IN THE UPPER TRIBUNAL Case No  CJSA/412/2010

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Decision:  The Secretary of State’s appeal is allowed.   The decision of the First-tier Tribunal sitting at Stoke-on-Trent on 8 September 2009 under reference 049/09/01185 involved the making of an error of law and is set aside.  Acting under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007 I remake the decision in the following terms:

 

The claimant’s appeal against the decision of the Secretary of State dated 26 January 2009 is dismissed.  For the purposes of her claim for jobseeker’s allowance made on or around 24 November 2008 the claimant does not have a right to reside and consequently is not to be viewed as habitually resident in the UK.  This is because she is not a qualified person as defined by the Immigration (European Economic Area) Regulations 2006 as modified by the Accession (Immigration and Worker Registration) Regulations 2004.  This means that her “applicable amount” for the purposes of   jobseeker’s allowance is £nil and thus that she is not entitled.

 

REASONS FOR DECISION

 

1. The appeal concerns the legal effect of a series of jobs undertaken by the claimant, a Polish national.  She had claimed jobseeker’s allowance but by a decision dated 26 January 2009 the Secretary of State determined that her “applicable amount” was £nil, on the basis that she was a “person from abroad”.  The First-tier Tribunal reversed that decision for reasons discussed below, but gave the Secretary of State permission to appeal to the Upper Tribunal.  The claimant has not participated in these proceedings.  After a while a letter was returned to the Upper Tribunal marked “gone away”.  The Upper Tribunal obtained a further address for the claimant with the help of the Secretary of State.  Although the papers were re-sent to that address, the Upper Tribunal has still heard nothing from the claimant.

 

2. I gratefully draw for the following on the tribunal judge’s findings of fact.

The claimant came to the UK on 11/06/2006 seeking work.  She worked continuously from 03/07/2006 until 10/11/2008, apart from a few days each year for a holiday break.  During that time she worked for the following employers:

 

a) Extra Personnel from 03/07/2006 to 13/07/2006

b) Absolute Recruitment from August 2006 to 30/03/2007

c) Extra Personnel from November 2006 to 30/07/2007

d) La Senza Ltd from 01/06/2007 to 02/05/2008

e) Extra Personnel from May 2008 to 13/07/2008

f)  Spring Personnel from 14/07/2008 to 10/11/2008

 

3. In respect of period (a), a worker registration certificate was issued on 21 August 2006, showing a job start date of 3 July 2006.  The end date was confirmed by the issue of Form P45.

 

4. In respect of periods (b) to (d), no worker registration certificate was before the First-tier Tribunal and it is not suggested that any was in fact issued.  Each end date was confirmed by a Form P45.

 

5. In respect of period (f) (the First-tier Tribunal’s statement of reasons says “(e)”, but this appears from the dates and the context to be a slip) a worker registration certificate was issued on 8 October 2008 showing a job start date of 14 July 2008.  The end date is not in dispute.

 

6. The claimant gave evidence, which was evidently accepted by the judge, that in relation to periods (b) and (d) she produced, to each of the employers concerned, a copy of her worker registration card and was led to believe that the appropriate papers would be sent to the Home Office by way of an application for a worker registration certificate on her behalf.  The judge concluded that:

 

 “the appellant had no reason to doubt that Absolute Recruitment and La Senza Ltd were aware of the Home Office requirements for the WRS  [i.e. the Worker Registration Scheme] and she believed that she had done all that was legally required of her. I am satisfied that the appellant took all reasonable steps to comply with her obligations under the Accession (Immigration and Worker Registration) Regulations 2004.”

 

7. The judge further concluded that because the claimant had registered in respect of her employment in period (a) with Extra Personnel, she should be treated as having registered with the same employer in respect of periods (c) and (e).

 

8. Thus the judge felt to conclude that:

 

 “the appellant has worked continuously from when she first registered under the WRS from 21/08/2006 up to and including 10/11/2008, in other words, well in excess of the 12 months required under the Regulations.”

 

9. The effect of regulation 85A(2) and (3) of the Jobseeker’s Allowance Regulations 1996 is that it would normally suffice for the purposes of claiming jobseeker’s allowance if one had a right to reside as a jobseeker under the provisions of article 14(4)(b) of Council Directive No.2004/38/EC – which is  reflected in regulation 6(1)(a) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Alternatively, it would suffice if one was a “worker” within regulation 6(1)(b) of the 2006 Regulations and retained that status under regulation 6(2) – for instance because one was in “duly recorded involuntary unemployment” and certain conditions were met.

 

10. However, in relation to nationals of the so-called A8 states, of which Poland is one, that rule is modified by regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (“the 2004 Regulations”). It provides, so far as relevant:

 

     “5. —(1) The 2006 Regulations shall apply in relation to a national of a relevant accession State subject to the modifications set out in this regulation.

   (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.

    (4) Where an accession State worker requiring registration ceases   working for an authorised employer in the circumstances mentioned in regulation 6(2) of the 2006 Regulations during the one month period beginning on the date on which the work begins, that regulation shall apply to that worker during the remainder of that one month period.

     (5) [not material]"

 

11. Thus it can be seen that reliance on regulation 6(1) is precluded for those who are a “national of a relevant accession State”.  Such a status does not depend on compliance with the worker registration scheme’s requirements. Those nationals of EU member States, other than A8 nationals, who have been a “worker” but who find themselves involuntarily unemployed might alternatively be able to rely on the provisions of regulation 6(2) of the 2006 Regulations to retain their worker status. However, in the case of A8 nationals, subject to the very limited exception created by regulation 5(4) of the 2004 Regulations, an A8 national who is “an accession State worker requiring registration” and who ceases to work cannot rely on regulation 6(2). 

 

12. Compliance with the worker registration scheme’s requirements is critical to who is, and who ceases to be,  “an accession State worker requiring registration”.  By regulation 2 of the 2004 Regulations:

 

“ 2.  - (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.

…
(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  -… (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.”

13. Who is an “authorised employer” is dealt with by regulation 7:

“7.  - (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  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.

    (4) …

(5) A registration certificate  - 

(a) is invalid if the worker is no longer working for the employer specified in the certificate on the date on which it is issued;

(b) expires on the date on which the worker ceases working for that employer.

    (6) …

14. The process for applying for a registration certificate is set out in regulation 8:

   “8.  - (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) Certificates and notices, and copies of these documents, sent   under this regulation shall be sent by post.”

15. Regulation 9 provides that:

“(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) – (11) [not material] “

 

16. On the present state of the law, in relation to her employment in periods (b) and (d), once one month had gone past (reg.7(3)), the claimant could not be working for an authorised employer unless within that period she (“the worker”) had applied for a registration certificate authorising her to work for that employer: regulation 7(2)(b)(i).  There was no suggestion before the First-tier Tribunal that such an application had ever been made in respect of periods (b) and (d).  Indeed, the further evidence which I have suggests that none was.  Thus, I am not concerned here with the possible retrospective effect of a worker registration certificate which featured in Secretary of State for Work and Pensions v ZA [2009] UKUT 294 AAC; CJSA/3003/2008, in which an appeal to the Court of Appeal is pending.  Rather, the claimant’s case was that she had shown her worker registration card and thought that the employers would do the rest, which they failed to do.

17. I do not consider that that submission can assist the claimant. To obtain protection under regulation 7(2)(b) it is the worker who must make the application and under regulation 7(2)(c) the worker must have received a certificate.  Regulation 8 is predicated on it being the worker’s application, not the employer’s: see e.g. regulation 8(10) which makes clear the distinct involvement of each.  While it is conceivable that someone might submit the application on behalf of a worker so that the worker and the other party stand in the relationship of principal and agent, it is still in law an application by the worker that triggers such protection as is offered by the terms of regulation 7(2)(b) and (c).  The terms of regulation 9 are such that an employer who falls foul of the provision – as an employer who undertook to submit an application on behalf of the worker but failed to do so might very well do – commits a criminal offence (albeit I was told in ZA that at the time of that hearing there were believed to have been no prosecutions under it.)  But regulation 9 cannot be construed to mean that the worker is somehow to be treated as having made an application under regulation 7(2) when she did not. Nor is there any other provision of the 2004 Regulations which has such an effect. 

18.  A worker from an A8 state who  places her trust in an employer to submit an application for a worker registration certificate on her behalf is left exposed under the 2004 Regulations if the application is not indeed submitted. 

19. The tribunal judge therefore erred in law in relation to periods (b) and (d).  They therefore must be discounted from the claimant’s work history for present purposes on the basis that during the dates covered by them she was not, while working for the employer in question, working for an authorised employer.  Regulation 2(8) of the 2004 Regulations allows one or more interruptions of employment totalling not more than 30 days to be disregarded, but even taking that into account, once periods (b) and (d) are removed from the equation, the claimant never clocked up the period of 12 months work for an authorised employer which, by regulation 2(4), would have meant that she ceased to be an “accession State worker requiring registration”, and thus, in the circumstances provided for by regulation 6(2) of the 2006 Regulations, able to retain her worker status and in turn eligible successfully to claim jobseeker’s allowance. 

20. This is sufficient to dispose of the particular appeal.  It is not necessary for me to address here the further issue of when a person returns to work for an agency in respect of whom she has once registered under the worker registration scheme.  I leave that for consideration in another case, where a claimant may play a more active part.

 

 

 

CG Ward

Judge of the Upper Tribunal

14 March 2011