Extension of the Worker Registration Scheme from 2009 to 2011 unlawful

Tuesday 7 November 2017

Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751, Jackson, Lindblom, Peter Jackson LJJ, 07 November 2017

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Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751, Jackson, Lindblom, Peter Jackson LJJ, 07 November 2017

The claimant was a Latvian national who came to the UK in 2008, aged 57, and worked here for over three years for various employers.

In December 2012 she claimed State Pension Credit on the basis that she had acquired a permanent right to reside in less than 5 years by virtue of article 17(1)(a) of the Citizenship Directive 2004/38/EC which conferred that right on workers who, on reaching retirement age for the state pension had, among other things, “resided” in the host member state continuously for more than three years.

The Secretary of State rejected the claim for benefit on the ground that for the first 11 months of her employment the claimant had not been registered under the Worker Registration Scheme (WRS), which meant that as an Accession National she had not been residing legally in the UK for over three years.

The Upper Tribunal (case CPC/1026/2014) allowed the claimant’s appeal holding that: article 17(1)(a) required actual residence, not legal residence, and, in any event, the Accession (Immigration and Worker Registration) (Amendment) Regulations 2009, which extended the WRS for an additional two years from 2009 to 2011, were unlawful because they were disproportionate and incompatible with EU law. The Secretary of State appealed to the Court of Appeal.

The Court dismissed the Secretary of State’s appeal.

The Court said that the question the Secretary of State for the Home Department had been obliged to answer in 2009 when considering whether to extend the WRS for a further 2 years was whether it was proportionate to do so having regard to (a) the objective being pursued and (b) the adverse effects on individuals who failed to register in time. However, there was “no evidence from the Secretary of State of any weighing up of those conflicting considerations” (para 73).

While the WRS may have been proportionate in 2004 (as confirmed by a majority of the House of Lords in Zalewska v Department for Social Development (Northern Ireland) [2008] UKHL 67, by 2009 the world had changed, and even the Migration Advisory Committee report dated April 2009 said it was only ‘possible’ that extending the WRS ‘could have a small effect at the margins’.

According to Lord Justice Rupert Jackson:

“When that small benefit is weighed against the profound consequences for individuals such as the respondent in this case, it is hardly surprising that the Upper Tribunal found the extension to be disproportionate …” (para 79).

The Court of Appeal did, however, accept the Secretary of State’s submission that the word “reside” in article 17(1)(a) meant “legally reside” and not actual residence (Secretary of State for Work and Pensions v Lassal Case C-162/09; the AG’s Opinion at paras 68-69 considered).

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