Upper Tribunal (Immigration and asylum chamber), 2017-04-26, DA/00326/2016
| Appeal Number | DA/00326/2016 |
| Hearing Date | 21 April 2017 |
| Published date | 23 June 2022 |
| Date | 26 April 2017 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Number: DA/00326/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00326/2016
THE IMMIGRATION ACTS
|
Heard at Stoke |
Decision Promulgated |
|
on 21 April 2017 |
on 26 April 2017 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
BARTOSZ WOJTKIEWICZ
(Anonymity direction not made)
Respondent
Representation:
For the Appellant: Mr C Bates Senior Home Office Presenting Officer
For the Respondent: Mr R Martin instructed byFadiga & Co Solicitors
DECISION AND REASONS
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This is an appeal by the Secretary of State against a decision of First-tier Tribunal Judge A J Parker ('the Judge’) promulgated on 5 January 2017 in which the Judge allowed the appeal against the order to deport Mr Wojtkiewicz from the United Kingdom pursuant to the Immigration (European Economic Area) Regulations 2006 (as amended) as a result of his criminality.
Background
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Mr Wojtkiewicz is a national of Poland born on 21 May 1984. He claims to have arrived in the United Kingdom in 2006 although it is noted by the Judge that no documentary evidence was provided to substantiate the date of arrival. The Judge noted Mr Wojtkiewicz provided some evidence of working in the UK.
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Mr Wojtkiewicz was convicted at South Derbyshire Magistrates Court for burglary with intent to steal and sentenced to 16 weeks imprisonment on 20 August 2013. On 29 July 2014 Mr Wojtkiewicz was convicted at Derby Crown Court of three counts of burglary and on 10 October 2014 was sentenced to 4 years imprisonment.
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The Judge was invited by Mr Wojtkiewicz’s Counsel to find that he had acquired the right of permanent residence in the United Kingdom such that the higher threshold of ‘seriousness’ must be met in order for Mr Wojtkiewicz’s deportation to be justified.
Error of law
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The Judge sets out the findings of fact from [17] of the decision under challenge. In relation to the issue of the appropriate level of protection the Judge writes that [19]:
19. I therefore find that Mr Trevelyan’s assertion that the right of residence can accrue from a date one starts exercising it is correct. It does not have to be proved five years prior to the decision and therefore, the Appellant can show that he has an enhanced right of residence for five years from 2006 to 2011 relying on Regulation 21(3).
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The Judge refers at [18] to a payslip dated 5 November 2006 with a cumulative income at that point of £800 and a submission regarding employment until Mr Wojtkiewicz became unemployed in 2012. The Judge notes P60s in the appeal bundle for 2006/2007 showing an income of £4,614, for the year ending 5 April 2008 showing earnings of £4,032, for the year 2009/2010 showing earnings of £423 and for 2010/11 earnings of £7,272.
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The Judge accepted that the evidence of employment in the United Kingdom demonstrated Mr Wojtkiewicz was exercising treaty rights sufficient to enable him to show five years continuous employment from 2006 and, therefore, to evidence an entitlement to a permanent right of residence in the United Kingdom.
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What the Judge fails to take into account, or to make any reference to in the decision under challenge, are The Accession (Immigration and Worker Registration) Regulations 2004 or the Accession (Immigration and Worker Registration) (Revocation, Savings and Consequential Provisions) Regulations 2011.
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These provisions are relevant as Mr Wojtkiewicz is a Polish national and therefore a member of the States that acceded to the EU in 2004, more commonly referred to as the “A8” States.
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The 2004 Regulations introduced a period referred to as “accession period” beginning on 1 May 2004 and ending on 30 April 2009.
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The purpose of this scheme was explained by the Upper Tribunal in the case of JL (A8 worker – lawful employment) Poland [2009] UKAIT 00030 at [7]-[10] in the following terms:
7 The Accession Regulations give effect to the U.K.’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 created 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 states 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).
8. As a consequence, and 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:
9. 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)).
10. 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 so on (Zalewska per Baroness Hale at [52]), non-compliance with the requirements of the Scheme has a significant effect upon the individual A8 state worker’s immigration status in the UK. This is because, when an individual is an “accession State worker requiring registration" within the Accession Regulations, the 2006 EEA Regulations, which apply to other EEA nationals who are working (or seeking work) in the UK, are disapplied. However, during the time an A8 state worker is employed by an “authorised employer”, the A8 state worker is treated as a “qualified person” for the purpose of the 2006 EEA Regulations but not otherwise, for example when seeking work or when that work has ceased (reg 5(2) and (3)). Even so, the A8 state worker cannot obtain a registration certificate under reg 16 of the 2006 EEA Regulations and his family members are not entitled to a residence card under reg 17 of the 2006 EEA Regulations (reg 5(5)). The consequence is that if and A8 state worker fails to comply with the Scheme set out in the Accession Regulations, he will not have any lawful basis for being in the UK under EU law as a worker (or jobseeker). He may, of course, exercise a right of free movement on another basis, for example as a student or self-employed person.
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As stated, there is no mention of the Regulations in the decision under challenge and no consideration by the Judge of whether Mr Wojtkiewicz made an application under the same. Indeed, the evidence made available to the Upper Tribunal suggests no such application was made. Although Mr Martin advised the Tribunal that he had been handed a document today dated 2009 which Mr Wojtkiewicz claimed is evidence that he himself registered under the scheme, it was accepted that it was not clear if this document showed Mr Wojtkiewicz was employed by an “authorised employer”. Had a valid application been made under the Regulations Mr Wojtkiewicz would have been issued with the appropriate documentation yet there was no evidence of any approval from the Secretary of State and, as stated, Mr Bates response was to state that a search of the Home Office records did not show any evidence of them having received a registration application which had to be in writing...
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