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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Secretary of State for Work and Pensions v ZA [2009] UKUT 294 (AAC) (17 December 2009) URL: http://www.bailii.org/uk/cases/UKUT/AAC/2009/294.html Cite as: [2009] UKUT 294 (AAC) |
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Attendances:
For the Appellant and Second Respondent:
Ms Deok Joo Rhee, instructed by the Solicitor to the Department of Work and Pensions and the Treasury Solicitor
For First Respondent A:
Mr A Fullwood, instructed by Messrs Jackson and Canter, Liverpool
For First Respondent P:
Ms E Howarth, Scoop Aid, Sheffield
For First Respondent N:
Mr A Barnfield, instructed by Coventry Law Centre
Decision: The appeals by the Secretary of State are allowed. The decisions of the following tribunals involved the making of an error of law and are set aside:
The tribunal sitting at Wigan on 22 May 2008 under references 079/08/00408 and 407
The tribunal sitting at Sheffield on 30 August 2006 under references U/01/138/2006/01003 and 1551
The tribunal sitting at Coventry on 3 September 2008 under reference 032/08/00929.
In relation to appeal 032/08/00929 I remit the appeal to the First-tier Tribunal (which may be the same or differently constituted) for further findings of fact in accordance with the Directions in paragraph 71 of the Reasons
In relation to all the other appeals I substitute a decision in each case that the claimant had not by virtue of the issue of a registration certificate in respect of her employment ceased to be an “accession State worker requiring registration” and thus that her claims for income support and/or jobseeker’s allowance which are the subject of the present appeals fall to be determined on the footing that she is a “person from abroad”, with an applicable amount of £nil.
1. This appeal concerns claims for means-tested benefits made by A, P and N (“the claimants”). Each is a national of one of the so-called “A8 states”, which acceded to the European Union in 2004 as a result of the Treaty on Accession signed in Athens on 16 April 2003 (the “Accession Treaty”). A is a Lithuanian citizen and P Czech. N appears to have been treated by the Appellant as Latvian and by the Second Respondent (and was found by the First-tier Tribunal to be) Polish. Though odd, nothing turns on this for present purposes as while the Act of Accession contains separate provisions relating to each of those four states, they are so far as relevant in common form.
2. As nationals of A8 states, the claimants were subject to the Accession (Immigration and Worker Registration) Regulations 2004 (“the 2004 Regulations”). While there are features particular to their individual claims, they have one thing in common. To establish that she is entitled to means-tested benefits in respect of a period when she was not working, each must show that she had ceased to be an “accession State worker requiring registration” within regulation 2 of the 2004 Regulations. This required, in summary, 12 months of (broadly) continuous work in registered employment. Each had worked for longer than 12 months; the employment of each had been registered with the Home Office; however, this had not been done at, or, the Secretary of State argued, sufficiently soon after, its commencement. If the date that counted was when the registration process was complete and the relevant certificate issued, none of the claims could succeed. If however the registration was operative from the date of commencement of employment, then, subject to specific points relating to each claim, the door was opened to the claims succeeding.
3. A came to the UK on 4 October 2002 and appears to have been an unsuccessful asylum seeker before Lithuania acceded to the European Union. She lives with her daughter, aged 8. On 18 May 2004 she began working for a hotel. She applied for a worker registration certificate, which was issued on 3 November 2004. The certificate records the job start date as 18 May 2004. The end date of that employment is not known. On 10 February 2006, she commenced work with an agency. The employment ceased on 31 July 2007 on the stated ground of child care difficulties. A registration certificate for the agency employment was issued (as is now known but was not known below) on 10 April 2007, recording that the start date of employment was 10 February 2006. Even if (as appears to be the case) A cannot show that her hotel employment continued until 3 November 2005 so as to give her 12 certificated months on any view in respect of that employment, she could rely on her agency employment if, but only if, the certificate once issued in respect of it was retrospective in operation. Quite apart from the hotel work, she worked over 17 continuous months in the agency employment alone, but only a little over 3 months of it after the registration certificate in respect of it was issued. There was no evidence before the tribunal as to when she applied and the tribunal made no findings in this regard.
4. P came to the UK in March 2004. She obtained employment as a restaurant manager, commencing on 25 May 2004 and working continuously with the same employer until, it is said, 21 June 2005. There is evidence suggesting that she had considerable difficulty in contacting the Home Office by telephone from an early point in her employment in an attempt to make an application for registration and then, having got through, in securing the necessary forms. However, while this, if established, would be very unfortunate for P, particularly in view of the decision I have in the event reached about non-retrospectivity, it is not a matter with which I have any jurisdiction to deal in these proceedings. As is now known, on or around 15 June 2005 P submitted the forms applying for a worker registration certificate. This was issued on 27 June 2005 recording a start date of employment of 25 May 2005. As P had indicated in her application that she had started on 25 May 2004 and provided evidence in support of that date, this was a mistake. The Home Office initially misguidedly sought to defend the 2005 date on the grounds, entirely contrary to the 2004 Regulations, that to include the actual start date in the certificate was contrary to policy. It appears that by the time the certificate reached P, her employment might have ceased. This would have made the certificate invalid under the 2004 Regulations but this point had never been taken by the Secretary of State at any stage and, when I raised it at the oral hearing, Counsel for the Appellant and Second Respondent indicated that they would not seek to rely on that point. P thus worked for just under 13 months continuously, but none of it after the registration certificate in respect of it was issued. The tribunal below made no findings as to when P submitted a completed application form.
5. N came to the UK on 25 August 2005, accompanied by her teenage child. She worked as a packer for what appears to have been an agency between 5 September 2005 and 1 July 2006, until a decline in work meant she was no longer needed in that employment. As is now known, but was not known below, she signed her application form for a worker registration certificate on 3 December 2005; the application was “received in Sheffield” (i.e. at the office of the Home Office Worker Registration team) on 17 January 2006 and the certificate was issued on 19 January 2006. She had a second, wholly unregistered job between 1 March 2006 and 1 June 2006, but nothing turns on that. Between 25 July 2006 and 24 August 2007 she worked for T Ltd. As is now known, but was not known below, she signed her application form for a worker registration certificate on 25 July 2006; the application was “received in Sheffield” on 11 December 2006 and the certificate was issued on 21 December 2006 for this employment. Her post with T Ltd came to an end when she became unwell and she subsequently claimed income support on the grounds of incapacity following an operation. Quite apart from her other posts, N thus worked in her post with T Ltd alone for 13 months, but only 8 months after the registration certificate in respect of it was issued. There was no evidence before the tribunal as to when she applied and the tribunal made no findings in this regard.
6. In each case, the Secretary of State refused the claim and was overturned on appeal to the First-tier Tribunal or its predecessor, from which decisions he has appealed to the Upper Tribunal.
7. In CIS/160/2007 (and joined cases), Mr Commissioner Rowland, held that a registration certificate was not retrospective in operation. The correct approach for me to adopt in relation to such a decision is set out in R(I)12/75:
“A single Commissioner in the interest of comity and to secure certainty and avoid confusion on questions of legal principle follows the decisions of other single Commissioners…, [i]t is recognised however that a slavish adherence to this could lead to the perpetuation of error and he is not bound to do so”.
8. The First-tier Tribunals in the present cases reached the conclusion that the claims succeeded in a number of different ways despite CIS/160/2007 and in one case a District Tribunal Judge granting permission suggested that the Upper Tribunal might wish to consider whether that case was correct. I directed that the present cases be determined together following an oral hearing.
9. The Secretary of State for the Home Department, as the Minister responsible for the 2004 Regulations, accepted an invitation to be joined as a party, though in the event, though separate written submissions were originally prepared, both Secretaries of State adopted a common position at the oral hearing and appeared by the same Counsel.
10. Though I was not referred to it at the hearing, my own researches subsequently indicated that a similar point had been recently considered by the Asylum and Immigration Tribunal (Mr C M G Ockelton, Deputy President, and Senior Immigration Judge Grubb) in the case of JL (A8 worker – lawful employment) Poland v The Secretary of State for the Home Department [2009] UKAIT 00030 and the parties were given the opportunity to make written submissions on it, although only the Appellant and Second Respondent did so.
11. The appeals fall to be decided against a background of community law. Lord Hope in Zalewska v The Department for Social Development (Northern Ireland) [2008] UKHL 67 described the key provisions in the terms below. Though Zalewska concerned a Polish national, the provisions, so far as relevant, are in the same terms mutatis mutandis in relation to the accession of the Czech Republic (Part 1 of Annex V of the Act of Accession), Latvia (Part 1 of Annex VIII) (if it be relevant) and Lithuania (Part 2 of Annex IX).
“4 The starting point is to be found in the EC Treaty. Article 18 EC sets out one of the rights of citizenship of the Union. It provides that every citizen shall have the right to move and reside freely within the territory of the member states. Article 39 EC provides that freedom of movement for workers shall be secured within the Community, and that such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of member states as regards employment, remuneration and other conditions of work and employment.
5 On 15 October 1968 the Council adopted Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community. The preamble to the Regulation explains that this was done to enable the objective laid down in article 49 of the EEC treaty (now article 39 EC) to be achieved and to perfect measures previously taken for its attainment. Part I of the Regulation makes provision for employment and workers' families. It is divided into three Titles. Title I deals with eligibility for employment. Title II deals with employment and equal treatment. Title III, which is not in issue in this case, deals with workers' families.
6 The basic rule about eligibility for employment is set out in Part I, Title I, article 1 of Regulation 1612/68 . It provides that any national of a member state shall, irrespective of his place of residence, have the right to take up an activity as an employed person within the territory of another Member State. Title 1, article 2 provides that this right shall be enjoyed in accordance with any provisions laid down by law, regulation or administrative action, without any discrimination resulting there from. Title II, article 7 provides for the equal treatment of workers who are eligible for the right to take up an activity as an employed person under article 1:
“1. A worker who is a national of a member state may not, in the territory of another member state, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal and, should he become unemployed, reinstatement or re-employment.
2. He shall enjoy the same social and tax advantages as national workers.”
7 The Accession Treaty established by common agreement among the 15 member states the conditions of admission to the European Union of the 10 new members and the adjustments to be made to the Treaties on which the European Union was founded. The conditions and adjustments are set out in the Act of Accession which is annexed to the Treaty. Article 10 of the Treaty provides that the application of the original Treaties and Acts shall, as a transitional measure, be subject to the derogations provided for in the Act. Article 24 of the Accession Act incorporates Annex XII which deals with the position of the Republic of Poland. Part 1 of Annex XII contains the conditions and adjustments relating to free movement of goods. Part 2 contains the conditions and adjustments relating to freedom of movement for persons. Para 1 of Part 2 provides that article 39 EC shall fully apply only, in relation to the freedom of movement of workers between Poland on the one hand and the 15 member States on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14. The word “only” indicates that, subject to the conditions that they lay down, the transitional provisions must be taken to replace the guarantee of free movement of workers in the article.
8 Paragraph 2 of Part 2 of Annex XII provides:
“By way of derogation from Articles 1 to 6 of the Regulation (EEC) No 1612/68 and until the end of the two year period following the date of accession, the present member states will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Polish nationals. The present member states may continue to apply such measures until the end of the five year period following the date of the accession.
Polish nationals legally working in a present member state at the date of accession and admitted to the labour market of that member state for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that member state but not to the labour market of other member states applying national measures.
Polish nationals admitted to the labour market of a present member state following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.
The Polish nationals mentioned in the second and third subparagraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present member state in question.
Polish nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy these rights.”
Paragraph 12 provides:
“Any present member state applying national measures in accordance with paragraphs 2 to 5 and 7 to 9, may introduce, under national law, greater freedom of movement than that existing at the date of accession, including full labour market access. From the third year following the date of accession, any present member State applying national measures may at any time decide to apply articles 1 to 6 of Regulation (EEC) No 1612/68 instead. The Commission shall be informed of any such decision.”
12. I add (continuing with references to Poland, but the provisions are common to the other states at issue in the present appeal) that paragraphs 3 to 5 provide as follows:
“3. Before the end of the two year period following the date of accession, the Council shall review the functioning of the transitional provisions laid down in paragraph 2, on the basis of a report from the Commission.
On completion of this review, and no later than at the end of the two year period following the date of accession, the present Member States shall notify the Commission whether they will continue applying national measures or measures resulting from bilateral agreements, or whether they will apply Articles 1 to 6 of Regulation (EEC) No 1612/68 henceforth. In the absence of such notification, Articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply.
4. Upon Poland’s request, one further review may be held. The procedure referred to in paragraph 3 shall apply and shall be completed within six months of receipt of Poland’s request.
5. A Member State maintaining national measures or measures resulting from bilateral agreements at the end of the five year period indicated in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven year period following the date of accession. In the absence of such notification, Articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply.”
13. It can thus be seen that following the date of accession, a number of processes of review were explicitly or implicitly envisaged, involving the Council, Commission and member States, in order to manage the opening up of national labour markets to A8 nationals over a period of time. Indeed, the UK government has (by SI 2009/892) extended the period of operation of the 2004 Regulations for a further two years.
14. The European Union (Accessions) Act 2003 (“the 2003 Act”) made provision for the Accession Treaty to be implemented into domestic law. The 2004 Regulations were made under section 2 of the European Communities Act 1972 (“the 1972 Act”) and section 2 of the 2003 Act. Section 2 of the 1972 Act, so far as relevant, provides that:
“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable Community right” and similar expressions shall be read as referring to one to which this subsection applies.
(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision—
(a) for the purpose of implementing any Community obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or
(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above;
and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the Communities and to any such obligation or rights as aforesaid.
In this subsection “designated Minister or department” means such Minister of the Crown or government department as may from time to time be designated by Order in Council in relation to any matter or for any purpose, but subject to such restrictions or conditions (if any) as may be specified by the Order in Council.
…
(4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council and regulations.”
15. Section 2 of the 2003 Act, so far as relevant, provides that:
“(1) The Secretary of State may by regulations provide that a specified enactment relating to–
(a) the entitlement of a national of an EEA State to enter or reside in the United Kingdom as a worker, or
(b) any matter ancillary to that entitlement,
applies in relation to a national of a relevant acceding State as it applies in relation to a national of an EEA State.
(2) Regulations under this section in respect of a specified enactment may apply that enactment subject to specified exceptions or modifications.
…
(5) The power to make regulations under this section is exercisable by statutory instrument.
(6) Regulations may not be made under this section unless a draft has been laid before and approved by a resolution of each House of Parliament.”
16. The above thus provides the context for the exercise of statutory interpretation which I have to undertake, which lies at the heart of the present appeals.
17. Gratefully adopting the words of Lord Hope in Zalewska:
“11 The 2004 Regulations were made to give effect in the United Kingdom to the derogation provisions in the Act of Accession as to access to the labour market during the accession period from 1 May 2004 to 30 April 2009. Subject to various exceptions required by paragraph 2 of Part 2 of Annex XII to the Act of Accession which are not relevant to this case, the basic rule of the scheme that it sets out is that a national of an A8 state working in the United Kingdom during the accession period is an accession state worker requiring registration: 2004 Regulations, reg 2(1). He ceases to be an accession state worker requiring registration if he legally works in the United Kingdom without interruption for a period of 12 months falling wholly or partly after 30 April 2004: reg 2(4). But he will only be treated as legally working in the United Kingdom during that period if he is working for an authorised employer: reg 2(7)(b) . Regulation 4 deals with the right of residence of workers from the A8 states during the accession period. Reg 4(1) derogates from the relevant Community provisions on the abolition of restrictions on movement and residence within the Community for workers of member states. Reg 4(4) provides:
“An accession state worker requiring registration shall only be entitled to reside in the United Kingdom in accordance with the 2000 Regulations as modified by regulation 5.”
12 Regs 5(1) and 5(2) of the 2004 Regulations provide:
“(1) The 2000 Regulations shall apply in relation to an accession State worker requiring registration subject to the modifications set out in this regulation.
(2) An accession state worker requiring registration shall be treated as a worker for the purpose of the definition of ‘qualified person’ in regulation 5(1) of the 2000 Regulations only during a period in which he is working in the United Kingdom for an authorised employer.”
13 Regs 7(1), 7(2) and 7(3) of the 2004 Regulations provide:
“(1) By way of derogation from article 39 of the Treaty establishing the European Community and articles 1 to 6 of the Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community, an accession state worker requiring registration shall only be authorised to work in the United Kingdom for an authorised employer.
(2) An employer is an authorised employer in relation to a worker if -
(a) the worker was legally working for that employer on 30 April 2004 and has not ceased working for that employer after that date;
(b) the worker –
(i) during the one month period beginning on the date on which he begins working for the employer, applies for a registration certificate authorising him to work for that employer in accordance with regulation 8; and
(ii) has not received a valid registration certificate or notice of refusal under regulation 8 in relation to that application or ceased working for that employer since the application was made;
(c) the worker has received a valid registration certificate authorising him to work for that employer and that certificate has not expired under paragraph (5); or
(d) the employer is an authorised employer in relation to that worker under paragraph (3) or (4).
(3) Where a worker begins working for an employer on or after 1 May 2004 that employer is an authorised employer in relation to that worker during the one month period beginning on the date on which the work begins.”
Reg 7(5)(b) provides that a registration certificate expires on the date on which the worker ceases working for that employer.“
References to the “2000 Regulations” were to the Immigration (European Economic Area) Regulations 2000 SI 2000/2326. These have now been replaced by the Immigration (European Economic Area) Regulations 2006 SI 2006/1003 and the relevant reference is to regulation 6 rather than regulation 5, but nothing turns on this.
18. Because of the arguments in the present appeals, it is also relevant to set out regulations 8 and 9:
Regulation 8 provides:
“(1) An application for a registration certificate authorising an accession State worker requiring registration to work for an employer may only be made by an applicant who is working for that employer at the date of the application.
(2) The application shall be in writing and shall be made to the Secretary of State.
(3) The application shall state–
(a) the name, address, and date of birth of the applicant;
(b) the name and address of the head or main office of the employer;
(c) the date on which the applicant began working for that employer;
(d) where the applicant has been issued with a registration card, the reference number of that card.
(4) Unless the applicant has been issued with a registration card under paragraph (5), the application shall be accompanied by–
(a) a registration fee of £90;
(b) two passport size photographs of the applicant;
(c) the applicant's national identity card or passport issued by the applicant's State;
(d) a letter from the employer concerned confirming that the applicant began working for the employer on the date specified in the application.
(5) In the case of an application by an applicant who has not been issued with a registration card under this paragraph, the Secretary of State shall, where he is satisfied that the application is made in accordance with this regulation and that the applicant–
(a) is an accession State worker requiring registration; and
(b) began working for the employer on the date specified in the application,
send the applicant a registration card and a registration certificate authorising the worker to work for the employer specified in the application, and shall return the applicant's national identity card or passport.
(6) In the case of any other application, the Secretary of State shall, if he is satisfied as mentioned in paragraph (5), send the applicant a registration certificate authorising the worker to work for the employer specified in the application.
(7) A registration card issued under paragraph (5) shall contain–
(a) the name, nationality and date of birth of the applicant;
(b) a photograph of the applicant;
(c) a reference number.
(8) A registration certificate issued under paragraph (5) or (6) shall contain–
(a) the name of the applicant;
(b) the reference number of the applicant's registration card;
(c) the name and address of the head or main office of the employer, as specified in the application;
(d) the date on which the applicant began working for the employer, as specified in the application; and
(e) the date on which the certificate is issued.
(9) Where the Secretary of State receives an application made in accordance with this regulation and he is not satisfied as mentioned in paragraph (5), he shall–
(a) send the applicant a notice of refusal; and
(b) return any documents and fee that accompanied the application to the applicant.
(10) Where the Secretary of State sends a registration certificate or notice of refusal to an applicant under this regulation he shall, at the same time, send a copy of the certificate or notice to the employer concerned at the address specified in the application for that employer.
(11) [not material]”
Regulation 9 provides:
“(1) Subject to paragraph (2), if an employer employs an accession State worker requiring registration during a period in which the employer is not an authorised employer in relation to that worker, the employer shall be guilty of an offence.
(2) Subject to paragraph (4), in proceedings under this regulation it shall be a defence to prove that–
(a) there was produced to the employer during the one month period beginning on the date on which the worker began working for the employer a document that appeared to him to establish that the worker was not an accession State worker requiring registration; and
(b) the employer took and retained a copy of that document.
(3) Subject to paragraph (4), in proceedings under this regulation it shall be a defence to prove that–
(a) there was produced to the employer during the one month period beginning on the date on which the worker began working for the employer a document that appeared to him to establish that the worker had applied for a registration certificate in accordance with regulation 8 authorising the worker to work for that employer;
(b) the employer took and retained a copy of that document; and
(c) the employer has not received a copy of a registration certificate or notice of refusal in relation to that application.
(4) The defence afforded by paragraph (2) or (3) shall not be available in any case where the employer knew that his employment of the worker would constitute an offence under this regulation.
(5) A person guilty of an offence under this regulation shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(6) – (9) [not material]
(10) Section 28(1) of the 1971 Act (extended time limit for prosecution) shall apply in relation to an offence under this regulation.
(11) [not material]”
19. The concerns which lead to the adoption of the 2004 Regulations were set out by Baroness Hale in Zalewska at [53]-[54], quoting from the Department for Work and Pensions in the Explanatory Memorandum to the Social Security Advisory Committee:
“The workers' registration scheme is intended to involve a light-touch system of registration, with minimal burdens on employers. Its purpose is to allow A8 nationals access to the UK labour market in a way that enables the Government to monitor the numbers working and the sectors where they are employed. It will not be a barrier to those who want to work: on the contrary, it should encourage those A8 nationals working here illegally to regularise their status and begin contributing to the formal economy.”
“For the purpose of this regulation… (b) a person working in the United Kingdom on or after 1st May 2004 is legally working during any period in which he is working in the United Kingdom for an authorised employer.”
This then takes us to regulation 7(2), under which:
“An employer is an authorised employer in relation to a worker if – (c) the worker has received a valid registration certificate authorising him to work for that employer and that certificate has not expired under paragraph (5).”
21. Ms Rhee draws my attention to the use of the present tense in these provisions. Under 2(7)(b), a person is legally working during any period in which he is working for an authorised employer. It follows, she says, that a person who works on a given day who has not received his registration certificate (and to whom no other provision of regulation 7 applies) is not, on that day, working for an authorised employer for the purposes of regulation 7(2)(c). That, she says, is the legislative intention and it is consistent with that that the certificate should only have prospective effect i.e. once the employee “has received” it. There are circumstances where employment prior to receipt of the certificate will count as being for an authorised employer, such as the initial one month period in a job (regulation 7(3)) and when the worker applies for a registration certificate during the one month period from when he begins working for the employer, for so long as he is awaiting a decision (reg 7(2)(b)). This structure, it is said, provides a powerful incentive for claimants to register their employment in a timely manner.
22. The submission by Mr Fullwood for A, echoed by Mr Barnfield for N and Ms Howarth for P, is that A had received a registration certificate; it was valid in that it complied with the legislation; it authorised her to work for the employer concerned and it had not expired. She therefore fell within regulation 7(2)(c). Regulation 7(2)(c) could have included a provision at the beginning to make clear that it was only days following the date of receipt that counted if that were the intention, just as it had included a limitation at the end, relating to when the certificate expired, yet it had not. While the inclusion of such an express provision might have made the position clearer, I do not regard its omission as fatal to Ms Rhee’s argument. Mr Fullwood then says that Ms Rhee’s argument based on the use of the present tense in regulation 2(7)(b) overlooks the presence of the words “any period”. I do not consider this helps him. The “period” is merely a series of days in which a particular condition is fulfilled. Whether that condition is met unless the employer is authorised on the day when a person works for him is what I have to decide, but is unaffected by the reference to “any period”. He further says that regulation 2(4) could have used the continuous present “is legally working” rather than “works”. While true (though it would have required corresponding changes elsewhere), this is in my judgment a point without substance. Again, the question was whether a person “legally works” for the days forming a period unless on each day the employer is authorised. Nor do I derive any support for the claimants’ position from Mr Barnfield’s argument that the use of the present tense is determined by the terms of Regulation 8(1). Consequently these arguments do little or nothing to undermine Ms Rhee’s grammatical analysis of the provisions on which she primarily relied, or indeed the structure of regulation 7.
23. I accept that, taken in isolation, the provisions mentioned may be read as having the effect for which Ms Rhee contends and that it is a coherent one (although I do not regard the interpretation put forward by the claimants as necessarily wholly inconsistent with these provisions). However, if one tries to construe the 2004 Regulations as a whole, as one must, it becomes much more complex.
24. The issue of a registration certificate is a “purely administrative act” (per Baroness Hale in Zalewska at [52]). The certificate must be issued provided the application is in order, the applicant is indeed an accession State worker requiring registration and (which might be thought to be of some importance in the present context) began working for the employer on the date specified in the application (reg 8(5)(b) and (6)).
25. It is important to emphasise that there is no provision restricting the right to apply for a registration certificate to those who apply in the first month. Those who do so apply benefit from regulation 7(2)(b), but others are entitled to apply subsequently and, if the regulation 8(5)(b) or 8(6) test is met, to receive a certificate.
26. The 2004 Regulations take the step, which I regard as somewhat unusual, of specifying in legislation the information which a registration certificate is required to contain. I infer that the legislative purpose was that such a certificate should enable a person to prove their status to those who might need to know about it and that specifying what went in it would serve to ensure that relevant information would be given. The importance of clarity and certainty is emphasised in the speech of Lord Brown in Zalewska at [64] and that of contemporaneous evidence by Mr Commissioner Rowland in CIS/160/2007 at [39]. Given that there were evidently concerns about the impact of the enlargement on the benefit system (Zalewska [35]) no doubt one important category of people who might need this information would be staff in Jobcentre Plus or other benefits offices. Another such category might be local government staff, either for housing benefit purposes (a similar test applies under regulation 10(3B)(f)(i) of the Housing Benefit Regulations 2006) or in relation to the allocation of public sector housing, which is restricted to those who are working for an authorised employer by the combined effect of section 160A of the Housing Act 1996 and regulation 4(2)(c)(i) of the Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 (SI 2006/1294).
27. The information which has to be included within a registration certificate (reg. 8(8)) is:
(a) the name of the applicant
(b) the reference number of the applicant's registration card
(c) the name and address of the head or main office of the employer, as specified in the application
(d) the date on which the applicant began working for the employer, as specified in the application and
(e) the date on which the certificate is issued.
28. If Ms Rhee is right, the inclusion of the date on which the applicant began working for the employer is potentially highly misleading and flies in the face of the apparent reasons for specifying the contents of a certificate. In cases where application is not made within the first month, that date will have no relevance at all to the date from which the worker is working for an “authorised employer”. Further, while it might not be as useful as if the position were clearly stated on the face of the certificate, the 2004 Regulations do not provide either for the further item to be included, namely the date when the certificate was applied for, which would enable those readers of the certificate with some knowledge of the 2004 Regulations to work out whether the worker had, by virtue of regulations 7(2)(b) and 7(3), been working for an authorised employer from day 1 or not.
29. I accept that no registration certificate can entirely obviate the need for a person relying on it to make further enquiry. Such a person might, for instance, need to satisfy himself that the person had remained employed by the employer named, for otherwise the certificate would have expired under regulation 7(5)(b). But that would be capable of ready checking, by reference to documents such as payslips or P60 forms that are likely to be in the possession of anyone employed and which would be nearer to the time when enquiry was being made. Ms Rhee’s interpretation means that to derive reliable information from the certificate, either the individual, who has received a letter telling them that their employment has been registered and enclosing a certificate naming the date when they started with their employer, needs, counter-intuitively, to have preserved their papers applying for registration so as to be able to produce them as well as the certificate, or those who rely on the certificate have to make enquiries of the Home Office Worker Registration team. While I was told that this facility was available not only to DWP staff but also to local authorities, it does not explain why the regulations should have gone to the trouble to specify a form of certificate which makes this additional step necessary even for those who are not positively misled by the certificate.
30. The forms of certificate which are in evidence in the present appeals can be exemplified by that sent to A:
“[Home Office address and contact details]
[A’s name and address] Date of issue: [ ]
ACCESSION STATE WORKER REGISTRATION SCHEME
REGISTRATION CERTIFICATE
PLEASE DO NOT LOSE – REPLACEMENTS MAY NOT BE ISSUED
Thank you for your application to register on the Accession State Worker Registration Scheme. I am pleased to inform you that we have approved your application.
This is your worker registration certificate. It authorises you to work for the employer specified in this certificate.
This certificate ceases to be valid if you are no longer working for the employer specified in this certificate on the date on which it is issued.
This certificate expires on the date you cease working for the specified employer.
This certificate should be retained with your worker registration card.
Name: [ ]
Date of Birth: [ ]
Nationality: [ ]
Unique Reference Number: [ ]
Job Start Date: [ ]
Employer’s Name: [ ]
Employer’s Address: [ ]”
Conspicuous by their absence, unsurprisingly given the terms of regulation 8, are any reference to the effective date of a person’s work for an authorised employer (not necessarily the same as its date of issue) or to the need to preserve evidence of when application was made.
31. I considered, but rejected, whether the explanation for its form might be found if the certificate provided a convenient summary of the information which the government needs to maintain: but it is not, for it includes nothing about the sector in which a person is active, which was a key concern (see paragraph 19 above) and as is evident from the screen-prints provided in P’s appeal, such data is recorded by other means.
32. Another possible explanation is that it was drafted with an eye only to those who get their applications in during the first month. Regulation 7(3) covers the first month of employment and regulation 7(2)(b) covers the period until the certificate is issued. In such a case (and only in such a case if Ms Rhee’s argument is right), the information provided by the certificate is accurate and (provided the person has not left the employment subsequently) sufficient. It would mean, though, that the draftsman had apparently overlooked the possibility of an application after the initial month of employment, which would be very surprising when the draftsman had gone to some trouble not to create an absolute cut-off on applications after one month.
33. A further possibility is that regulation 8 reflects a true legislative intention, expressed in the wording of the 2004 Regulations as a whole, that once the certificate is issued, it is effective from the start date with the employer. This would be entirely congruent with the requirement that as part of the application, one of the few items of supporting evidence that is required is a letter from the employer concerned confirming that the applicant began working for the employer on the date specified in the application: regulation 8(4)(d).
34. I consequently turn to the remainder of the 2004 Regulations for guidance and in particular to exploring the implications under them of a position that a registration certificate is, or is not, retrospective.
35. Firstly, it is not the case that to hold that the certificates once issued were retrospective would deprive the remainder of the registration mechanism of effect. There would still be powerful incentives on A8 nationals to register within the first month, so as to obtain the protection of regulation 7(2)(b). It protects them against delay in determining the application. It puts them in a position when they would not be precluded from eligibility for public housing by the provisions cited at paragraph 26. Further, and importantly, it confers a degree of security on them that is not conferred on a person who delays applying, relying on the certificate being retrospective once issued. If the person’s employment comes to an end before an application has been made, it may do so summarily, which would make it too late to apply, and all the work previously done for the employer, potentially eligible to count against the 12 months if a certificate may be retrospective, would have been fruitless for that purpose: regulation 7(5)(b). It is clear from Zalewska and some of the present cases that some of the work done by A8 nationals is via agencies and thus may tend to be a response to short-term need. And as relatively newly-arrived migrant workers, people subject to the scheme, possibly with limited English, are unlikely to be well-placed to resist any attempt to terminate their employment, even if such attempt is unlawful. Thus the person who delays applying faces very real risks, protection against which can still (even on the claimants’ interpretation) be obtained by applying within the first month and thereafter relying on regulation 7(2)(b).
36. Regulation 9 of the 2004 Regulations creates an offence. I was told that those representing the Second Respondent were not aware that there had been any prosecutions under it. I have some difficulty in understanding how this provision as drafted is intended to operate. Paragraph (1) creates an offence, subject to paragraph (2). Paragraphs (2) and (3) (it is the latter on which I focus here) create a defence, provided the circumstances in paragraph (4) do not apply. On any view, an employer is an authorised employer for the first month of a person’s employment: regulation 7(3). If a person applies within the initial month, he is protected until notification of a decision on that application (regulation 7(2)(b)(ii)) and the employer is an authorised employer for that time. In such a situation, what is the purpose of the regulation 9(3) defence? As it applies to circumstances where the employer would be an authorised employer anyway, if the facts were as they appeared to him to be, it can only benefit the employer where it appear that an application had been made, but in fact none was. Quite how this might come about is unclear. Where, in any event, does this leave regulation 9(4)? If the employer “knew that his employment of the worker would constitute an offence under this regulation”, how could he bring himself within paragraph (3) in the first place?
37. The provision appears somewhat circular. What is clear, however, is that an employer who employs someone without having had sight of what appears to be an application during the first month or who does not take and retain a copy of it is exposed to the risk of a possible prosecution. It is said by Ms Rhee, correctly, that one has to apply a view of whether or not a certificate is retrospective consistently across the various provisions within the 2004 Regulations. She adds that to do so in the case of regulation 9 would cause difficulties such that they are a powerful indicator that retrospectivity was not the intention. She says that retrospectivity would contravene the principle against doubtful penalisation. I do not agree. It is very clear what the action is that exposes an employer to possible prosecution and thus the conduct which he has to avoid. The employer is not “put in peril upon an ambiguity” (cf. Bennion on Statutory Interpretation (5th edition, at p 826). Merely because outside circumstances (the retrospective grant of a certificate) might operate so as to relieve the employer from the risk of prosecution subsequently would not in my view contravene the principle. To take an illustration from a very different part of the criminal law, a person who commits an unlawful act towards another, with the necessary mens rea, but who fails immediately to kill his victim, will be exonerated from a murder charge if doctors subsequently manage to save the victim’s life, but not if they do not.
38. Of more concern is the situation if an employer is not only exposed to the risk of prosecution, but is actually prosecuted and convicted, only for a certificate subsequently to be issued, if it were to have retrospective effect. An employer would have been convicted, but would following the issue of the certificate have been an authorised employer all along. I am unable to find any way out of this consequence, were it to occur, none has been put forward on behalf of the claimants, and it is thus a powerful argument against the interpretation put forward by the claimants. To this extent, but no further, I accept Ms Rhee’s argument about the consequences under regulation 9.
39. What was not argued before me, despite the Secretary of State for the Home Department being a party, was that a retrospective interpretation would cause difficulties in relation to the administration of immigration more generally.
40. My conclusion thus far is that there are arguments both ways as to whether a certificate once granted is intended to be retrospective and that whichever way I decide this case will involve doing a degree of violence to some provisions of the 2004 Regulations.
41. I turn to the cases bearing on the point. Zalewska concerned the proportionality of the requirement (which on any construction of the legislation exists) for an A8 national to re-register on change of employment. In the case, Baroness Hale, giving one of the minority speeches, indicated her view of the effect of regulation 7(2)(c) at [49]:
“She started work on 9 July 2004 picking mushrooms for Monaghan Mushrooms Ltd of Dungannon. She applied to the Home Office for a registration certificate. We are not told when she applied but the certificate was issued on 5 November 2004. This meant that her employers were and had always been an “authorised employer”: see the 2004 Regulations, reg 7(2)(c) . They would in any event have been an authorised employer for the first month after she started work: see reg 7(2)(d) and (3) . And even if no certificate had been issued, they would have been an authorised employer provided that she had applied for a certificate within the first month after she started work and not been refused one: see reg 7(2)(b) ” (emphasis added)
At [50] she repeated the view in relation to a subsequent post:
“She stayed with Smirnoff for three weeks and then moved, at the end of January, to work for Linwoods in Armagh, baking and packing bread. If Linwoods were her employers they were an authorised employer for the first month after she started work with them: see reg 7(2)(d) and (3). This takes us up to the end of February 2005, almost eight months after she started work. Once again, she did not apply for a registration certificate for her job with Linwoods. But had she done so at any time and had the certificate been issued before she left, Linwoods would have been an authorised employer: see reg 7(2)(c)” (emphasis added).
At [52] she observed that:
“Nor does it appear that any great haste is shown in issuing the certificates which have been applied for. We do not know exactly when the appellant applied for her certificate, but it is likely to have been before 9 August 2004, within the first month of her starting work with Monaghan Mushrooms, yet the certificate was not issued until 4 November.”
42. The principal speech for the majority was delivered by Lord Hope. At [17] he indicated:
“The appellant is a national of the Republic of Poland. She came to Northern Ireland for the purpose of seeking employment on 1 July 2004. From 9 July 2004 to 7 January 2005 she worked for Monaghan Mushrooms Ltd in Co Tyrone picking mushrooms. She applied for a registration certificate under reg 8 of the 2004 Regulations. On 5 November 2004 she was issued by the Home Office with a registration certificate. It recorded her starting date as 9 July 2004 and gave the name of Monaghan Mushrooms as her employer. Thus far she had complied with the requirements of reg 5 of the 2004 Regulations. Monaghan Mushrooms was an authorised employer in relation to her for the first month of her employment starting on 9 July: reg 7(3) . There was a gap until 5 November 2004. This appears to have been due to a delay in the issuing of her registration certificate by the Home Office. Thereafter Monaghan Mushrooms was an authorised employer in relation to her because she had received a valid registration certificate which had not expired as she was still working for that employer: reg 7(2)(c) .”
43. Whilst it is clear from the facts of the case that Ms Zalewska needed to be able to count both her job with Monaghan Mushrooms and that with Linwoods if she was to reach 12 months, it appears that the House of Lords were not told when she had applied for her certificate in relation to the former. Despite Baroness Hale’s remarks at [49] in relation to regulation 7(2)(c), as her remarks at [52] acknowledge, it may in fact have been a case to which regulation 7(2)(b) applied. Lord Hope’s remarks leave it somewhat open as to how Ms Zalewska bridged the gap (which he must be taken as having accepted that she did) and cannot in my view be read as expressing a clear view for or against the retrospectivity of regulation 7(2)(c), although I fully accept that later in his remarks, when discussing proportionality, he endorsed, albeit obiter, the position of non-retrospectivity adopted by Mr Commissioner Rowland in CIS/160/2007.
44. Regulation 7(2)(c) did not form part of the ratio in Zalewska, where the claimant had not attempted to register her second and third jobs at all, whether or not in the first month. Baroness Hale’s remarks in this regard were clearly and unequivocally stated and demand due respect, but were undoubtedly obiter dicta. As such, they are not accompanied by detailed reasoning in support and I therefore derive only limited assistance from them in resolving this aspect of the present appeals.
45. Turning to JL, the status of such decisions for the purposes of adjudication in social security cases was addressed by Mr Commissioner Rowland in R(IS) 3/08 (at paragraph 22) in the following terms:
“Decisions of the Asylum and Immigration Tribunal are not binding on a Commissioner but a fully reasoned reconsideration decision of a tribunal presided over by the President, the Deputy President or a Senior Immigration Judge ought generally to be followed by a single Commissioner as a matter of judicial comity, although it must be recognised that a slavish adherence to this could lead to the perpetuation of error. In other words, a Commissioner may be expected to approach such a decision in the same way as a decision of another single Commissioner (see R(I) 12/75). Perhaps there will be less readiness to depart from a decision of the Asylum and Immigration Tribunal than a decision of a Commissioner, given the expertise in immigration matters of that tribunal, but such additional inhibition will be lessened if, as in this instance, the unsuccessful party before the Asylum and Immigration Tribunal was not legally represented. “
46. Although the former Social Security Commissioners have transferred into the tribunal regime created by the Tribunals, Courts and Enforcement Act 2007, the Asylum and Immigration Tribunal has not yet done so. For present purposes, I respectfully adopt the approach of R(IS)3/08 to decisions of that tribunal. I note that in JL, though the decision was a fully reasoned reconsideration decision, the unsuccessful party was not merely unrepresented but did not attend, possibly because the question had for him by then become academic.
47. The Asylum and Immigration Tribunal determined JL in a way which is against the claimants in the present cases for a number of reasons:
“26. We readily acknowledge that the view of Baroness Hale is, of course, entitled to the greatest respect. However, for the reasons that follow, we have reached a contrary conclusion to that apparently suggested in Zalewska. It seems to us that when reg 7(2)(c) takes effect on ‘receipt’ of a valid WRC it contemplates authorising the work, and making the employer an “authorised employer”, only prospectively from its date of issue.
27. First, in our judgment, that is the more natural sense in which it can be said that the employment is ‘authorised’. The WRC takes effect from its date of issue once received by the worker. We note that the two WRCs issued to the Appellant, which we have no reason to believe are atypical, do not purport to authorise retrospectively the employment. Although, as required by the Regulations, they record the start dates of the jobs as set out in the applications, they also set out the dates they were issued.
28. Secondly, to give a WRC retrospective effect is inconsistent with how reg 7 operates in a case where the A8 state worker behaved as the Accession Regulations contemplate he should. Where the application is made within the initial 1 month, but the WRC is not received until later, to interpret reg 7(2)(c) as having retrospective effect is redundant. The employer is in any event at all times an “authorised employer” during the first month (reg 7(3)) and thereafter until the WRC is received (reg 7(2)(b)). The WRC needs only to have declaratory effect for the future. That is all that reg 7(2)(c) need do to provide a legislative continuum within the structure of reg 7(2) that ensures that the relevant employer is at all times an “authorised employer”. Thus, in the paradigm case to interpret reg 7(2)(c) as having retrospective effect would be to force a meaning upon it which cannot have been intended by Parliament for if it has that effect reg 7(2)(b) is never needed where a WRC is issued. If it cannot have been intended to have such an effect in the paradigm case, in our view, that weights heavily (perhaps conclusively) against an interpretation that would give it retrospective effect (as a matter of Parliamentary intention) when the A8 state worker does not seek a WRC in the initial 1 month period of his employment.
29. Finally, a contrary interpretation of reg 7(2)(c) would have surprising (and in our view undesirable) effects which we do not accept could have been intended. The situation contemplated, as in this appeal, is where the A8 state worker does not make an application for a WRC in the initial 1 month period but does so at some later point. The Secretary of State has no discretion to refuse the WRC if the application is in order and she is satisfied that the applicant is an A8 state worker who started work on the date claimed. Consequently, in every case the WRC would legitimate any prior period of unlawful employment (however long). Also, if the start date of the job was at least 12 months earlier, the effect of the WRC would be immediately to remove the A8 state worker from the requirements of the Accession Regulations as he would have worked legally for an uninterrupted period of 12 months despite the fact that he had patently worked outside the Scheme for the entirety of that period.
30. Further, it would also mean that the worker’s immigration status would be retrospectively changed. In the period prior to the WRC being issued, the individual would have no lawful EU basis for residing in the UK. However, once issued, if retrospective in effect, the WRC would somehow result in the individual – in fact but retrospectively – having a lawful basis for being in the UK under the Accession Regulations. Also, it would ensure that the criminal offence in reg 9 committed by an employer who employs an A8 state worker outside the Scheme could simply be avoided by the worker applying for a WRC at any time and, satisfying the rudimentary requirements of reg 8(5), would be entitled to such a certificate. We see no basis upon which the employer could be guilty of a criminal offence after the initial 1 month period (for which he could already have been successfully prosecuted) only for that to be, somehow, retrospectively expunged when the WRC is received.
31. The Accession Regulations impose a registration requirement upon A8 state workers as a condition of access to the UK labour market. Compliance with the Scheme is a pre-requisite to such workers having a lawful entitlement to reside in the UK at least until they have completed 12 months work in accordance with that Scheme. As the majority’s decision in Zalewska illustrates, failure to comply with the Scheme’s requirements may (consistently with EU law) have adverse legal consequences for an individual A8 state worker: in that case entitlement to social security benefits. The interpretation of reg 7 of the Accession Regulations which would entitle the Appellant to succeed in this appeal would, in effect, remove any incentive upon an A8 state worker to register at the beginning of his employment with a particular employer. Any consequences for him, and perhaps for the employer also, of prior non-compliance could be removed at a stroke by any subsequent successful application for a WRC: its retrospective effect making good anything that had previously been wrong. We do not accept that this was intended to be the effect of a WRC. In our judgment, the correct interpretation of reg 7(2)(c) is that a WRC takes effect, once received, only from the date of its issue.”
48. As regards paragraph 27 of JL, I have set out above why I consider that the prescribed contents of the certificate are – if one looks at how it applies to all times when applications may be made, rather than only those made in the first month - more compatible with a certificate being retrospective than with it being prospective only. Concerning paragraph 28, while I entirely accept that regulation 7(2)(b) would not be needed where an application is made in the first month once a certificate has been issued if a certificate is retrospective, I have noted that the ability to make an application is not confined to the first month and note also that even in what is termed in JL the paradigm case, regulation 7(2)(b) would still serve a purpose by protecting the employee in the period before a decision was reached and the (ex hypothesi, retrospective) certificate issued. As to paragraph 29, I have pointed out that this would not mean that the worker who delayed was in as good a position as the worker who had acted promptly, for the former would have faced by no means insignificant risks meanwhile.
49. I also note the consequence that:
“… in every case the WRC would legitimate any prior period of unlawful employment (however long). Also, if the start date of the job was at least 12 months earlier, the effect of the WRC would be immediately to remove the A8 state worker from the requirements of the Accession Regulations as he would have worked legally for an uninterrupted period of 12 months despite the fact that he had patently worked outside the Scheme for the entirety of that period.”
While I readily accept that such would be the case and give considerable weight to the views of judicial colleagues with specialist experience of immigration matters, I do not find such an outcome wholly surprising, given that one of the anticipated effects was that “it should encourage those A8 nationals working here illegally to regularise their status and begin contributing to the formal economy” (see [19] above). It is in the nature of any amnesty that those who are belatedly brought into the fold are exonerated from a period of non-compliance, but that is because the price is thought worth paying.
50. Turning to paragraph 30 of JL, I have noted that no argument was put to me on behalf of the Second Respondent suggesting any difficulty in the administration of immigration if the provision were retrospective. As to the effect on regulation 9, I agree for the reasons in [38] above and return to this provision below. However, I respectfully disagree with the conclusion in paragraph 31 that the view put forward on behalf of the claimants “would, in effect, remove any incentive upon an A8 state worker to register at the beginning of his employment with a particular employer” for the reasons I have stated at [35] above.
51. It follows that, with the benefit of having heard argument on behalf of the individuals affected which was not available in JL, while I do not attribute the same weight to all the factors as appears to have been attributed by the judges in that case, there remains a core of significant points on which I respectfully agree, including the more natural reading of regulation 7 (essentially for the reasons canvassed by Ms Rhee) and as to the difficulties which would be caused for the operation of regulation 9.
52. In CIS/160/2007 Mr Commissioner Rowland held:
“I also accept Mr Kolinsky’s submission that, although the Secretary of State must, by virtue of regulation 8(5)(b) and (6) be satisfied as to the true starting date before issuing a registration certificate and although the certificate must bear that starting date, the issue of a certificate does not retrospectively render the claimant’s employment lawful during any period that elapsed between the end of the initial month of employment and the date the employee actually receives the certificate in a case where the application for a certificate was made after that month had elapsed. From the point of view of criminal sanctions under regulation 9, that is entirely understandable and, indeed, necessary.”
I respectfully agree with Mr Commissioner Rowland to the extent that there is the difficulty in relation to regulation 9 discussed in [38] above. It appears from his decision that regulation 9 may have been the decisive factor which led him to find against retrospectivity.
53. I thus have on the one hand what I regard as the more natural meaning of regulation 7 (and associated parts of regulation 2) as put forward by Ms Rhee and the difficulties which any contrary interpretation would cause for regulation 9 and on the other the apparent incompatibility with the drafting of regulation 8 in its applicability to anyone who makes a perfectly lawful application after the initial one month period.
54. Some time in the present case was taken up with consideration of the point at which European law affects this case and, if so, what it requires. Despite Ms Rhee’s submission to the contrary, I am inclined to the view that it is necessary to seek an interpretation which is not disproportionate and not merely to submit the relevant part of the 2004 Regulations, once interpreted, to scrutiny for proportionality.
55. It is beyond doubt following Zalewska that the 2004 Regulations and specific aspects of them are subject to scrutiny against the EU test of proportionality. As Lord Hope put it:
“30 The proposition that I cannot accept however is that the national measures that the United Kingdom selects have nothing to do with Community law, so the issue as to whether they are proportionate is irrelevant. The only authority that the United Kingdom has to introduce national measures to give access to nationals of an A8 state to its labour market in place of article 39 EC and Title I of Regulation 1612/68 is that which is given to it by paragraph 2 of Part 2 of Annex XII . As article 10 of the Treaty of Accession makes clear, this derogation from the application of the original Treaties and acts adopted by the institutions of the Community was agreed to by the member states under the umbrella of Community law. Furthermore the fact that the derogation does not extend to article 7 of the Regulation shows that where the national measures of an existing member state give the status of “worker” to an A8 State national he is entitled to all the rights in that state that Community law gives to workers. It is not possible to detach the opportunity that is given to the member states to apply national measures from its Community law background. The conclusion that any national measures that the member states introduce under the authority of paragraph 2 must be compatible with the authority given to them by the Treaty of Accession and with the Community law principle of proportionality seems to me to be inescapable.
56. In Zalewska there was no issue about the interpretation of the 2004 Regulations, only one as to the proportionality of the requirement to re-register on change of employment. But it seems to me that if Community law is relevant at all, it is also relevant to the extent that it bears on the construction of the 2004 Regulations. As Bennion puts it in “Statutory Interpretation – a Code” at section 413:
“(1) In this section:
‘UK enactment’ means an enactment which is contained in or made under an Act of the United Kingdom Parliament …, and
‘the relevant UK enactment ‘ means a UK enactment the application of which is to be treated as affected by a provision of Community law (‘the Community law provision’) in order to give effect to the European Communities Act 1972 s2(1) and (4) (which require force to be given to all rights, powers, liabilities, obligations, restrictions, remedies and procedures which, in accordance with the European Community treaties, are to be given legal effect or used in the United Kingdom).
…
(2) Where in any case the Community law provision has direct effect, the relevant UK enactment applies subject to that provision or, if it is wholly inconsistent with that provision, does not apply at all.
(3) Where in any case the Community law provision does not have direct effect, and has not been transposed into the governing United Kingdom law, then subsection (4) or (5) applies.
(4) If the relevant UK enactment can be construed in accordance with the Community law provision without distorting the meaning of that enactment, it is to be so construed.
…
(6) If the Community law provision does not deal comprehensively with the matter in question, but leaves space for certain details to be laid down by a UK enactment, the later is to be given a purposive construction which so far as possible gives effect to the Community law provision.”
57. Although Ms Rhee suggested that proportionality was not relevant at the interpretation stage, where the matter concerns not the EU Treaty itself but the suspension of it, without qualification, by the Accession Treaty, she was unable to cite any authority in support of such a view or to find within Zalewska a basis on which Lord Hope was enabled to examine proportionality at the stage at which he did, but without it also becoming relevant at the interpretation stage in the present appeals. I have some difficulty in accepting that there is such a hierarchy of Treaties for this purpose and that the derogation may necessarily be taken as without at any rate implied qualification. It seems to me entirely possible that section 2 of the 1972 Act may require otherwise. I therefore proceed by way of assuming in favour of the claimants, but without deciding, that I should give the 2004 Regulations, in the face of the ambiguity which I have held attaches to them, a purposive interpretation which accords with general principles of European law, including that of proportionality, which forms part of the Community law background to the authority given by the Accession Treaty to effect a derogation. However, as will be seen, even proceeding on this assumption does not avail the claimants.
58. The test of proportionality is that set out in Fromancais v Forma [1983] ECR 395, para 8, [1983] 3 CMLR 453:
“In order to establish whether a provision of community law is consonant with the principle of proportionality it is necessary to establish, in the first place, whether the means it employs to achieve its aim correspond to the importance of the aim and, in the second place, whether they are necessary for its achievement.”
59. Although Ms Rhee tried to persuade me otherwise, I find it difficult to see how the fact that the United Kingdom could have refused to admit A8 nationals to the workforce at all is material to the question of the proportionality of the terms on which it did in the event do so. This was not a charitable exercise but one which was presumably undertaken because to do so was considered to be in the United Kingdom’s interests. Indeed, as the Accession Monitoring Report May 2004-December 2008, published by the Home Office, UK Border Agency, states:
“nationals from the A8 countries continue to come to the UK to work, contributing to the UK economy, while making few demands on our welfare system… A8 workers are continuing to go where the work is, helping to fill the gaps in our labour market, particularly in administration, business and management, hospitality and catering, agriculture, manufacturing and food, fish and meat processing. ..In many cases A8 nationals are supporting the provision of public services in communities across the UK…”
60. There is however no dispute that the fundamental aims of the 2004 Regulations are legitimate, including the aim of monitoring the impact of the accession of the A8 states on the UK labour market. That is implicit from the relevant provision of the Annex to the Treaty of Accession set out in [11] and [12] above. It is the proportionality or otherwise of the measures to secure promptness which is the issue in the present appeals, for once the Secretary of State has received a properly completed application, even if made after the initial month, he has obtained the data which he has thought it necessary to require, but he has not received it as promptly as he would have done, had it been provided in the initial month.
61. In my view, the facts that the various reviews contemplated by the Accession Treaty are to be carried out at relatively short intervals and that there is a mechanism for the relevant A8 Member state to request - at an unpredictable time - a further review which has to be completed within 6 months of the request also indicate that it is an appropriate aim of the legislation to ensure that information is provided promptly. The later that data is provided, the less useful it is likely to be for these purposes.
62. An appropriate mechanism to incentivise those who are in a position to provide the necessary information or to secure its provision is thus justifiable. I do not have any difficulty with the concept that incentivising employers to require the provision of papers indicating an application had been made on pain of the risk of committing a criminal offence was suitable to achieve the aim. As to the impact on employees, as I have indicated, I consider that even if a certificate were to be retrospective, there would be incentives on a person to apply for a certificate promptly, though I accept that non-retrospectivity, with its attendant consequences for benefit in cases such as these adds a further layer of incentivisation. I also accept that the arguments about the extent of incentivisation in the absence of non-retrospectivity, though real, may not be easy to convey to those requiring to be incentivised.
63. I have not seen any evidence bearing on whether the adverse impact upon interests worthy of protection was justified in view of the importance of the objective pursued. However, it is clear from the speeches of the majority in Zalewska that the adverse benefit consequences, though undoubtedly real and severe, were not considered disproportionate in relation to other administrative non-compliances with regard to registration. Indeed, Lord Hope at [42] – [44] broadened out the terms on which he endorsed – save for one immaterial aspect – the reasoning of Mr Commissioner Rowland in CIS/160/2007 to include cases of late registration, albeit obiter.
64. Certainly, there are unexplored issues: would the degree of incentivisation without non-retrospectivity be sufficient? Would the effect of regulation 9 in securing compliance by employers be such that this degree of adverse impact on individuals in respect of their benefit position is not needed as an incentive to secure prompt compliance as well? But these are exercises in complex social policy, some of them requiring a substantial degree of speculation, which a court or tribunal is not well equipped to undertake. In my view these are areas in which it is clearly right for a court or tribunal to allow a substantial degree of deference to the legislature as to whether the means adopted were indeed necessary to achieve the aim. This is all the more so as, having been approved by the affirmative procedure pursuant to section 2(6) of the 2003 Act, the 2004 Regulations have received a degree of active Parliamentary scrutiny.
65. Further, though I am not strictly bound by the observations of Lord Hope (for the majority in Zalewska) on this aspect, they are reasoned and highly persuasive and I am unable to find any reason not to apply them in the present appeals. It follows, therefore, that I do not regard the requirement which I am assuming to exist to construe the 2004 Regulations in a manner which avoids a disproportionate outcome has any impact in the circumstances of this case on the construction which I give to them.
66. Returning to the construction of the Regulations, I have set out at [53] what I perceive as the essential difficulty. I have reached the conclusion that a certificate is not retrospective, in part because I agree with Ms Rhee as to the more natural reading of the words of the relevant parts of regulations 7 and 2. Further, I consider it on balance preferable to adopt a construction which gives effect to regulation 9. A construction which allows retrospectivity renders regulation 9 in some situations totally unworkable, leading to the possibility of unjustified convictions. By contrast, the consequences of a construction refusing retrospectivity means that those who have applied after the initial month have certificates which are potentially misleading. While administratively unhelpful, the problems to which it gives rise can be mitigated by further enquiry on the part of those needing to rely on the certificates. Though the terms of regulation 8 appear misguided (and as set out in [4] above, the Second Respondent appears to have been in some difficulty in this regard), it does not necessarily mean that there is a legislative intention to be derived from the words that a certificate should be retrospective. Though I regard the terms of regulation 8 as very important for the reasons set out at [26], I am unable to elevate them over the considerations pointing the other way. It follows from the view I have reached concerning regulation 7(2) that on the true construction of regulation 5(2), a person is not “working in the United Kingdom for an authorised employer” unless he has, at the time when the work is performed, received a valid registration certificate in respect of that employment (or one of the other provisions of Regulation 7 applies.)
67. As I have dealt with proportionality above, I need say no more on this aspect. If I am wrong in my assumption that proportionality is relevant as a matter of construction, it is nonetheless relevant by way of a review such as was carried out in Zalewska at [30] and following paragraphs. The outcome in these appeals is the same.
68. Although this addresses the point which is common to all the appeals, I need to add a few words about each.
69. Mr Fullwood, for A, indicated that in relation to her income support claim, his client recognised that her appeal against the original decision must necessarily fail and that therefore she was prepared to withdraw that appeal. As her original appeal had been decided upon and the present proceedings are a second appeal, I give effect to this concession by simply recording it as a second ground for allowing the Secretary of State’s appeal in relation to the income support claim.
70. In P’s case, the tribunal had found that she had leave to enter or remain in the UK under the Immigration Act 1971 and that leave was not subject to any condition restricting her employment. The Appellant challenged this finding as having been made on no evidence. This was accepted on behalf of P implicitly in the course of written submissions and explicitly at the oral hearing, correctly in my view, and I therefore conclude that it is not possible to uphold the decision of the tribunal below on this alternative ground.
71. One of P’s claims was for income support while absent from the labour market on account of her pregnancy and then childcare. Authorities to date suggest that this would not be sufficient to allow her to retain worker status under Article 7(3) of Directive 2004/38/EC, but a further case is pending before the Upper Tribunal on this issue. As I am deciding the present appeal on other grounds, I need not take this point, which was not argued before me, further here.
72. In relation to N, the evidence merely records when N signed the application forms for a worker registration certificate and when they were “received in Sheffield”. As she signed the claim form on the first day of her employment, this would be a regulation 7(2)(b) case if she in fact made the application within the initial month. The matter must be remitted for the First-tier Tribunal to make findings as to when the application was made and, if there was a delay in the application reaching the relevant office in Sheffield, the circumstances in which such delay occurred. If – but only if (see regulation 5(3)) - they then as a result conclude that she had ceased to be an “access State worker requiring registration”, they must go on to make the findings to enable them to address whether she had retained her status as a worker under regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006 as a person who “is temporarily unable to work as the result of an illness or accident.”
73. It is appropriate to say a word about the provision of evidence in cases of this type. As Baroness Hale put it at [62] in Kerr v Department for Social Development [2004] UKHL 23; [2004] 1 WLR 1372:
“62. What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.”
It is clear to me from the present proceedings that the Department for Work and Pensions can, as one would expect, readily get details of when a person’s application for a worker registration certificate was made from the Home Office. By contrast, I have noted above that nowhere does the attention of claimants appear to have been brought to any need to make a copy of the application papers and to retain it even once the certificate has been received. Absent any express instruction, I would generally regard it as unreasonable to expect them to have done so. I would anticipate therefore that in most cases, applying the principles of Kerr will result in the Department for Work and Pensions having to obtain the relevant details of a person’s application from the Home Office and to include them in tribunal bundles. If it does not do so initially, whether or not to permit it to do so subsequently and to allow an adjournment for the purpose will be a matter for the discretion of the tribunal, to the exercise of which the existence of the guidance provided by this paragraph might be thought relevant.
74. In A’s appeal, there was no evidence before the First-tier Tribunal about when A applied for a certificate and she said she could not remember. The tribunal failed to engage with how the principles of Kerr might apply, but if this might otherwise have been an error of law, it was not in the outcome material. We now know that A did not apply within the first month. The same applies in relation to any errors on this aspect by the tribunal in P.
75. At the oral hearing, I enquired whether anyone would object if I were to abridge the time for applying for permission to appeal to the Court of Appeal. In the event I have decided not to do so, as if any of the claimants wishes to apply for permission to appeal, there may be funding issues and there is also the Christmas/New Year period intervening.
(signed on original)
CG Ward
Judge of the Upper Tribunal
17 December 2009
