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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D, R (on the application of) v Secretary of State for Work and Pensions [2004] EWCA Civ 1468 (11 October 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1468.html Cite as: [2004] EWCA Civ 1468 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE COLLINS)
Strand London, WC2 |
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B e f o r e :
LORD JUSTICE MAURICE KAY
____________________
THE QUEEN ON THE APPLICATION OF "D" | Claimant/Appellant | |
-v- | ||
SECRETARY OF STATE FOR WORK AND PENSIONS | Defendant/Respondent |
____________________
(Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR T WARD (instructed by Treasury Solicitor) appeared on behalf of the Respondent
____________________
Crown Copyright ©
"Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited."
Article 39, formerly Article 48, then provides as follows:
"1 Freedom of movement for workers shall be secured within the Community.
2 Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3 It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission."
"Any national of a Member State, shall, irrespective of his place of residence, have the right to take up an activity as an employed person, and to pursue such activity, within the territory of another Member State in accordance with the provisions laid down by law, regulation or administrative action governing the employment of nationals of that State."
Article 1.2 states:
"He shall, in particular, have the right to take up available employment in the territory of another Member State with the same priority as nationals of that member State."
Article 7 of the Regulation comes within a title headed "Employment and Equality of Treatment". Its subject matter is "The Workers". Article 7 provides:
"1 A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
2 He shall enjoy the same social and tax advantages as national workers."
"1 Article 39 ..... of the EC Treaty shall fully apply only, in relation to the freedom of workers and the freedom to provide services involving temporary movement of workers ..... between ..... on the one hand ..... Latvia ..... and the United Kingdom on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14.
2 By way of derogation from Articles 1 to 6 of Regulation (EEC) No 1612/68 and until the end of the two year period following the date of accession, the present Member States will apply national measures, of those resulting from bilateral agreements, regulating access to their labour markets by [Latvian] nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession.
[Latvian] 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 Member State but not to the labour market of other Member States applying national measures.
[Latvian] 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 .....
..... "
"In paragraph (4), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland."
Thus only a person who is in this country by virtue of a grant of leave to enter or remain under the immigration legislation, and in respect of which there is a correlative right to work, may qualify.
"59 Article 2 of Regulation No 1612/68 concerns the exchange of applications for and offers of employment and the conclusion and performance of contracts of employment .....
60 It is true that those articles do not expressly refer to benefits of a financial nature. However, in order to determine the scope of the right to equal treatment for persons seeking employment, this principle should be interpreted in the light of other provisions of Community law, in particular Article 6 of the Treaty .....
.....
63 In view of the establishment of citizenship of the Union and the interpretation in the case-law of the right to equal treatment enjoyed by citizens of the Union, it is no longer possible to exclude from the scope of Article 48 (2) of the Treaty - which expresses the fundamental principle of equal treatment, guaranteed by Article 6 of the Treaty - a benefit of a financial nature intended to facilitate access to employment in the labour market of a Member State."
"27 So, Mr Gill submits, ..... that once it is accepted that members of the eight states are entitled to access the labour market they cannot be discriminated against in connection with benefits of a financial nature which are intended to facilitate access to employment. Those, it is said, must include support which enables them to remain in this country in order to seek that employment, because if they do not have that support they will not be able to exercise their right, so it is said, to seek employment.
28 With individuals who are not able to be discriminated against in their access to the labour market, that is undoubtedly correct. It is far from clear to me that the meaning of the word 'worker', particularly when one looks at the 1612/68, has a meaning that necessarily extends in all circumstances to cover a person who is seeking work. Assuming that it does and assuming that Collins extends it that far still, as it seems to me, the fundamental principle is that the annex permits discrimination against access to the labour market of this country and that must include discrimination which relates to the provision of benefits in order to entitle that access to be carried out. It is, quite apart from anything else, a perfectly permissible means of avoiding benefit tourism. Thus, it is clearly proportionate.
29 Accordingly, the permission for discrimination must extend, in my view, to that discrimination. Article 7.2 will come into play if employment is achieved. Then there must be no discrimination because the persons become, once they are in the labour market, formally members of that labour market.
30 Once one accepts that there is discrimination that can be put in place in relation to access, then it seems to me the argument raised by Mr Gill, important though it no doubt is, really falls away."
Order: Application refused with the costs subject to detailed assessment.