Upper Tribunal (Administrative Appeals Chamber)

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> RP v Secretary of State for Work and Pensions (ESA) (European Union law : free movement) (Rev 1) [2016] UKUT 422 (AAC) (06 September 2016)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2016/422.html
Cite as: [2016] UKUT 422 (AAC), [2019] AACR 6

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RP v Secretary of State for Work and Pensions (ESA) (European Union law : free movement) (Rev 1) [2016] UKUT 422 (AAC) (06 September 2016)

The 2003 Act of Accession - Conditions of Accession - Interpretation of Annex XII

Mr Prefeta, a Polish national, came to the United Kingdom in 2008 and worked from 7 July 2009 to 11 March 2011. His employment came to an end due to an injury. Mr Prefeta had the status of an `accession worker requiring registration' within the meaning of regulation 2(1) of the Accession (Immigration and Worker Registration) Regulations 2004/1219. However, he only obtained a worker registration certificate on 5 January 2011. On 20 October 2011 Mr Prefeta submitted a claim for income-related Employment and Support Allowance. The Secretary of State for Work and Pensions (SSWP) rejected the claim as Mr Prefeta had not shown that he had completed an uninterrupted period of employment of 12 months or longer while registered in accordance with the 2004 Regulations. Mr Prefeta's appeal to the First-tier Tribunal (Social Entitlement Chamber) (F-tT) was dismissed. He appealed to the Upper Tribunal (Administrative Appeals Chamber) (UT). The UT referred the following questions to the Court of Justice of the European Union (CJEU) for a preliminary ruling; (1) Did Annex XII to the 2003 Act of Accession permit Member States to exclude Polish nationals from the benefits of Article 7(2) of Regulation No 492/2011 and Article 7(3) of Directive 2004/38 where the worker, though he had belatedly complied with the national requirement that his employment be registered, had not yet worked for an uninterrupted registered 12-month period and (2) If the answer to the first question is "no", may a Polish national worker in the circumstances in question 1 rely on Article 7(3) of Directive 2004/38, which concerns retention of worker status?

The CJEU ruled, that:

1. Chapter 2 of Annex XII to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, must be interpreted as permitting, during the transitional period provided for by that act, the United Kingdom of Great Britain and Northern Ireland to exclude a Polish national, such as Mr Rafal Prefeta, from the benefits of Article 7(3) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, when that person has not satisfied the requirement imposed by national law of having completed an uninterrupted 12-month period of registered work in the United Kingdom;

2. In the light of the answer given to the first question, there is no need to reply to the second question (paragraph 56)

See original Interim Decision

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