Miskovic v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Elias,Lord Justice Sedley,Lord Justice Moore-Bick |
| Judgment Date | 20 January 2011 |
| Neutral Citation | [2011] EWCA Civ 16 |
| Docket Number | (CIS/0408/2009, [2009] UKUT 236 (AAC) and CIS/826/2009, [2010] UKUT 126 (ACC)) |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2011 |
[2011] EWCA Civ 16
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Jacobs
Before: Lord Justice Sedley
Lord Justice Moore-bick
and
Lord Justice Elias
(CIS/0408/2009, [2009] UKUT 236 (AAC) and CIS/826/2009, [2010] UKUT 126 (ACC))
Case No: C3/2010/0508/OTTRF AND C3/2010/0834/OTTRF
Mr Tim Samuel (instructed by West London Law) for the First Appellant
Mr Simon Cox (instructed by Fisher Jones Greenwood LLP) for the Second Appellant
Mr Jason Coppel and Mr James Cornwell (instructed by the Office of the Solicitor for the Department for Work and Pensions) for the Respondent
Hearing dates: 18,19 November 2010; 2 December 2010.
Lord Justice Elias:
These two appeals raise issues concerning the application and interpretation of the Worker Registration Scheme ("the WRS") established under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219, "the 2004 Regulations"). This scheme applies to citizens from any of the eight states which acceded to the European Union with effect from 1 May 2004 ("A8 citizens"). Although the legal arguments are different in each case (albeit with some overlap), the legal context in which they arise is the same and so they were heard together and have been brought together within this single judgment. The two cases will, however, be separately considered after the background material common to both has been discussed.
The circumstances in which the scheme arises for consideration are as follows. In each case the appellant applied for income support. This is a means-tested benefit available to those under state pension age who are not expected to look for work. The sum which a person is entitled to receive is termed the "applicable amount", although in broad terms credit has to be given for income received from elsewhere. Certain categories of person are effectively removed from the scope of the legislation. This is not, however, achieved by the simple expedient of excluding them from the right to claim the benefit. Rather it is achieved by fixing the "applicable amount" as nil.
One of the categories of person where the applicable amount under the Income Support Regulations is so fixed is "persons from abroad". A "person from abroad" is defined in regulation 21AA (1) of the Regulations as someone "who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland".
Subsection (2) then provides that a claimant shall not be treated as someone habitually resident in the relevant territory unless he has a right to reside there.
Subsection (4) then defines categories of persons who are not to be considered as "a person from abroad". It does so partly by reference to Council Directive 2004/38/EC ("the 2004 Directive"), and partly by reference to the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations") which gave effect to the 2004 Directive in the law of the United Kingdom:
"(4) A claimant is not a person from abroad if he is—
(a) a worker for the purposes of Council Directive No. 2004/38/EC;
(b) a self-employed person for the purposes of that Directive;
(c) a person who retains a status referred to in sub-paragraph (a)
or (b) pursuant to Article 7(3) of that Directive; ……
(f) a person who is treated as a worker for the purpose of the definition of "qualified person" in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—
(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an "accession State worker requiring registration"), or
…"
The 2004 Directive lays down the right of EU citizens and their families to reside and move freely within the territory of member states. The effect of paragraphs (a) to (c) of Regulation 21(AA)(4) is that persons will not to be treated as persons from abroad where they are workers or self-employed within the meaning of that Directive, or where they retain that status under Article 7(3), which provides that in certain circumstances they will continue to be treated as workers or self-employed, as the case may be, even though they are not at the material time actually working. For example, they may be temporarily not working because they are ill.
As I have said, the 2006 Regulations transposed the Directive into domestic law. Section 6(2) defines as "qualified persons" those who have the status of a worker or self- employed person under the Directive. A qualified person has a right to reside whilst he remains within that definition. However, those rights conferred by the Council Directive on EU workers generally are not afforded to citizens of the eight member states who first acceded to the Treaty in 2004. These include the Czech Republic and Poland. The reason is that the Accession Treaty under which these countries were admitted to the EU permits a derogation from the rights of free movement, and the UK has chosen to take advantage of that right.
The European Union (Accession) Act 2003 made provision for the Accession Treaty to be implemented into domestic law. Section 2 of that Act confers a power on the Secretary of State to make regulations to extend the freedom of movement rights applicable to other EU member states to the new accession states but sub-section (2) expressly provides that the regulations may provide for specified exceptions or modifications. In this way the Secretary of State is able to effect the derogation permitted by the Accession Treaty.
The 2004 Regulations were made pursuant to section 2 and section 2(2) of the European Communities Act 1972 and they came into force on 1 May 2004, the date when the accession of the eight EU states took effect. Regulation 5 of the 2004 Regulations modifies with respect to A8 nationals the concept of "qualified person" found in the 2006 Regulations. Regulations 5(2) and 5(3) provide:
"(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."
The effect of these provisions is that A8 workers requiring registration have a right to reside only when they are actually working. However, if the accession state worker does not require registration then these subsections do not apply. Where that is the case he is in the same position as other EU nationals; he can in certain circumstances be treated as a qualified person even when not working and therefore he will not count as a person from abroad. He would then be eligible to claim income support and indeed other benefits denied to "persons from abroad", subject to compliance with any other relevant conditions.
Mr Miskovic, a citizen of the Czech Republic, was ill when seeking income support and therefore not working. He contends however that he had a right to reside as a qualified person under the 2006 Regulations because he was not a person requiring registration under the 2004 regulations. Ms Blazej, a Polish citizen, was seeking work. She too could not claim that she was a qualified person under the 2006 Regulations unless she could show that she was not obliged to register. It is for these somewhat convoluted reasons that it is necessary to determine whether these appellants are A8 workers requiring registration.
Workers requiring registration.
The relevant question, therefore, is whether the appellants are A8 workers requiring registration. In order to answer that question, the starting point is the Accession Treaty under which the eight countries—the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and the Slovak Republic—acceded to the European Union on the 1 May 2004. Annex V to the Treaty concerns the Czech Republic and Annex XII concerns Poland. There is a separate annex for each accession country framed, so far as freedom of movement is concerned at least, in identical terms. It allows a Member State for a temporary period to derogate from the rights of free movement of workers otherwise conferred on EU citizens by Article 39 EC. I will quote from Annex V relating to the Czech Republic but precisely the same provisions apply with respect to Polish workers.
Paragraphs 3 and 4 of the Annex provide for categories of worker who must be admitted to access to the labour market, and paragraph 5 identifies those who need not be:
"3. Czech nationals legally working in a present Member State at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that State but not to the labour market of other Member States applying national measures.
4. Czech nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12...
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