Jl (A8 Worker – Lawful Employment)
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE GRUBB |
| Judgment Date | 15 May 2009 |
| Neutral Citation | [2009] UKAIT 30 |
| Court | Asylum and Immigration Tribunal |
| Date | 15 May 2009 |
[2009] UKAIT 30
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Grubb
For the Appellant: No appearance
For the Respondent: Mr I Richards, Home Office Presenting Officer
JL (A8 worker — lawful employment) Poland
For the purpose of determining an A8 state worker's period of lawful employment in the UK, a Worker Registration Certificate issued under the Accession (Immigration and Worker Registration) Regulations 2004 authorising employment with a particular employer takes effect from its date of issue by virtue of reg 7(2)(c) of the 2004 Regulations.
The Appellant is a citizen of Poland who was born 17 March 1970. On 15 February 2008, he applied for a registration certificate under reg 16 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) on the basis that he was a “qualified person” being an EU national working in the UK. On 2 May 2008, the Respondent refused the application on the ground that the Appellant was an “accession State worker” required to comply with the Worker Registration Scheme under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219). On appeal, Immigration Judge D J Archer agreed and dismissed the appeal. On 21 August 2008, Senior Immigration Judge Latter ordered reconsideration. Thus, the matter came before us.
The Appellant was not represented before us and did not appear personally. Mr Richards, who represented the Respondent, invited us to determine the appeal in the Appellant's absence under rule 19(1) of the 2005 Procedure Rules. We were satisfied that the Appellant had been served with notice of the hearing and had not provided a good reason for his absence. Taking account of all the circumstances, we considered it proper to exercise our discretion to hear the appeal in his absence.
The background to this appeal may be summarised as follows. The Appellant began working in the UK on 30 November 2005 for Omega Workforce Ltd. As required by the 2004 Accession Regulations he registered that employment with the Home Office and was issued with a Registration Card and Worker Registration Certificate (‘WRC’) under those Regulations. It seems that at some point he gave up that work and on 3 April 2006 began working for Delphi Diesel Systems. However, he did not, as he was required, register that work under the Accession Regulations – at least not for some time. He continued to work for Delphi Diesel Systems. On 15 February 2008, he applied for a registration certificate under the 2006 EEA Regulations on the basis that he was a ‘qualified person’, namely an EEA national working in the UK. The Respondent refused his application on the ground that he remained subject to the Accession Regulations and was not entitled to be treated as an EU worker (and therefore a registration certificate under reg 16 of the EEA Regulations) unless he had worked in the UK for an uninterrupted period of 12 months under the Scheme. That, the Respondent concluded, he had failed to establish as he had not registered his employment with Delphi Diesel Systems until 3 April 2006. The Respondent advised the Appellant to register his employment with Delphi Diesel Systems under the Worker Registration Scheme of the Accession Regulations. The Appellant duly did so and on 9 April 2008 a WRC was issued by the Home Office under that Scheme stating that the Appellant had worked for Delphi Diesel Systems since 3 April 2006.
The issue in this appeal is as follows. In order to succeed, the Appellant must establish that he has legally worked for an uninterrupted period of 12 months since 30 November 2005. He can only do so if the WRC issued on 9 April 2008 under the Accession Regulations operates so as to make Delphi Diesel Systems his “authorised employer”, not from its date of issue or when he received it, but from the earlier date when it states he began the employment with them, namely on 3 April 2006.
It will be helpful briefly to describe the Worker Registration Scheme under the 2004 Accession Regulations and the impact those Regulations have upon the EEA Regulations.
The 2004 Accession Regulations apply to EU nationals from the so-called A8 states, including Poland, who work (or wish to work) in the UK on or after 1 May 2004 when the A8 states joined the EU. The Regulations apply to A8 state nationals already working here on that date as well as those who come to the UK on or after 1 May 2004. We are only concerned in this appeal with the latter.
The Accession Regulations give effect to the UK's right to derogate from the free movement provisions for EU workers in Regulation (EEC) No 1612/68 during the accession period of 1 May 2004 to 30 April 2009 which is set out in the Treaty of Accession (signed in Athens 16 April 2003) in respect of the A8 states. (The application of the Accession Regulations was recently extended to 30 April 2011: see SI 2009/892.) Whilst allowing access to the UK labour market for A8 state workers, the Regulations create a registration scheme — the Worker Registration Scheme (‘the Scheme’). The principal purpose of the Scheme is to enable the UK Government to monitor and review the arrangements for access by A8 state nationals to the UK labour market during the accession period. It is not intended to limit or restrict access although it is intended to encourage those working here illegally to regularise their status (see Zalewska v Department for Social Development [2008] UKHL 67 at [34] per Lord Hope of Craighead and at [53]–[54] per Baroness Hale of Richmond).
As a consequence, an accession State worker may only work for an “authorised employer” with whom he is registered under the Scheme (reg 7(1)). Likewise, an employer may only employ an accession State worker if he is an “authorised employer” otherwise, subject to certain defences, the employer commits a criminal offence (reg 9) (described as a “not very serious” one by Baroness Hale in Zalewska at [50]). The worker must apply for (initially) a registration card and for each employment a WRC in accordance with regulation 8 which, so far as relevant, provides as follows:
“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 £50;
(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. ….”
As reg 8 makes clear, the application by the A8 state worker must be in writing (reg 8(2)) and can only be made once the individual is working for the employer (reg 8(1)). Provided the formalities set out in reg 8 are complied with, and the Secretary of State is satisfied that the applicant is an accession State worker and has started working for the employer on the date stated in the application, she must issue the WRC (and registration card if applicable) (reg 8(5) and (6)). There is no discretion to refuse. The WRC will contain the date upon which the individual started working for the employer as stated in the application (reg 8(8)(d)) and the date of issue (reg 8(8)(e)).
Although the issue of a WRC is a “purely administrative act”, and it appears that no checks are made on whether the employer is complying with such matters as employee protection legislation, paying the minimum wage, paying employee national insurance contributions and...
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