JL v The Secretary of State for the Home Department

The Appellant is a citizen of Poland who was born 17 March 1970. On 15 February 2008, he applied for a registration certificate under reg 16 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) on the basis that he was a “qualified person” being an EU national working in the UK. On 2 May 2008, the Respondent refused the application on the ground that the Appellant was an “accession State worker” required to comply with the Worker Registration Scheme under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219). On appeal, Immigration Judge D J Archer agreed and dismissed the appeal. On 21 August 2008, Senior Immigration Judge Latter ordered reconsideration. Thus, the matter came before us.

The Appellant was not represented before us and did not appear personally. Mr Richards, who represented the Respondent, invited us to determine the appeal in the Appellant’s absence under rule 19(1) of the 2005 Procedure Rules. We were satisfied that the Appellant had been served with notice of the hearing and had not provided a good reason for his absence. Taking account of all the circumstances, we considered it proper to exercise our discretion to hear the appeal in his absence.

The background to this appeal may be summarised as follows. The Appellant began working in the UK on 30 November 2005 for Omega Workforce Ltd. As required by the 2004 Accession Regulations he registered that employment with the Home Office and was issued with a Registration Card and Worker Registration Certificate (‘WRC’) under those Regulations. It seems that at some point he gave up that work and on 3 April 2006 began working for Delphi Diesel Systems. However, he did not, as he was required, register that work under the Accession Regulations – at least not for some time. He continued to work for Delphi Diesel Systems. On 15 February 2008, he applied for a registration certificate under the 2006 EEA Regulations on the basis that he was a ‘qualified person’, namely an EEA national working in the UK. The Respondent refused his application on the ground that he remained subject to the Accession Regulations and was not entitled to be treated as an EU worker (and therefore a registration certificate under reg 16 of the EEA Regulations) unless he had worked in the UK for an uninterrupted period of 12 months under the Scheme. That, the Respondent concluded, he had failed to establish as he had not registered his employment with Delphi Diesel Systems until 3 April 2006. The Respondent advised the Appellant to register his employment with Delphi Diesel Systems under the Worker Registration Scheme of the Accession Regulations. The Appellant duly did so and on 9 April 2008 a WRC was issued by the Home Office under that Scheme stating that the Appellant had worked for Delphi Diesel Systems since 3 April 2006.

The issue in this appeal is as follows. In order to succeed, the Appellant must establish that he has legally worked for an uninterrupted period of 12 months since 30 November 2005. He can only do so if the WRC issued on 9 April 2008 under the Accession Regulations operates so as to make Delphi Diesel Systems his “authorised employer”, not from its date of issue or when he received it, but from the earlier date when it states he began the employment with them, namely on 3 April 2006.

It will be helpful briefly to describe the Worker Registration Scheme under the 2004 Accession Regulations and the impact those Regulations have upon the EEA Regulations.

The 2004 Accession Regulations apply to EU nationals from the so-called A8 states, including Poland, who work (or wish to work) in the UK on or after 1 May 2004 when the A8 states joined the EU. The Regulations apply to A8 state nationals already working here on that date as well as those who come to the UK on or after 1 May 2004. We are only concerned in this appeal with the latter.

The Accession Regulations give effect to the UK’s right to derogate from the free movement provisions for EU workers in Regulation (EEC) No 1612/68 during the accession period of 1 May 2004 to 30 April 2009 which is set out in the Treaty of Accession (signed in Athens 16 April 2003) in respect of the A8 states. (The application of the Accession Regulations was recently extended to 30 April 2011: see SI 2009/892.) Whilst allowing access to the UK labour market for A8 state workers, the Regulations create a registration scheme - the Worker Registration Scheme (‘the Scheme’). The principal purpose of the Scheme is to enable the UK Government to monitor and review the arrangements for access by A8 state nationals to the UK labour market during the accession period. It is not intended to limit or restrict access although it is intended to encourage those working here illegally to regularise their status (see Zalewska v Department for Social Development [2008] UKHL 67 at [34] per Lord Hope of Craighead and at [53]-[54] per Baroness Hale of Richmond).

As a consequence, an accession State worker may only work for an “authorised employer” with whom he is registered under the Scheme (reg 7(1)). Likewise, an employer may only employ an accession State worker if he is an “authorised employer” otherwise, subject to certain defences, the employer commits a criminal offence (reg 9) (described as a “not very serious” one by Baroness Hale in Zalewska at [50]). The worker must apply for (initially) a registration card and for each employment a WRC in accordance with regulation 8 which, so far as relevant, provides as follows:

“8.

(1) An application for a registration certificate authorising an accession State worker requiring registration to work for an employer may only be made by an applicant who is working for that employer at the date of the application.

(2)

The application shall be in writing and shall be made to the Secretary of State.

(3)

The application shall state  - 

(a)

the name, address, and date of birth of the applicant;

(b)

the name and address of the head or main office of the employer;
(c) the date on which the applicant began working for that employer;
(d) where the applicant has been issued with a registration card, the reference number of that card.

(4)

Unless the applicant has been issued with a registration card under paragraph (5), the application shall be accompanied by  - 

(a)

a registration fee of £50;

(b)

two passport size photographs of the applicant;

(c)

the applicant's national identity card or passport issued by the applicant's State;

(d)

a letter from the employer concerned confirming that the applicant began working for the employer on the date specified in the application.

(5)

In the case of an application by an applicant who has not been issued with a registration card under this paragraph, the Secretary of State shall, where he is satisfied that the application is made in accordance with this regulation and that the applicant  - 

(a)

is an accession State worker requiring registration; and

(b)

began working for the employer on the date specified in the application,

send the applicant a registration card and a registration certificate authorising the worker to work for the employer specified in the application, and shall return the applicant's national identity card or passport.

(6)

In the case of any other application, the Secretary of State shall, if he is satisfied as mentioned in paragraph (5), send the applicant a registration certificate authorising the worker to work for the employer specified in the application.

(7)

A registration card issued under paragraph (5) shall contain  - 

(a)

the name, nationality and date of birth of the applicant;

(b)

a photograph of the applicant;

(c)

a reference number.

(8)

A registration certificate issued under paragraph (5) or (6) shall contain  - 

(a)

the name of the applicant;

(b)

the reference number of the applicant's registration card;

(c)

the name and address of the head or main office of the employer, as specified in the application;

(d)

the date on which the applicant began working for the employer, as specified in the application; and

(e)

the date on which the certificate is issued. ....”

As reg 8 makes clear, the application by the A8 state worker must be in writing (reg 8(2)) and can only be made once the individual is working for the employer (reg 8(1)). Provided the formalities set out in reg 8 are complied with, and the Secretary of State is satisfied that the applicant is an accession State worker and has started working for the employer on the date stated in the application, she must issue the WRC (and registration card if applicable) (reg 8(5) and (6)). There is no discretion to refuse. The WRC will contain the date upon which the individual started working for the employer as stated in the application (reg 8(8)(d)) and the date of issue (reg 8(8)(e)).

Although the issue of a WRC is a “purely administrative act”, and it appears that no checks are made on whether the employer is complying with such matters as employee protection legislation, paying the minimum wage, paying employee national insurance contributions and so on (Zalewskaper Baroness Hale at [52]), non-compliance with the requirements of the Scheme has a significant effect upon the individual A8 state worker’s immigration status in the UK. This is because, when an individual is an “accession State worker requiring registration” within the Accession Regulations, the 2006 EEA Regulations, which apply to other EEA nationals who are working (or seeking work) in the UK, are disapplied. However, during the time an A8 state worker is employed by an “authorised employer”, the A8 state worker is treated as a “qualified person” for the purpose of the 2006 EEA Regulations but not otherwise, for example when seeking work or when that work has ceased (reg 5(2) and (3)). Even so, the A8 state worker cannot obtain a registration certificate under reg 16 of the 2006 EEA Regulations and his family members are not entitled to a residence card under reg 17 of the 2006 EEA Regulations (reg 5(5)). The consequence is that if an A8 state worker fails to comply with the Scheme set out in the Accession Regulations, he will not have any lawful basis for being in the UK under EU law as a worker (or job-seeker). He may, of course, exercise a right of free movement on another basis, for example as a student or self-employed person.

Those differences under EU law, however, disappear once the A8 state worker ceases to be an “accession State worker requiring registration”, as defined in reg 2 of the Accession Regulations because, for example he has legally worked in the UK for an uninterrupted period of 12 months. Regulation 2(4) provides that:

“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 30 April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.”

A particular period of 12 months may qualify despite containing periods when the individual was not working lawfully providing those latter periods do not exceed 30 days in total. Regulation 2(8) provides:

“… a person shall be treated as having worked in the United Kingdom without interruption for a period of 12 months if he was legally working in the United Kingdom at the beginning and end of that period and any intervening periods in which he was not legally working in the United Kingdom do not, in total, exceed 30 days”.

For our purposes reg 2(7)(b) includes an important definition of when an A8 state worker is “legally working”:

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

It will be immediately apparent that this is the provision relied upon by the Appellant in this appeal which, it is said, takes him out of the Accession Regulations and back into the 2006 EEA Regulations entitling him to a registration certificate under reg 16 of the EEA Regulations as a n EU worker in the UK. In this appeal, the Appellant relies, at least in part, upon his employment with Delphi Diesel Systems from 3 April 2006 whom he must show was an “authorised employer” from that date.

Who then is an “authorised employer”? Regulation 7 of the Accession Regulations, so far as relevant to this appeal, provides as follows:

“7(2) An employer is an authorised employer in relation to a worker if  - 

(a)

….

(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) or (4).

(3)

Where a worker begins working for an employer on or after 1st 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.

(4)

….

(5)

A registration certificate - 

(a)

is invalid if the worker is no longer working for the employer specified in the certificate on the date on which it is issued;

(b) expires on the date on which the worker ceases working for that employer…..”  

In our judgment, the outcome of this appeal turns upon the correct interpretation of reg 7(2) which defines when an accession State worker is working for an “authorised employer” and thus working legally for the purposes of reg 2.

The structure of reg 7 is as follows. First, it contemplates a period of 1 month when an A8 state worker begins to work for an employer and deems that employer to be an “authorised employer” for that 1 month period (reg 7(3)). Secondly, it is during that 1 month period that the Accession Regulations contemplate that the A8 state worker should make an application for a WRC: such an application can only be made once the individual has started working for that employer (reg 8(1)). The centrality to the working of the Scheme of the initial 1 month period of employment is also emphasised by reg 9. Regulation 9 sets out two situations where an employer will have a defence to the crime he commits by employing an A8 state worker whilst he is not an ‘authorised employer’. Both require that the employer was provided within the initial 1 month period with documentation appearing either to establish the worker does not fall within the registration Scheme (reg 9(2)) or that the worker has made an application for a WRC under reg 8 (reg 9(3)). Thirdly, if the application is made within this initial 1 month period but remains undetermined at the end of the period, the employer remains an “authorised employer” until the application is refused or a WRC is received (reg 7(2)(b). Finally, once received the employer remains an “authorised employer” during the period of the WRC’s validity (reg 7(2)(c)) or until the employment ceases (reg 7(5)(b)) whichever is sooner. That provision would also apply if the WRC was received before the 1 month initial period expired.

The point in this appeal, however, concerns the effect of reg 7(2)(c) in a case where the WRC is applied for, and issued, after the initial 1 month period. Should reg 7(2)(c) be interpreted such that the WRC has retrospective effect, presumably to the date upon which the particular work began? We were not referred to any relevant case law that might assist us in reaching our conclusion on this issue. One case is, however, relevant namely the House of Lords’ decision in Zalewska (cited above).

Zalewska concerned the claimant’s entitlement to social security payments which, in turn, depended upon her establishing that she was not an accession State worker because she had been legally working in the UK for an uninterrupted period of 12 months under the Scheme created by the Accession Regulations. She could not do this as she had failed to seek, and obtain, a registration certificate in respect of her most recent employment. Thus, on the facts, she fell short of the necessary 12 months lawful employment. By a bare majority (Baroness Hale of Richmond and Lord Neuberger of Abbotsbury dissenting), the House held that the requirement to comply with the Scheme (in particular to re-register when changing employer within the first 12 months) was not disproportionate in EU law as a means of giving effect to the derogation from EU free movement law permitted by the Accession Treaty applicable to A8 state national workers. That aspect of the case is not relevant to this appeal. However, in describing the application of the Accession Regulations to the claimant, Baroness Hale appears to have given reg 7(2)(c) an interpretation consistent with the Appellant’s case in this appeal. At [49], Baroness Hale said:

“The appellant is Polish. She came to this country on 1 July 2004, two months after the accession of Poland to the European Union. She started work on 9 July 2004 picking mushrooms for Monaghan Mushrooms Ltd of Dungannon. She applied to the Home Office for a registration certificate. We are not told when she applied but the certificate was issued on 5 November 2004. This meant that her employers were and had always been an "authorised employer": see the 2004 Regulations, reg 7(2)(c). They would in any event have been an authorised employer for the first month after she started work: see reg 7(2)(d) and (3). And even if no certificate had been issued, they would have been an authorised employer provided that she had applied for a certificate within the first month after she started work and not been refused one: see reg 7(2)(b).” (emphasis added)

Likewise in relation to work the claimant then took on in January 2005 first with Smirnoff Vodka and then with a company called Linwoods, Baroness Hale said (at [50]):

“… either Smirnoff or the agency were an authorised employer for the first month after she started work for them: see reg 7(2)(d) and (3). She stayed with Smirnoff for three weeks and then moved, at the end of January, to work for Linwoods in Armagh, baking and packing bread. If Linwoods were her employers they were an authorised employer for the first month after she started work with them: see reg 7(2)(d) and (3). This takes us up to the end of February 2005, almost eight months after she started work. Once again, she did not apply for a registration certificate for her job with Linwoods. But had she done so at any time and had the certificate been issued before she left, Linwoods would have been an authorised employer: see reg 7(2)(c).” (emphasis added)

In both these passages (but particularly in the former), Baroness Hale appears to consider that reg 7(2)(c) has the effect of making the relevant employer an “authorised employer” even for a period before the WRC was issued.

Lord Hope (who delivered the leading speech for the majority) clearly did not take the same view. In relation to the claimant’s employment beginning in July 2004 with Monaghan Mushrooms, he said this (at [17]):

“Monaghan Mushrooms was an authorised employer in relation to her for the first month of her employment starting on 9 July: reg 7(3). There was a gap until 5 November 2004. This appears to have been due to a delay in the issuing of her registration certificate by the Home Office. Thereafter Monaghan Mushrooms was an authorised employer in relation to her because she had received a valid registration certificate which had not expired as she was still working for that employer: reg 7(2)(c).”

Lord Hope’s analysis shows that he perceived a “gap”. But it appears that the reason he gives for the delay would be sufficient to enable the claimant in that case to have the benefit of reg 7(2)(b).

It is not clear from the report of the case what, if any argument, was addressed to the Law Lords on the effect of reg 7(2)(c). There is certainly no reasoned analysis leading to a considered decision as to what is the proper interpretation of reg 7(2)(c). The crucial issue for the House of Lords was the proportionality of the Scheme. On the facts, the claimant could not satisfy the requirement that she had been legally employed for 12 months under the Scheme even if the WRC had retrospective effect. No doubt the point which we must decide was not at the forefront of the argument or of the minds of the Law Lords in reaching their decision. Also, Baroness Hale’s view should be seen in the light of what she says at [52] of her speech:

“We do not know exactly when the appellant applied for her certificate, but it is likely to have been before 9 August 2004, within the first month of her starting work with Monaghan Mushrooms, yet the certificate was not issued until 4 November.

Lord Hope specifically says the delay appears not to have been the Claimant’s. Consequently, the House of Lords may, in fact, have been dealing with a case where the A8 worker’s employer was an “authorised employer” due to the combined effects of regs 7(3) and 7(2)(b) and (c) because the application for the WRC had been made in the initial 1 month of employment.

We readily acknowledge that the view of Baroness Hale is, of course, entitled to the greatest respect. However, for the reasons that follow, we have reached a contrary conclusion to that apparently suggested in Zalewska. It seems to us that when reg 7(2)(c) takes effect on ‘receipt’ of a valid WRC it contemplates authorising the work, and making the employer an “authorised employer”, only prospectively from its date of issue.

First, in our judgment, that is the more natural sense in which it can be said that the employment is ‘authorised’. The WRC takes effect from its date of issue once received by the worker. We note that the two WRCs issued to the Appellant, which we have no reason to believe are atypical, do not purport to authorise retrospectively the employment. Although, as required by the Regulations, they record the start dates of the jobs as set out in the applications, they also set out the dates they were issued.

Secondly, to give a WRC retrospective effect is inconsistent with how reg 7 operates in a case where the A8 state worker behaved as the Accession Regulations contemplate he should. Where the application is made within the initial 1 month, but the WRC is not received until later, to interpret reg 7(2)(c) as having retrospective effect is redundant. The employer is in any event at all times an “authorised employer” during the first month (reg 7(3)) and thereafter until the WRC is received (reg 7(2)(b)). The WRC needs only to have declaratory effect for the future. That is all that reg 7(2)(c) need do to provide a legislative continuum within the structure of reg 7(2) that ensures that the relevant employer is at all times an “authorised employer”. Thus, in the paradigm case to interpret reg 7(2)(c) as having retrospective effect would be to force a meaning upon it which cannot have been intended by Parliament for if it has that effect reg 7(2)(b) is never needed where a WRC is issued. If it cannot have been intended to have such an effect in the paradigm case, in our view, that weights heavily (perhaps conclusively) against an interpretation that would give it retrospective effect (as a matter of Parliamentary intention) when the A8 state worker does not seek a WRC in the initial 1 month period of his employment.

Finally, a contrary interpretation of reg 7(2)(c) would have surprising (and in our view undesirable) effects which we do not accept could have been intended. The situation contemplated, as in this appeal, is where the A8 state worker does not make an application for a WRC in the initial 1 month period but does so at some later point. The Secretary of State has no discretion to refuse the WRC if the application is in order and she is satisfied that the applicant is an A8 state worker who started work on the date claimed. Consequently, in every case the WRC would legitimate any prior period of unlawful employment (however long). Also, if the start date of the job was at least 12 months earlier, the effect of the WRC would be immediately to remove the A8 state worker from the requirements of the Accession Regulations as he would have worked legally for an uninterrupted period of 12 months despite the fact that he had patently worked outside the Scheme for the entirety of that period.

Further, it would also mean that the worker’s immigration status would be retrospectively changed. In the period prior to the WRC being issued, the individual would have no lawful EU basis for residing in the UK. However, once issued, if retrospective in effect, the WRC would somehow result in the individual – in fact but retrospectively – having a lawful basis for being in the UK under the Accession Regulations. Also, it would ensure that the criminal offence in reg 9 committed by an employer who employs an A8 state worker outside the Scheme could simply be avoided by the worker applying for a WRC at any time and, satisfying the rudimentary requirements of reg 8(5), would be entitled to such a certificate. We see no basis upon which the employer could be guilty of a criminal offence after the initial 1 month period (for which he could already have been successfully prosecuted) only for that to be, somehow, retrospectively expunged when the WRC is received.

The Accession Regulations impose a registration requirement upon A8 state workers as a condition of access to the UK labour market. Compliance with the Scheme is a pre-requisite to such workers having a lawful entitlement to reside in the UK at least until they have completed 12 months work in accordance with that Scheme. As the majority’s decision in Zalewska illustrates, failure to comply with the Scheme’s requirements may (consistently with EU law) have adverse legal consequences for an individual A8 state worker: in that case entitlement to social security benefits. The interpretation of reg 7 of the Accession Regulations which would entitle the Appellant to succeed in this appeal would, in effect, remove any incentive upon an A8 state worker to register at the beginning of his employment with a particular employer. Any consequences for him, and perhaps for the employer also, of prior non-compliance could be removed at a stroke by any subsequent successful application for a WRC: its retrospective effect making good anything that had previously been wrong. We do not accept that this was intended to be the effect of a WRC. In our judgment, the correct interpretation of reg 7(2)(c) is that a WRC takes effect, once received, only from the date of its issue.

In this appeal, the judge overlooked the WRC issued on 9 April 2008 which was in the appeal file. The judge thereby failed to take into account a relevant piece of evidence when he decided that the Appellant had not proved that he had worked lawfully in the UK (in accordance with the Scheme) for an uninterrupted period of 12 months. In that respect, the judge clearly erred in law. However, that error was not material to his decision. The Appellant had worked for Delphi Diesel Systems since 3 April 2006. However, he did not register his employment under the Scheme until the WRC took effect from 9 April 2008. As a result, even taking into account the WRC, the Appellant still could not prove at the date of the hearing that he had worked in accordance with the Scheme for 12 months. The Appellant remained an “accession State worker requiring registration” and was not entitled to a registration certificate under reg 16 of the 2006 EEA Regulations.

It is perhaps worth noting that it is now more than 12 months since the Appellant was issued with a WRC on 9 April 2008. If the Appellant has continued to work for Delphi Diesel Systems since then, he will by now have worked for an ‘authorised employer’ for over 12 months. Even if that were the case, and we have no evidence before us one way or another, it cannot affect the outcome of this appeal. For the reasons we have given, we are satisfied that the judge did not materially err in law and his decision to dismiss the appeal stands.