LS Legal News Bulletin
Court of Appeal confirms Worker Registration Scheme extension was unlawful
Tuesday 2nd January 2018
In a decision of 7 November 2017 in the case of the Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751, the Court of Appeal unanimously confirmed that the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 was unlawful and incompatible with EU law.
What is the Worker Registration Scheme?
On 1 May 2004, ten new states joined the European Union. Eight of them are large Eastern European countries and are collectively referred to as the 'A8 states'.
The existing EU members were allowed to limit during a five-year transitional period the free of movement of workers from the A8 countries. These measures could be extended for a further two years "in case of serious disturbances of its labour market or threat thereof and after notifying the Commission".
As a result of this, the UK introduced the Worker Registration Scheme, initially to last from 1 May 2004 to 30 April 2009. However, in April 2009, the British government decided to extend the Scheme for further two years on the basis of 'serious disturbances to its labour market'. The scheme was to end on 30 April 2011.
All nationals of an A8 state who were coming to the UK during that period had to continue to register under the scheme before starting to work. Those not registered were not deemed to be residing or working legally in the UK.
Why was the extension unlawful?
The Court of Appeal decided the introduction of the scheme was not proportionate.
The official Home Office's position for extension of the scheme was that it allowed them to monitor where citizens of A8 countries were coming into the UK labour market, the type of work they were doing, and the impact this had on the UK economy.
The Court of Appeal disagreed that such explanation was consistent with the EU law because the Secretary of State had had the benefit of five years monitoring the same through the Worker's Registration Scheme. An extension of two years would yield little additional information of value.
What does it mean?
As a result of the unlawful extension of the Scheme the Home Office's approach was that any period of unregistered work by a national from A8 country from 2004 - 2011 was unlawful.
This, in turn, affected EU nationals in a number of ways:
• Any period of work during two years without Worker Registration Scheme could not be used in application for Permanent Residence. Therefore those who did not comply with the scheme could have issues showing that they acquired a right to permanent residence, or when they acquired it.
• This in turn affected applications to naturalise as British citizens, either because they could not show that they had acquired the right to permanent residence, or because they had issues meeting the good character requirement on the basis that they had a period of 'unlawful residence' in the UK in the ten years prior to the application.
• EU national's children's entitlement to citizenship was also affected as many children may have been eligible to be British from birth if one of their parent had Permanent Residence at the time of birth.
• Social security and housing rights of the EU nationals were also affected.
How can we help you?
We strongly advise all EU nationals whose applications were refused in last few years to seek legal advice to determine whether this court's decision would have made a difference to them. Few of the possible resolutions may be:
• Making a new application for Permanent Residence in view of this case.
• A restoration of appeal or submitting an out of time appeal to challenge the Home Office's refusal and receive Permanent Residence through courts.
• Possible application for Judicial Review if other remedies are exhausted.
• Those who have left the UK a possible application to return and get Permanent Residence may be made.
LS Legal Solicitors may assist you with your application for Permanent Residence and provide a professional advice how to address the issue with Worker Registration Scheme,
Please contact our firm on 020 81 44 55 88, via email on info@LSLegaLUK.com or use the contact box to discuss your matter or make an appointment.
