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Worker Registration Scheme unlawful for last two years of accession period

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Martin Williams
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This decision is worth knowing about: http://www.osscsc.gov.uk/Aspx/view.aspx?id=4418

TG v SSWP (PC) [2015] UKUT 50 (AAC)

1. It holds that the worker registration scheme for A8 nationals was unlawful in the period 01/05/2009 to 30/04/2011. The effect is that unregistered work in this period still counts as work and can therefore count towards permanent residence (or similarly people who were family members of unregistered workers in this period can now use that period etc).

2. It holds that for purposes of Article 17 Directive 2004/38 (permanent residence in less than 5 years for retirees and permanently incapacitated) then the requirement to have resided for a specific number of years is met by simple residence- the legality of the residence eg whether it had a right of residence is irrelevant).

3. It contains some useful comments on who has a jobseeker right of residence that could be relied upon to challenge the “gloss” on Antonissen which the “genuine prospect of work” for jobseekers represents (eg the 91 days only as a jobseeker unless you have an offer of work nonsense).

Hurray!

1964
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Deputy Manager, Reading Community Welfare Rights Unit

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Wow…this could prove extremely useful! Thanks indeedy Martin and have a damn splendid weekend.

LJF
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Benefits caseworker - Manchester Citizens Advice Bureau

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woo my claim to fame - thanks for all your help martin

shawn mach
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See also useful summary from Tom Royston of Garden Court North Chambers

http://www.rightsnet.org.uk/forums/viewthread/7776/

Martin Williams
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Hi LJF- think in the end it was Tom Royston’s hard work that got the result.

Still nice to see an argument we worked on getting somewhere.

And argument might never have been spotted without rightsnet, in 2009, publishing an article with a link to the Migration Advisory Committee’s view on the effect of extending the scheme: http://www.rightsnet.org.uk/welfare-rights/news/item/Worker-Registration-Scheme-extended-by-a-further-two-years

Martin

[ Edited: 17 Feb 2015 at 04:54 pm by Martin Williams ]
Pete C
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A fantastic result and well deserved .

  I can’t help but wonder how the Government will respond- from the news report it seems like this could mean that large amounts of arrears might be owed and I can’t imagine the authorities would take this lying down- anyone have any thoughts?

CHC
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Hello, does anyone know if the government has challenged this - TG v SSWP (PC) [2015] UKUT 50 (AAC)?

Barbara Donegan
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It’s listed on casetracker as 20151796.  The SoS has requested permission to appeal.

http://casetracker.justice.gov.uk/listing_calendar/

Simon
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Is this likely to mean any appeal including an argument based on an A8 national’s unregistered work post May-2009 is likely to be deferred until the SoS’s appeal has been heard?

Sharon M
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Simon - 20 August 2015 12:37 PM

Is this likely to mean any appeal including an argument based on an A8 national’s unregistered work post May-2009 is likely to be deferred until the SoS’s appeal has been heard?

I tried to use it in a recent mandatory reconsideration on income based ESA for a Polish national to get my five years for permanent residency and they’ve turned it down on the fact that it’s not yet been heard (although they have backed it up with another argument around the person not having five years legit status because of a few weeks unaccounted for, but that’s a different argument, so not sure if they’ve thrown that in as a just in case, or if they have a strong argument on the first point). It doesn’t help that the social worker and client told me that we’d won the case as they’d been told by the DWP and had loads of back pay (it was for contribution based ESA, we got the ISESA refusal days later, after I’d run around thanking people who’d helped me put the case together and then had to tell them I’d failed like a big failer :: waves at Dan :: ).

So, I used it and it’s been rejected at MR level. The client doesn’t want to pursue it due to the other factor around a break in status, so I’m not sure how it would have been looked at if it got to appeal. Also advised the client to apply for PR cert to see if Home Office can out-trump DWP decsion maker.

Martin Williams
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With regard to the DWP using the “anti-test case” rules in cases where outcome of Gubeladze v The Secretary of State for Work and Pensions (As the case is called in the Court of Appeal where as Barbara said the SSWP currently seeks permission to appeal) :

1. section 25 SSA 1998 appears to allow Decision Maker to decide case as if the Upper Tribunal’s decision was wrong.

2. section 26 SSA 1998 appears to allow the Secretary of State to force the FtT to either determine the case as if UT was wrong or to stay the case (I understand in practice the SSWP gives the Tribunal a choice on this).

As far as I know the SSWP is using his section 26 powers in such cases- although note the Tribunal would need to have been served with the notice referred to there for it to even have to consider staying etc.

I do think however (and this is why I said “appears” above) that in an appropriate case, it might be unlawful for the Tribunal to consider itself bound by the SSWP section 26 notice- arguably, given the UT decision is a clear statement of EU law and the claimant in such a case will have a permanent right of residence if it is correct, then it is contrary to the requirement for an effective remedy to EU law rights for Tribunal to be forced not to apply the law as declared by the UT. One would need the client to be in a difficult situation in the event of a staying. EU cases such as Factortame etc. could possibly be relied upon (in that case the Courts were happy to give interim relief to a bunch of ship owners whose profits were being affected- surely a claimant who is otherwise destitute might also be entitled to the same thing?)

I think if anyone has a case like this where the SSWP has tried to get Tribunal to stay and the Tribunal is minded to do so then it might be possible to put together some pretty good arguments as to why the Tribunal needed to ignore section 26 - Tom Royston at Garden Court North is acting for claimant in the case in Court of Appeal and I am sure might be able to offer his thoughts on this if instructed to do so.

[ Edited: 25 Aug 2015 at 06:18 pm by Martin Williams ]
Sharon M
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Martin Williams - 25 August 2015 06:15 PM

With regard to the DWP using the “anti-test case” rules in cases where outcome of Gubeladze v The Secretary of State for Work and Pensions (As the case is called in the Court of Appeal where as Barbara said the SSWP currently seeks permission to appeal) :

1. section 25 SSA 1998 appears to allow Decision Maker to decide case as if the Upper Tribunal’s decision was wrong.

2. section 26 SSA 1998 appears to allow the Secretary of State to force the FtT to either determine the case as if UT was wrong or to stay the case (I understand in practice the SSWP gives the Tribunal a choice on this).

As far as I know the SSWP is using his section 26 powers in such cases- although note the Tribunal would need to have been served with the notice referred to there for it to even have to consider staying etc.

I do think however (and this is why I said “appears” above) that in an appropriate case, it might be unlawful for the Tribunal to consider itself bound by the SSWP section 26 notice- arguably, given the UT decision is a clear statement of EU law and the claimant in such a case will have a permanent right of residence if it is correct, then it is contrary to the requirement for an effective remedy to EU law rights for Tribunal to be forced not to apply the law as declared by the UT. One would need the client to be in a difficult situation in the event of a staying. EU cases such as Factortame etc. could possibly be relied upon (in that case the Courts were happy to give interim relief to a bunch of ship owners whose profits were being affected- surely a claimant who is otherwise destitute might also be entitled to the same thing?)

I think if anyone has a case like this where the SSWP has tried to get Tribunal to stay and the Tribunal is minded to do so then it might be possible to put together some pretty good arguments as to why the Tribunal needed to ignore section 26 - Tom Royston at Garden Court North is acting for claimant in the case in Court of Appeal and I am sure might be able to offer his thoughts on this if instructed to do so.

I was in contact with Tom myself and he offered to assist my local Law Centre if the client had wished to take the case further. He really is very approachable and helpful.

WillH
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Several cases have been stayed quoting this case, where the WRS isn’t relevant - either because the claimants are not A8 nationals, or because they were registered anyway. We think it may be because of the comments on the GPoW, but these seem so fact dependent - is it worth arguing that these cases do not in fact raise issues from the test case and should not be stayed (which, having read the judgment, I think is arguable). Or would it be best to contact Tom to see what points have been appealed?

Martin Williams
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WillH - 01 October 2015 12:59 PM

Several cases have been stayed quoting this case, where the WRS isn’t relevant - either because the claimants are not A8 nationals, or because they were registered anyway. We think it may be because of the comments on the GPoW, but these seem so fact dependent - is it worth arguing that these cases do not in fact raise issues from the test case and should not be stayed (which, having read the judgment, I think is arguable). Or would it be best to contact Tom to see what points have been appealed?

Hi Will- my understanding from Tom is that the DWP have not sought permission to appeal any aspects of the decision that touch on having a right of residence as a jobseeker- their application for permission is confined to what is called “Issue A” and “Issue B” in the UT decision. Therefore, nothing said about who has a jobseeker right of residence in that case is subject to challenge and cases should not be stayed to await any further view from Court of Appeal on those aspects of the case (as there won’t be any).

 

WillH
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Thanks Martin. I’ve since seen your email correspondence with Tom, forwarded by Henri - thank you for that. An adviser in Edinburgh has had at least 3 cases stayed where the only connection with TG is the GPoW. We will point out to the DWP that issue C isn’t under appeal and hope that they will require the tribunal to unstay them. Fingers crossed - I note that s26 SSA 98 is so wide, even if they have got it wrong re issues raised they still have the power to do this.

Martin Williams
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WillH - 12 October 2015 12:29 PM

Thanks Martin. I’ve since seen your email correspondence with Tom, forwarded by Henri - thank you for that. An adviser in Edinburgh has had at least 3 cases stayed where the only connection with TG is the GPoW. We will point out to the DWP that issue C isn’t under appeal and hope that they will require the tribunal to unstay them. Fingers crossed - I note that s26 SSA 98 is so wide, even if they have got it wrong re issues raised they still have the power to do this.

Sorry this is a bit of a rehash of earlier post here but also has some more on potential remedy (appealing to UT against a stay)

My understanding of way section 26 works in practice is as follows:

1. The section 26 notice does not seem to specify whether tribunal should stay case or determine case as if all issues in cases decided in worse possible way for the claimant (eg whether tribunal should take option (a) or (b) of sub-section 4.

2. I am not sure if the SSWP would have a power to specify which the Tribunal should do anyway but as he doesn’t then it is fine.

3. That means it is up to the Tribunal to decide whether to stay or proceed under section 26(4)(b).

4. As the GPOW issues don’t arise in TG onward appeal and as the other issues are irrelevant then client loses nothing by tribunal following section 26(4)(b) route.

5. For tribunal not to go down that route would arguably be unlawful (you could ask for the stay to be lifted and then appeal to the UT any refusal to lift the stay- it is not an excluded decision under TCEA and so a right of appeal exists. It would be unlawful both because it would delay the appeal for no good reason and also arguably because a stay where an issue of a basic means tested benefit and EU law rights is at issue is unlawful given the need for EU law to efficacious etc. (in fact there is an argument that section 26 being used in EU law cases is unlawful and tribunal should disapply section 26 given the need for interim remedies etc.