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UK Social Security and Child Support Commissioners' Decisions |
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You are here: BAILII >> Databases >> UK Social Security and Child Support Commissioners' Decisions >> [2008] UKSSCSC CIS_3232_2006 (12 March 2008) URL: http://www.bailii.org/uk/cases/UKSSCSC/2008/CIS_3232_2006.html Cite as: [2008] UKSSCSC CIS_3232_2006 |
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CIS/3232/2006
CIS/160/2007
CJSA/700/2007
CIS/775/2007
DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
REASONS
Introduction
The legislation
"(3) Subject to paragraphs (3F) and (3G), in Schedule 7
'person from abroad' means a claimant who is not habitually resident in the United Kingdom, the Channel islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is
(a) a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of 'qualified person' in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;
(3G) In paragraph (3), 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."
"1. Freedom of movement of 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.
4. The provisions of this Article shall not apply to employment in the public service."
"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) In these Regulations, 'qualified person' means a person who is an EEA national and in the United Kingdom as
(a) a worker;
(2) A worker does not cease to be a qualified person solely because
(a) he is temporarily incapable of work as a result of illness or accident; or
(b) he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.
"
"1. Article 39 and the first paragraph of Article 49 of the EC Treaty shall fully apply only, in relation to the freedom of movement of workers between the Czech Republic on the one hand 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, or those resulting from bilateral agreements, regulating access to their labour markets by Czech nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of accession.
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.
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.
The Czech nationals mentioned in the second and third paragraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present Member State in question.
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.
9. Insofar as certain provisions of Directive 68/360/EEC may not be dissociated from those of Regulation (EEC) No. 1612/68 whose application is deferred pursuant to paragraphs 2 to 5 and 7 and 8, the Czech Republic and the present Member States may derogate from those provisions to the extent necessary for the application of paragraphs 2 to 5 and 7 and 8.
"
"(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.
(8) For the purposes of paragraphs (3) and (4), 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 do not, in total, exceed 30 days."
"Right of residence of work seekers and workers from relevant acceding States during the accession period
4. (1) This regulation derogates during the accession period from Article 39 of the Treaty establishing the European Community, Articles 1 to 6 of Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community and Council Directive (EEC) No. 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.
(2) A national of a relevant accession State shall not be entitled to reside in the United Kingdom for the purpose of seeking work by virtue of his status as a work seeker if he would be an accession State worker requiring registration if he began working in the United Kingdom.
(3) Paragraph (2) is without prejudice to the right of a national of a relevant accession State to reside in the United Kingdom under the 2000 Regulations as a self-sufficient person whilst seeking work in the United Kingdom.
(4) An accession State worker requiring registration shall only be entitled to reside in the United Kingdom in accordance with the 2000 Regulations as modified by regulation 5.
Application of 2000 Regulations in relation to an accession State worker requiring registration
5. (1) The 2000 Regulations shall apply in relation to an accession State worker requiring registration subject to the modifications set out in this regulation.
(2) An accession State worker requiring registration shall be treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the 2000 Regulations only during a period in which he is working in the United Kingdom for an authorised employer.
(3) Subject to paragraph (4), regulation 5(2) of the 2000 Regulations shall not apply to an accession State worker requiring registration who ceases to work.
(4) Where an accession State worker requiring registration -
(a) begins working for an authorised employer on or after 1st May 2004; and
(b) ceases working for that employer in the circumstances mentioned in regulation 5(2) of the 2000 Regulations during the one month period beginning on the date on which the work begins,
that regulation shall apply to that worker during the remainder of that one month period.
(5) An accession State worker requiring registration shall not be treated as an EEA national for the purpose of the power in regulation 10 of the 2000 Regulations (dependants and members of the household of EEA nationals) to issue a residence permit or a residence document to a relative of an EEA national or his spouse.
(6) An accession State worker requiring registration shall not be treated as a qualified person for the purpose of regulation 15 of the 2000 Regulations (issue of residence permits and residence documents)."
"7. (1) By way of derogation from Article 39 of the Treaty establishing the European Community and Articles 1 to 6 of Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community, an accession State worker requiring registration shall only be authorised to work 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 30th 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) 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.
(6) Regulation 2(7)(a) shall apply for the purpose of determining whether a person is legally working on 30th April 2004 for the purpose of this regulation."
"(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)
(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.
(9) Where the Secretary of State receives an application made in accordance with this regulation and he is not satisfied as mentioned in paragraph (5), he shall
(a) send the applicant a notice of refusal; and
(b) return any documents and fee that accompanied the application to the applicant."
The Facts
CIS/3232/2006 the first case
CIS/160/2007 the second case
CJSA/700/2007 the third case
CIS/775/2007 the fourth case
Regina (D) v. Secretary of State for Work and Pensions
"In my judgment, those submissions do not raise any point with a real prospect of success for the following reasons. First, as regards the period 1 May to 1 July when the applicant was seeking work, it is abundantly clear, as Mr Justice Collins held, that the position fell four-square within the permitted derogation. At that stage the applicant could not bring himself within Article 7.2 of Regulation 1612/68 because he was not "a worker". The European Court of Justice decided as much in Collins v. Secretary of State for Work and Pensions (Case C-138/02) [2005] QB 145 (also reported as R(JSA) 3/06). When the present case was before Mr Justice Collins Article 12 of the EC Treaty did not feature in the oral submissions although it had been foreshadowed in the pleadings. I do not consider that it avails the applicant in relation to the period 1 May to 1 July. Article 12 is stated to be "without prejudice to any special provisions contained in" the Treaty. Article 39 is one such special provision. It, in turn, has given birth to Regulation 1612/68. The Treaty of Accession permits derogation from Articles 1 to 6 of that Regulation. The domestic Regulations of 2004 are a permissible derogation. The contrary is simply not arguable."
Argument
For the claimants
"18. Among the penalties attaching to a failure to comply with the formalities required as proof of the right of residence of a worker enjoying the protection of Community law, deportation is certainly incompatible with the provisions of the Treaty since, as the Court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the Treaty.
19. As regards other penalties such as fines and imprisonment, whilst the national authorities are entitled to impose penalties in respect of failure to comply with the terms of provisions relating to residence permits which are comparable to those attaching to minor offences by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons. This would be especially so if that penalty included imprisonment.
20. It follows that the failure on the part of the national of a Member State of the Community, to whom the rules of freedom of movement for workers apply, to obtain the special residence permit prescribed in Article 4 of Directive No 68/360 may not be punished by a recommendation for deportation or by measures which go as far as imprisonment."
"31. Under the provisions of Directive 80/1263, a driving licence issued by a Member State is recognized by the other Member States in which the holder is not normally resident and, for one year, also in the State in which he takes up normal residence.
32. Although the holder may be required to have his licence exchanged in order to remain entitled to drive motor vehicles within the territory of the host Member State after the expiry of the one-year period, his original licence remains valid in the Member State which issued it and continues to be recognized by the other Member States.
33. Member States may indeed refuse to exchange licences in certain circumstances expressly set out in the Directive, but that possibility cannot affect the entitlement of licence holders to have their licences exchanged if there are no such exceptional circumstances.
34. It follows that the issue of a driving licence by a Member State in exchange for a licence issued by another Member State does not constitute the basis of the right to drive a motor vehicle in the territory of the host State, which is directly conferred by Community law, but evidence of the existence of such a right.
35. In those circumstances, the obligation to exchange driving licences which Member States may impose under the Directive is essentially a way of meeting administrative requirements.
36. In the absence of Community rules governing the matter, the Member States remain competent to impose penalties for breach of such an obligation. However, it follows from settled case-law concerning non-compliance with formalities for establishing the right of residence of an individual enjoying the protection of Community law that Member States may not impose a penalty so disproportionate to the gravity of the infringement that this becomes an obstacle to the free movement of persons; this would be especially so if the penalty consisted of imprisonment (see, in particular, Case C-265/88 Messner [1989] ECR 4209, paragraph 14). In view of the effect which the right to drive a motor vehicle has on the actual exercise of the rights relating to the free movement of persons, the same considerations must apply with regard to breach of the obligation to exchange driving licences.
37. Treating a person who has failed to have a licence exchanged as if he were a person driving without a licence, thereby causing criminal penalties, even if only financial in nature, such as those provided for in the national legislation in question in this case, to be applied, would also be disproportionate to the gravity of that infringement in view of the ensuing consequences.
38. As the national court has pointed out, a criminal conviction may have consequences for the exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices, which would constitute a further, lasting restriction on freedom of movement.
39. The answer to the second part of the question submitted by the national court must therefore be that, in view of the resultant consequences, such as may arise under the national legal system in question, Article 52 of the Treaty precludes the driving of a motor vehicle by a person who could have obtained a licence from the host State in exchange for the licence issued by another Member State but who did not make that exchange within the prescribed period from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine."
"56. , in accordance with Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, when a national of a Member State moves within the Community with a view to exercising the rights conferred upon him by the Treaty and those directives, the Member States may demand an entry visa or equivalent document from members of his family who are not nationals of a Member State. The list of third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States was determined by Regulation No 2317/95, which was replaced by Regulation No 574/1999, itself since replaced by Regulation No 539/2001.
57. As Community legislation does not specify the measures which a Member State may take should a third country national married to a Member State national wish to enter Community territory without being in possession of a valid identity card or passport or, if necessary, a visa, sending him back at the border does not appear to be precluded (see in particular, to that effect, with regard to Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, Case C-68/89 Commission v Netherlands [1991] ECR I-2637, paragraph 11).
58. First, in the absence of a valid identity card or passport, documents which are intended to enable their holder to provide proof of his identity and nationality (see, to that effect, in particular Case C-376/89 Giagounidis [1991] ECR I-1069, paragraphs 14 and 15), the person concerned cannot as a rule properly prove his identity or, consequently, his family ties.
59. Second, while, as the Commission correctly points out, the right of a third country national married to a Member State national to enter the territory of the Member States derives under Community law from the family ties alone, the fact remains that, according to the very wording of Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, exercise of that right may be conditional on possession of a visa. Indeed, Article 5 of Regulation No 2317/95 defines a visa as an authorisation given or a decision taken by a Member State which is required `for entry' into its territory.
60. However, Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148 state that the Member States are to accord to such persons every facility for obtaining any necessary visas. This means that, if those provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory.
61. In view of the importance which the Community legislature has attached to the protection of family life (see paragraph 53 of this judgment), it is in any event disproportionate and, therefore, prohibited to send back a third country national married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.
62. The answer to the first question referred for a preliminary ruling must therefore be that, on a proper construction of Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation No 2317/95, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148."
See also paragraphs 73 to 80.
For the Secretary of State
"[22] The Community concept of worker is incapable of precise definition since, as Collins makes clear, the concept is not used in the Community law texts in a uniform way. Since the Act of Accession confers on member states in respect of Accession workers a power to make national provisions which, thus, do not have community wide effect it is necessary to ascertain the proper meaning and intent of the national law albeit that national law must be compatible with any overriding Community law requirements that limit the member state in the formulation of national law. Since the Act of Accession clearly confers a wide discretion on member states (which could include total exclusion of Accession workers) it was clearly not the intention of the Act to tie the hands of the national authorities as to how they regulated their national labour markets.
[23] Annex XII provides that Polish nationals admitted to the labour market of a member state after accession for an uninterrupted period of 12 months or longer will acquire the full rights of a Community worker within that member state. Since the member state is left to determine the conditions in which an Accession worker will be held to have been admitted to the national market the question whether such a worker has been admitted to the labour market for 12 months must be determined in accordance with national law. If, throughout the uninterrupted period of 12 months the Polish national satisfies the national conditions of admission he or she will acquire the rights of a Community worker thereafter in that national labour market.
[24] Under the national law to be found in the relevant Regulations Polish workers are admitted to the labour market conditionally. The registration requirements operate as a condition of employment breach of which results in the Polish worker failing to satisfy the national requirement for lawful admission to the member state's labour market. In Re D Kay LJ considered that the Accession worker remain employed for an uninterrupted period of 12 months he will receive the benefit of the time qualification. It may be that where such a worker has short breaks in continuous registered employment during which work is being sought he may still satisfy the 12 month period requirement. That is not, however, a relevant question in the present case since the applicant only worked as a registered worker for a 6 month period and thereafter took unregistered employment. She, therefore, failed to fulfil the condition to be satisfied if she was to be treated as lawfully admitted to the labour market during the relevant period.
[25] In Re D the Court of Appeal concluded that the Registration Scheme is a reasonable and proportionate concomitant of the permitted derogation. The policy behind the Registration Scheme is to enable the Secretary of State to monitor and control those falling within the derogation. It has a national legal basis which is consistent with the right conferred on member states to regulate their own labour market in the context of Accession workers. The applicant is unable to demonstrate that the Scheme lacks rationality or proportionality."
The reply on behalf of the claimants
Discussion
Conclusion
CIS/3232/2006
CIS/160/2007, CJSA/700/2007 and CIS/775/2007
(signed on the original) MARK ROWLAND
Commissioner
12 March 2008
