Terror suspects’ families can claim benefits
2 May 2010
M and Others v Her Majesty’s Treasury, Case C‑340/08, 29 April 2010 – Read judgment
The European Court of Justice (ECJ) has ruled that social security benefits cannot be withheld from family members of those suspected of being associated with the Al Qaeda terrorist network.
The Government will probably now have to change the law, although The Times reports that the judgment will only affect less than a dozen people living in Britain.
The United Nations implemented measures shortly after the 11 September 2001 attacks to freeze all assets of terror suspects. The UK had up to now taken a wide view of these measures, and had frozen not just the benefits of the suspects themselves, but also of their families.
The Treasury’s reasoning had been that money spent by, for example, a suspect’s wife on the running of the family household will be “for the benefit” of him. For example, if she buys food for a communal meal in which he participates, the money will have been spent for his benefit.
The case was referred to the ECJ by the House of Lords (now the Supreme Court) in 2008 (M, R (on the application of) v Her Majesty’s Treasury  UKHL 26). The question of interpretation was whether the words “for the benefit of” in article 2.2 of Council Regulation (EC) No 881/2002 have a wide meaning which covers any application of money from which a listed person derives some benefit, or whether they apply only to cases in which funds or assets are “made available” for his benefit, so that he is in a position to choose how to use them.
The human rights in issue were Article 1 of Protocol 1 to the European Convention (right to free enjoyment of property) and Article 8 (right to family life). These were not explicitly referred to in the ECJ judgment, although they were raised when the case was before the High Court.
The ECJ ruled that the UK’s interpretation had been too wide:
41. Separate examination, in the light of those latter language versions, does not support the argument that, by making social security or social assistance benefits available to the spouses of designated persons, the authorities concerned have ‘used’ those funds ‘for the benefit’ of a designated person. In point of fact, it is not those authorities, but the spouses of the designated persons to whom the funds at issue are made available, who then use them to buy goods or services which they provide as assistance in kind for the designated persons in order to meet the basic expenses of the household to which those persons belong.
61. As the court making the reference has observed, without being contradicted on this point before the Court, it is hard to imagine how those funds could be turned into means that could be used to support terrorist activities, especially because the benefits at issue are fixed at a level intended to meet only the strictly vital needs of the persons concerned.
Finally, it made clear that the more restricting interpretation of the rules would not prevent a State restricting benefits if it did consider that the benefits were being used for criminal purposes:
59. It has not been argued that the spouses concerned hand over those funds to a designated person instead of allocating them to their basic household expenses. Such a misappropriation of funds would, moreover, be covered by the prohibition laid down in Article 2(2) of that regulation and would constitute an offence punishable under national criminal law.