The Secretary of State for Work and Pensions v Tamara Gubeladze
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Sales,Lady Hale,Lord Kerr,Lord Carnwath,Lord Hodge,Lady Black |
| Judgment Date | 19 June 2019 |
| Neutral Citation | [2019] UKSC 31 |
| Court | Supreme Court |
| Date | 19 June 2019 |
[2019] UKSC 31
Lady Hale, President
Lord Kerr
Lord Carnwath
Lord Hodge
Lady Black
Lord Lloyd-Jones
Lord Sales
Appellant
Martin Chamberlain QC
David Blundell
Julia Smyth
(Instructed by The Government Legal Department)
Respondent
Helen Mountfield QC
Tom Royston
(Instructed by Howells LLP (Sheffield))
Intervener
(The AIRE Centre)
Thomas de la Mare QC
Ravi Mehta
(Instructed by Herbert Smith Freehills LLP)
Heard on 12 and 13 March 2019
Lord Lloyd-Jones AND( with whom Lady Hale, Lord Kerr, Lord Carnwath, Lord Hodge and Lady Black agree)
The central issue in this case is whether Ms Tamara Gubeladze (“the respondent”), a Latvian national living in the United Kingdom, is entitled to receive state pension credit, a means tested benefit. She relies on regulation 5(2) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“the 2006 Regulations”), which implements article 17(1)(a) of Directive 2004/38/EC (“the Citizens Directive”), as a “worker or self-employed person who has ceased activity”.
By a Treaty signed at Athens on 16 April 2003 (“the Athens Treaty”), ten Accession States became member states of the EU with effect from 1 May 2004. The Act of Accession, annexed to the Athens Treaty, set out the “conditions of admission and the adjustments to the [EU] Treaties on which the Union is founded, entailed by such admission” (article 1(2)). The Act of Accession permitted the existing member states to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (“the A8 States”) which included Latvia. Annex VIII of the Act of Accession required the existing member states to apply for an initial period of two years from the date of accession national measures or those resulting from bilateral agreements, regulating access to their labour markets by Latvian nationals. The existing member states were permitted to continue to apply such measures until the end of the five year period following the date of the accession (para 2). An existing member state maintaining national measures or measures resulting from bilateral agreements at the end of the five year period was permitted, “in case of serious disturbances of its labour market or threat thereof and after notifying the Commission” to continue to apply these measures until the end of the seven year period following the date of accession (para 5). Other annexes contained identical provisions in respect of nationals of the other A8 States.
The Act of Accession was given effect in the domestic law of the United Kingdom by the European Union (Accessions) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (“the 2004 Regulations”). The 2004 Regulations established the Worker Registration Scheme (“WRS”) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of £90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the United Kingdom. The WRS ran initially for five years, from 1 May 2004 to 30 April 2009.
In Zalewska v Department for Social Development (Child Poverty Action Group intervening) [2008] UKHL 67; [2008] 1 WLR 2602, the House of Lords considered the legality of the WRS. The House of Lords held unanimously that any requirements of the WRS were imposed pursuant to provisions permitting derogation from EU rights and so had to be proportionate to a legitimate aim. It held further, by a majority, that the requirements of the WRS met that test and were, therefore, lawful.
In 2009 HM Government asked the Migration Advisory Committee (“MAC”) to advise it in relation to the continuation of the WRS. In the light of the MAC's advice, the Government decided to exercise the power conferred by the Act of Accession to extend the derogations applicable to nationals of the A8 States for a further two years. Having notified the Commission, it made the Accession (Immigration and Worker Registration) (Amendment) Regulations 2009 (SI 2009/892) (“the Extension Regulations”) which extended the operation of the WRS for a period of two years from 1 May 2009 to 30 April 2011.
The respondent is a national of Latvia who came to the United Kingdom in 2008 and worked for various employers here between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010. Her employment before that date was not covered by the certificate.
On 24 October 2012, the respondent made a claim for state pension credit. Entitlement was conditional on her having a right to reside in the United Kingdom. The basis of her claim was that she had a right of residence in the United Kingdom under regulation 5(2) of the 2006 Regulations as a person who had retired, having pursued activities as a worker for at least a year in the United Kingdom, and having resided continuously in the United Kingdom for three years. The Secretary of State for Work and Pensions (“the Secretary of State”) rejected her claim on the ground that the requirement of three years' continuous residence required three years' continuous “legal” residence which meant a right of residence under the Citizens Directive. Since the respondent's asserted right of residence during that time was as a worker, but she had not been registered under the WRS for part of that period, the Secretary of State considered that she had not resided in the United Kingdom pursuant to a right of residence conferred by the Citizens Directive and therefore did not meet the three year residence requirement in regulation 5(2) of the 2006 Regulations. Her claim for state pension credit was accordingly refused.
The respondent's appeal to the First-tier Tribunal was dismissed on jurisdictional grounds. On appeal to the Upper Tribunal, it held that the First-tier Tribunal had had jurisdiction to hear the appeal but, with the consent of the parties, the Upper Tribunal retained the appeal and itself re-made the substantive decision. It allowed the respondent's appeal on two grounds. First, it held that article 17 of the Citizens Directive, and therefore regulation 5(2)(c) of the 2006 Regulations, did not require that the three years' continuous residence be in exercise of rights under the Citizens Directive. Actual residence was sufficient. Secondly, the decision to extend the WRS in 2009 was disproportionate and therefore unlawful. Accordingly, the respondent was not disqualified by her failure to meet the requirements of the WRS from demonstrating three years' continuous residence with a right of residence under the Citizens Directive.
The Secretary of State appealed to the Court of Appeal (Rupert Jackson, Lindblom and Peter Jackson LJJ) which on 7 November 2017 dismissed the appeal [2017] EWCA Civ 1751; [2018] 1 WLR 3324:
(1) The Secretary of State succeeded on the construction of the Citizens Directive. The word “reside” in article 17(1)(a) meant “legally reside” which in this context meant residence in the exercise of rights under the Citizens Directive. As a result, the Court of Appeal did not need to rule on a new argument advanced by the respondent for the first time in the Court of Appeal, namely that even if “resided” in article 17(1)(a) of the Citizens Directive means “legally resided”, that word has a wider meaning in regulation 5(2)(c) of the 2006 Regulation where it means actual residence, with or without any right to remain. The Court of Appeal was, however, inclined to the view that “resided” in regulation 5(2)(c) of the 2006 Regulations has the same meaning as in the Citizens Directive.
(2) There was no error of law in the Upper Tribunal's conclusion that the extension of the WRS was disproportionate and therefore incompatible with EU law.
On 19 June 2018 the Supreme Court granted permission to appeal on condition that the Secretary of State pay the respondent's costs in any event. Permission to the Secretary of State to appeal included permission to argue a new ground which had not been advanced in the Court of Appeal, namely that a national measure adopted pursuant to a transitional provision in the Act of Accession is not subject to proportionality review at all. So to hold would involve departing from the reasoning of the House of Lords in Zalewska. Accordingly, a seven Justice panel has been convened for this appeal.
The following issues therefore arise for decision on this appeal:
(1) Is the decision to extend the WRS open to challenge on grounds of proportionality?
(2) If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue?
(3) If the Secretary of State succeeds on Issue (1) or Issue (2), does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under the Citizens Directive?
(4) If article 17 of the Citizens Directive requires lawful residence, is actual residence sufficient for the purposes of the 2006 Regulations?
At the material time, the Treaty establishing the European Community (“TEC”) provided in relevant part:
“Article 12
Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any...
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