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 Colchester appeal tribunal under reference 132/08/00859, held on 6 October 2008, did not involve the making of an error on a point of law.

Reasons for Decision

A.          History and background

1.           Poland acceded to the European Union on 1 May 2004.

2.           The claimant is Polish. She came to the United Kingdom on 1 July 2001 on a student’s visa that lasted for one year. She married a British citizen in 2002 and was given a visa that allowed her to remain and to work until 23 July 2003. She never renewed that visa. The couple separated in 2003 and divorced in March 2008.

3.           She worked part-time for three years from 2002 to 9 December 2005. She then worked full-time for a year from 1 February 2006 to 31 January 2007. Thereafter, she was paid a jobseeker's allowance until the birth of her child was imminent. She then made a claim for income support on 3 March 2008. This was refused on 14 April 2008 on the ground that she had no right to reside in the United Kingdom and was therefore a person from abroad with an applicable amount of nil.

4.           The claimant exercised her right of appeal to an appeal tribunal, but her appeal was dismissed. She was given permission to appeal to the Upper Tribunal. The issue for me is whether the tribunal made an error of law in making its decision.

B.          Analysis – permanent residence

5.           The claimant was given permission on the issue of permanent residence. Her solicitor has now obtained her Home Office file and has conceded that she was not lawfully in United Kingdom in the months preceding Poland’s accession to the European Union. Accordingly, she cannot claim permanent residence at the time of the claim.

6.           However, the solicitor has argued that she is now entitled to permanent residence on the basis of five years’ residence between 1 May 2004 and 1 May 2009. I must reject that argument. Apart from any other consideration, I am not allowed to take account of any circumstances that were not obtaining on the date of the decision under appeal, which was 14 April 2008: see section 12(8)(b) of the Social Security Act 1998.

7.           The solicitor asked me to stay this case until the European Court of Justice has answered the questions referred to it by the House of Lords in the McCarthy case. As I have explained, the claimant cannot in these proceedings benefit from any answer that the Court may give. Accordingly, I refuse to stay the proceedings.

C.          Analysis – lawful employment

8.           The claimant’s solicitor has presented two arguments on lawful employment.

First argument

9.           The first argument is this. When the claimant first started work, this was authorised by the terms of her visa. Her employer was not at that time in breach of any legal requirement by employing her. When the visa expired, the claimant was not subject to any express prohibition. The employer was not under a duty to verify her entitlement to work. Under regulation 7 of the Accession (Immigration and Worker Registration) Regulations 2004 (SI No 1219), the lawfulness of the claimant’s work depends on the legal status of the employer and whether the employer was authorised in relation to the claimant. The claimant’s work, therefore, remained lawful.

10.        I reject this argument. As the solicitor has admitted, the claimant had no leave to remain in the United Kingdom after the visa expired on 23 July 2003. Accordingly, her work was not lawful for this purpose. Whether the work was lawful does not depend on whether the employer was in breach of any legal requirement or was required to undertake a verification procedure. It depends on the claimant’s immigration status and the terms of her presence in the United Kingdom. She had no leave to remain and, therefore, no right to work.

11.        As to the 2004 Regulations, the issue is whether the claimant attained the status of an Accession State worker requiring registration. That is defined by regulation 2. It depends on whether the claimant was legally working on 30 April 2004, the day before Accession. That cannot depend on the requirements in regulation 7, to which the solicitor has referred, as they only apply from 1 May 2004.

Second argument

12.        The second argument is this. The claimant’s residence became lawful at the moment of Accession. And her employment became lawful along with her residence. I regret to say that I simply do not follow the detailed terms in which this argument is put. I understand the individual points being made, but am quite unable to understand how they together make up an argument that leads to the result sought. Read as a whole, the Regulations require registration before work can lead to the acquisition of worker status.

13.        As part of this argument, the solicitor has relied on Articles 8 and 14 of the European Convention on Human Rights and on Article 1 of Protocol 1 to the Convention. The essence of the argument is that I should use these rights to justify interpreting the 2004 Regulations in order to render the claimant’s employment lawful on 1 May 2004 and to absolve her of the need to comply with the registration requirements. In so far as I can follow this argument, I reject it. What the solicitor is asking me to do goes way beyond interpretation. It amounts to a wholesale rewriting of the 2004 Regulations and to disregarding the negotiated terms of the derogations from Poland’s Treaty of Accession.

14.        This argument incorporates a reference to proportionality. I can see no scope for this argument in the circumstances of this case. This is a straightforward case of a claimant who was working without immigration authority on 30 April 2004 and has failed to comply with the requirements of the 2004 Regulations for either employment she has held since then. I can find nothing to take her circumstances outside the scope of the provisions that are designed to apply in just such a case.

D.          Analysis - conclusion

15.        The claimant worked in the United Kingdom for four years. That work would be sufficient to make her a worker in EC law, if there were no other considerations. However, there are. Poland’s accession to the European Union was subject to a series of derogations. Polish citizens who came to the United Kingdom could not attain worker status until they had worked for 12 months in registered employment: see the 2004) Regulations. The claimant has worked for more than 12 months, but not in registered employment. Neither of her employments was registered. There is an exception to this if she was legally, that is to say lawfully, working at the time of Poland’s accession. That was on 1 May 2004. At that time, the claimant no longer had a visa authorising her to work. She was not therefore working lawfully at that time and cannot take advantage of the exception. Nor can she take advantage of the right to reside on the basis that she is a jobseeker. Regulation 5 of the 2004 Regulations provides that a claimant does not have a right to reside as a jobseeker if she would not be a worker if she found work. And, of course, she cannot be a worker because she has not worked for 12 months in registered employment.

E.          Disposal

16.        I dismiss the appeal.