Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007:

The decision of the First-tier Tribunal under reference 170/08/00915, held at Margate on 7 November 2008, did not involve the making of an error on a point of law.

Reasons for Decision

1.           This appeal concerns the interpretation, legality and proportionality of some provisions in the Accession (Immigration and Worker Registration) Regulations 2004 (SI No 1219). I call these the Accession Regulations.

2.           I held an oral hearing to discuss the issues on 11 November 2009. The claimant attended and was represented by Tim Samuel of counsel, who was instructed by Kent Law Clinic. The Secretary of State was represented by James Cornwell of counsel, who was instructed by the Solicitor to the Department for Work and Pensions. The issues had become narrowed down as a result of the exchange of written submissions. I am grateful to counsel for the expeditious way that they were able to conduct the hearing as a result of taking this approach.

A.          The factual background

3.           The claimant is Czech. He came to the United Kingdom in 1999 and claimed asylum. He was not given permission to enter or remain in the United Kingdom. Instead, he was given temporary admission to the United Kingdom and allowed to work. His claim for asylum had not been finally decided by the time that the Czech Republic acceded to the European Union on 1 May 2004. He had had a number of employments since his arrival. The most recent had begun on 20 June 2003 and ended on 23 April 2005. He did not register that employment under the Accession Regulations.

4.           The claimant was receiving a jobseeker's allowance in May 2008, when he became ill. He claimed income support on 16 May 2008, but the claim was refused on 24 June 2008 on the ground that he was a person from abroad with an applicable amount of nil. Whether that decision was right depends on whether the claimant ever attained worker status in EC law. The First-tier Tribunal decided that he did not, but gave him permission to appeal to the Upper Tribunal.

B.          The issues and how they arise on the legislation

5.           The Czech Republic acceded to the European Union by Treaty on 1 May 2004. By doing so, Czech nationals acquired the right of freedom of movement for workers under Article 39 of the EC Treaty. However, this was subject to the transitional arrangements set out in Annex V of the Treaty. Paragraph 2 is relevant to this appeal:

‘2.     By way of derogation from Articles 1 to 6 of 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 Czech nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession.

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 Member State but not to the labour market of other Member States applying national measures.

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.

The Czech 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.

Czech 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 those rights.’

6.           Articles 1 to 6 of Regulation 1612/68 deal with eligibility for employment. The effect of paragraph 2 of Annex V is to impose conditions on the eligibility of Czech nationals for employment.

7.           The European Union (Accessions) Act 2003 authorised the Secretary of State to make regulations to give effect to the accession, including power under section 2(2) to apply enactments subject to specified exceptions and conditions.

8.           The 2004 Regulations were made in part under that authority. The basic structure of the Regulations is this. The Regulations apply according to whether or not the claimant was an accession State worker requiring registration. For this decision, it is sufficient to identify three categories.

9.           The first category consists of persons who do not require registration by virtue of their immigration status. Regulation 2(2) provides that a claimant who had a right to enter or remain under the Immigration Act 1971 without any condition on employment does not require registration. The claimant is not in this category as he was not given leave to enter or remain.

10.        The second category consists of persons who do not require registration by virtue of their immigration status coupled with the fact that they had been legally working in the United Kingdom for the 12 months prior to accession. This category is excluded from registration by regulation 2(3) and defined by regulation 2(7)(a):

‘(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

(ii)    he was entitled to reside in the United Kingdom for that period under the 2000 Regulations [the Immigration (European Economic Area) Regulations 2000] without the requirement for such leave; …’

11.        Whether the claimant is in this category depends on how regulation 2(7)(a) is interpreted. Mr Samuel argued that this was a deeming provision and that it was not exhaustive. Mr Cornwell argued that it was a definition rather than a deeming provision and that it was exhaustive.

12.        The third category consists of persons who must work for an authorised employer for 12 months. This is the effect of regulation 2(4) and (7)(b). Whether an employer is authorised is governed by regulation 7:

‘7      Requirement for an accession State worker requiring registration to be authorised to work

(1)     By way of derogation from Article 39 of the Treaty establishing the European Community and Articles 1 to 6 of Regulation (EEC) No. 1612/68 (a) 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 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) or (4).

(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.

…

(6)     Regulation 2(7)(a) shall apply for the purpose of determining whether a person is legally working on 30th April 2004 for the purpose of this regulation.’

13.        Mr Samuel argued that this regulation put the claimant in an impossible position. If the claimant was not legally working while temporarily admitted to the United Kingdom, regulation 7(2)(a) did not apply. And regulations 7(2)(b) and (3) did not apply, because he had begun to work for his current employer more than one month before 1 May 2004. He could only obtain registration if he left that employer and entered a new employment. Mr Cornwell accepted that that result would be absurd, but argued that for the purposes of regulation 7(2)(b) work began on 1 May 2004.

14.        Finally, Mr Samuel argued that the exclusion of those who were working as authorised while subject to temporary admission was disproportionate. Mr Cornwell argued that there was a qualitative difference between those with leave to remain and those who were temporarily admitted. Temporary admission was temporary and liable to be revoked, as was the authorisation to work;, it was subject to a requirement to report, carried the risk of detention, and left the person subject to removal. Moreover, the issue of proportionality had been decided by the House of Lords in Zalewska v Department for Social Development [2008] 1 WLR 2602. Mr Samuel argued that the issue in this case differed from that in Zalewska.

C.          My analysis

15.        Mr Samuel argued that: (i) the free of movement of workers was a fundamental EU right and accordingly to be interpreted broadly; and (ii) derogations from such rights are to be interpreted strictly. I accept those arguments.

16.        If I understood him correctly, he argued that all but the first subparagraph of paragraph 2 of Annex V contained exceptions to the derogation and were to be interpreted broadly. That is not how I read paragraph 2. The paragraph as a whole contains the derogation. The various subparagraphs merely define the precise scope of the derogation.

17.        That derogation uses two concepts: legally working and access to the labour market. He 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. It is not worded as a deeming provision. Nor does it fulfil the function of one. A deeming provision treats X as if it were Y. Mr Samuel argued that the claimant’s work had been legal before 1 May 2004, but from that date it was no longer legal. 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.        Regulation 2(7)(a) treated as a definition is exhaustive of the meaning of ‘legally working’. It does not use the word ‘if and only if’, but that is not fatal. I have come to this conclusion on the basis of the language used, its function and its context. There is a well-known drafting device for retaining the meaning that language would otherwise bear while extending that meaning or making clear that the words cover something. That is the effect of ‘X includes Y and Z’. But this provision does not do that. Heads (i) and (ii) are core instances of when a person would be legally working. They would not extend the meaning; nor would it be necessary to remove any doubt about such obvious instances. It is also possible to provide a general definition followed by a limited list of some specific instances. But there is no general definition here, just the two heads. Viewed from a drafting perspective, this looks like an exhaustive definition. This is supported by considering its function and context. It would be unusual to define how an expression applies to a new area of law in a way that would have created, as Mr Cornwell argued, considerable uncertainty. A statement of the obvious with no qualifying words is not indicative of a partial definition.

20.        As to the trap created by regulation 7, I accept Mr Cornwell’s argument that it has to be removed by interpretation. It would be absurd if a claimant were to be in the position described by Mr Samuel. Regulation 7(2) appears to make no provision for the person who was working, but not legally, before 1 May 2004 and who remains in that employment. However, the structure of the regulation, especially regulation 7(2), shows that that is covered. Subparagraph (a) deals with a claimant who was legally working before 1 May 2004. Logically, the following subparagraphs are dealing with claimants who were not. That covers those who were working before 1 May but not legally and those who were not working at all before that date. The focus in either case is on the position from 1 May. In that context, it is permissible and appropriate to interpret subparagraph (b)(i) as referring to the point at which the clock starts running for the claimant. In this case, that means 1 May. The same is true for regulation 7(3).

21.        On proportionality, Mr Samuel argued that the House of Lords in Zalewska had not dealt with the issue of a claimant who was working before accession. He pointed to some statements by Lord Hope to support that. Mr Cornwell argued that the issue was resolved by that decision and pointed to general statements by Lord Hope in support. I have read the whole of Lord Hope’s analysis of proportionality. It contains some general statements, but taken as a whole it is limited to the requirement to register and does not refer to the issue that arises in this case.

22.        Accordingly, I have to decide whether it was proportionate to exclude those who were working in the United Kingdom with permission while temporarily admitted pending a decision on a claim for asylum. 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.

23.        Mr Samuel also referred me to the decision of the European Court of Justice in Mάrio Lopes da Veiga v Staatssecretaris van Justitie (Case 9/88) [1989] ECR 2989. I regret that I can see no way in which that case is relevant to the legislation before me. The issue in this case turns on a concept that was not present in the derogation in that case. The domestic legislation is authorised by the derogation in Annex V and is not disproportionate application of the power. At most, it shows why Annex V was drafted differently from the derogation in that case.

D.          A point reserved

24.        For the record, Mr Samuel reserved the point at paragraph 22 of his argument at page 128 of the papers should the case come before the Court of Appeal.

E.          Disposal

25.        I dismiss the appeal.