Refused benefits when his UK business failed, Piotr Kalisz appealed to Europe. Now his story is at the centre of a case that may cost Britain hundreds of millions.
When Piotr Kalisz’s painting and decorating business began to flounder five years ago, he can hardly have envisaged the political and legal shock waves he inadvertently set in train.
As a consequence of Mr Kalisz’s financial misfortune, the European Commission is taking the Government to court over alleged discrimination against European Union migrants trying to claim benefits in this country.
EU citizens have to pass a separate “right to reside” test before they can claim certain benefits. No such test exists for British citizens. The commission claims this is discrimination.
But questions were being raised last night over the basis for the case, expected to be lodged before the end of the year in the European Court of Justice, after The Sunday Telegraph pieced together the full story behind it.
The court case could cost Britain hundreds of millions of pounds in extra payments to EU benefits claimants — although nobody really knows just how much.
It is also likely to be held up by Euro-sceptics — ahead of next year’s European parliamentary elections — as further evidence of meddling by Brussels in Britain’s affairs.
The case centres round the UK’s decision in 2004, taken by the then Labour government, to introduce an extra hurdle for EU migrants to prevent them simply turning up in Britain to claim benefits such as child benefit, child tax credit and Jobseeker’s Allowance.
The European Commission is convinced the “right to reside” test is unlawful.
To pass the test and therefore claim benefits, EU migrants who are not in work must be able to demonstrate they are seeking employment.
Politicians from all sides have condemned the legal action being steered towards the courts by Laszlo Andor, the socialist commissioner in charge of employment, social affairs and inclusion.
Yvette Cooper, the shadow home secretary, branded the commission “wrong” to challenge Britain’s authority, while Iain Duncan Smith, the Work and Pensions Secretary, has pledged to “fight this every step of the way”.
But the legal action starts with the story of Mr Kalisz and his financial woes back in the winter of 2008. His case is five years old and also — having initially failed the “right to reside” test — The Sunday Telegraphcan disclose that he actually won his case on appeal.
But by then the European Commission had set legal proceedings in motion in response to a complaint — in the form of a petition to the European Parliament — brought by Mr Kalisz as long ago as 2009.
Mr Kalisz came to London in January 2004 from Krosno, a city in the south of Poland. He was in search of “a better life”, and for four years worked hard. But in the winter of 2008, as a result of the economic downturn and terrible weather, work dried up.
“It was quiet, too many companies were bankrupt, and it was snowing at the same time,” said Mr Kalisz, 35, who lives in Finchley, north London. He added: “Sometime there is lots of work, sometimes there is no work. That is the problem with being self-employed, but you get used to it.”
By then he had met Sabina Majcher, 29, now the mother of his two children.
Money was tight and the couple’s first child had been born. Having worked in the UK for more than four years and filed tax returns in that time, his girlfriend suggested out of desperation that they seek help from the British state — not because they had come to claim it, but because they had paid tax and National Insurance (NI) every day since they arrived.
Miss Majcher said: “I said, ‘Listen, you have not been working now for one month, you have a right as others, try and go for Jobseeker’s, you are still looking for work.’ He did not do it to live on benefits, just for help temporarily while he was not working. I advised him, ‘Let’s go for this, just two months’. He had many friends who he would ask for work but they would say, ‘We are quiet’.”
Mr Kalisz submitted an application for Jobseeker’s Allowance and waited. In March 2009, the Department for Work and Pensions (DWP) turned down his application.
The couple were eventually told Mr Kalisz would not get benefits because he had failed the “right to reside” test. Tribunal papers in Mr Kalisz’s possession show that the DWP decided that “he was not a qualified person” and should not receive benefits.
Officials said that because he had not been signed up to the Worker Registration Scheme, introduced to try to control the numbers of eastern Europeans coming to the UK between 2004 and 2011, he could not claim benefits.
The scheme is no longer in existence, and Mr Kalisz never needed to join anyway, because he was self-employed.
Mr Kalisz sought advice from the Citizens Advice Bureau. It suggested he appeal and also take his case to the European Parliament.
Miss Majcher said: “We explained everything that had happened. We showed them all the documents. A woman there who was British but from Poland, she said, ‘I can give you one idea, it might be discrimination, you should write a petition’ [to the European Parliament] and that is what he did.
“She said, ‘You can write it in Polish, in your own language’. He found the address on the internet and sent it the next day.”
The appeal was heard at a tribunal in Enfield in north London in 2010. Mr Kalisz represented himself and won. The DWP appealed but Mr Kalisz also won at a second hearing in 2011.
The ruling states: “The tribunal found Mr Kalisz’s evidence to be credible and reliable…. On his evidence he has continued to look for work for his business and has continued to submit his accounts and pay his NI contributions. He has therefore remained self employed and is a qualified person.”
Mr Kalisz found work about five months after applying for benefits, in the summer of 2009.
But having already sent his petition to the European Parliament, somebody, somewhere at the European Commission seized upon it — a decision with massive consequences.
In 2010, the European Parliament published notification of Mr Kalisz’s complaint as a “notice to members” with the conclusion: “The commission has recently opened an infringement procedure against the UK concerning the application of the Right to Reside Test. The letter of formal notice will be sent to the UK authorities soon.”
Three years on and the European Commission is ready to lodge a legal action with the European Court of Justice. The case will take at least two years to conclude.
Should the Government lose then it must either withdraw the “right to reside” test or face a hefty, annual fine.
Mr Kalisz was named in connection with the case in a 276-page EU report into “benefit tourism”, whose details were first disclosed inThe Sunday Telegraph.
The report concluded that “benefit tourism” was neither systematic nor widespread, although it also showed more than 600,000 non-active EU migrants living in the UK, a rise of 42 per cent in six years, at a cost of up to £1.5 billion to the NHS alone.
The European Commission said last week there were a number of cases that form the basis for its legal action and refused to give details “to protect the identity of complainants”. It refused to say if Mr Kalisz’s case was one of them.
The commission admitted it did not know how many EU citizens had been deprived of benefits because of the “right to reside” test — it claims one of the reasons is that the DWP does not keep proper statistics. A spokesman said: “We are taking the UK to court because after more than three years of discussions the UK has refused to change its practice of applying the ‘right to reside’ test.”
In a statement the commission added: “UK nationals have a ‘right to reside’ in the UK solely on the basis of their UK citizenship, whereas other EU nationals have to meet additional conditions in order to pass this ‘right to reside’ test.
“This means that the UK discriminates unfairly against nationals from other member states. This contravenes EU rules on the coordination of social security systems which outlaw direct and indirect discrimination in the field of access to social security benefits.”
According to the DWP’s estimates submitted to the commission, between 2009 and 2011 the UK received 42,810 applications for social security benefits from EU citizens — and two thirds were rejected on the basis of the “right to reside” test.
The commission believes that “potentially” tens of thousands of EU nationals have been denied benefits as a result — although it admits that “not all the refused applications would have been necessarily accepted” had the UK been using only an EU-wide test instead.
Open Europe, a think tank that has called for widespread EU reform, is scathing. Stephen Booth, its research director, said: “It is difficult to understand the European Commission’s motivation when it hasn’t provided details about the number of people it thinks have been wrongly refused benefits.
“The ‘right to reside’ test is a crucial plank in safeguarding the UK’s universalist welfare system.
“Given the political sensitivity surrounding immigration and EU membership, the European Commission couldn’t have come up with a better recruiting campaign for those wanting to leave the EU than to take the UK to court over this.”
Douglas Carswell, a senior Conservative MP and a prominent Euro-sceptic, said: “One of the test cases on which this European Commission legal action seems to rest looks like it’s pretty flawed.
“The European Commission is trying to force Britain to open up its unemployment benefits scheme to every European migrant based on a specific case that seems to now be settled.
“They truly are wielding a sledgehammer to miss a nut that it was intended to hit.”
Mr Kalisz remains oblivious to the furore he has — at the very least indirectly — created.
When first approached by The Sunday Telegraph last week, it all seemed a distant memory. “The petition? Ah the petition. I had forgotten about that,” he said.
But the couple are clear that they do not want their case used as a way of making claiming benefits easier.
“We didn’t come here to live on benefits,” said Miss Majcher. “We came here to work.”
See on www.telegraph.co.uk