Zalewska v Department for Social Development (Northern Ireland) [2008] UKHL 67, [2008] All ER (D) 107 (Nov)
House of Lords. Lord Hope, Baroness Hale, Lord Carswell, Lord Brown and Lord Neuberger, 12 November 2008
The administrative formalities imposed by the UK on Polish nationals and those of other accession states for admission to the labour market are not disproportionate under European law.
John O’Hara QC and Odhran Stockman (instructed by Law Centre NI) for the
claimant. Clive Lewis QC, Paul Maguire QC and Fionnuala Connolly (instructed by the Department of Finance and Personnel) for the defendant. Richard Drabble QC, James Maurici and Richard Turney (instructed by the Child Poverty Action Group/Public Law Project) for the interveners.
By the European Union (Accessions) Act 2003 (EU(A)A 2003), the UK incorporated into domestic law the Accession Treaty signed in Athens in April 2003, providing for the admission of 10 new member states to the EU. Conditions were laid down in the treaty as to the freedom of movement for workers (guaranteed by Art 39 of the EC Treaty) in respect of eight of the new countries (the A8) including Poland.
Section 2 of EU(A)A 2003 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 UK as a worker.
In the exercise of that power, the secretary of state made the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the 2004 regulations). In order to qualify for income support in Northern Ireland, a person had to be habitually resident in the UK. The effect of the 2004 regulations was that an A8 state national requiring registration was habitually resident only if he had a right to reside in the UK. An accession state worker requiring registration had a right to reside in the UK only during the period he was working for an authorised employer, and he did not cease to be an accession state worker requiring registration until he had worked for an authorised employer without interruption for a period of 12 months.
The claimant in the instant case was Polish. She came to the UK in July 2004. She worked for more than 12 months continuously, but not solely with authorised employers. Due to changes in her personal circumstances she applied in July 2005 for income support. Her claim was disallowed on the ground that not all her employers had been registered, and she therefore did not comply with regs 5 and 7 of the 2004 regulations. She appealed to a social security appeal tribunal which allowed her appeal. The Court of Appeal quashed that decision, and the claimant appealed.
Lord Hope:
The first question was whether or not the appellant could rely directly on Art 39 EC to qualify for income support, despite the fact that she was not authorised to work for an authorised employer under reg 7 of the 2004 regulations for the whole of the 12-month period. The answer was found in para 2 of Pt 2 of Annex XII to EU(A)A 2003.
Absent the derogation provisions in that paragraph, a worker who was a national of any member state had the same rights of access to the labour market and to the social advantages that go with it as those of any other member state. That was the effect of Art 39 EC read together with reg 7 of the 2004 regulations. It was not open to the UK to impose restrictions on workers who were nationals of other member states that were incompatible with the fundamental rules of community law. But, as para 1 of Pt 2 of Annex XII made clear in the case of Poland, Art 39 EC was subject to derogation in the case of the freedom of movement of workers from nationals of the A8 states.
The next question was whether or not the UK had a complete discretion to determine the conditions on which nationals from the A8 states might obtain access to its labour market, or whether any measures had to be proportionate.
The only authority that the UK had to introduce national measures to give access to nationals of an A8 state to its labour market in place of Art 39 EC was that which was given to it by para 2 of Pt 2 of Annex XII. As Art 10 of the Accession Treaty made clear, that derogation was agreed to by the member states under the umbrella of community law. Any national measures therefore had to be compatible with the authority given to them by the Accession Treaty and with the principle of proportionality.
His lordship therefore turned to consider whether the measures were proportionate. There was a need for a system which imposed some degree of pressure on A8 state nationals to register their employment. Regard had to be had to the desirability of up-to-date statistics and means of verification, and to the problems that devising other possible sanctions for a failure to register or reregister might give rise to. The right that the Accession Treaty gave to regulate access to the labour market during the accession period carried with it the right to ensure that the terms on which access was given were adhered to. Regulation of the right of access and monitoring its exercise were appropriate and necessary consequences of making that right available.
Furthermore, there was no difference in principle between the consequences of late registration, which had not been criticised as disproportionate, and those that flowed from a failure to re-register. They were the result of the same basic failure. The consequences in neither case were unreasonable or disproportionate.
