West Law Report

New EU workers’ welfare restrictions proportionate

Posted in House of Lords (case), Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 14, 2008
New EU workers’ welfare restrictions proportionate

House of Lords

Published November 14, 2008

Zalewska v Department for Social Development

Before Lord Hope of Craighead, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury

Speeches November 12, 2008

The United Kingdom’s decision to restrict the payment of welfare benefits for nationals of Poland, Estonia, Latvia, Lithuania, Hungary, Slovenia, Slovakia and the Czech Republic, known collectively as the A8 states, to those who had worked an uninterrupted 12 months in employment registered with the Home Office was not incompatible with European Union law.

The House of Lords so held, Lady Hale and Lord Neuberger dissenting, in dismissing an appeal by a Polish national, Ewa Zalewska, from the Court of Appeal in Northern Ireland (Lord Justice Campbell, Lord Justice Higgins and Lord Justice Girvan) ([2007] NICA 17) upholding a decision to refuse her benefit.

Article 10 of the Treaty of Accession of the A8 states to the European Union, signed in Athens ([2003] OJ L236), allowed member states, inter alia, to derogate from the provisions governing free movement of workers in article 39 of the EC Treaty and Regulation (EEC) No 1612/68 during an initial transitional period.

The United Kingdom, in so derogating, provided by regulation 7 of the Accession (Immigration and Worker Registration) Regulations (SI 2004 No 1219) that an A8 state national was entitled to work in the United Kingdom only if, within one month of starting work for an employer, he applied for an Accession State Worker Registration Scheme Certificate entitling him to work for that employer, who thereby became an authorised employer.

By regulations 4(4) and 5(2) of the 2004 Regulations, such a certificate also gave the worker the right to live in the United Kingdom for so long as he worked for an authorised employer.

Ms Zalewska obtained work in Northern Ireland in July 2004 and obtained a certificate but in January 2005 she left that employment. She then worked until July 2005 for other employers in Northern Ireland but did not apply for certificates in respect of those employments.

Thereafter she applied for income support, which was refused on the ground that she did not have a right to reside in the United Kingdom since she was neither working for an authorised employer nor fell within regulation 2(4)(7) of the Regulations whereby an A8 state national who had worked for an authorised employer for an uninterrupted period of 12 months ceased to be an A8 state worker requiring registration.

The Social Security Appeal Tribunal allowed her appeal but the Social Security Commissioner reversed that decision and her decision was upheld by the Court of Appeal.

Mr John O’Hara, QC and Mr Odhran Stockman, both of the Northern Ireland Bar, for Ms Zalewska; Mr Clive Lewis, QC, Mr Paul Maguire, QC, of the Northern Ireland Bar, and Ms Fionnuala Connolly, of the Northern Ireland Bar, for the Department for Social Development; Mr Richard Drabble, QC and Mr Richard Turney for the Child Poverty Action Group and for the Public Law Project, intervening.

LORD HOPE said that in derogating from article 39, Community law required that the measures selected had to be proportionate. The principle of proportionality required that the means employed to achieve an aim recognised by Community law as legitimate corresponded to the importance of that aim and were necessary for its achievement.

There was no doubt that it had been legitimate for the United Kingdom to exercise the right of derogation that the Accession Treaty provided and to introduce regulations that gave effect to it.

And it could not reasonably be suggested that it was disproportionate for A8 state nationals to be required to apply for a registration certificate for the first employment that they obtained in the United Kingdom.

The debatable ground was whether the requirement that they had to reregister if they changed their employment within the 12-month period was proportionate. In his Lordship’s opinion it was.

The aim of the scheme was to enable the government to monitor the impact of A8 state nationals on the United Kingdom’s labour market and to discourage them from working illegally.

To obtain a complete picture, information about the sectors in which they were employed during the whole of the uninterrupted period of 12 months was likely to be as important as information about the number of arrivals.

Then there was the important question of access to social security benefits. The underlying purpose of the 2004 Regulations, it was said, was to safeguard the UK’s social security system from exploitation by people who wished to come here not to work but to live off benefits.

The terms on which A8 state nationals were to have access to the labour market were critical to achieving that purpose.

The right that the Accession Treaty gave to regulate access to the labour market during the transitional 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. Lord Carswell and Lord Brown agreed. Lady Hale and Lord Neuberger dissented on the question whether the measure adopted were proportionate.

Solicitors: Law Centre (NI), Belfast; Solicitor, Department of Finance and Personnel, Belfast; Ms Sarah Clarke, Islington; Ms Louise Whitfield, Islington.

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