Lord Justice Elias :

“(4) A claimant is not a person from abroad if he is—

(a) a worker for the purposes of Council Directive No. 2004/38/EC;

(b) a self-employed person for the purposes of that Directive;

(c) a person who retains a status referred to in sub-paragraph (a)

or (b) pursuant to Article 7(3) of that Directive; ……

(f) a person who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to—

(i) regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 (application of the 2006 Regulations in relation to a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia or the Slovak Republic who is an “accession State worker requiring registration”), or

...”

“(2) A national of a relevant accession State who is seeking employment in the United Kingdom shall not be treated as a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of the 2006 Regulations and an accession State worker requiring registration shall be treated as a worker for the purpose of that definition only during a period in which he is working in the United Kingdom for an authorised employer.

(3) Subject to paragraph 4, regulation 6(2) of the 2006 Regulations shall not apply to an accession state worker requiring registration who ceases to work.”

Workers requiring registration.

“3. Czech 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 State but not to the labour market of other Member States applying national measures.

4. Czech 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.

...

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

...”

“14. The effect of the application of paragraphs 2 to 5 ….shall not result in conditions for access of Czech nationals to the labour markets of the present Member States which are more restrictive than those prevailing on the date of signature of the Treaty of Accession.

Notwithstanding the application of the provisions laid down in paragraphs 1 to 13, the present Member States shall, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third countries as regards access to their labour market.

Czech migrant workers and their families legally resident and working in another Member State or migrant workers from other Member States and their families legally resident and working in the Czech Republic shall not be treated in a more restrictive way than those from third countries resident and working in that Member State or the Czech Republic respectively. Furthermore, in application of the principle of Community preference, migrant workers from third countries resident and working in the Czech Republic shall not be treated more favourably than nationals of the Czech Republic.”

The 2004 Regulations.

“2 “Accession State worker requiring registration”

(1) Subject to the following paragraphs of this regulation, “accession State worker requiring registration” means a national of a relevant accession State working in the United Kingdom during the accession period.

(2) A national of a relevant accession State is not an accession State worker requiring registration if on 30^th April 2004 he had leave to enter or remain in the United Kingdom under the 1971 Act and that leave was not subject to any condition restricting his employment.

(3) A national of a relevant accession State is not an accession State worker requiring registration if he was legally working in the United Kingdom on 30th April 2004 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.

(4) A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.”

“(7) For the purpose of this regulation—”

(a) a person working in the United Kingdom during a period falling before 1st May 2004 was legally working in the United Kingdom during that period if—

(i) he had leave to enter or remain in the United Kingdom under the 1971 Act for that period, that leave allowed him to work in the United Kingdom, and he was working in accordance with any condition on that leave restricting his employment; or…..

(b) a person working in the United Kingdom on or after 1st May 2004 is legally working during any period in which he is working in the United Kingdom for an authorised employer;......”

“(2) An employer is an authorised employer in relation to a worker if–

(a) the worker was legally working for that employer on 30^th April 2004 and has not ceased working for that employer after that date;

(b) the worker –

(i) during the one month period beginning on the date on which he begins working for the employer, applies for a registration certificate authorising him to work for that employer in accordance with regulation 8; and

(ii) has not received a valid registration certificate or notice of refusal under regulation 8 in relation to that application or ceased working for that employer since the application was made;

(c) the worker has received a valid registration certificate authorising him to work for that employer and that certificate has not expired under paragraph (5); or

(d) the employer is an authorised employer in relation to that worker under paragraph (3)….

(3) Where a worker begins working for an employer on or after 1^st May 2004 that employer is an authorised employer in relation to that worker during the one month period beginning on the date on which the work begins.”

Mr Miskovic.

The facts in the Miskovic case.

The hearing before the Upper Tribunal.

26. The case came before Upper Tribunal Judge Jacobs. He held that the appellant did not have the legal status of worker because notwithstanding that he was in fact lawfully working in this country, he did not fall within the definition of those “legally working” in regulation 2(7). He had no leave to enter or remain and could not fall within paragraph (a); and nor was he working for an authorised employer since he had not completed the requisite period of employment following his registration. The judge held that regulation 2(7) was an exhaustive definition of those legally working in the UK and he did not fall within it.

27. The judge also rejected the argument on proportionality in the following terms:

“….. The derogation is a Treaty provision and must be taken as proportionate. It uses the concept of whether persons were working legally before accession. It does not define that concept and, as I have explained, it must be decided according to national law. The obvious aim is to distinguish between persons who were properly established (to use a loose expression) in employment in this country and those who were not. Only the former are entitled to favourable treatment on the basis of their past employment. A person who has leave to enter and remain in the United Kingdom without restriction is a clear example of the former. An illegal immigrant, present in the United Kingdom without the State’s knowledge or authority, is a clear example of the latter. The issue is: what amounts to ‘properly established’? The United Kingdom has chosen to define that by reference to stable relationships with this country rather than the more tenuous and limited relationship formed by temporary admission. No doubt, it might have drawn the line differently. But that is not the issue. Those subject to temporary admission are undoubtedly in a more precarious position than someone with leave to remain. They may differ from an illegal immigrant only by virtue of the expedient of making a claim for asylum. (I am not suggesting that that so for this claimant.) Their connection to the United Kingdom is undecided and working is an indulgence so that they are able to support themselves without resort to the limited public assistance given to asylum seekers. I consider that the aim of this part of the derogation and of the relevant provisions of the Accession Regulations is legitimate and the terms of those provisions were both appropriate to secure that aim and did not go beyond what was necessary to do so. They are not disproportionate.”

The grounds of appeal.

28. Mr Samuel, counsel for Mr Miskovic, did not initially appeal the finding that the appellant was not “legally working” on the date of accession and was therefore a worker requiring registration. He accepted the judge’s conclusion to the effect that the Regulations set down an exhaustive definition of what amounted to legally working, and that he did not fall within it. However, it is an argument relied upon by the other appellant, and counsel for Mr Miskovic sought to ride home on its coat tails should the argument be successful. He also made some submissions on the issue in reply. If the point is a good one, then I accept that it should redound to this appellant’s benefit also. However, since the thrust of the relevant arguments was addressed by counsel in the other case, I shall deal with the submission when analysing the arguments in that appeal.

29. Counsel advanced arguments on two further grounds of appeal. The first repeats the proportionality argument that failed before Upper Tribunal Judge Jacobs. The second was not run below, although Mr Coppel, counsel for the Secretary of State, has raised no objection to it being advanced now. This submission is that the effect of the 2004 Regulations is that the appellant and others in like position were subject to requirements which, to use the language of Article 14, were “more restrictive than those prevailing on the date of signature of the Treaty of Accession”. It is, submits counsel, ultra vires the powers of the Secretary of State to impose new restrictions in that way. A related argument is that it involves discriminating against A8 asylum seekers granted a temporary right to stay with permission to work, when compared with non A8 nationals in the same situation. The former have to register whereas the latter do not. I will deal with the arguments in turn.

The proportionality argument .

30. The starting point for this argument is the decision of the House of Lords in Zalewska v Department for Social Development [2008] UK HL 67, [2008] 1 WLR 2602. The argument there advanced was that the Scheme was unlawful in so far as it required persons who changed employment within the year of registration to re-register. This was alleged to be a disproportionate requirement which did not further any legitimate objective. The submission was rejected by a bare majority (Lords Hope, Carswell and Lord Brown; Baroness Hale and Lord Neuberger dissenting). The court accepted that the principle of proportionality is applicable and that the domestic provisions must be a proportionate means of achieving a legitimate aim. Lord Hope identified the objectives of the scheme as follows:

“34. ...When the worker registration scheme was first introduced its purpose was said to be to allow A8 state nationals access to the United Kingdom labour market in a way that would enable the Government to monitor the numbers working and the sectors where they were employed. It was not expected to be a barrier to those who wanted to work. On the contrary it was thought that it would encourage those A8 state nationals who were working here illegally to regularise their status and begin contributing to the formal economy. Three strands of thought can be seen to be at work here. There was a concern about numbers, which was of course the reason why member states had sought derogation from the direct application of article 39 and articles 1 to 6 of Regulation 1612/68 for a period of years following the date of accession. There was a concern to identify which sectors of the labour market were being affected by the influx, in case remedial measures might have to be taken to control it. And there was a concern about the number of A8 state nationals who were already working here illegally, at risk to their own health and safety, and might continue to do so. A registration system was an obvious way of combating this abuse. ”

31. Lord Hope then identified a further objective, namely a desire to protect the UK’s social security system:

“35. Similar concerns about the impact of enlargement on the benefit system led to the amendment to the social security regulations that prevents the appellant from obtaining income support. The Social Security (Habitual Residence) Amendment Regulations 2004 (SI 2004/1232) introduced into the income-related benefit rules for Great Britain the same amendment for the habitual residence test as that which was introduced for Northern Ireland by the Social Security (Habitual Residence) Amendment Regulations (Northern Ireland) 2004. They were referred when in draft to the Social Security Advisory Committee. The Committee's Report was presented to Parliament in April 2004 (Cm 6181). In his introduction to the Report the Secretary of State said that the underlying purpose of the Regulations was to safeguard the UK's social security system from exploitation by people who wished to come to the United Kingdom not to work but to live off benefits. They were intended to support the Government's policy of opening the United Kingdom's labour market immediately to workers from the A8 states. But it was recognised that any resulting influx of people from abroad might lead to additional and inappropriate demands on the UK's social security system. ”

32. With respect to this latter objective, Lord Hope added this (para 40):

“The terms on which A8 State nationals are to have access to the labour market are critical to achieving that purpose. Access to that market confers on them a status of worker so they become entitled immediately, under Article 7 of Council Regulation (EEC) No 16/12/68 to the same social advantages as nationals. And the third sub-paragraph of paragraph 2, Part 2 of Annex 12 provides that A8 State nationals admitted to the labour market of an existing member State following accession for an uninterrupted period of 12 months or longer are to enjoy access to the labour market of that State. This is a right that is given to them by community law with all the other rights that go with it at the end of that period but it is given only to those who are, as the sub-paragraph puts it,

“admitted to that labour market during that period.”

“The proportionality of the formalities of registration and re-registration and of the consequences of a failure to comply with these requirements must be judged in that context. In my judgment, that identifies the legitimate purpose which the current rule is designed to achieve.””

33. The scheme adopted was held to be a legitimate and proportionate means of achieving those objectives. Lord Brown, who agreed with the analysis of Lord Hope, observed that the measures adopted by the UK were in fact far more generous than most member states had adopted. He also cautioned against too rigorous an application of the proportionality principle to the scheme which the Government has adopted (para.64):

“I would be troubled by an approach which examined too closely and judged too nicely the suggested advantages and disadvantages of the registration requirement in fact imposed. To my mind nothing could be more calculated to disaffect those charged with deciding how the UK should react to opportunities for derogation such as arose in the present case. If Community law is really to be regarded as requiring your Lordships to strike down an essentially generous scheme such as was decided upon by government here, the UK may be expected to harden its heart in future.”

34. These judgments therefore set the context in which the question of proportionality must be assessed.

35. Mr Samuel submitted that it was not necessary to exclude the appellant from the scope of those deemed to be legally employed to achieve any of these objectives. It was not necessary that those in his situation should regularise their illegal status since they were being permitted to work by the Home Office itself; the monitoring function was of no relevance since it was known by the Home Office that they were working in the UK and also what employment they were engaged in; and it could not be said that excluding them from the registration requirements would create any disruption in the labour market since by definition this category of workers was already employed and were in any event an extremely small group.

36. Mr Samuel accepted that if his argument is correct, the appellant would in principle be eligible to receive certain social security benefits that he would not otherwise have been entitled to receive. In particular, he would potentially have access to Job Seeker’s Allowance after his work had ceased and also income support, the benefit in issue in this case, when he was unable to work. But it was not legitimate to exclude the appellant and others in the same category from the concept of those legally working simply to ensure that they could not benefit from certain work-related benefits.

37. Mr Samuel reinforced this argument by contending that the terms of any derogation from the right of free movement must be interpreted strictly: see Peskeloglou v Bundesansalt Fǖr Arbeit [1983] 2 CMLR 381 ECJ, paras 11-13.

38. Mr Coppel made two preliminary submissions. First, he reiterated an argument that had not found favour with the judge below, namely that the proportionality argument has already been determined by Zalewska. He submitted that properly analysed, the argument being advanced here was that the appellant should not have been obliged to register for the twelve month period and Zalewska has already held that this was proportionate.

39. Like the judge below, I would reject that submission. In Zalewska their Lordships were focusing on one aspect of the scheme only, namely whether the obligation to re-register if a job was changed within 12 months was proportionate. So here: the issue is not whether the obligation to register is proportionate; it is whether it is proportionate to apply that requirement to this particular category of workers – asylum seekers granted temporary admission with permission to work. This was not an issue which arose directly in Zalewska and, in my judgment, it cannot be said that it has been determined by the analysis of the majority in that case. The judgments give a strong steer as to how the issue of proportionality in this context should be approached, but in my view they do not determine this aspect of the appeal.

40. Second, Mr Coppel submitted that it is an error to treat the Scheme as a derogation from the right of free movement. More accurately, it is simply identifying the terms of the Accession Treaty. There is no right of free movement of workers which is being in any sense restricted by the national laws: rather, they are defining the scope of that right.

41. I do not accept that submission either. The starting point under the Accession Treaty is that A8 nationals have the full rights of free movement conferred unless a State chooses to limit them. To the extent that there may be ambiguity in the language then, in my judgment, it should be interpreted in favour of the worker. But that principle would not justify an artificial or distorted construction of the domestic statute, and I do not think it has any practical significance in the context of this proportionality argument.

42 . Mr Coppel’s primary submission was that there is nothing disproportionate about these rules. He emphasised that the category of asylum seekers with temporary admission and permission to work, and who were also A8 nationals, would be very small indeed, particularly since the concession allowing asylum seekers to work had been withdrawn in 2002 (but not so as to affect the position of those who had been given consent). He also emphasised, as did the judge below, the temporary and precarious nature of the status of an asylum seeker.

43 . As Ward LJ put it in Y(A) v Secretary of Health [2009] EWCA Civ 225, [2010] 1 WLR 259 paragraph 59, they were granted “an indulgence …. by the immigration authorities.” They are lawfully present but have no right to reside; and they are subject to such restrictions as to residence as may be imposed; they are not free to come and go as they choose. The permission to work may be withdrawn or limited at any time. Furthermore, the purpose of their temporary admission was not to enable them to be admitted to the labour market; rather, it was to determine whether they should be allowed refuge from persecution.

44 . Mr Coppel contends that, contrary to the argument of the appellant, denying the status of legal workers to this category achieves a number of the objectives identified by Lord Hope in Zalewska . The fact that the Home Office knows where the appellant is employed does not render the obligation to register fruitless. On the contrary, the purpose of registration is to monitor those who are seeking to enter the labour market on an established basis, and who thereby obtain the benefits which such registration brings. The appellant’s status would change considerably on registration, and there was every reason to include him, and people like him, in the rules.

45. Similarly the rules protect the social security system. The fact that some asylum seekers obtain the benefit of a concession to allow them to work does not mean that they have the full status of somebody who has been given leave to enter or remain within the UK. It is perfectly legitimate to limit the benefits available to those seeking asylum whose cases have not yet been determined.

46. I agree with these submissions. In my judgment, there was nothing remotely disproportionate in the way in which these regulations were framed, essentially for the reasons Mr Coppel advances. It was a perfectly cogent principle to treat those with leave to enter and remain differently from those granted only temporary admission. I do not accept that the limited permission to work historically conferred upon some asylum seekers gave them in any real sense access to the labour market in the way envisaged by the Scheme; nor did it confer any right to reside, merely a tolerance of their presence. So there was no reason why their period of employment should count towards the accrual of the rights conferred under the Scheme.

47. Once they chose to access the established labour market by registration, it was perfectly reasonable to subject them to the same rules as other A8 nationals so that their activities could properly be monitored. Equally, it was legitimate to treat all asylum seekers temporarily admitted into this country in the same way, irrespective of whether or not they had been allowed to work.

48. There is no reason why the limited concession to work should bring in its wake further advantages with respect to their right to secure work and to claim benefits not available to asylum seekers not granted that concession; and every reason why the state may not wish to confer additional advantages on those who have merely claimed asylum, and whose claims may be false and have never been determined. The appellant was treated in exactly the same way as any other national from his State.

49 . Adopting the approach of the majority in Zalewska , and in particular bearing in mind the cautionary words of Lord Brown as to the proper approach to the issue of proportionality, the only proper conclusion, in my judgment, is that the 2004 Regulations were proportionate in requiring registration for this category of workers. This conclusion is further reinforced by the small number of persons falling into this category.

50 . I should add that Mr Samuel also sought to rely on the letter and leaflet suggesting that the appellant did not have to register. However, it was not suggested that it gave rise to any legitimate expectation. It was suggested that the effect was to render the law uncertain in breach of a fundamental EU principle, and this in some way was said to impact on the proportionality argument. I reject this submission. The certainty of the law is not affected by the Home Office’s view of it; and the question of proportionality cannot be affected by any misunderstanding a government department may have of the relevant legal provisions.

The non-regression argument.

51 . The basis of this argument is that an asylum seeker like the appellant, namely one granted temporary admission with permission to work, was post-Accession subject to an additional requirement which was not present prior to the accession, namely the obligation to register and pay a fee. Furthermore, it is submitted that the regulations contravened Article 14 of the Accession Treaty in that they contravened the non-discrimination principle by imposing a burden on an A8 asylum seeker with permission to work but not on similarly placed non A8 nationals.

52 . Mr Coppel accepts that an A8 national in the position of the appellant would indeed have to register following the accession of the Czech Republic to the EU. But he submits that this does not involve any infringement of Article 14. First, the focus must be not on a particular individual but on the rights of Czech citizens as a whole. Taken as a group, their position was not made worse; they had no rights until accession and the right to register did not therefore constitute less favourable treatment. Second and in any event, there was no regression even for the appellant. Although there were obligations imposed on him which did not formerly exist, he also faced detailed administrative monitoring as an asylum seeker and the limited duty of registration was certainly no more onerous. His position overall could not be said to be less favourable than it had been before accession.

53. The fact that the appellant’s position was more, and certainly not less, favourable post-accession also defeated the discrimination argument. It could not realistically be said that the appellant was treated less favourably after accession than other non EU asylum seekers who were entitled to work. He could choose to give up his asylum claim, as indeed he did, and avoid the regular reporting and other restrictions which that status requires.

54. I accept Mr Coppel’s first submission on this point. In my judgment, paragraph 14 of the Annex is concerned with Czech nationals seeking work where they derive their rights from that status. The appellant is not by virtue of his status as a Czech citizen being subjected to any further burden in order to acquire work than he had been hitherto. Following accession, Czech citizens have rights to work which they could not, by virtue of that status, formerly have exercised at all. The fact that the appellant in his capacity as an asylum seeker was permitted to work without registration does not affect that conclusion. His Czech status at that time was immaterial to the concession that he could work.

55 . Accordingly, I do not think it relevant to compare the burdens placed on him post accession with those he faced in his different category as an asylum seeker pre-accession. However, were it necessary to do so, I would agree that the conditions post accession are no more restrictive than the administrative obligations he faced as an asylum seeker and therefore the non-regression principle was not infringed. It follows that the discrimination argument must fail also. He was not subject to any greater restrictions in order to obtain full time employment than were non A8 nationals.

56. Accordingly, the non-regression argument fails also.

57 . I wish to add this observation. The premise of the non-regression argument is that the appellant had to register under the Scheme once it came into force and could not choose simply to continue to work by virtue of his status as an asylum seeker who was allowed to work. Mr Coppel conceded that this was indeed the position. I have doubts whether that premise is correct. I recognise that read literally, the appellant falls within the scope of regulation 2(1) of the 2004 regulations as an A8 national working in the UK during the accession period. But I suspect that the Scheme is directed at those seeking to work by virtue of their being citizens of an A8 country, and not where they are already lawfully working on some other quite distinct basis.

58 . Of course the appellant can only secure the benefits conferred under the Scheme if he registers under it because his lawful employment does not constitute “legal working” under the 2004 Regulations. But it does not follow that his formerly lawful employment becomes unlawful unless he registers. It would be harsh for an employer who continues to employ an asylum seeker over the accession period to be criminally liable under regulation 9 because the employee fails to register.

59. If this analysis is correct, then this whole non–regression argument is misconceived. The appellant could have carried on as before and worked lawfully without the need to register, albeit not then securing the benefits which registration brings. His employment would remain temporary and precarious and it may not be in his interests to act in that way, but he would be entitled to do so. On this view the new rules merely added an option available to him that was not there before; it created a different route to obtaining work which would in practice be more beneficial. Plainly that imposes no additional restrictions than he faced pre-accession, and nor can it be said that he is being treated less favourably than similarly placed non A8 asylum seekers. On the contrary, he is given a beneficial option not available to them. However, the case was not put in that way, and I do not decide this point on that basis.

Ms. Blazej.

The facts in the Blazej case.

60. The appellant is a Polish national. She came to the United Kingdom on 1 July 2001 on a student visa which expired on 3 July 2002. That visa was endorsed “No recourse to public funds. Work (and any changes) must be authorised”. She married a British citizen, Christopher George Williams, on 1 June 2002, shortly before the expiry of her visa. The appellant was then granted a fresh visa as a married person on 23 July 2002. Again, it was conditional on her maintaining and accommodating herself and any dependents without recourse to public funds. That visa was valid and allowed her to remain and work until 22 July 2003.

61 . The appellant’s marriage to Mr Williams broke down and they separated some time in 2003, finally divorcing on 10 March 2008. It is accepted by the appellant that after 22 July 2003 she did not seek to renew her visa or apply for leave to remain, and therefore that she illegally overstayed in the UK from 23 July 2003 until the date when Poland acceded to the EU on the 1 May 2004.

62. The appellant worked as a part-time cleaner from 7 February 2003 until 9 December 2005 for Jubilee Cleaners. She then worked full-time for the International Organisation for Migration from 1 February 2006 to 31 January 2007. The appellant accepts that neither her employment with Jubilee Cleaners nor that with IOM was registered under the Scheme. From then, the appellant did not work and was paid Jobseeker’s Allowance until the birth of her first child was imminent. Her baby was born on 29 May 2008.

63. On 3 March 2008, the appellant applied for Income Support. The Secretary of State refused the application on 14 April 2008 on the basis that the appellant had no right to reside and so was not habitually resident in the United Kingdom. She was a person from abroad and therefore the applicable amount was fixed at nil. That decision was upheld on reconsideration on 27 May 2008. Since her employment was not registered under the WRS, she did not acquire the status of worker and could not therefore have retained any such status on ceasing employment.

64. The case came before Upper Tribunal Judge Jacobs. He considered two arguments, and rejected them both. Only the second is live in this appeal. It was submitted that although the appellant admittedly had no leave to remain in the United Kingdom after her visa expired on 23 July 2003, nonetheless she was not acting unlawfully when she worked for her employers. She had been allowed to work for Jubilee Cleaners when she commenced her employment with them because there were no restrictions in her visa on the work that she was entitled to do. So her employers were acting perfectly legally when they employed her and thereafter they were not in breach of any law in continuing to employ her.

65. Mr Cox, counsel for the appellant, submits that it is a fundamental constitutional principle that you can do anything which the law does not forbid. He relies upon the well known observation of Sir Robert Megarry V-C to that effect in Malone v Metropolitan Police Commissioner [1979] Ch 344. There was no law in place forbidding the appellant from working, nor preventing her employers from employing her, given that she could validly work when first employed. True it is that she ought not to have been in the country at all, but that did not affect the legality of her employment contract. She could sue for her wages in the normal way.

66. Tribunal Judge Jacobs rejected this submission. He held somewhat robustly that “she had no leave to remain and therefore no right to work” and therefore her work was not lawful. In any event, he observed that the definition of someone who is legally working under the 2004 Regulations is defined by regulation 2 and she did not fall into any of the categories identified there.

The grounds of appeal.

67. Mr Cox now renews his challenge, raising three grounds of appeal. The first is the submission which did not find favour with Upper Tribunal Judge Jacobs, namely that whatever the position under domestic law, the appellant was legally working within the meaning of the Directive when Poland joined the EU, had been so working for twelve months, and therefore did not need to register. The second ground is that whatever the position under the Accession Treaty, the appellant was in any event entitled to work in the UK pursuant to a right conferred by Article 23 of the Directive which in certain circumstances confers rights on family members of EU nationals to work in an EU state. The third ground is based on an argument that the requirement for the Appellant to have a right to reside in the UK or Ireland amounts to direct discrimination on grounds of nationality or unjustified indirect discrimination contrary to Article 3 of Council Regulation 1408/71. There is currently binding Court of Appeal authority against her in Patmalniece v Secretary of State for Work and Pensions [2009] EWCA Civ 621; [2009] 4 All E R 738, but that is the subject of appeal to the Supreme Court.

68. Mr Coppel objected to our hearing the third ground. Indeed, he submitted that in the light of the judgment of Dyson LJ, as he was, in R (Hooper) v Secretary of State for Work and Pensions [2007] EWCA Civ 495 we had no jurisdiction to do so. Even if the parties agreed, that could not cloak the court with jurisdiction (a submission which did not altogether sit happily with his concession that Mr Miskovic could run an argument not advanced below.)

69. I do not accept that submission and I agree with the judgments of both Sedley and Moore-Bick LJJ on this issue. There is a plethora of authority, some of which is mentioned in the judgment of Sedley LJ, to support the proposition that typically at least, an appellate court which has jurisdiction to hear appeals on a points of law has jurisdiction to hear fresh points of law not argued below, although it will be extremely reluctant to exercise its discretion in favour of doing so if this involves finding further facts. In my judgment, the obiter observations of Dyson LJ in Hooper , which appear to have been made without reference to any of these authorities, do not cast doubt on those principles. I agree with Sedley LJ that a binding rule forbidding an appellate court to entertain a new ground could work real injustice, particularly in an area where arguments are frequently advanced by litigants in person, and in my judgment it would need very clear statutory language to achieve that result.

70. I am satisfied that the jurisdiction conferred by section 14 of the Tribunals, Courts and Enforcement Act 2007 empowers this court to hear this new ground of appeal. The only issue is whether it should do so in the exercise of its discretion. It is common ground that the necessary facts to determine the new point have already been found, that no fresh evidence will be required, and that the issue is of some importance. In those circumstances I would allow the appellant to advance it. In fact we did not hear argument on it given that Patmalniece is currently before the Supreme Court. Mr Coppel accepted that on the premise that we let the ground in, it would be sensible to stay this issue until after the decision of the Supreme Court. I agree that that should be done. I will therefore concentrate on the other two arguments, taking them in turn.

Was the appellant legally employed?

71 . Mr Cox, counsel for Ms Blazej, recognised that he has to cross two hurdles to make good this argument. First, he accepts that as an unregistered person without a right to reside the appellant did not fall within the definition of someone “legally working” in regulation 7(2) of the 2004 Regulations. He counters this by submitting that whether the appellant was legally working is a matter of EU law, or at least has to be determined by a combination of EU and domestic law.

72. Mr Cox accepts that domestic law will identify who was in fact legally working at the relevant date, in the sense that if the work was forbidden by the national law at that date, that would not constitute legal working under the Accession Treaty. However, he submitted that what the Secretary of State could not do was to treat or deem someone who was in fact lawfully working at the date of accession as if he were not. In short, the definition of those legally working for the purposes of seeking to gain exemption from the registration scheme could not legitimately exclude persons who, under UK law, were in fact working without infringing domestic law. That was inconsistent with the terms of Article 2.

73. The second hurdle he has to overcome is to show that the appellant herself was lawfully working within the meaning of domestic law at the relevant time. Mr Cox contends that Upper Tribunal Judge Jacobs was wrong to say that the appellant could not be described as lawfully working because her visa had expired and she no longer lawfully resided in the country. Her presence in the country was not thereafter lawful, but that did not mean that everything she did when she was overstaying her leave was unlawful. No barrier had specifically been placed in the way of her working and in accordance with the Malone dictum, she was entitled to do whatever was not expressly forbidden.

74. On this principle she could not live here, but she could lawfully work here. The employment contract itself was not illegal and that the appellant could, for example, sue for wages. She was committing no offence by working when she should not have been in the country, and nor was her employer in allowing her to work. When she was first employed, there were no restrictions on working imposed as a condition of her visa. Had there been, Mr Cox accepted that the employer would have been committing a criminal offence pursuant to section 8 of the Asylum & Immigration Act 1996. Although the employer continued to employ her once the visa had expired, Mr Cox submitted that on a strict interpretation of that section, which is appropriate for criminal statutes, he was not thereby acting in a criminal way even if he knew or ought to have known that her visa had expired and that she had no right to remain in the country.

75. Mr Coppel submitted that as the Supreme Court recognised in Zalewska , it was for national courts to lay down its own rules for granting access to the labour market. Lord Hope said this (para 26):

“But as paragraph 1 of Part 2 of Annex 12 makes clear in the case of Poland, Article 39 EC is subject to derogation in the case of the freedom of movement of workers from nationals of the A8 States. Paragraph 2 of Part 2 states, by way of derogation, that for the two-year period from the date of accession member States will apply national measures, and that they will continue to apply such measures until the end of the five-year period following the date of accession. The effect of that paragraph was to enable the United Kingdom, notwithstanding the fundamental rules of community law as to freedom of movement of persons, to lay down its own rules for access to its labour market by A8 State nationals.” (emphasis added)

76. Later he observed (para 36):

“The United Kingdom is entitled to insist, by way of derogation, that the mere fact that the person is working in the United Kingdom is not enough.”

77. Mr Coppel also relied upon the following passage from the judgment of Upper Tribunal Judge Jacobs in the Miskovic case itself: PM v Secretary of State for Work and Pensions [2009] UK UT 236 (AAC):

“17. That derogation [under para.2 of Part 1 of Annex V] uses two concepts: legally working and access to the labour market. [Counsel for the appellant] argued that these had to have an autonomous meaning as concepts of European law. They could not be defined by the individual Member States. I accept that the concept of access to the labour market may have a European meaning. I do not understand how the concept of legally working can have such a meaning. EC law does not determine the content of employment law, of immigration law or of the criminal law relating to either of those areas. The concept can only be defined by domestic law. Moreover, I do not understand how a European concept could apply at a time when, by definition, European law did not yet apply, that is, before accession.

18. Regulation 2(7)(a) contains a definition, not a deeming provision. ... I accept that before 1 May 2004 the claimant’s work was lawful under employment law, immigration law and criminal law. What changed after that date was that it became subject to EC law. For the first time, it was necessary to categorise work before that date as legal or otherwise for the purposes of EC law. Regulation 2(7)(a) effected that categorisation. It was not deeming the work the claimant had done to be something that it was not. It was providing for how that work was to be categorised for a new purpose - the application of the Accession Regulations. That is the work of a definition, not a deeming provision. The fact that the work was legal for employment, immigration and criminal law does not mean that it was legal for all purposes.

19. ... It would be unusual to define how an expression applies to a new area of law in a way that would have created, as [Counsel for SSWP] argued, considerable uncertainty. A statement of the obvious with no qualifying words is not indicative of a partial definition.”

78. Mr Coppel submitted that in any event the employment was not lawful under domestic law for a number of reasons. First, as the judge below held, it was wholly unreal to say that the employment could be so described when the employee was not entitled to be here at all. Second, the employer would have been committing a criminal offence under section 8(1) of the Asylum and Immigration Act 1996 by retaining the appellant in employment after her visa had expired. He relied upon the Court of Appeal decision in Hounslow LBC v Klusova [2007] EWCA Civ 1127; [2008] ICR 396, an unfair dismissal case, which was certainly decided on the premise that continued employment in these circumstances would be unlawful. Hence on no view could the employment be treated as lawful.

79 . The Secretary of State also submitted that even if, contrary to his primary submission, the concept of “legally working” is determined by EU law, nonetheless EU law would not treat as someone legally working someone who should not lawfully be in the country at all. He relies upon two cases from the ECJ concerned with the EEC-Turkey Association Agreement which allows Turkish workers, duly registered as belonging to the labour force of a member state, to have free access to any paid employment of his choice after four years’ legal employment.

80. In Sevince v Staatssecretaris van Justitie , Case C-192/89; [1990] ECR1-3461 the ECJ was concerned with a case where a Turkish worker had been working in the Netherlands for over four years. However, during that period he had been refused an extension of his residence permit on the grounds that his family circumstances which originally justified granting the permit no longer existed. He appealed against that refusal and the effect of the appeal was to suspend its effect. He continued working until his appeal was finally dismissed and then claimed a residence permit on the grounds that he had completed the requisite period of legal work. One of the questions posed to the court was whether the expression “legal employment” in the EU Turkey agreement “included employment during the period when his right to reside was suspended”. The Court had no doubt that it did not (paras 29-32):

“29. The fact nevertheless remains that those two aspects of the personal situation of a Turkish worker are closely linked and that by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provisions in question necessarily imply – since otherwise the right granted by them to the Turkish worker would be deprived of any effect – the existence, at least at that time, of a right of residence for the person concerned.

30. The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force.

31. In particular, although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognized as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorization, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question.

32. Consequently, the expression ‘legal employment’ contained in Article 2(1)(b) of Decision No 2/76 and in the third indent of Article 6(1) of Decision No 1/80 cannot cover the situation of a Turkish worker who has been legally able to continue in employment only by reason of the suspensory effect deriving from his appeal pending a final decision by the national court thereon, provided always, however, that that court dismisses his appeal.”

81. The decision was followed by the Court in Suat Kol v Land Berlin C-285/95; [1997] ECR 1-43069 when it held that a person who had fraudulently obtained a residence permit could not thereafter claim that his employment during that period of residence was legal employment within the meaning of the agreement.

Discussion.

82. In my judgment, the first ground fails, essentially for the reasons given by the Upper Tribunal. The short answer to the submission is that it was for the national governments to restrict access to the labour market as they thought fit, subject to the laws being proportionate and consistent with public law principles. The fact that someone was working on the accession date without infringing any domestic laws does not mean that they have to be treated as lawfully working here for the very different purpose of defining the rights of access of A8 nationals to the labour market. Lord Hope said as much in Zawelska in the passages I have set out above. It follows that in my judgment the argument fails at the first hurdle.

83. In addition, I think it fails at the second hurdle also. I consider it fanciful to suggest that someone who is not allowed to be in the country at all is nonetheless lawfully working so as to obtain a right of residence which she has been expressly denied by the non-renewal of her visa. The logic of Mr Cox’s argument, as he was constrained to accept, is that any A8 national who had illegally secured entry into this country could have worked clandestinely for 12 months by the date of accession and would thereby become entitled to the full rights afforded to those legally employed in the country, including the relevant social security benefits.

84. In my judgment, it would be bizarre if such a person could fast track his qualification to residence in that way. He would be better placed than someone entering on a lawful visa who worked in circumstances where it was a condition of the visa that he should not do so. On Mr Cox’s case that person could not be in lawful employment because the conditions of his visa, in terms, denied him the right to work. That distinction makes no sense at all.

85. Moreover, even if the concept of legal working is an EU law concept, I accept Mr Coppel’s submission that the line of authority in the Turkish association cases clearly demonstrates what one would expect, namely that it is not possible to build a claim based on establishing a period of residence when there is de facto residence but no right to reside. The appellants sought to distinguish the EU cases on the grounds that they were not concerned with the rights of A8 nationals and should be read in the context of the particular agreement in issue in those cases.

86. I do not agree; it seems to me that the court was laying down a more general principle and not one dependent upon the particular wording of a legislative provision. In my judgment, it would be inconceivable that EU law would require the government of any Member State to confer the full rights of access to the labour market to persons who were relying on the fact that they had accumulated the requisite period of employment whilst being unlawfully present in the country, as in the case of Ms Blazej.

87. Even as a matter of pure domestic law, I do not accept that the contract of Ms Blazej would be legal so as to confer upon her the same rights as any other worker. The contract at common law is illegal and certain rights, including the right to enforce payment of wages, will not be enforceable by her: see e.g. Vakante v Addey and Stanhope School [2004] EWCA Civ 2004; [2005] ICR 231 (CA) and Blue Chip Trading v Helbawi [2009] IRLR 128 (EAT).

88. Furthermore, I strongly suspect that Mr Coppel is right to say that it would be a criminal offence under section 8 for an employer to retain in employment someone whom he knew had no right to be in the country, even if the initial employment had not been illegal, although I do not accept his submission that the issue was determined by this court in the Klusova case. In my view, the court assumed that there was a criminal offence in those circumstances; it did not hear argument on the point. However, the proper construction of that section raises an issue of some importance and we heard limited argument on it. Since it is not necessary finally to determine it to resolve this appeal, I do not do so.

89. As I have indicated, Mr Miskovic also now seeks to take advantage of this argument. He is in a different situation to Ms Blazej to this extent, namely that he was lawfully present in the UK. But for reasons I have given, in my judgment, the UK government was entitled to define those to be treated as legally employed in the way they did and to exclude him from that definition. Even if the definition is one of EU law I do not think that this appellant was in any better position than the appellant in Sevince. He did not have any right to reside, only a precarious right to be allowed to remain in the UK. His position was akin to the appellant in Sevince, someone whose presence in the country was permitted whilst his right to remain in the country was finally being determined.

90. In my judgment therefore, neither appellant can establish that he or she was legally working within the meaning of the 2004 Regulations, when read with EU law.

The Article 23 argument.

91. The second argument is that in any event Article 23 of the Directive 2004/38/EC confers a right on the appellant to work in this country as the spouse of Mr Williams. It is common ground that the fact that she was separated from him would not of itself defeat any claim she might otherwise have under that Article. Since the derogation does not apply to Article 23, it is submitted that she has a right to take up employment without registering it.

92. Article 23 is as follows:

“Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there.”

93. In order to understand the nature of the right conferred, it is necessary to consider other Articles in the Directive.

94. The basic purpose of the Directive is, inter alia, to lay down the conditions of free movement and residence within the territory of a member state by Union Citizens and their families. Article 3 defines what is termed the “beneficiaries” of the Directive. Article 3(1) is as follows:

“This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members, as defined in point 2 of Article 2 who accompany or join them.”

A family member includes a spouse.

95. It is plain that the Directive is concerned with the position of individuals who leave their own member state to seek to reside or work in the territory of another member state. This is termed in the Directive the “host member state” and is defined in regulation 2(2) as follows:

““host member State” means the Member State to which a Union Citizen moves in order to exercise his or her right of free movement and residence.”

96. Various articles of the Treaty then give temporary or permanent rights to reside in another member state both to Union citizens and their family members e.g Articles 6, 7 and 16, but they are all concerned with the situation where someone settles in a Member state other than his own. Further, as Article 23 makes plain, the right to take up employment is not limited to family members who are Union citizens but applies to them irrespective of their nationality.

97. Taken at face value, it is possible to contend that the provisions in Article 23 are satisfied: the appellant’s husband has a right of residence in the UK and she is a family member. However, that argument has already been rejected by the Court of Appeal in McCarthy v Secretary of State for the Home Department [2008] EWCA Civ 641, [2008] 2 CMLR 7. The court held that the Union citizen’s right to residence must be established as a result of him exercising his freedom of movement rights.

98. In that case Ms McCarthy had dual Irish and British nationality. She had lived in the UK all her life and sought to rely on the Directive to gain a residence permit for her Jamaican husband. The Court of Appeal rejected her claim on the basis that she was not a Union citizen who had moved to another State, and therefore she did not fall within the scope of the Directive. She was not a “beneficiary”. Lord Justice Pill said this (para 31):

“The Directive creates and regulates rights of movement and residence to Union citizens. The lawful residence contemplated in Article 16 is residence which complies with community law requirements specified in the Directive and does not cover residence lawful under domestic law by reason of United Kingdom nationality.

Article 3 provides in terms that the Directive applies to Union citizens who reside in a member state:

“other than that of which they are a national.”

The expression “reside legally” in Article 16 should, in my view, be read consistently with, and in the sense of, of Preamble 17 of the Directive, that is, residence “in compliance with the conditions laid down in this Directive.”

The repeated use in the Directive of the expression “Host Member State” supports that conclusion. It indicates rights to be enjoyed in Member States other than that of nationality; the word “host” suggests that the Union citizen/”guest”, an inappropriate expression for persons in a State of their own nationality.”

99. Since in McCarthy the appellant had dual nationality, that principle applies a fortiori to this case since Mr Williams has only British nationality.

100. Mr Cox points out that McCarthy has been referred to the ECJ by the Supreme Court, and in any event it was concerned only with Article 3 of the Directive, rather than Article 23. I do not accept that either of these points raises any doubts as to the binding nature of this authority. First, the reference to the ECJ by the Supreme Court has focused on the question whether Ms McCarthy’s status as an Irish national, as well as a UK national, could bring her within the scope of the Directive notwithstanding that she would not be a beneficiary as a British citizen alone.

101. Nor is it accurate to say that McCarthy was concerned only with Article 3. As Mr Coppel points out, in order to rely upon her status as a family member under Article 23, the appellant has to show that she falls within the definition of that term in Article 3. Family members are there defined by reference to a Union citizen who has moved to or has resided in a Member State other than his own.

102. In this case, Ms Blazej’s partner is not somebody who has acquired a right of residence by exercising his rights of freedom of movement. He is simply someone who has always resided in this country. He does so as a national.

103. A variation of this argument advanced by Mr Cox was that Article 23 could apply by analogy. He relied on two cases, Eind [2007] ECRI-10719 and Metock [2008] ECR I-6241, where Article 23 was applied by analogy even though it was not directly applicable.

104. It is not necessary to go into the detail of those cases. Suffice it to say that they were concerned with situations very different from those arising here. They concerned obstacles to free movement which might arise if a third country national spouse of a Union citizen was unable to obtain a residence permit in the EU citizen’s home Member State (Eind) or in another Member State where he had moved to work (Metock). The ECJ held in each case that the refusal to provide a spouse with a residence permit could undermine the freedom of movement rights. That is not the case here. It is not suggested that Ms Blazej’s partner wished to exercise his freedom of movement rights at all, or that any action taken against her has prevented him from doing so.

105. Finally, Mr Cox submitted a further argument which I confess I had some difficulty in following, but if I understood it correctly, was to the following effect. The appellant, it was submitted, was in a different position to the husband in McCarthy because as from 1 May 2004 she had an independent right of residence, albeit subject to limitations and restrictions, as a result of the Directive. She was not relying on her husband’s residence from which to derive her own right to reside. She could then combine her right to reside with the fact that she was the spouse of a Union citizen with a right to reside in the UK to bring herself within the scope of Article 23.

106. I do not think that argument can be right. In so far as she has a right to come to the UK and lawfully take up employment in her own right, that depends upon her position as an A8 national and she must comply with the terms of the Scheme. If she is relying on the right to seek and undertake work conferred by Article 23, she must comply with the separate provisions in that Article. She cannot mix and match in an attempt to find a composite right.

Disposal.

107. Accordingly, for all these reasons, I am satisfied that both appeals fail on all save the Patmalniece point which I have not determined. I would stay the appeal so that that issue can be determined in the light of the decision of the Supreme Court.

Lord Justice Sedley:

108. I agree with the entirety of the judgment of Lord Justice Elias. I confine what I wish to add to the question of jurisdiction to which he refers in paragraphs 68-70 above.

109. As often happens, new arguments have emerged in the course of these appeals. In principle there is nothing wrong with this. The law would not progress very far or very fast if every appeal were to be strictly limited to a rehearsal of the arguments advanced below. Particularly in a system based on the dialectic of oral advocacy, the possibility of modifying or abandoning weaker arguments needs to be balanced by the possibility (dangerously seductive though it can be) of developing better or fresh ones.

110. It also happens from time to time that the court itself takes a new point, either because it appears to be of general importance or because justice appears to require it to be addressed. This may be particularly important where a party was unrepresented below.

111. At the same time, the other party can be unfairly wrongfooted by a new argument of which it has had no adequate notice, or for which the appellate court lacks the necessary base materials or findings of fact. The latter class of argument can also occasionally create intractable problems for the court itself - juridical or logistical or both - even where both sides want the point decided.

112. The totality of these considerations suggests that justice is best served by a power in appellate courts or tribunals to entertain new points of law, but with a concomitant power not to do so if it would either be unfair to another party or would place the court itself in an untenable position. Such powers, like most powers, may become obligations if the situation warrants it.

113. Mr Coppel has, however, invited the court to take a more rigid stance, at least in relation to Mr Cox’s endeavour before us to raise the Patmalniece issue for the first time. He submits, on the basis of Hooper v Secretary of State for Work and Pensions [2007] EWCA Civ 495, that this court lacks jurisdiction to entertain the point.

114. In Hooper Mr Cox (as it happens) had sought to argue in this court a point which had not been adumbrated at all before the appellate tribunal or, on appeal from it, before the commissioner whose decision was now challenged. The tribunal’s statutory mandate provided that it “need not consider any issue that is not raised by the appeal”. Dyson LJ, giving the leading judgment, held that an issue would be ‘raised’ by an appeal if it emerged with reasonable clarity from the evidence, but not if, whatever the facts, the argument would have no prospect of success.

115. The fresh issue before the court in Hooper was held by the court to fall into the latter class. Hooper therefore did not definitively address the large intermediate class of case in which a point of law which is arguable but by no means obvious is taken for the first time on appeal. Nor did it deal with points which, though apparent, were not considered worth arguing below because of binding authority to the contrary, albeit such authority might one day be vulnerable at a higher level. It is, however, evident from Dyson LJ’s judgment (see para 46) that, had the point not been wholly unarguable, its admission would have been a matter for the court’s discretion.

116. At paragraph 45 Dyson LJ, in the course of his reasoning, expressed the provisional view that “there must be a question of law as formulated by the appellant or at least in the way that he puts his case before the commissioner” if it was later to be said that the decision was “erroneous in point of law”. In judgments concurring in the result, both Thomas LJ and Ward LJ expressly reserved this question. It is accordingly still an open question.

117. Mr Coppel has drawn our attention to the decision of this court in AA (Afghanistan) [2007] EWCA Civ 12, where Keene LJ, at paragraph 36, held that the immigration and asylum appeals regime then in force did not permit new or non-obvious points to be raised for the first time on appeal to, or therefore from, the AIT. He accepts that this decision cannot be transposed without more into the present case, but he submits that it shows that there is nothing remarkable about the kind of limitation for which he contends.

118. The present case turns in the first instance on the material provisions of the Tribunals, Courts and Enforcement Act 2007. By s.13, an appeal lies to this court “on any point of law arising from a decision made by the Upper Tribunal….”. This replicates the test set by s.11 for appeals from the First-Tier Tribunal to the Upper Tribunal. By s.14 this court may intervene if it “finds that the making of the decision concerned involved the making of an error on a point of law”. This replicates the power conferred by s.12 on the Upper Tribunal.

119. The ECJ held in Van Schijndel [1996] 1 CMLR 801 that there is nothing which prevents national courts from introducing a restrictive rule of the kind for which Mr Coppel contends; but at no point in the 2007 Act is there any express confinement of the power to points taken below. Mr Coppel submits that such a limitation is to be implied, but his reasons for doing so assume the very thing that is in issue - that issues lying in the middle ground left open by Dyson LJ in Hooper (that is to say arguable but unaddressed points of law) must either belong to the Robinson-obvious class or fail at the threshold.

120. In the absence of direct authority, the principles on which we ought to approach this submission seem to me reasonably clear. Unless statute or authority say otherwise, they are those which I have set out in paragraph [112] above. This, it turns out, has already been the approach of the Court of Appeal in a series of cases.

121. In B v London Borough of Harrow [1998] 3 FCR 231, Sir Christopher Staughton said:

“I must deal first with an argument of Mr McManus on behalf of the London Borough of Harrow. He says that this point was not raised before the Special Educational Needs Tribunal. What is more, if it had been raised evidence would have been given, or at any rate could have been given, which is not now available. In those circumstances he submits that Miss B should not have been allowed to advance this argument before the judge, and should not be allowed to advance it in this court. He refers to the case of Kumchyk v Derby City Council [1978] ICR 1116, a decision of the Employment Appeal Tribunal. We were also referred to the case of Hellyer Brothers Ltd v McLeod [1987] ICR 526. On the basis of those two cases he submits that we should follow what is summarised in paragraph 2 of the headnote in the Hellyer case:

“... the point sought to be argued before the appeal tribunal had formed no part of the case before the industrial tribunal and was a new point of law, and that upon the established principles applicable to the raising of new points by the respondents, the appeal tribunal had correctly taken the view that it was right to refuse leave to allow it to be raised ...”

That is said to be a general principle applicable to appeal courts. Indeed, it is certainly one which is generally applied in this court whenever fresh evidence would be needed to decide the new point, although Lord Widgery said in a case cited at page 564 in the Hellyer decision:

“I recognise, as does Lord Denning MR, that being a rule of practice this rule contains an element of discretion. There may well be cases in which justice demands that a different view be taken owing to the special circumstances of the case...”

I certainly take the view that justice requires us to allow this point to be argued. Kumchyk and Hellyer were employment decisions, contests between employers on the one hand and employees supported by trade unions on the other. This is a case of a mother caring for her child and appearing in person before the Special Educational Needs Tribunal. Mothers as a whole do not have trade unions, although there is a very worthy outfit called the Mothers' Union. The procedure before the Special Educational Needs Tribunal is meant to be informal, and we are told by Otton LJ that representation is discouraged. To my mind it would be quite wrong to reproach Miss B for not having raised this argument before the Special Educational Needs Tribunal or to penalise her for not having done so. Furthermore, this is a case of general importance and it may well set a precedent. Now that the parties have come this far, it seems to me to be in the public interest that we should decide it, rather than that we should say that the judge should never have allowed it to be raised in the first place.”

122. In Bulale v Home Secretary [2009] QB 536, Buxton LJ, with whom Waller LJ and Smith LJ agreed, said at paragraph 23-4:

“23. Miss Broadfoot pointed out, correctly, that this issue had not been raised before the AIT, nor in the skeleton settled by Mr Bulale's previous advisers in this court. The AIT could not, therefore, have erred in law in not addressing the point; on a reconsideration, which this case was, the AIT only had jurisdiction to consider points addressed in the order for reconsideration or those which were Robinson-obvious (see R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929; and accordingly this court in turn had no jurisdiction to consider the point on appeal.

24. I have concluded that this court does have jurisdiction to consider this issue, but I would emphasise the importance of the principles referred to in the previous paragraph, and the importance of only departing from them in very particular circumstances. I would agree with Miss Broadfoot that the point now under consideration is not "Robinson-obvious" in the sense that a court could be criticised for not taking it of its own motion. However, the issue appeared to this court, on seeing the papers, to be engaged and to be of some general importance. That was the principal reason why the court went to the considerable lengths described earlier in this judgment to ensure that Mr Bulale was represented before it, and that this point was taken on his behalf. The basis of the Robinson doctrine is, as Lord Woolf MR said, [1998] QB at p 945B-G, that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state's compliance with its international obligations. That observation was in Robinson itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point is “obvious”, once it has in fact occurred to the court it must be open to the court to pursue it. I stress that that gives no general licence to the parties to reformulate their case once it arrives in this court.”

123. In Slack v Cumbria CC [2009] EWCA Civ 293; [2009] ICR 1217, paragraph 29, Mummery LJ, writing for the court, said:

“29. In ordinary circumstances this court is reluctant to hear extended argument on a new ground or to grant permission to allow the appeal to be argued on a different basis, particularly where the relevant facts have not been investigated in the ET. In the interests of doing substantive justice to both parties, of saving legal costs and of achieving efficiency and finality in litigation in the public interest, the court will only exercise its discretion in exceptional circumstances to grant permission for new grounds of appeal to be added at a late stage, in these cases for the first time on a second appeal : Kumchyk v. Derby City Council [1978] ICR 1116 at 1123 (EAT); Jones v. Governing Body of Burdett Coutts School [1999] ICR 38 at 46-47(CA); Jones v. MBNA International Bank (Court of Appeal-30 July 2000) per May LJ at paragraph 52; and Leicestershire CC v. Unison [2006] IRLR 810 (permission to raise EC point on appeal refused).”

124. None of these cases sets out a golden rule for the admission of new issues on appeal, but all proceed on the assumption that there is no jurisdictional bar to their being entertained in proper cases. It is an assumption which in my judgment can be made good on a simple constitutional basis. The Court of Appeal exists, like every court, to do justice according to law. If justice both requires a new point of law to be entertained and permits this to be done without unfairness, the court can and should entertain it unless forbidden to do so by statute.

125. Is Ms Błazej’s then such a case? In advancing it, Mr Cox now seeks to open up a point which was by no means obvious but is manifestly arguable, since permission has been granted for it to be canvassed in Patmalniece before the Supreme Court. It thus fits neither of the categories described by Dyson LJ in Hooper. The fact that this court can do no more for the present than follow its own decision does not make the point either hopeless or unarguable. It means, as Mr Coppel properly accepts if his point on jurisdiction fails, that we should stand the issue over to await the decision of the Supreme Court in Patmalniece. In agreement with Lord Justice Elias, I would hold that this is the proper course here.

Lord Justice Moore-Bick :

126. I agree that these appeals should be dismissed for the reasons given by Elias L.J., but I wish to deal briefly with the question of the court’s jurisdiction to entertain Ms. Blazej’s third ground of appeal, on which there is currently authority binding on this court in the shape of Patmalniece v Secretary of State for Work and Pensions [2009] EWCA Civ 62, [2009] 4 All E.R. 738.

127. Mr. Coppel submitted that because the issue of law which this ground raises was not argued before the tribunal this court has no jurisdiction to entertain it. In support of that submission he relied on the unreported decision of this court in Hooper v Secretary of State for Work & Pensions [2007] EWCA Civ 495, [2007] All E R (D) 421.

128. Appeals to the Court of Appeal from the Upper Tribunal are governed by section 13 of the Tribunals, Courts and Enforcement Act 2007, section 13 of which provides (so far as material) as follows:

“13. Right to appeal to Court of Appeal

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal . . .

(2) Any party to a case has a right of appeal . . .”

129. The important words are “on any point of law arising from a decision made by the Upper Tribunal” in subsection (1). Mr. Coppel submitted that only questions of law actually raised and argued before the tribunal and points of law that were so obviously relevant that they should have been considered by it of its own motion can be regarded as giving rise to questions of law for this purpose. On another view of the matter, however, the assertion that any principle of law on which the tribunal’s decision depends has not been correctly decided can be regarded as giving rise to a point of law arising from its decision.

130. Hooper’s case concerned an appeal to this court from a decision of the Social Security Commissioner relating to incapacity benefit. On appeal to this court the appellant sought to raise for the first time an argument that the date from which the Secretary of State’s decision depriving him of incapacity benefit took effect had been wrongly identified, both by the tribunal and on appeal by the Commissioner. The argument turned on the interpretation of regulation 7(2)(c) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. It was therefore known as “the regulation 7(2)(c) issue”.

131. Dyson L.J., who gave the leading judgment, identified three issues for determination, the first being whether the court had jurisdiction to decide the regulation 7(2)(c) issue and if it had, whether it should exercise its discretion to deal with it. He began with the question whether the tribunal had erred in law in failing to deal with the regulation 7(2)(c) issue and concluded that it had not, because section 12(8)(a) of the Social Security Act 1998 (“the 1998 Act”), which governed appeals to appeal tribunals, provided that a tribunal need not consider any issue that was not raised by the appeal. He adopted the guidance given by the Northern Ireland Court of Appeal in Mongan v Department of Social Development [2005] NICA 16 and held that the essential question was whether an issue was “clearly apparent from the evidence”. Whether an issue is sufficiently apparent will depend on the particular circumstances of the case. The tribunal must apply its knowledge of the law to the facts as it finds them and is not limited in its consideration of the facts by the arguments advanced by the appellant. He held that the tribunal did not fall into error in failing to consider the regulation 7(2)(c) issue. It was not required to investigate the facts which would or might be relevant to an issue which had not been raised by the appellant and on which (for reasons which it is unnecessary to explain) he was bound to fail.

132. Section 14(1) of the 1998 Act provided that an appeal to the Commissioner could be made only on the ground that the decision of the tribunal was erroneous in point of law. In the view of Dyson L.J. that suggested that there must be a question of law as formulated by the appellant or at least implicit in the way he put his case. In the end, however, he found it unnecessary to reach a concluded view on the point because he was satisfied that, if the Commissioner had considered and correctly decided the regulation 7(2)(c) issue, he would have dismissed the appeal. Both Thomas and Ward L.JJ. preferred to express no concluded view on when a Commissioner might commit an error of law by failing to deal with a point which had not been taken before him.

133. I do not find it at all easy to determine exactly what the court did decide in relation to the two parts of what Dyson L.J. identified as the first point for decision. That it does in fact raise two entirely separate and distinct issues is, in my view, clear, however. One concerns the court’s jurisdiction to entertain an argument not raised below; the other the exercise of a discretion which arises only if the jurisdiction exists. Dyson L.J.’s judgment on this part of the case seems to be concerned with the rather different question whether the tribunal or the Commissioner is obliged to investigate facts that are not relevant to the issues actually raised by the appellant, but might be relevant to an argument in his favour that was not made. That seems to me to be a very different question from the one we have to decide.

134. I am not persuaded that the decision in Hooper binds us to hold that this court has no jurisdiction under any circumstances to entertain an argument of law that was not raised before the tribunal, and if that is so, the matter becomes one of discretion. In my view the expression “any point of law arising from a decision made by the Upper Tribunal” is to be interpreted as including a dispute about the correct application of any principle of law on which the tribunal’s decision depends. That is sufficient to found the court’s jurisdiction to entertain the argument, but it does not follow that the court should routinely exercise its discretion in favour of doing so. On the contrary, the court should, in my view, be slow to allow a party to alter its case at such a late stage and should rarely, if ever, do so in a case where all facts potentially relevant to the correct determination of the new point have not been found by the tribunal below, or where to entertain the point would for some other reason be unfair to the other party.

135. It is common ground in this case that all the necessary facts have been found to enable the court to decide the point which Ms. Blazej wishes to raise. It is clearly a point of substance and in those circumstances the court should in my view exercise its discretion in favour of allowing it to be argued. However, since the case of Patmalniece v Secretary of State for Work and Pensions is currently pending before the Supreme Court, I agree that the right course is to defer our decision on it until judgment has been delivered in that appeal.