Zalewska (Ap) (Appellant) v Department for Social Development (Respondents) (Northern Ireland)

The transitional derogation from free movement for workers allowed a Member State to regulate access to its labour market by A8 nationals through national measures. Entitlement to the equal treatment and social advantages in article 7(2) arose only once the worker had obtained access in accordance with those measures.

However, national measures adopted under the derogation remained measures of Community law and had to comply with proportionality. A worker-registration scheme requiring registration on a change of employer during the initial 12 months was proportionate. It served legitimate aims of monitoring the labour market, verifying employment and encouraging compliance. The loss of worker status, residence rights and income support following non-registration was a lawful consequence of failure to meet the conditions of access.

The appellant, a Polish national, worked continuously in Northern Ireland for more than 12 months after Poland joined the European Union. She registered her first employment under the worker registration scheme but did not register later employment. When she stopped work and claimed income support, she was treated as lacking a right to reside because she had not worked for authorised employers for the required uninterrupted period.

A Social Security Appeal Tribunal allowed her claim on the basis of equal treatment under article 7(2) of Regulation 1612/68. The Social Security Commissioner set that decision aside. The Court of Appeal in Northern Ireland upheld the Commissioner in [2007] NICA 17.

The House considered whether the registration and re-registration conditions in the Accession (Immigration and Worker Registration) Regulations 2004 were compatible with Community law and proportionate.

1. Appeal dismissed by a majority of three to two. Lord Hope gave the leading majority speech. Lord Carswell and Lord Brown agreed that the appeal should be dismissed and the Social Security Commissioner’s decision affirmed. Baroness Hale and Lord Neuberger would have allowed the appeal.

2. Per Lord Hope: paragraph 2 of Part 2 of Annex XII to the Act of Accession derogated from article 39EC and articles 1 to 6 of Regulation 1612/68. It therefore permitted the United Kingdom to prescribe national conditions for A8 nationals’ access to its labour market. Article 7(2) was not itself displaced. Its protection against discrimination in social advantages applied once, but only once, an A8 national had been admitted to the labour market under those national conditions.

3. Per Lord Hope, on a point accepted by Baroness Hale and Lord Neuberger: the derogation and the national measures made under it remained within Community law. The measures had to be authorised by the Treaty of Accession and comply with the Community-law principle of proportionality.

4. Per Lord Hope, with Lord Carswell and Lord Brown: the re-registration requirement was proportionate. It served legitimate aims: monitoring the numbers and sectors in which A8 nationals worked, obtaining contemporaneous verification of employment, discouraging illegal work and safeguarding access to income-related benefits. The House was not required to identify the best possible regulatory scheme. The consequences of a failure to register or re-register were not an excessive penalty when assessed in the full transitional context.

5. Lord Hope also explained that admission to the labour market began when an A8 national commenced work for an authorised employer. The 12-month period did not postpone initial admission. It determined when the worker obtained the further Community-law right of unrestricted labour-market access.

6. Dissenting reasoning of Baroness Hale, expressly joined by Lord Neuberger: the actual aim of the scheme was monitoring rather than restricting numbers. Denial of future social benefits to a person who had worked for 12 months was neither suitable nor necessary to achieve that aim. A retrospective registration mechanism and enforcement against employers would have been fairer and more proportionate.

• House of Lords: dismissed the appellant’s appeal and affirmed the Social Security Commissioner’s decision.

• Court of Appeal in Northern Ireland: upheld the Commissioner’s decision in [2007] NICA 17.

• Social Security Commissioner: on 23 August 2006 allowed the Department’s appeal and set aside the tribunal’s decision.

• Social Security Appeal Tribunal: on 18 November 2005 allowed the appellant’s income-support appeal, holding that she was entitled to equal treatment under article 7(2) of Regulation 1612/68.