LO v SSWP (IS) [2017] UKUT 440 (AAC) involved the overlap between EU law, family law and welfare benefits, focusing particularly on the role of proportionality. All this is academic to LO, who just wanted her income support. Despite compelling personal circumstances, there was no basis on which the tribunal could find a right to reside and make her eligible for that benefit.

The decision affirms the existing line of cases in this area, but the idea of proportionality as a liberalising influence may be examined again by the courts.

A Spanish-British couple who then split up

LO, who is Spanish, moved to the UK with her British partner in late 2009. She worked for two months, and gave birth to twins in August 2010. She returned to work for three months, then stopped working in July 2011 because of child care issues.

The couple split up. A family court order split the children’s residence between them. LO’s request to return permanently to Spain with the children was refused.

In May 2012, LO’s claim for income support was rejected because she could not show a right to reside. The appeal was put on hold awaiting the Supreme Court decision in the case of Samin and Mirga [2016] UKSC 1.

Proportionality to the rescue?

The First-tier Tribunal concluded that LO did not have a right to reside because she had been in the UK for more than three months, and was not a qualified person. LO was no longer a worker and had not retained worker status. Her job hunting efforts were necessarily limited by being a full-time single mother to young twins, and she was not, at the time, registered for Jobseeker’s Allowance. She was neither a family member nor an extended family member. She could not rely on derived rights as there was no suggestion that the children would have to leave the EEA, and because, at the time, her children were too young to be in formal education.

On appeal, the Upper Tribunal looked at whether a right to reside could come about by applying the principle of proportionality. The tribunal also looked at whether LO, in principle, could claim a derived right of residence through her children, and whether the decision infringed her human rights.

The Upper Tribunal looked at the case of C-413/99 Baumbast, in which a German national was able to assert a right to reside despite not fulfilling every requirement of the legislation. The Court of Justice of the European Union had held that limitations on free movement rights must be applied in accordance with general community law principles – proportionality in particular. In Samin and Mirga, similarly, Lord Neuberger noted that there may be a category of “exceptional cases where proportionality could come into play”.

Not so here. Examining the line of increasingly restrictive cases in this area, the tribunal highlighted the fact that Directive 2004/38 aim to stop EU citizens from becoming “an unreasonable burden on the social assistance system of the host member state”. It concluded that LO’s circumstances did not fall within the narrow category of “exceptional cases”.

A precarious position

The appellant registered as a job seeker after the DWP’s 2012 decision, and was awarded Jobseeker’s Allowance. Given the length of time between the original decision and this determination, her children are likely in full time education, which opens up further avenues for this appellant to claim a right to reside. A third country national mother may not have been able to rely on this.

The case nevertheless highlights the limits of EU law in this area. LO could not return to Spain where she would have been eligible for social assistance, could not exercise treaty rights because of the demands of caring for two young children during the working week, and faced hardship as she was unable to access social assistance in the UK. Despite the social benefit of caring for young children, this appellant could not bring herself within the scope of exceptional cases where proportionality could come into play. The rules on EEA citizens’ access to welfare benefits are strongly linked to being in work or retaining a link to employment, but this leaves certain EEA citizens – generally, women – in a precarious position.