CE/978/2011 - Polish national - lawfulness of 2009 extension of WRS (but see update 04/01/2013), proportionality of WRS

Last updated: January 4, 2013

Polish national - self sufficiency, unrevoked registration certificate, retrospective effect of registration certificate, lawfulness of 2009 extension of WRS, proportionality of WRS

The claimant in this case is a Polish national who worked in the UK from 1/2/06 to 23/12/08. The period 8/2/08 to 23/12/08 was registered. The claimant also had an unrevoked registration certificate (residence permit).

The claimant had a dispute with my employer and was sent home on 23rd December 2008. On 31st December 2008, at the age of 21, she had a severe stroke, which left her very severely disabled. This case raises the following issues as follows:

1. Whether a registration certificate issued part way through a period of work with an employer has retrospective effect so as to validate the whole period of the claimant’s work. This issue arises in another case, Szpak v The Secretary of State for Work and Pensions, currently before the Court of Appeal with a listing window of 21st May 2012 to 31st October 2012.

2. Whether the extension of the Workers’ Registration Scheme in 2009 was lawful. Under the terms of the treaty, the UK was entitled to restrict access to its labour market for A8 nationals “in the case of serious disturbances of its labour market, or threat thereof.” Case law indicates that the disturbances must be as a result of allowing access to the labour market to nationals from the accession state. However, the Migration Advisory Committee which was charged with considering the extension of the WRS, concluded that there were serious disturbances to the UK’s labour market, but these came as a result of the recession, rather than as a result of migration from the A8 states, and that the effect on the labour market of continuing the WRS was likely to be marginal.

3. Whether the Workers’ Registration Scheme was proportionate on the facts of this case. In Zalewska, the House of Lords held by a majority that the WRS was proportionate. In Rottman C-135/08, (and in other EU case law) it was held that proportionality must be considered on the facts of every individual case. There is therefore an issue about whether the WRS requirements in this case are proportionate, since the claimant has been denied benefit although she has undertaken work in the UK for 2 years, at least 10 months of which was registered, and has paid tax and national insurance. The claimant has also settled in the UK as her home, and has become disabled at an early age because of her stroke.

Counsel for the claimant in this case is James Maurici of Landmark Chambers.

UPDATE 04/01/2013

Please note that in this case we no longer raise the second of the arguments referred to above- as the facts of the case are not compatible with putting forward an argument as to the lawfulness of the WRS in its final two years.

It remains arguable that the extension of the WRS in the period 01/05/2009 to 30/04/2011 was unlawful for the reasons given above.