Worker Registration Scheme Reprieve from the Court of Appeal

In the recently promulgated decision of the Court of Appeal in Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751, the Court of Appeal dismissed the appeal by the Secretary of State, and held that the word “reside” in Article 17(1)(a) of the Citizens Directive meant “legally reside”, and the Accession (Immigration and Worker Registration) (Amendment) Regulations 2009 were disproportionate, and contrary to EU law, to the extent that it extended the Worker Registration Scheme from 01 May 2009 to 30 April 2011.

In layman’s terms, this Judgment is significant as it will affect thousands of EU nationals from the A8 Member States (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia). The Secretary of State had, following the Accession of the A8 Member States, established a Worker Registration Scheme to restrict incoming workers from the A8 States, and require them to pay a fee of £90 to register under the WRS before commencing employment in this country. The obligation to register continued until twelve months of work had been undertaken. If there was a change of employment during such time, a worker had to re-register, and pay the fee for a second time. A failure to register could disentitle an individual to welfare Benefits. More significantly, an applicant applying for permanent residence in the UK will have their period of residence falling between 01 May 2009 to 30 April 2011 discounted, if the Worker Registration Scheme was not satisfied. This is because the Home Office position was that such a person was not exercising Treaty Rights in the UK as a worker at the time.

This had affected A8 nationals who had been refused Permanent Residence Certificates or Permanent Residence Cards, on the basis that they had not completed five years’ residence. There have been occasions where applicants who had registered their children as British citizens had been advised by the Passport Office to return their passports on the basis that the child was not entitled to their passport, owing to their parents not having a Worker Registration Certificate for the period in question. The Home Office have been refusing applications by A8 nationals to naturalise as British citizens, on the basis that due to a failure to register, the applicants could not show that they had acquired the right to permanent residence, or more perniciously that by not having registered, the applicant had enjoyed unlawful residence, and so had failed to meet the Good Character Test for naturalisation. Clearly, on the back of this decision, such decisions will have to be revisited in appropriate circumstances. This is more significant at this time of Brexit, where long-term certainty is very important to EU nationals.

If you have been affected in any way by this, you can contact one of our team, and we can assist in resolving matters in respect of this. We have extensive experience in dealing with these cases.