IN THE UPPER TRIBUNAL Case No CJSA/2621/2011

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Decision:

(1) I direct that the notice of appeal and accompanying documents are to be sent to the Respondent with this decision and so far as necessary waive rule 23(6)

(2) Under rule 24(1A) I direct that the respondent may not provide a response to the notice of appeal.

(3) I dismiss the appeal.

(4) Permission to appeal to the Court of Appeal is given.

REASONS FOR DECISION

1. The relevant facts are not in dispute and may be simply stated.  The claimant commenced working for Major Recruitment Ltd on 21 January 2009. His application for a certificate under the worker registration scheme then applicable to A8 nationals was received on 23 April 2009.  The certificate was issued on 1 May 2009.  His employment ended on 30 August 2009 or 6 September 2009 (the former seems more likely but it does not matter.)  On 3 September 2009 he commenced working for Industrious Ltd. His application for a certificate was received on 14 September 2009.  A certificate was issued on 17 September 2009.  His employment ended on 31 January 2010.  The remainder of the claimant’s work history in the United Kingdom does not appear material for present purposes.

2. The claimant can succeed in his claim for income based jobseeker’s allowance if, but only if, his worker registration certificate in respect of his employment with Major Recruitment Ltd, once issued, was retrospective to the start of his employment, even though he applied for it outside an initial one month period.

3. That was also the issue in SSWP v ZA [2009] UKUT 294 (AAC) when that case was before me.  I dismissed the appeal in that case, giving a fully reasoned decision, and subsequently gave permission to appeal to the Court of Appeal.

4. That litigation (in the Court of Appeal C3/2010/2314) was resolved by a consent order on the basis that ZA had a right to reside on the basis of (i) her status as the primary carer of her child and (ii) her prior period of registered employment, a point which was neither argued before me nor established in law at the time of my decision in ZA.  As a result, the anticipated decision of the Court of Appeal on the effect of a worker registration certificate was not forthcoming.  In his decision on costs, Lord Justice Pill indicated that he agreed with the assessment of Counsel that, on the points argued, the arguments each way were “finely balanced.”

5. In the present case I see no reason to depart from my reasoning in ZA.  There is no suggestion in the present case that the claimant has a qualifying child.  The point concerning the retrospectivity of certificates will continue to benefit from consideration by the Court of Appeal.  No useful purpose would be served by the case spending longer in the Upper Tribunal.

6. Even though the Accession (Immigration and Workers Registration) Regulations 2004 have been revoked (with savings) with effect from 1 May 2011 by SI 2011/544, the point continues to have relevance beyond this case.  There are, for instance, currently 10 cases within the Administrative Appeals Chamber of the Upper Tribunal which involve the point (and which have not been resolved by efforts to establish whether the claimants might have the same right as ultimately helped the claimant in ZA).  Further, there are currently significant delays at First-tier Tribunal level and it is entirely possible that there may be further cases in the pipeline.  Nor is the impact of the point necessarily confined to social security. In my view, therefore, an important point of principle and practice continues to be raised, the requirements of the Appeals from the Upper Tribunal to the Court of Appeal Order 2008 are met and I give permission to appeal.

CG Ward

Judge of the Upper Tribunal

11 November 2011