In this appeal, the Supreme Court considered a challenge under EU law to the “right to reside” test which is a condition to be satisfied on claiming means-tested welfare benefits. All UK nationals have a right to reside in the UK or Ireland, but only some foreign nationals do. It was submitted that this amounted to discrimination contrary to Article 3(1) of Council Regulation (EC) 1408/71 (now succeeded by Regulation (EC) 883/2004), which provides for equality of treatment in the application of social security schemes by host Member States to certain employed or self-employed EU citizens, and/or the general prohibition on discrimination under Article 18 TFEU (ex Art. 12 EC).
The Supreme Court held that the ‘right to reside’ test was indirect rather than direct discrimination, and that it was justified on the grounds of protecting the public finances from exploitation. They declined to make a reference to the Court of Justice of the European Union, holding that the position was acte clair notwithstanding that the Commission had recently issued a letter of formal notice to the United Kingdom Government under Art. 258 TFEU requiring observations as to the compatibility with EU law of the ‘right to reside’ test.
Richard Drabble QC and Charles Banner appeared for the AIRE Centre (instructed by Bates Wells & Braithwate LLP), who were granted permission to intervene by way of written and oral submissions.