accommodation.
27. Over the next few days, the defendant's lawyers considered the arguments which had been advanced on the claimant's behalf. They concluded that those arguments were unsound. Accordingly, the defendant's review officer, Ms Kris Hunnisett, wrote a letter on 28th September 2005 ("the decision letter") stating that she had taken legal advice and that the claimant's request was refused. Ms Hunnisett did agree, however, to extend the current accommodation until 3rd October 2005. The reasoning in the decision letter was as follows:

1. The Claimant is not a work seeker or a worker within the ambit of Article 39 of the EC Treaty.

2. The Claimant does not have a right to reside in the UK under Article 17 to 18 of the EC Treaty, because she does not have sufficient resources to satisfy Article 1 of Directive 90/364.

3. Accordingly, the Claimant is not exercising EC Treaty rights either as a worker/work seeker or by residence. Therefore, the Claimant does not fall within paragraph 3(b) of Schedule 3 to the 2002 Act.

4. In any event, even if the Claimant were exercising EC Treaty rights, it would not be necessary to provide her with accommodation in order to avoid a breach of those rights. Therefore, even if the Claimant were exercising EC Treaty rights, she would still not fall within paragraph 3(b) of Schedule 3.

5. Accordingly, by reason of paragraph 1(1)(j) and paragraph 5(a) of Schedule 3 to the 2002 Act, the Claimant is an ineligible person who is not entitled to benefit from the interim power to accommodate.

28. The claimant was aggrieved by the decision to refuse her accommodation under section 188(3) of the 1996 Act. Accordingly, she commenced the present proceedings.
Part 4 . The present proceedings
29. By a claim form issued on 3rd October 2005, the claimant applied for judicial review of the decision to refuse her request for accommodation under section 188(3) of the 1996 Act. The claimant based her claim on five grounds which I would summarise as follows:

1. The defendant has failed to consider the factors relevant to exercise of its discretion under section 188(3) of the 1996 Act.

2. The claimant has retained the status of worker since losing her employment in June 2004. Accordingly, the defendant erred in failing to treat the claimant as a worker.

3. The claimant is lawfully resident in the United Kingdom. By treating the claimant as ineligible to benefit from the interim power to accommodate, the defendant has discriminated against the claimant, contrary to article 12 of the EC Treaty.

4. It is disproportionate to withhold interim accommodation from the claimant. The defendant has erred in failing, or failing properly, to consider the question of proportionality.

5. The defendant failed to make proper enquiries and reached a decision concerning the claimant which was unsupported.

30. On the evening of 3rd October, the claimant applied to the duty judge for interim relief. Calvert-Smith J made an order that the defendant should accommodate the claimant and her children, pending the outcome of the claimant's application for permission. On 2nd November 2005, Newman J granted the claimant permission to apply for judicial review and gave directions for an expedited hearing. It seems that, through an oversight, there was neither an order nor an undertaking for continuance of the interim accommodation until trial of the judicial review proceedings. That was, however, the intention of both parties and the claimant has remained in interim accommodation during the course of this litigation.
31. Both parties filed their evidence and prepared for trial with expedition. The claimant's evidence consists of two witness statements made by herself. The defendant's evidence consists of a witness statement made by Ms Hunnisett, the review officer.
32. The hearing of the claimant's claim commenced on 6th December and the argument lasted for two days. Mr Adrian Berry represents the claimant. Mr Kelvin Routledge and Miss Sian Davies represent the defendant.
33. The issues, as they have emerged in argument, may be formulated as follows:

1. Did the defendant err in law in concluding that the claimant was not a worker or work seeker?

2. Did the defendant err in deciding that the claimant did not have a right to reside in the United Kingdom under Articles 17 to 18 of the EC Treaty?

3. Did the defendant err in deciding that the claimant did not fall within paragraph 3(b) of Schedule 3 to the 2002 Act?

4. Can the claimant succeed on any of her five grounds of claim?

34. The above summary of the issues is my own formulation, based upon the arguments which were deployed at the hearing. It is convenient to address matters in that order and that, therefore, is the sequence which I shall follow in this judgment.
Part 5 . Did the defendant err in law in concluding that the claimant was not a worker or work seeker?
35. Before addressing this question, I must first survey the case law on Article 39 (formerly Article 48) of the EC Treaty and the case law on the subordinate legislation.
36. In D.M. Levin v Staatssecretaris van Justitie, (1982) Case 53/81, Mrs Levin asserted that she was entitled to reside in the Netherlands on the grounds that she was a worker with rights under Article 48 of the EEC Treaty. The Judicial Division of the Netherlands State Council referred the matter to the ECJ for a preliminary ruling. The ECJ gave helpful guidance as to the interpretation of Article 48, including the following passages:

"17. It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the Treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity ...

"20. Under Article 48(3) of the Treaty the right to move freely within the territory of the Member States is conferred upon workers for the 'purpose' of accepting offers of employment actually made. By virtue of the same provision workers enjoy the right to stay in one of the Member States 'for the purpose' of employment there. Moreover, it is stated in the preamble to Regulation (EEC) No. 1612/68 that freedom of movement for workers entails the right of workers to move freely within the community 'in order to' pursue activities as employed persons, whilst Article 2 of Directive 68/360/EEC requires the Member States to grant workers the right to leave their territory 'in order to' take up activities as employed persons or to pursue them in the territory of another Member State.

"21. However, these formulations merely give expression to the requirement, which is inherent in the very principle of freedom of movement for workers, that the advantages which community law confers in the name of that freedom may be relied upon only by persons who actually pursue or seriously wish to pursue activities as employed persons. They do not, however, mean that the enjoyment of this freedom may be made to depend upon the aims pursued by a national of a Member State in applying for entry upon and residence in the territory of another Member State, provided that he there pursues or wishes to pursue an activity which meets the criteria specified above, that is to say, an effective and genuine activity as an employed person."

As I read these passages, the ECJ is here talking about workers in the extended sense.

37. In Sylvie Lair v Universitat Hannover (1988) Case 39/86, the plaintiff challenged the refusal by the University of Hanover to award her a maintenance and training grant for the pursuit of her university studies. She had previously worked for certain periods in Germany. In a section of its judgment headed "the concept of worker" the ECJ stated as follows:

"33. Persons who have previously pursued in the host Member State an effective and genuine activity as an employed person as defined by the Court (see the judgment of 23 March 1982 in Case 53/81 Levin v Staatssecretaris van Justitie((1982)) ECR 1035, and of 3 June 1986 in Case 139/85 Kempf v Staatssecretaris van Justitie ((1986)) ECR 1741) but who are no longer employed are nevertheless considered to be workers under certain provisions of Community law.

"34. First, under article 48(3)(d) of the EEC Treaty, persons who remain in the territory of a Member State after having been employed in that State are regarded as workers. Regulation (EEC) No 1251/70 of the Commission of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State... which implemented that provision of the Treaty, gives workers whose occupational activity has terminated and their families the right, under certain conditions, to remain permanently in the territory of a Member State. Secondly, Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families... prohibits Member States in certain circumstances from withdrawing a residence permit from a worker solely on the ground that he is no longer in employment. Thirdly, and lastly, under Article 7(1) of Regulation No 1612/68 a migrant worker who has become unemployed may not be treated differently from national workers in the same position as regards reinstatement or re-employment...

"39. The answer to the second part of the first question should therefore be that a national of another Member State who has undertaken university studies in the host State leading to a professional qualification, after having engaged in occupational activity in that State, must be regarded as having retained his status as a worker and is entitled as such to the benefit of Article 7(2) of Regulation No 1612/68, provided that there is a link between the previous occupational activity and the studies in question."

In this passage, I believe that the ECJ is using the word "worker" in the narrow sense, i.e. not including a work seeker.

38. It should be noted that regulation EEC 1251/70 (which is referred to in paragraph 34 of Lair) relates to persons who had ceased working by reason of retirement or incapacity.
39. In R v Immigration Appeal Tribunal, ex parte Antonissen (1991) Case C-292/89, the claimant, a Belgian national, challenged a deportation order made by the Secretary of State. The claimant asserted a right to remain in the UK under Article 48 of the EEC Treaty on the grounds that he was seeking employment. The Queen's Bench Division referred to the ECJ two questions concerning the interpretation of Community law governing the free movement of workers. The ECJ's answers to those questions, in paragraph 22 of its judgment, were as follows:

"It must therefore be stated in reply to the questions submitted by the national court that it is not contrary to the provisions of Community law governing the free movement of workers for the legislation of a Member State to provide that a national of another Member State who entered the first State in order to seek employment may be required to leave the territory of that State (subject to appeal) if he has not found employment there after six months, unless the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged."

40. The judgment in Antonissen is focused upon the position of work seekers. Where the word "worker" appears in this judgment, it is used in the extended sense.
41. Collins v Secretary of State for Work and Pensions (2004) Case C-138/02 was also a reference to the ECJ from the UK. Mr Collins was challenging the refusal to grant him a Jobseekers Allowance. One of the issues was whether Mr Collins was a worker within the meaning of EC legislation. The ECJ gave the following guidance on this issue:

"26. In accordance with the Court's case-law, the concept of 'worker' within the meaning of Article 48 of the Treaty and of Regulation No 1612/68, has a specific Community meaning and must not be interpreted narrowly. Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a 'worker'. The essential feature of an employment relationship is, according to that case-law, that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration...

"27. The Court has also held that migrant workers are guaranteed certain rights linked to the status as a worker even when they are no longer in an employment relationship...

"28. As is apparent from the documents sent to the Court by the Social Security Commissioner, Mr Collins performed casual work in the United Kingdom, in pubs and bars and in sales, during a 10-month stay there in 1981. However, even if such occupational activity satisfies the conditions as set out in paragraph 26 of this judgment for it to be accepted that during that stay the appellant in the main proceedings had the status of a worker, no link can be established between that activity and the search for another job more than 17-years after it came to an end.

"29. In the absence of a sufficiently close connection with the United Kingdom employment market, Mr Collins' position in 1998 must therefore be compared with that of any national of a Member State looking for his first job in another Member State.

"30. In this connection, it is to be remembered that the Court's case-law draws a distinction between Member State nationals who have not yet entered into an employment relationship in the host Member State where they are looking for work and those who are already working in that State or who, having worked there but no longer being in an employment relationship, are nevertheless considered to be workers (see Case 39/86 Lair [1998] ECR 3161, paragraphs 32 and 33).

"31. While Member State nationals who move in search of work benefit from the principle of equal treatment only as regards access to employment, those who have already entered the employment market may, on the basis of Article 7(2) of Regulation No 1612/68, claim the same social and tax advantages as national workers...

"32. The concept of 'worker' is thus not used in Regulation No 1612/68 in a uniform manner. While in Title II of Part I of the regulation this term covers only persons who have already entered the employment market, in other parts of the same regulation the concept of 'worker' must be understood in a broader sense.

"33. Accordingly, the answer to the first question must be that a person in the circumstances of the appellant in the main proceedings is not a worker for the purposes of Title II of Part I of Regulation No 1612/68. It is, however, for the national court or tribunal to establish whether the term 'worker' as referred to by the national legislation at issue is to be understood in that sense."

In the first part of this passage, the ECJ is talking about workers in the extended sense. In the latter part of this passage, however, (paragraphs 30 to 33) the ECJ is pointing up the distinction between workers in the narrow sense and workers in the extended sense.

42. The last authority to which I must refer in relation to this issue is the decision of Collins J in this court in R (Conde) v The London Borough of Lambeth [2005] EWHC 62 (Admin). Ms Conde was a Spanish national who came to the United Kingdom with two small children. She found herself homeless and applied to the London Borough of Lambeth for assistance under section 17 of the Children Act 1989. Lambeth rejected the application and asserted that, by reason of paragraph 1(1)(g) of Schedule 3 to the 2002 Act, it had no power to provide assistance under section 17 of the Children Act 1989. In the judicial review proceedings, Ms Conde (like the claimant in the present case) relied upon paragraph 3(b) of Schedule 3 in order to prevent the operation of paragraph 1. Ms Conde asserted that she was a work seeker and that Lambeth's refusal to provide accommodation was an unlawful obstacle to the exercise of her right to seek employment. Collins J rejected that claim at paragraphs 26 to 27, he said:

"26. ... as counsel points out, we are here concerned not with permanent accommodation but only with temporary accommodation. He recognises, as he must, that a job seeker from another Community State is only entitled to remain here for such period as is reasonable to enable him or her to make the necessary efforts to seek employment. If it becomes apparent that employment is not likely to be obtained (and that will normally be after a period which has been by a rule of thumb regarded as six months) then the likelihood will be that the right to remain for that purpose can be considered to have ceased.

"27. That is subject to consideration of an individual case and it may well be that someone who has been here for a period which exceeds six months can still be said to be a genuine job seeker if it is plain that there are real prospects that a job will be obtained within a relatively short period of time ..."

43. In the light of the guidance given by the ECJ and the recent decision of Collins J, I must now consider whether the defendant erred in concluding that the claimant was not a worker or work seeker.
44. The evidence bearing on this question is contained in the claimant's two witness statements and in the witness statement of Ms Hunnisett. The key facts which emerge from this evidence are as follows: in September 2005, the claimant was living on income support and looking after two young children. The claimant's last employment had ended some 15 months previously, which was shortly before the claimant's children arrived in this country. The claimant was registered as unemployed at her local Job Centre. The claimant had an appointment fixed to attend the Job Centre Plus on 10th October for interview. This interview was of a kind known as "work focused interview". It is a compulsory interview for those on certain benefits, including income support. The purpose of the interview is to check the applicant's circumstances to see whether he or she can be helped back into work.
45. On 28th September 2005, the defendant was not aware of the claimant's detailed arrangements with the Job Centre Plus. On the other hand, the defendant was aware of the claimant's general circumstances, Miss Hunnisett set these out as follows in paragraphs 7 and 8 on the fourth page of the decision letter:

"7. I am not satisfied that your client has genuine chances of being engaged in employment. She is currently on a waiting list to learn English at Harrow College because she speaks little or no English and does not read or write the language. She could not, therefore, read a job advertisement or complete an application form. She has no real work skills apart from cooking but she is not a qualified chef. She has not worked in over one year and during this time has not registered at a single employment agency. When I asked her how she intended to find work she said by word of mouth through the Somali community.

"8. Moreover, with two small children to look after I am not satisfied that your client could afford the child care costs to enable her to go out to work. The DWP have confirmed that your client is in receipt of Income Support because she is not expected to work as she has young children. Whilst I am not convinced that the DWP have made a correct determination with regard to your client's eligibility for benefit their views are apposite nonetheless."

46. In my view, the defendant's decision that the claimant was neither a worker nor a work seeker contains no error of law. On the contrary, the defendant correctly applied established legal principles to the facts. I reach this conclusion for four reasons:

1. The claimant was not in paid employment at the material time.

2. There are defined circumstances in which a person who has ceased to be employed retains the status of worker; see Lair at paragraphs 33 to 39 and Collins at paragraph 30 (which refers back to Lair). In the present case, none of the circumstances which could cause the claimant to retain the status of worker, some 15 months after she had ceased working at the coffee shop, are present.

3. In the circumstances prevailing in September 2005, the claimant did not have a "sufficiently close connection with the United Kingdom employment market". See Collins at paragraph 29.

4. Applying the criteria set out in Antonisson at paragraphs 8 to 22 and in Conde at paragraphs 26 to 27, it cannot be said that the claimant was a work seeker. She had failed to find work for a period substantially longer than six months, and her circumstances were as set out on page 4 of the decision letter.

47. Let me now address two arguments advanced by Mr Berry, with reference to the Immigration Regulations. The first argument may be summarised as follows: Regulation 5(2) indicates that a person retains the status of worker, if he is involuntarily unemployed and that fact is duly recorded at the local employment office. The second argument may be summarised as follows: under Regulations 18 and 19, a worker, or someone who was a worker, is entitled to a residence permit which will remain in force for specified periods after the termination of his employment; this indicates that the individual retains his status of worker during such periods.
48. I reject these arguments for four reasons:

1. UK domestic legislation cannot be relied upon as a ground for expanding the meaning of "worker" in Article 39, Regulation 1612/68 or the various Council Directives.

2. The word "solely" in Regulation 5(2) is crucial to interpreting this provision. It means that one has to look at all the circumstances of the case. The mere fact that a person is involuntarily unemployed and is so recorded at the employment office is not, by itself, determinative. Regulation 5(2) does not assert or imply that there is any general category of retained status of worker.

3. Regulations 18 and 19 set out the entitlement of individuals to residence permits in a range of situations. These two regulations do not contribute to the definition of "worker", which is to be found in Regulation 3(1)(a).

4. The word "worker" in Regulation 19(2) means a person who has obtained a residence permit by virtue of being a worker. It does not mean that such a person retains the status of worker for more than a year after losing his job.

49. Let me now draw the threads together. The defendant did not err in concluding that the claimant was neither a worker nor a work seeker. My answer to the question set out in part 5 of this judgment is no.
Part 6 . Did the defendant err in deciding that the claimant did not have a right to reside in the UK under Articles 17 to 18 of the EC Treaty?
50. As a Dutch national, the claimant is a citizen of the EU. Under Article 17 of the EC Treaty, the claimant's rights as a citizen of the Union are additional to her rights as a citizen of the Netherlands.
51. One of the claimant's rights as a citizen of the Union is the right to "reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect." See Article 18(1) of the EC Treaty.
52. The "limitations and conditions" referred to in Article 18(1) include the provisions of Directive 90/364. Article 1 of this Directive imposes a condition upon the right of a national of one Member State to reside in another Member State. The condition is that the person should be covered by sickness insurance and have "sufficient resources to avoid becoming a burden on the social assistance system of the host Member State".
53. The word "burden" in Article 1 should be read as meaning an unreasonable burden, see Grzelczyk v Centre public d'aide sociale d'Ottignies-Louvain-la-Neuve (2001) Case C-184/99 and Trojani v CPAS (2004) case C-456/02.
54. The claimant in the present case does not satisfy the condition imposed by Article 1 of Directive 90/364, even taking into account the qualification of Article 1 to be found in Grzelczyk and Trojani. The defendant's decision in this regard cannot be faulted.
55. Let me now draw the threads together. The claimant is not a work seeker and so she does not have Title I rights under Regulation 1612/68. The claimant is not a worker and so she does not have Title II rights under Regulation 1612/68. The claimant does not have the resources to be self-sufficient, and so she does not have a right of residence in the UK under Directive 90/364. In short, under the EC Treaty and subordinate legislation, the claimant no longer has any right to reside in the United Kingdom.
56. Let me now turn to UK domestic legislation. By reason of the matters set out above, the claimant no longer falls within any of the categories of "qualified person" set out in Regulation 5 of the Immigration Regulations. Accordingly, the claimant no longer has a right of residence in the UK under Regulation 14(1) and regulation 21(3)(a)(i) of those Regulations. The claimant is therefore someone who is in the UK in breach of the immigration laws: see section 11(2) of the 2002 Act.
57. The fact that the Home Office has not taken steps to remove the claimant does not confer legality upon her presence in the United Kingdom. The House of Lords decision in Chief Adjudication Officer v Wolke (1997) 1 WLR 1640 (upon which Mr Berry relies) can readily be distinguished. The issue in Wolke was whether the appellant had been "required by the Secretary of State to leave the United Kingdom." See the speech of Lord Slynn at pages 1642 to 1643.
58. The conclusions which I have set out above are consistent with the reasoning of the ECJ in Bidar v London Borough of Ealing (2005) Case C-209/03. See paragraphs 31 to 42. The above conclusions are also consistent with the reasoning of Collins J in Conde. See paragraphs 61 to 62. The ECJ's decision in Trojani v CPAS (2004) Case C-456/02 should be distinguished, since Mr Trojani (unlike the claimant in the present case) had a residence permit. See Trojani at paragraph 37.
59. For all of the reasons set out above, in my view the defendant did not err in deciding that the claimant did not have a right to reside in the United Kingdom under Articles 17 to 18 of the EC Treaty. My answer to the question posed in part 6 of this judgment is no.
Part 7 . Did the defendant err in deciding that the claimant did not fall within paragraph 3(b) of Schedule 3 to the 2002 Act?
60. The claimant has a right not to be discriminated against within the scope of the application of the EC Treaty: see Article 12. On the other hand, the claimant is not, and on 28th September 2005 was not, exercising any rights falling within the scope of the EC Treaty. See parts 5 and 6 above. Accordingly, there is no basis for the assertion that the claimant is or was being discriminated against contrary to Article 12.
61. The defendant local authority decided that it was not necessary to provide accommodation for the claimant in order to avoid a breach of the claimant's rights under the EC Treaty. In my view, that decision was correct in law. Indeed on the evidence as it stood in September 2005, I do not see how the defendant could have come to any other decision.
62. For the sake of completeness, let me now consider this question on a different and hypothetical basis. Suppose that, in September 2005, the claimant was properly to be classified as a work seeker. In that event, it still cannot be said that the claimant fell within paragraph 3(b) of Schedule 3. I say this because the provision of accommodation under section 188(3) of the 1996 Act was not "necessary" in order to enable the claimant to exercise her Title I rights under Regulation 1612/68: see Conde at paragraphs 50 and 67. It should be noted that the authorities upon which the claimant relies, in relation to this aspect of her case all concern Title II rights under Regulation 1612/68, rather than Title I rights, see Even v ONPTS (1979) Case 207/78, Reina v Landeskreditbank Baden-Wurttemberg (1982) Case 65/81, Commission of the European Communities v Italian Republic (1988) Case 63/86.
63. Let me now draw the threads together. On the facts as they were, and as they appeared to be on 28th September 2005, it was not "necessary" for the defendant to exercise the interim power to accommodate in order to avoid a breach of the claimant's rights under the EC Treaty. Accordingly, the claimant cannot bring herself within paragraph 3(b) of Schedule 3 to the 2002 Act. My answer to the question posed in part 7 of this judgment is no.
Part 8 . Can the claimant succeed on any of her five grounds of claim?
64. I shall now address the claimant's five grounds of claim in the order set out in part 4 above:

Ground 1

65. This ground fails. The claimant is and was ineligible to benefit from the exercise of the power conferred by section 188(3) of the 1996 Act. Accordingly, the defendant was under no duty to consider the factors relevant to the exercise of that power.

Ground 2

66. This ground fails for the reasons set out in part 5 above.

Ground 3

67. This ground fails for the reasons set out in part 6 above.

Ground 4

68. In relation to this ground, the claimant relies upon the ECJ's decision in Gebhard v Consiglio dell'Ordine degli Avvocati e Procuratori di Milano (1995) Case C-55/94. In that case, a German barrister, Mr Gebhard, was exercising his right to practise in Italy. The Milan Bar Council objected to Mr Gebhard using the title "avvocato". The issue therefore arose as to what restrictions could legitimately be imposed upon the national of another Member State, who was exercising his right to provide professional services within Italy. The ECJ stated the following principles at paragraph 37:

"It follows, however, from the Court's case-law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must be applied in a non-discriminatory manner; they must be justified by imperative requirements in the general interest; they must be suitable for securing the attainment of the objective which they pursue; and they must not go beyond what is necessary in order to attain it ..."

69. I agree with Mr Berry that of these four conditions, the third and fourth impose a test of proportionality. On the other hand, the four conditions set out in paragraph 37 only apply when the claimant is exercising fundamental freedoms guaranteed by the EC Treaty. In my view, in September 2005, the claimant was not exercising any fundamental freedoms guaranteed by the EC Treaty. The claimant in this case is not in an analogous position to Mr Gebhard, who was exercising his EC rights to pursue a legal career in Italy.
70. There is a further obstacle in the claimant's path. It does not seem to me that the national measure in question (namely Schedule 3 to the 2002 Act) does fail the test of proportionality, if that test is applicable. The EC Treaty and subordinate legislation create a web of rights which extend across the Union. However, these rights have been carefully balanced and circumscribed. It is not the case that every citizen of the Union is entitled to settle in any Member State and to draw upon its welfare benefits. In my view, Schedule 3 to the 2002 Act gives effect in a fair and proportionate manner to the established rights of EU citizens.
71. In the result, therefore, the fourth ground of claim fails.

Ground 5

72. The fifth ground of claim is focused upon the facts of the present case.
73. It appears to me from the witness statements that the defendant, through Ms Hunnisett, made proper and adequate enquiries and came to conclusions which were appropriate on the evidence. Indeed, I cannot discern any line of enquiry which might have been pursued and which might have caused the defendant to come to a different conclusion. Therefore, the fifth ground of claim fails.
74. Let me now draw the threads together. The claimant fails on each of her five grounds of claim. My answer to the question posed in part 8 of this judgment is no.
Part 9 . Conclusion
75. For the reasons set out above, the claimant fails in her challenge to the defendant's decision dated 28th September 2005. I reach this conclusion with regret because of the consequences which it will entail for the claimant and her children.
76. I thank all counsel for their assistance in this case.
77. The claimant's claim is dismissed.