ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Jacobs
(CIS/0408/2009,  UKUT 236 (AAC) and CIS/826/2009,  UKUT 126 (ACC))
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE ELIAS
| (1) PATRIK MISKOVIC
(2) BARBARA BŁAZEJ
|- and -
|SECRETARY OF STATE FOR WORK AND PENSIONS
Mr Simon Cox (instructed by Fisher Jones Greenwood LLP) for the Second Appellant
Mr Jason Coppel and Mr James Cornwell (instructed by the Office of the Solicitor for the Department for Work and Pensions) for the Respondent
Hearing dates : 18,19 November 2010; 2 December 2010.
Crown Copyright ©
Lord Justice Elias :
"(4) A claimant is not a person from abroad if he is—
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a)
or (b) pursuant to Article 7(3) of that Directive; ……
(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
"(2) A national of a relevant accession State who is seeking employment in the United Kingdom shall not be treated as a jobseeker for the purpose of the definition of "qualified person" in regulation 6(1) of the 2006 Regulations and an accession State worker requiring registration shall be treated as a worker for the purpose of that definition only during a period in which he is working in the United Kingdom for an authorised employer.
(3) Subject to paragraph 4, regulation 6(2) of the 2006 Regulations shall not apply to an accession state worker requiring registration who ceases to work."
Workers requiring registration.
"3. Czech 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 State but not to the labour market of other Member States applying national measures.
4. Czech 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.
5. Czech nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied or who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy those rights.
"14. The effect of the application of paragraphs 2 to 5 ….shall not result in conditions for access of Czech nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.
Notwithstanding the application of the provisions laid down in paragraphs 1 to 13, the present Member States shall, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to their labour market.
Czech migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in the Czech Republic shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or the Czech Republic respectively. Furthermore, in application of the principle of Community preference, migrant workers from third countries resident and working in the Czech Republic shall not be treated more favourably than nationals of the Czech Republic."
The 2004 Regulations.
"2 "Accession State worker requiring registration"
(1) Subject to the following paragraphs of this regulation, "accession State worker requiring registration" means a national of a relevant accession State working in the United Kingdom during the accession period.
(2) A national of a relevant accession State is not an accession State worker requiring registration if on 30th April 2004 he had leave to enter or remain in the United Kingdom under the 1971 Act and that leave was not subject to any condition restricting his employment.
(3) A national of a relevant accession State is not an accession State worker requiring registration if he was legally working in the United Kingdom on 30th April 2004 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.
(4) A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months."
"(7) For the purpose of this regulation—"
(a) a person working in the United Kingdom during a period falling before 1st May 2004 was legally working in the United Kingdom during that period if—
(i) he had leave to enter or remain in the United Kingdom under the 1971 Act for that period, that leave allowed him to work in the United Kingdom, and he was working in accordance with any condition on that leave restricting his employment; or…..
(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;......"
"(2) An employer is an authorised employer in relation to a worker if–
(a) the worker was legally working for that employer on 30th 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)….
(3) Where a worker begins working for an employer on or after 1st 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."
The facts in the Miskovic case.
The hearing before the Upper Tribunal.
"….. The derogation is a Treaty provision and must be taken as proportionate. It uses the concept of whether persons were working legally before accession. It does not define that concept and, as I have explained, it must be decided according to national law. The obvious aim is to distinguish between persons who were properly established (to use a loose expression) in employment in this country and those who were not. Only the former are entitled to favourable treatment on the basis of their past employment. A person who has leave to enter and remain in the United Kingdom without restriction is a clear example of the former. An illegal immigrant, present in the United Kingdom without the State's knowledge or authority, is a clear example of the latter. The issue is: what amounts to 'properly established'? The United Kingdom has chosen to define that by reference to stable relationships with this country rather than the more tenuous and limited relationship formed by temporary admission. No doubt, it might have drawn the line differently. But that is not the issue. Those subject to temporary admission are undoubtedly in a more precarious position than someone with leave to remain. They may differ from an illegal immigrant only by virtue of the expedient of making a claim for asylum. (I am not suggesting that that so for this claimant.) Their connection to the United Kingdom is undecided and working is an indulgence so that they are able to support themselves without resort to the limited public assistance given to asylum seekers. I consider that the aim of this part of the derogation and of the relevant provisions of the Accession Regulations is legitimate and the terms of those provisions were both appropriate to secure that aim and did not go beyond what was necessary to do so. They are not disproportionate."
The grounds of appeal.
The proportionality argument.
"34. ...When the worker registration scheme was first introduced its purpose was said to be to allow A8 state nationals access to the United Kingdom labour market in a way that would enable the Government to monitor the numbers working and the sectors where they were employed. It was not expected to be a barrier to those who wanted to work. On the contrary it was thought that it would encourage those A8 state nationals who were working here illegally to regularise their status and begin contributing to the formal economy. Three strands of thought can be seen to be at work here. There was a concern about numbers, which was of course the reason why member states had sought derogation from the direct application of article 39 and articles 1 to 6 of Regulation 1612/68 for a period of years following the date of accession. There was a concern to identify which sectors of the labour market were being affected by the influx, in case remedial measures might have to be taken to control it. And there was a concern about the number of A8 state nationals who were already working here illegally, at risk to their own health and safety, and might continue to do so. A registration system was an obvious way of combating this abuse. "
"35. Similar concerns about the impact of enlargement on the benefit system led to the amendment to the social security regulations that prevents the appellant from obtaining income support. The Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232) introduced into the income-related benefit rules for Great Britain the same amendment for the habitual residence test as that which was introduced for Northern Ireland by the Social Security (Habitual Residence) Amendment Regulations (Northern Ireland) 2004. They were referred when in draft to the Social Security Advisory Committee. The Committee's Report was presented to Parliament in April 2004 (Cm 6181). In his introduction to the Report the Secretary of State said that the underlying purpose of the Regulations was to safeguard the UK's social security system from exploitation by people who wished to come to the United Kingdom not to work but to live off benefits. They were intended to support the Government's policy of opening the United Kingdom's labour market immediately to workers from the A8 states. But it was recognised that any resulting influx of people from abroad might lead to additional and inappropriate demands on the UK's social security system. "
"The terms on which A8 State nationals are to have access to the labour market are critical to achieving that purpose. Access to that market confers on them a status of worker so they become entitled immediately, under Article 7 of Council Regulation (EEC) No 16/12/68 to the same social advantages as nationals. And the third sub-paragraph of paragraph 2, Part 2 of Annex 12 provides that A8 State nationals admitted to the labour market of an existing member State following accession for an uninterrupted period of 12 months or longer are to enjoy access to the labour market of that State. This is a right that is given to them by community law with all the other rights that go with it at the end of that period but it is given only to those who are, as the sub-paragraph puts it,
"admitted to that labour market during that period."
"The proportionality of the formalities of registration and re-registration and of the consequences of a failure to comply with these requirements must be judged in that context. In my judgment, that identifies the legitimate purpose which the current rule is designed to achieve.""
"I would be troubled by an approach which examined too closely and judged too nicely the suggested advantages and disadvantages of the registration requirement in fact imposed. To my mind nothing could be more calculated to disaffect those charged with deciding how the UK should react to opportunities for derogation such as arose in the present case. If Community law is really to be regarded as requiring your Lordships to strike down an essentially generous scheme such as was decided upon by government here, the UK may be expected to harden its heart in future."
The non-regression argument.
The facts in the Błazej case.
The grounds of appeal.
Was the appellant legally employed?
"But as paragraph 1 of Part 2 of Annex 12 makes clear in the case of Poland, Article 39 EC is subject to derogation in the case of the freedom of movement of workers from nationals of the A8 States. Paragraph 2 of Part 2 states, by way of derogation, that for the two-year period from the date of accession member States will apply national measures, and that they will continue to apply such measures until the end of the five-year period following the date of accession. The effect of that paragraph was to enable the United Kingdom, notwithstanding the fundamental rules of community law as to freedom of movement of persons, to lay down its own rules for access to its labour market by A8 State nationals." (emphasis added)
"The United Kingdom is entitled to insist, by way of derogation, that the mere fact that the person is working in the United Kingdom is not enough."
"17. That derogation [under para.2 of Part 1 of Annex V] uses two concepts: legally working and access to the labour market. [Counsel for the appellant] argued that these had to have an autonomous meaning as concepts of European law. They could not be defined by the individual Member States. I accept that the concept of access to the labour market may have a European meaning. I do not understand how the concept of legally working can have such a meaning. EC law does not determine the content of employment law, of immigration law or of the criminal law relating to either of those areas. The concept can only be defined by domestic law. Moreover, I do not understand how a European concept could apply at a time when, by definition, European law did not yet apply, that is, before accession.
18. Regulation 2(7)(a) contains a definition, not a deeming provision. ... I accept that before 1 May 2004 the claimant's work was lawful under employment law, immigration law and criminal law. What changed after that date was that it became subject to EC law. For the first time, it was necessary to categorise work before that date as legal or otherwise for the purposes of EC law. Regulation 2(7)(a) effected that categorisation. It was not deeming the work the claimant had done to be something that it was not. It was providing for how that work was to be categorised for a new purpose - the application of the Accession Regulations. That is the work of a definition, not a deeming provision. The fact that the work was legal for employment, immigration and criminal law does not mean that it was legal for all purposes.
19. ... It would be unusual to define how an expression applies to a new area of law in a way that would have created, as [Counsel for SSWP] argued, considerable uncertainty. A statement of the obvious with no qualifying words is not indicative of a partial definition."
"29. The fact nevertheless remains that those two aspects of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply – since otherwise the right granted by them to the Turkish worker would be deprived of any effect – the existence, at least at that time, of a right of residence for the person concerned.
30. The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force.
31. In particular, although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognized as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorization, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question.
32. Consequently, the expression 'legal employment' contained in Article 2(1)(b) of Decision No 2/76 and in the third indent of Article 6(1) of Decision No 1/80 cannot cover the situation of a Turkish worker who has been legally able to continue in employment only by reason of the suspensory effect deriving from his appeal pending a final decision by the national court thereon, provided always, however, that that court dismisses his appeal."
The Article 23 argument.
"Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there."
"This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members, as defined in point 2 of Article 2 who accompany or join them."
A family member includes a spouse.
""host member State" means the Member State to which a Union Citizen moves in order to exercise his or her right of free movement and residence."
"The Directive creates and regulates rights of movement and residence to Union citizens. The lawful residence contemplated in Article 16 is residence which complies with community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality.
Article 3 provides in terms that the Directive applies to Union citizens who reside in a member state:
"other than that of which they are a national."
The expression "reside legally" in Article 16 should, in my view, be read consistently with, and in the sense of, of Preamble 17 of the Directive, that is, residence "in compliance with the conditions laid down in this Directive."
The repeated use in the Directive of the expression "Host Member State" supports that conclusion. It indicates rights to be enjoyed in Member States other than that of nationality; the word "host" suggests that the Union citizen/"guest", an inappropriate expression for persons in a State of their own nationality."
Lord Justice Sedley:
"I must deal first with an argument of Mr McManus on behalf of the London Borough of Harrow. He says that this point was not raised before the Special Educational Needs Tribunal. What is more, if it had been raised evidence would have been given, or at any rate could have been given, which is not now available. In those circumstances he submits that Miss B should not have been allowed to advance this argument before the judge, and should not be allowed to advance it in this court. He refers to the case of Kumchyk v Derby City Council  ICR 1116, a decision of the Employment Appeal Tribunal. We were also referred to the case of Hellyer Brothers Ltd v McLeod  ICR 526. On the basis of those two cases he submits that we should follow what is summarised in paragraph 2 of the headnote in the Hellyer case:
"... the point sought to be argued before the appeal tribunal had formed no part of the case before the industrial tribunal and was a new point of law, and that upon the established principles applicable to the raising of new points by the respondents, the appeal tribunal had correctly taken the view that it was right to refuse leave to allow it to be raised ..."
That is said to be a general principle applicable to appeal courts. Indeed, it is certainly one which is generally applied in this court whenever fresh evidence would be needed to decide the new point, although Lord Widgery said in a case cited at page 564 in the Hellyer decision:
"I recognise, as does Lord Denning MR, that being a rule of practice this rule contains an element of discretion. There may well be cases in which justice demands that a different view be taken owing to the special circumstances of the case..."
I certainly take the view that justice requires us to allow this point to be argued. Kumchyk and Hellyer were employment decisions, contests between employers on the one hand and employees supported by trade unions on the other. This is a case of a mother caring for her child and appearing in person before the Special Educational Needs Tribunal. Mothers as a whole do not have trade unions, although there is a very worthy outfit called the Mothers' Union. The procedure before the Special Educational Needs Tribunal is meant to be informal, and we are told by Otton LJ that representation is discouraged. To my mind it would be quite wrong to reproach Miss B for not having raised this argument before the Special Educational Needs Tribunal or to penalise her for not having done so. Furthermore, this is a case of general importance and it may well set a precedent. Now that the parties have come this far, it seems to me to be in the public interest that we should decide it, rather than that we should say that the judge should never have allowed it to be raised in the first place."
"23. Miss Broadfoot pointed out, correctly, that this issue had not been raised before the AIT, nor in the skeleton settled by Mr Bulale's previous advisers in this court. The AIT could not, therefore, have erred in law in not addressing the point; on a reconsideration, which this case was, the AIT only had jurisdiction to consider points addressed in the order for reconsideration or those which were Robinson-obvious (see R v Secretary of State for the Home Department, Ex p Robinson  QB 929; and accordingly this court in turn had no jurisdiction to consider the point on appeal.
24. I have concluded that this court does have jurisdiction to consider this issue, but I would emphasise the importance of the principles referred to in the previous paragraph, and the importance of only departing from them in very particular circumstances. I would agree with Miss Broadfoot that the point now under consideration is not "Robinson-obvious" in the sense that a court could be criticised for not taking it of its own motion. However, the issue appeared to this court, on seeing the papers, to be engaged and to be of some general importance. That was the principal reason why the court went to the considerable lengths described earlier in this judgment to ensure that Mr Bulale was represented before it, and that this point was taken on his behalf. The basis of the Robinson doctrine is, as Lord Woolf MR said,  QB at p 945B-G, that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state's compliance with its international obligations. That observation was in Robinson itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point is "obvious", once it has in fact occurred to the court it must be open to the court to pursue it. I stress that that gives no general licence to the parties to reformulate their case once it arrives in this court."
"29. In ordinary circumstances this court is reluctant to hear extended argument on a new ground or to grant permission to allow the appeal to be argued on a different basis, particularly where the relevant facts have not been investigated in the ET. In the interests of doing substantive justice to both parties, of saving legal costs and of achieving efficiency and finality in litigation in the public interest, the court will only exercise its discretion in exceptional circumstances to grant permission for new grounds of appeal to be added at a late stage, in these cases for the first time on a second appeal : Kumchyk v. Derby City Council  ICR 1116 at 1123 (EAT); Jones v. Governing Body of Burdett Coutts School  ICR 38 at 46-47(CA); Jones v. MBNA International Bank (Court of Appeal-30 July 2000) per May LJ at paragraph 52; and Leicestershire CC v. Unison  IRLR 810 (permission to raise EC point on appeal refused)."
Lord Justice Moore-Bick :
"13. Right to appeal to Court of Appeal
(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal . . .
(2) Any party to a case has a right of appeal . . ."