Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 9

P1423/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

GO (AP)

Petitioner

against

Judicial Review of a decision by Aberdeen City Council

Respondent

Petitioner:  Campbell QC;  Lazarowicz; Civil Legal Assistance Office

Respondent:  Komorowski; Morton Fraser LLP

20 January 2017

[1]        The petitioner is a Polish national.  She arrived in Aberdeen along with her adult son in October 2014.  It is accepted that the circumstances in which she came to Aberdeen amount to trafficking and that she is a victim of trafficking.  She initially stayed at a house in Aberdeen with a Mr B before leaving on 29 December 2014.  She reported to the police that she had been the victim of physical and sexual abuse at the hands of Mr B.  She and her son were given support from a number of agencies including the social work department and the Cyrenians.  They were assisted in obtaining housing from the respondents (“the Council”) and by the Cyrenians.  On 13 February 2015 the petitioner and her son entered into a tenancy agreement with the Council.  The petitioner’s son had in the meantime obtained a job.  Unfortunately he lost that job on 1 April 2015 (and has not worked since).  As a result arrears of rent accumulated.  The Council raised an action seeking recovery of possession of the property.  They became entitled to evict the petitioner and her son after 18 December 2015 but have agreed not to do so pending resolution of this action.

[2]        On 28 August 2015 the petitioner applied to the Council for accommodation as a homeless person.  The application was rejected by letter dated 11 September 2015 on the grounds that she was not a job seeker and accordingly not a qualified person as defined in regulation 6(4) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).  As such she was not entitled to reside in the United Kingdom.  On 1 October 2015 the petitioner, through her agents, sought a review of that decision.  The Council issued a final decision on 20 October 2015. 

 

Remedies sought
[3]        The petitioner seeks the following orders:

“(i)       Reduction of the Respondents’ decisions of 11 September and 20 October 2015 that the Petitioner is not entitled to receive statutory homelessness assistance from them;

 

(ii)        Declarator that the Respondents are under an obligation to provide accommodation or assistance to her insofar as they are required to by the homelessness provisions set out in Part II of the Housing (Scotland) Act 1987;

 

(iii)       Declarator that the Respondents are under an obligation in terms of section 28 of the Housing (Scotland) Act 1987 to make such inquiries as are necessary to satisfy themselves as to whether she is homeless or threatened with homelessness;

 

(iv)      Declarator that the Respondents are under an obligation in terms of section 29 of the Housing (Scotland) Act 1987 to secure accommodation is made available for her occupation pending any decision which they may make as a result of such inquiries;

 

(v)       An order for specific performance requiring that the Respondents implement their obligation to the Petitioner by securing accommodation is made available to her for her occupation provided for her within 24 hours, or such other period as shall seem reasonable to the court, pending such decision; and for an order ad interim;”

 

So far as crave (v) is concerned Mr Campbell accepted that I should not pronounce such an order at this stage but rather if I granted the other orders sought I should fix a hearing By Order to discuss further procedure.

 

The Petitioner’s Medical Condition
[4]        In a letter dated 3 March 2015 Mr Lynch, a mental health nurse practitioner, noted a number of symptoms which he said appeared to be the result of human trafficking including hyper-arousal, nightmares and flashbacks, anxiety, sleep difficulties and inability to use public transport.  That letter was not put before the Council.  However, in their letter dated 1 October 2015 the agents reported that the petitioner’s mental health had been deteriorating dramatically in recent weeks culminating in her presenting to emergency admissions as she was experiencing suicidal thoughts.  Her mental health social worker had informed them that she had been diagnosed with PTSD and that she was to be fully assessed at Cornhill Hospital on 4 October 2015.

[5]        On 23 October the petitioner’s GP, Dr David MacLeod, wrote to the agents confirming that the petitioner had been seen on 5 October by Dr Badial, consultant psychiatrist.  He felt that she was suffering from an adjustment disorder with symptoms of depression and anxiety.  There was also the possibility of some symptoms suggestive of PTSD but given the communication difficulties with the petitioner this was difficult to confirm (the petitioner does not speak English).  She did not have any suicidal intent but she was struggling with a sense of hopelessness.  Her situation regarding her finances and uncertainty regarding future accommodation did put her at risk of future self‑harm, though it was noted that she had continuing assistance from a number of agencies including the Council.  Dr MacLeod further observed:

“It has been felt that the best course of action may be for her to return to Poland where she has the potential support of family and friends and where she is able to speak the language.”

 

This letter was not put before the Council. 

[6]        The petitioner produced a further medical report from Dr Badial dated 21 June 2016.  This was the product of two consultations in which Polish speaking doctors had acted as interpreters.  He reported that clinically the petitioner was clearly still subject to moderate to severe depressive symptoms with suicidal ideation.  In addition she described symptoms in keeping with a probable PTSD.  Her difficulties had in his opinion been precipitated by the traumas of being trafficked to Aberdeen in October 2014.  These symptoms had been perpetuated by a sense of injustice and desperation alongside her undoubted social difficulties and financial circumstances.  Dr Badial reported that the petitioner did not wish to return to Poland.  She did not think that she or her son had a meaningful future there.  He reported that she had eluded “in a rather passive aggressive manner” to a belief that if the court hearing was not favourable some sort of “tragedy” would befall her.  She also expressed a wish to be housed in either Edinburgh or Glasgow as she did not feel safe in Aberdeen.  Her affidavit also expresses a wish to be housed in Edinburgh or Glasgow. 

[7]        Dr Badial concluded that the petitioner would benefit from continuing to be prescribed anti‑depressant medication.  She would also benefit from psychological talking therapies.  Unfortunately given her very limited language skills such therapies would prove difficult to access in Aberdeen.

 

The Arguments
[8]        Notes of argument were lodged by both parties and these were supplemented by oral submissions.  The parties also agreed a joint statement of issues. 

 

Summary of the Case for the Petitioner
[9]        The petitioner presents two cases.  First she says that Article 4 ECHR includes a right for victims of trafficking to accommodation.  As the authority charged with providing homelessness accommodation she says that the duty to provide such accommodation falls on the Council. 

[10]      Secondly the petitioner says that she has a right to reside in the United Kingdom by virtue of Articles 21 and 45 TFEU.  As an EU citizen with a right to reside in the UK she is entitled to access social provision including homelessness accommodation. 

 

Summary of the case for the respondent
[11]      The Council responds that even if there is a duty under ECHR to provide accommodation the Council could not comply with that obligation because primary legislation, namely sections 118 and 199 of the Immigration & Asylum Act 1999 prevent it  from acting differently.  It accordingly it has a defence under section 6(2)(a) of the Human Rights Act 1998.  In any event any duty under Article 4 ECHR to provide accommodation to a victim of trafficking cannot extend to someone in the position of the petitioner. 

[12]      The respondent denies that the petitioner has a right to reside in the United Kingdom  under Articles 21 and 45 TFEU. 

 

European Convention on Human Rights
[13]      Article 4 of the ECHR provides inter alia that (1) no one shall be held in slavery or servitude, and (2) no one shall be required to perform forced or compulsory labour.  Article 4 covers human trafficking:  Rantsev v Cyprus and Russia [2010] 51 EHRR 1.  While parties were agreed on that point they disagreed on the scope of the positive obligations on contracting states arising out of Article 4 and Rantsev.  Mr Campbell submitted that there is a continuing obligation to victims of trafficking and that included an obligation on the Council to provide homelessness accommodation.  He points to the terms of the Council of Europe Convention on Action against Trafficking (“the Anti Trafficking Convention”) and in particular to Article 12;  Assistance to Victims.  Mr Komorowski on the other hand submitted that the positive obligations on the state are not wide enough to encompass an ongoing obligation to house victims of trafficking. 

[14]      In Rantsev the European Court of Human Rights (ECtHR) examined the nature of the state obligations to victims of trafficking.  National legislation must ensure the practical and effective protection of the rights of victims or potential victims of trafficking.  These would include criminal law measures to punish traffickers and regulation of businesses often used as a cover for human trafficking (paragraph 284).  It also included operational measures to protect victims, for example where State authorities were aware or had a credible suspicion that an identified individual was at real and immediate risk of being trafficked.  In that situation there would be a violation of Article 4:

“where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk” (paragraph 286).  

 

[15]      The ECtHR went on to observe that the obligation to take operational measures should not be interpreted in such a way as to impose an impossible or disproportionate burden on the authorities (paragraph 287).  There was a duty as a matter of urgency to investigate cases of trafficking with a view to the identification and punishment of offenders.  The ECtHR observed that the victim or next of kin must be involved in this procedure to the extent necessary to safeguard their legitimate interests (paragraph 288). 

[16]      The State obligations to victims of trafficking which arise out of Rantsev appear confined to ensuring that individuals do not become victims of trafficking and if they do that they are removed from that situation as quickly as possible.  Obligations that may continue after they have been removed from a position of slavery or servitude appear confined to participation in the investigative process. 

[17]      The Anti‑Trafficking Convention is not part of domestic law but has been ratified by the UK.  Accordingly Mr Campbell did not suggest that it created rights capable of vindication on their own;  rather they gave substance to the nature of the right under article 4 ECHR.  Mr Komorowski accepted that they could be used as an aid to the interpretation of rights and obligations arising under Article 4. 

[18]      Chapter 3 of the Anti‑Trafficking Convention deals with measures to protect and promote the rights of victims.  Article 12 is headed Assistance to Victims.  It provides that each party to the convention shall adopt such legislative and other measures to assist victims in their physical, psychological and social recovery.  These are to include standards of living capable of ensuring their subsistence, through such measures as appropriate and secure accommodation, psychological and material assistance.  Victims should also have access to emergency medical assistance, translation and interpretation services and counselling and other measures in particular as regards their legal rights and the services available to them in a language they can understand.  Article 13 of the convention provides for recovery and reflection of at least 30 days when there are reasonable grounds to believe that the person concerned is a victim.  Such a period is said to be sufficient for the person concerned to recover and escape the influence of traffickers.  During this period it shall not be possible to enforce any expulsion against him or her. 

[19]      In EK v the Secretary of State for the Home Department [2014] INLR 166 Lord Turnbull sitting as a judge in the Upper Tribunal Immigration & Asylum Chamber, and giving the decision of the panel, found that the Secretary of State owed duties under the Anti‑Trafficking Convention to a victim of trafficking.  The circumstances in that case were somewhat special.  The case involved a Tanzanian woman of limited education from an impoverished background.  She had been the victim of trafficking into the United Kingdom and separately within the United Kingdom.  She was now very seriously ill having contracted tuberculosis.  The damage was permanent.  She would require substantial hospital treatment.  Such treatment would be very difficult to access in Tanzania.  The illness had been brought about by the physical conditions in which she had been required to live while the subject of trafficking.  The Upper Tribunal found that there had been a failure by the government to implement protective measures in respect of her and accordingly the Upper Tribunal found that the Secretary of State was in breach of Article 4 ECHR.  The appellant’s medical condition was linked to the breach of Article 4 by the Secretary of State.  The Upper Tribunal further found that as a result of the breach of Article 4 the appellant was entitled to reparation.  It was in that context that the Upper Tribunal went on to consider breaches of the Anti‑Trafficking Convention.  It concluded that while it was not open to them to declare that the Secretary of State must grant the appellant leave to remain indefinitely a legally material factor in the exercise of the Secretary of State’s decision was the correction of an injustice. 

[20]      In my opinion it is appropriate to use the Anti‑Trafficking Convention as an aid to determine the scope of the rights and duties under Article 4 ECHR to a victim of trafficking.  But it is only an aid to construction.  The rights have not been transposed into domestic law.  Moreover there is no suggestion that the petitioner’s present situation came about as a result of any breach of the protective obligations imposed on the state through Article 4, unlike the position in EK. 

[21]      I asked Mr Campbell for how long after the end of the active part of the trafficking the State’s obligation towards the victim extended.  The answer was a reasonable period.  However that begs the question as to what is reasonable. 

[22]      In my opinion once a victim of trafficking has been removed from the situation of slavery or servitude the State’s principal obligations towards the victim is to identify and if possible bring to justice the perpetrator or perpetrators.  That may mean giving assistance to the victim to enable her to give evidence in any proceedings.  This assistance will no doubt encompass addressing the physical and mental consequences of trafficking at least insofar as maybe required to enable the victim to give evidence.  It may also be that there is a short period of recuperation and reflection such as contemplated in the Anti‑Trafficking Convention.

[23]      The question is whether there is any more general obligation to the victim by the State where there has been no breach of the state’s obligations under Article 4.  Article 12 of the Anti‑Trafficking Convention suggests that there is a wider obligation to provide at least some assistance to aid the physical, psychological and social recovery of the victim.  How far that obligation may extend is a matter of debate but in the absence of legislation the court should be wary about extending such an obligation beyond the immediate aftermath of the victim’s removal from their situation.

[24]      In this case while it clear that the petitioner has mental health problems and that these appear to be related to the effects of trafficking I am satisfied that there is no obligation on the Council to provide the petitioner with housing.  Any obligation that the State may have to the petitioner cannot be open-ended.  There is nothing now to prevent the petitioner returning to her own country.  The provision of housing will not in itself address the issue of the petitioner’s mental health.  Given the fact that the petitioner does not speak English the provision of mental health services to her remains problematic.  The observation from Dr MacLeod that the best course of action would be for her to return home where she would have the support of friends and family and is able to speak the language is not supportive of the petitioner’s position.  In the face of these problems it is difficult to see how any obligation on the State arising out of Article 4 ECHR could be stretched to encompass a seemingly indefinite obligation to provide the petitioner with housing. 

[25]      The Council says that in any event the petitioner’s human right’s claim is redundant.  The petitioner’s claim is based on the submission that as a public authority it would be unlawful for it to act in a way which was incompatible with the petitioner’s convention rights:  Human Rights Act 1998 section 6(1).  However the Council responds that this does not apply because as a result of primary legislation it could not act differently:  Section 6(2)(a).  The respondent claims that the Immigration & Asylum Act 1999, sections 118 and 119 prevent it from acting differently as it bars it from offering homeless assistance to those subject to immigration control.  The petitioner’s only response to this is that she is not subject to immigration control because she has a right to reside under EU Law.  Accordingly the Council says that the petitioner’s claim under the Human Rights Act becomes a restatement of her argument under EU Law.  I turn to examine the EU argument.

 

European Union Law
[26]      Article 21 TFEU provides that 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 the treaties and by measures adopted to give them effect. 

[27]      Directive 2004/38 gives effect to this right.  Article 6 of the Directive provides that all Union citizens shall have the right to reside in the territory of another Member State for a period of up to 3 months without any conditions or formalities.  However that right can only be retained so long as they do not become an unreasonable burden on the social assistance system of the host Member State:  Article 14.1.  Article 7 provides for a right of residence for more than 3 months.  So far as relevant for these purposes the right may be exercised if they are a worker or are self‑employed in the Member State or if they have sufficient resources not to become a burden on the social assistance system of the host Member State.  Article 7.3 provides that a Union citizen who is no longer a worker may retain the status of worker in a number of defined circumstances.  These include that he or she is temporarily unable to work as a result of an illness or accident.  The right of residence is only retained so long as the condition is met:  Article 14.2.  Recital 10 to the preamble of the Directive recognises the right of the Member State to take measures ensuring that persons exercising the right of residence do not become an unreasonable burden upon the social assistance system of a host Member State. 

[28]      Mr Campbell submitted that Recital 10 did not apply to the petitioner because the provision of a home was not social assistance of the type that the CJEU has found to be encompassed by the provisions of Directive 2030 2004/38.  It does not constitute a non‑contributory cash benefit:  Jobcentre Berlin Neukoelln v Alimanovic & others [2016] QB 308;  Dano & other v Jobcentre Leipzig [2015] 1WLR 2519.  He accepted that in the case of Samin v City of Westminster, conjoined with Migra v Secretary of State for Work and Pensions [2016] 1WLR 481 the UK Supreme Court proceeded upon the basis that homelessness assistance was comprised within the category of social assistance.  However he pointed out that neither in the Supreme Court nor in the court below was there any argument on this point. 

[29]      Mr Komorowski submitted that the petitioner had got the issue the wrong way round.  Recital 10 was about the right of Member States to take measures to ensure that the persons exercising the right of residence did not become an unreasonable burden on the social assistance system of a Member State.  This presupposes that the individual concerned was exercising a right of residence.  However the Council denied the petitioner homelessness assistance because she does not have a right of residence, not because to do so would impose an unreasonable burden on the social assistance system.  In any event Mr Komorowski submitted that the substantive provisions of the directive only refer to a restriction on a right of residence that otherwise exists in the context of a three month right of residence.  Those wishing to remain longer must establish a right of residence, either because they are a worker, self‑employed, a student, or “have sufficient resources not to become a burden on the social assistance system of the host Member State and have comprehensive sickness insurance.”  (Article 7(1)(b)).  Thus it was not for the State to show that the EU citizen is an unreasonable burden before withdrawing a right of residence.  Rather if the EU citizen is not a worker, self‑employed or a student it is for them to ensure that they are self‑sufficient and have health insurance before they acquire a right to reside. 

[30]      In my opinion Mr Komorowski is correct in his analysis that the issue of whether or not homelessness assistance is social assistance for the purposes of the Directive does not arise particularly since Article 14.1 of the Directive ties the issue of whether the person is an unreasonable burden on the social assistance system of the Member State to the right of residence under Article 6.  I note however that the decision in the Supreme Court in Samin proceeded on the basis that homelessness assistance was social assistance.  In my opinion that accords with common sense.  It also accords with the decision of the CJEU in Pensionsversicherungsanstalt v Peter Bray  [2014] 1 WLR at paragraphs 50 and 61.  Accordingly I conclude that homelessness assistance is social assistance for the purposes of the Directive. 

[31]      Article 45 TFEU provides for the freedom of movement for workers within the Union.  It entails the right, subject to limitations on the basis of public policy, public security or public health to accept offers of employment, to move freely within the territory of the Member States for this purpose.  It also provides a right to stay in the Member State for the purposes of employment and to remain in the territory of a Member State having been employed in that State subject to conditions laid down by Regulations.  The 2006 Regulations implement the Directive and provide for an initial right of residence for EEA Nationals for a period not exceeding 3 months:  Regulation 13.  Regulation 14 provides for an extended right of residence provided that they remain a qualified person.  The “qualified person” is defined in Regulation 6 and includes a worker or a jobseeker.  A worker does not cease to be a worker if he is temporarily unable to work as a result of illness or accident;  paragraph (2)(a).  Paragraphs (4), (5) and (6) so far as relevant provide that a jobseeker is a person who has entered the United Kingdom in order to seek employment and has a genuine chance of being engaged.  But she cannot remain for longer than the relevant of 91 days unless he is able to show compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged:  Paragraphs (7) and (8).

[32]      The petitioner argues that the Directive 2004/38 and the 2006 Regulations should not be interpreted as allowing the fundamental rights provided for in Article 21 TFEU to be nullified or minimised.  The Council accepts that the 2006 Regulations, as domestic legislation, cannot be relied upon to deny a right of residence to the petitioner that would otherwise exist under EU Law.  Accordingly with one exception the Council accepts that the 2006 Regulations may be put to one side. 

[33]      In my opinion however the 2006 Regulations should not be cast aside so easily.  It was not suggested that they are deficient in implementing the Directive.  The Council applied the Regulations when they decided that the petitioner was not a jobseeker and accordingly not entitled to reside in the United Kingdom.  It is their decision that is under review. 

[34]      Accordingly turning first to the regulations, the petitioner can only reside in this country if she is a qualified person.  She could only fulfil that description if she has a genuine chance of being engaged and she cannot remain longer than 91 days unless she can show compelling evidence that she is continuing to seek employment and has a genuine chance of being engaged. 

[35]      The Council was entitled to conclude on the evidence before it that the petitioner was not a jobseeker for the purposes of the Regulations.  Such evidence that was put before it in the letter of 1 October 2015 fell far short of compelling evidence that she had a genuine chance of being engaged.  The letter outlined the difficulties that she had experienced and stated that despite these difficulties the petitioner continued to seek employment.  She further advised however that “She had not been able to secure a position due to her mental health”.  She also had to care for her son who was unwell.  She expected to secure employment once she had recovered.  However the question is not whether the petitioner is genuine in her attempts in seeking employment but whether there is a genuine chance of her being employed.  There was no such evidence before the Council.  For these reasons it cannot be said that the decision of the Council was perverse or unreasonable.  Moreover the evidence, provided to the court and arising since the Council’s decision, gives no comfort to the petitioner.  She has been employed but only for a total of 12 hours as a cleaner in December 2015.  Her mental health continues to be a problem for her, so much so that the advice is that she should return to Poland where she could have appropriate support.  She does not speak English.  That in itself is likely to be a considerable barrier to her being employed in the United Kingdom.  Paragraph 34 of her affidavit shows the problems that she has had pursuing jobs or engaging in job programmes because of her lack of English.  The evidence before me demonstrates that there is no genuine chance of her being employed.  

[36]      Such an approach is also consistent with EU Law.  In R v the Immigration Appeal Tribunal (ex parte Antonissen)[1991] 2 CMLR 373 the CJEU held that it is not contrary to EU 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 maybe required to leave the territory of that State if he has not found employment within 6 months, unless the person concerned provides evidence that he is continuing to seek employment and that he has a genuine chance of being engaged. 

[37]      The petitioner submits that on a proper analysis of the facts she should be considered a worker for the purposes of Article 45 TFEU and the Directive.  She says that she moved to the United Kingdom as she believed that she would be offered employment.  She is staying in the United Kingdom for the purposes of employment.  She has, she says, been actively seeking employment except when she was unable to work as a result of illness. 

[38]      In my opinion it is clear that the petitioner does not fulfil the criteria for “worker” in terms of the Directive.  Article 7 provides for a right of residence for a period longer than 3 months for three categories of persons;  workers and self‑employed, those with sufficient resources not to be a burden on the Social Assistance System and students.  Article 7.3 provides that a person retains the status of worker (my emphasis) if amongst other things he or she is temporarily unable to work.  Accordingly the structure of Article 7 points strongly to the conclusion that “worker” means someone in work who may however, having lost their employment, retain that status in certain prescribed circumstances. 

[39]      Mr Campbell did not suggest that the few hours the petitioner had been in work in December 2015 (and after the Council’s decision) were sufficient for her to attain the status of worker under the Directive.  However he submitted that the narrow interpretation of worker in the Directive was not consistent with Article 45 TFEU as interpreted by the ECJ in Antonissen. 

[40]      Mr Komorowski on the other hand submits that the words in the ECJ ruling in Antonissen gives an extended meaning to “freedom of movement of workers” in Article 45 TFEU but does not affect the definition of “worker” in Article 7 of the Directive.  The word is used in its strict sense in the Directive. 

[41]      In its judgment in Antonissen the CJEU says that Article 48(3)(now Article 45 TFEU) must be interpreted as enumerating, in a non‑exhaustive way, certain rights benefiting nationals of Member States in the context of free movement of workers and that freedom also entails the right for nationals of Member States to move freely within the territory of other Member States and to stay there for the purposes of seeking employment (paragraph 13).  However that right is qualified.  The court held that a period of 6 months did not appear to be insufficient to find work.  After that the person may be required to leave the country unless he or she provides evidence that they are continuing to seek employment and has a genuine chance of being engaged (paragraphs 21, 22).

[42]      In my opinion there is nothing in Antonissen which disturbs the natural meaning to be ascribed to “worker” in the Directive.  What the CJEU did was to extend the rights under Article 45 TFEU to nationals of other Member States to move for the purposes of seeking employment, not to extend the meaning of worker.

[43]      Accordingly in my opinion even if she is to be regarded as seeking work the petitioner is not a worker for the purposes of the Directive.  However assuming that she is to be regarded as a worker for the purposes of the Directive she can only retain that status if she is temporarily unfit for work as a result of illness or ill‑health.  I heard no submission as to what might be regarded as temporary for the purposes of the Directive.  However at the time of the Council’s decision there was no evidence of when the petitioner might be in the position to return to work.  It has now been two years since she came to this country and since December 2014 she has only had a few hours of work.  There is no evidence before me that she would be in a position to return to work in the near future. 

[44]      The petitioner argues that, in any event, there are exceptional circumstances arising from her having been a victim of trafficking and sexual abuse and as a result of which she suffered severe mental health issues.   The petitioner submits that the CJEU has accepted that EU citizens can rely on the provisions of Article 21 TFEU to provide them with a right to reside even if the Directive would have the effect of removing that right.  The UK Supreme Court has accepted that such exceptional circumstances might have that effect;  Brey; Baumbast v Secretary of State for the Home Department [2002} 3 CMLR 23;  Michel Trojane v Centre public d’aide sociale de Bruxelles (CPAS) Case C-456/02; Mirga.

[45]      The petitioner further submitted that in considering whether there were exceptional circumstances regard should be had to the provisions of the Anti‑Trafficking Convention, Directive 211/36/EU and Article 5 of the European Union Charter of Fundamental Rights.  These instruments should be interpreted as requiring the court to take high regard to the circumstances of the victims of trafficking, requiring amongst other things, the provision of accommodation in appropriate circumstances. 

[46]      The Council’s response is that the petitioner’s circumstances were not of the exceptional kind contemplated by the Supreme Court in Mirga that may lead her to having a right to reside outwith the Directive.  The type of case that was contemplated by the Supreme Court as exceptional was where an applicant fell just short of the requirements of the Directive but where the applicant’s presence would not undermine the purposes of the Directive.  It was not concerned with economically inactive EU citizens.  Where the Directive has a gradual system of rights for former workers who are temporarily or permanently incapacitated there is no basis to require a proportionality assessment with respect to an incapacitated jobseeker;  Alimanovic paragraphs 59 and 60.

[47]      I agree with the Council’s submission that the situation contemplated in Mirga was where the applicant fell just short of the requirement of the Directive but whose presence in the Member State would not undermine the objectives of the Directive.  At paragraph 69 Lord Neuberger, giving the opinion of the court said:

“69      Where a national of another member state is not in work, self‑employed or a student, and has no, or very limited, means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Samin), it would severely undermine the whole thrust and and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances.  It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked.”

 

[48]      In Alimanovic the CJEU held that the Directive 2004/38 retained a gradual system as regards the period of 6 months after the cessation of employment during which the right to social assistance itself takes into account the individual factors characterising the individual situation of each applicant and in particular the duration of any economic activity.  The Directive therefor complied with the principle of proportionality.  It was not necessary to undertake a further individual assessment (paragraphs 59 to 61).

[49]      Accordingly in my opinion there are no exceptional circumstances which would entitle the petitioner to claim a right of residence in the United Kingdom.  Nor is it necessary or required for a proportionality exercise to be undertaken to assess her eligibility to reside in the UK and access social assistance here.  

[50]      However even if was legitimate to look for exceptional circumstances or to undertake a proportionality exercise the petitioner’s circumstances do not provide a foundation for a right of residence in the United Kingdom.  It is accepted that she is a victim of trafficking.  Fortunately that came to an end in December 2014.  It is accepted that she was, at the time of the Council’s decision, and subsequently experiencing mental health difficulties associated with trafficking.  However the petitioner has no ties to the United Kingdom other than the presence of her adult son, who appears not to be exercising residence rights.  She is not economically active and to that extent is a burden on the United Kingdom.  She does not speak English.  There is no barrier to her return to Poland where she could access support and services in her own language and there is the potential of support for family and friends.

[51]      The only reason for a continued presence in the United Kingdom is her desire to remain here, though not it seems in Aberdeen where she is seeking to be housed.  She does not wish to return to Poland.  In my opinion these are not good enough reasons for her to be accorded a right of residence in this country, particularly when to do so would involve a burden on the State.  She has failed to provide any link between her status as a victim of trafficking and the right to residence in the United Kingdom.  It is not suggested that she cannot return to Poland, merely that she does not wish to.  Nor is it suggested that her mental condition is such that she could only get appropriate treatment in this country.  Indeed the evidence suggests that her language skills hamper the provision of appropriate treatment in this country.

[52]      For all these reasons I find that the petitioner has no right of residence under Articles 21 and 45 TFEU.

 

Reference to the Court of Justice
[53]      Paragraphs 33 and 34 of the petitioner’s Note of Argument suggested scenarios in which I should refer questions to the CJEU for a preliminary ruling under Article 267 TFEU.  I am satisfied that the relevant provisions are acte clair and accordingly a reference is not required.

 

Conclusion
[54]      For these reasons I shall refuse the orders sought:  I shall reserve the question of expenses.