Zalewska v Department for Social Development

JurisdictionEngland & Wales
JudgeLORD BROWN OF EATON-UNDER-HEYWOOD,LORD HOPE OF CRAIGHEAD,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY,LORD CARSWELL
Judgment Date12 November 2008
Neutral Citation[2008] UKHL 67
Date12 November 2008
CourtHouse of Lords

[2008] UKHL 67

HOUSE OF LORDS

Appellate Committee

Lord Hope of Craighead

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury

Zalewska (AP)
(Appellant)
and
Department for Social Development
(Respondents) (Northern Ireland)

Appellant:

John O'Hara QC

Odhran Stockman

(Instructed by Law Centre NI)

Respondents:

Clive Lewis QC

Paul Maguire QC

Fionnuala Connolly

(Instructed by Departmental Solicitors Office, Department of Finance and Personnel)

Interveners (Child Poverty Action Group and Public Law Project)

Richard Drabble QC

James Maurici

Richard Turney

(Instructed by Child Poverty Action Group/Public Law Project)

LORD HOPE OF CRAIGHEAD

My Lords,

1

By the Treaty on Accession that was signed in Athens on 16 April 2003 an agreement was entered into for the accession on 1 May 2004 of 10 new member states to the European Union, including the Republic of Poland. The European Union (Accessions) Act 2003 made provision for the Accession Treaty to be implemented into domestic law. One of the issues that the Accession Treaty addressed in the case of the acceding member states other than Cyprus and Malta ("the A8 states") was the freedom of movement for workers which is guaranteed by article 39 of the Treaty establishing the European Community ("article 39EC"). The accession of Cyprus and Malta, on account of their small size, was not seen as being likely to overload the labour markets of the 15 existing member states. But it was decided as an integral part of the Treaty to lay down conditions as to access to their labour markets by nationals of the A8 states.

2

Part 2 of Annex XII to the Accession Treaty made provision for freedom of movement of persons in the case of Poland. Similar provision was made for the other A8 states in other Annexes. Section 2 of the 2003 Act gave power to the Secretary of State to make regulations that a specified enactment relating to the entitlement of a national of a State in the European Economic Area to enter or reside in the United Kingdom as a worker was to apply in relation to a national of an acceding state as it did to a national of an EEA state, with such exceptions and modifications that might be specified. In the exercise of that power the Secretary of State made various modifications to the Immigration Act 1971 ("the 1971 Act") by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) ("the 2004 Regulations").

3

The question in this case is whether the appellant, who is Polish and has worked in the United Kingdom without interruption for 12 months, qualifies for income support under the relevant social security legislation as a person who is habitually resident in this country. The answer to it depends on whether the modifications that the 2004 Regulations made to the 1971 Act about the right of access of nationals of the A8 states to the labour market of the United Kingdom, on which depends the right of residence, are compatible with Community law. The facts are relatively simple. But to set the scene I must first describe the background of Community law against which the 2004 Regulations were made. I must then set out the provisions of the 2004 Regulations with which the appellant was expected to comply under the worker registration scheme as a condition of access to the benefit and the relevant provisions of the social security legislation under which she claimed that benefit. The amount of detail that has to be included in this introduction is regrettable. But it is a necessary prelude to a discussion of the issues of law that are before your Lordships.

The Community law background

4

The starting point is to be found in the EC Treaty. Article 18EC sets out one of the rights of citizenship of the Union. It provides that every citizen shall have the right to move and reside freely within the territory of the member states. Article 39EC provides that freedom of movement for workers shall be secured within the Community, and that such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of member states as regards employment, remuneration and other conditions of work and employment.

5

On 15 October 1968 the Council adopted Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community. The preamble to the Regulation explains that this was done to enable the objective laid down in article 49 of the EEC treaty (now article 39EC) to be achieved and to perfect measures previously taken for its attainment. Part I of the Regulation makes provision for employment and workers' families. It is divided into three Titles. Title I deals with eligibility for employment. Title II deals with employment and equal treatment. Title III, which is not in issue in this case, deals with workers' families.

6

The basic rule about eligibility for employment is set out in Part I, Title I, article 1 of Regulation 1612/68. It provides that any national of a member state shall, irrespective of his place of residence, have the right to take up an activity as an employed person within the territory of another Member State. Title 1, article 2 provides that this right shall be enjoyed in accordance with any provisions laid down by law, regulation or administrative action, without any discrimination resulting there from. Title II, article 7 provides for the equal treatment of workers who are eligible for the right to take up an activity as an employed person under article 1:

"1. A worker who is a national of a member state may not, in the territory of another member state, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal and, should he become unemployed, reinstatement or re-employment.

2. He shall enjoy the same social and tax advantages as national workers."

7

The Accession Treaty established by common agreement among the 15 member states the conditions of admission to the European Union of the 10 new members and the adjustments to be made to the Treaties on which the European Union was founded. The conditions and adjustments are set out in the Act of Accession which is annexed to the Treaty. Article 10 of the Treaty provides that the application of the original Treaties and Acts shall, as a transitional measure, be subject to the derogations provided for in the Act. Article 24 of the Accession Act incorporates Annex XII which deals with the position of the Republic of Poland. Part 1 of Annex XII contains the conditions and adjustments relating to free movement of goods. Part 2 contains the conditions and adjustments relating to freedom of movement for persons. Para 1 of Part 2 provides that article 39EC shall fully apply only, in relation to the freedom of movement of workers between Poland on the one hand and the 15 member States on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14. The word "only" indicates that, subject to the conditions that they lay down, the transitional provisions must be taken to replace the guarantee of free movement of workers in the article.

8

Paragraph 2 of Part 2 of Annex XII provides:

"By way of derogation from Articles 1 to 6 of the Regulation (EEC) No 1612/68 and until the end of the two year period following the date of accession, the present member states will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Polish nationals. The present member states may continue to apply such measures until the end of the five year period following the date of the accession.

Polish 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 member state but not to the labour market of other member states applying national measures.

Polish nationals admitted to the labour market of a present member state following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.

The Polish nationals mentioned in the second and third subparagraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present member state in question

Polish nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy these rights."

Paragraph 12 provides:

"Any present member state applying national measures in accordance with paragraphs 2 to 5 and 7 to 9, may introduce, under national law, greater freedom of movement than that existing at the date of accession, including full labour market access. From the third year following the date of accession, any present member State applying national measures may at any time decide to apply articles 1 to 6 of Regulation (EEC) No 1612/68 instead. The Commission shall be informed of any such decision."

National law

9

The United Kingdom, Sweden and the Republic of Ireland chose to exercise their right to derogate from articles 1 to 6 of Regulation 1612/68, which deal with eligibility for employment, by applying national measures to regulate access to their labour market by nationals of the A8 states. The United Kingdom did this by making amendments to the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326) ("the 2000 Regulations") and by the 2004 Regulations. The effect of these amendments was to provide nationals of the A8 states with access to the labour...

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