Ip and Others (A2 National – Worker Authorisation – Exemptions)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 11 August 2009 |
| Neutral Citation | [2009] UKAIT 42 |
| Court | Asylum and Immigration Tribunal |
| Date | 11 August 2009 |
[2009] UKAIT 42
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
For the Appellant: Mr P Morris of Counsel, instructed by Avon & Bristol Community Law Centre
For the Respondent: Mr T Melvin, Home Office Presenting Officer
IP and others (A2 national — worker authorisation — exemptions) Bulgaria
1. Paragraphs (2)–(11) of reg 2 of the Accession (Immigration and Worker Authorisation) Regulations 2006 as amended identify 10 separate and free-standing situations in which an A2 national (a national of Bulgaria or Romania) is not an accession State national subject to worker authorisation.
2. So amended (with effect from 16 March 2007), reg 2(2) exempts from worker authorisation an A2 national who on 31 December 2006 was in the UK with leave to remain not subject to any condition restricting employment as well as an A2 national given such leave after that date.
3. Exemption from worker authorisation under the 2006 Accession Regulations as amended does not automatically entitle an A2 national to a registration certificate as a qualified person. It only permits him to be considered in the same way as other EEA nationals: EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 and SH (A2 nationals-worker authorisation exemption) Bulgaria [2009] UKAIT 00020 reaffirmed. Exempt A2 nationals can qualify for a registration certificate under any of the subcategories of qualified person under reg 6 of the Immigration (European Economic Area) Regulations 2006. Non-exempt A2 nationals, by contrast, can only show they are a qualified person under reg 6, as a self-employed person or a self-sufficient person or as a student.
4. In the light of recent European Court of Justice authority, RP (EEA Regs-worker-cessation) Italy [2006] UKAIT 00025remains good law.
This is a reconsideration of three appeals. The appellants are citizens of Bulgaria who are husband, wife and child. In a determination notified on 27 February 2009 Immigration Judge (IJ) A E Walker dismissed the first appellant's appeal against a decision by the respondent dated 6 January 2009 refusing to issue him with a registration certificate as confirmation of his right of residence in the United Kingdom under EU law. She also dismissed the appeals of the second and third appellants against decisions of the same date refusing to grant them registration certificates as family members of a Bulgarian national who is exercising Treaty rights in the UK as a worker. All three were successful in obtaining an order for reconsideration which now falls for me to render.
Four things bear highlighting at the outset. First, Bulgaria (along with Romania) became an EU Member State on 1 January 2007 and nationals of these two countries became known as “A2 nationals”. Second, by virtue of the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317, hereafter “the 2006 Accession Regulations”), nationals of Bulgaria were subjected to a requirement of worker authorisation and, unless falling under various exemption clauses, could not benefit in the same way as other European Economic Area (EEA) nationals from free movement rights accorded under Council Directive 2004/38/EC (“the Citizens Directive”) and the corresponding UK legislation, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003, hereafter “the 2006 EEA Regulations”) in particular. Third, the 2006 Accession Regulations have since been amended by the Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 (SI 2007/3012). The latter includes amendments to reg 2 of the 2006 Accession Regulations. Fourth, however, none of these measures affected the ability of Bulgarian nationals, as EEA nationals, to benefit from rights accorded by the 2006 EEA Regulations to non-worker categories, i.e. as students or self-sufficient persons or self-employed persons.
The three appellants' immigration histories and the first appellant's work record are also of some importance. The first appellant entered the United Kingdom on 30 April 1999 for 6 months. On the basis of an application made on 26 October 1999 he was granted discretionary leave to remain on 24 July 2004 for two years; this was not subject to any condition restricting employment. On 30 June 2006 he applied for indefinite leave to remain. On 8 November 2007 the respondent wrote stating that his application was still outstanding. On 30 October 2007 his application was deemed to have been withdrawn for the reason that he had left the country for a period. He was said to have been re-admitted as an EEA national. On 5 December 2008 the first appellant applied for a registration certificate to confirm he was an EEA national entitled to a registration certificate as a worker exempt from worker authorisation requirements. The second appellant married the first appellant on 3 May 2005 and came to the UK in June 2005 and has been here continuously since then except for short periods. The third appellant was born in Norwich on 13 September 2006. They both applied for a registration certificate at the same time as the first appellant, as family members of the first appellant.
Two aspects of the first appellant's immigration history are of particular import: first, that it is not in dispute that on 31 December 2006 he was in the UK and was entitled to work without restriction by virtue of s.3C(1) of the Immigration Act 1971 due to the fact that his application for indefinite leave to remain (ILR) made on 30 June 2006 was still outstanding; and second, that during 2007 all three appellants returned to Bulgaria (for relatively short periods) before returning to the UK.
During 2006 and 2007 the first appellant worked for a number of employers and was able to produce ample evidence of that at the hearing in the form of numerous payslips and tax documents. Potentially, therefore, he stood to benefit from reg 2(3)) of the 2006 Accession Regulations which exempts from the requirement of worker authorisation a national of Bulgaria or Romania if he was legally working in the UK on 31 December 2006 without interruption for a period of 12 months up to 31 December 2006. Reg 2(3) provides:
“(3) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.”
Before the IJ the first appellant's principal submission was that he fell within the reg 2(3) exemption by virtue of having 12 months of continuous lawful employment immediately prior to 31 December 2006. That submission fell on stony ground, the IJ correctly observing that, since the first appellant had himself accepted that (contrary to reg 12(2)(c)) there were in excess of 30 days during 2006 when he did not work, there had been interruption. In the IJ's opinion it followed from the first appellant's failure to bring himself within the reg 2(3) exemption that he was not entitled to a registration certificate, nor, in turn, were his wife and child.
The appellants' grounds for reconsideration make no attempt to revive the reg 2(3) issue but argue that the IJ simply overlooked that the first appellant was entitled to benefit from a separate exemption under the 2006 Accession Regulations embodied in reg 2(2). They contend that reg 2 should be construed as identifying a series of exceptions to the rule that an A2 national is subject to the worker authorisation requirement and that reg 2(2) is one such exception. Their author points out (correctly) that this issue should have been addressed by the IJ because it had been clearly identified in paras 6 and 7 of the original grounds of appeal. Mr Morris reiterated these grounds in his skeleton argument and oral submission. Mr Melvin said that the respondent did not accept that reg 2(2) was free-standing and considered that reg 2(2)–(4) were inextricably linked.
If the grounds for reconsideration are right, then the IJ clearly did err in law. In order to decide the issue it is necessary to set out reg 2 in full. As already noted, it was amended by the 2007 Accession Amendment Regulations. These came into force on 16 March 2007. Reg 2 now provides:
“Accession State national subject to worker authorisation
2 (1) Subject to the following paragraphs of this regulation, in these Regulations “accession State national subject to worker authorisation” means a national of Bulgaria or Romania.
(2) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if on 31 December 2006 he had leave to enter or remain in the United Kingdom under the 1971 Act that was not subject to any condition restricting his employment or he is given such leave after that date.
(3) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.
(4) A national of Bulgaria or Romania who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 31st December 2006 shall cease to be an accession State national subject to worker authorisation at the end of that period of 12 months.
(5) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation during any period in which he is also a national of—
(a) the United Kingdom; or
(b) an EEA State, other than Bulgaria or Romania.
(6) A national of Bulgaria...
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