Zalewska v Department for Social Development (Northern Ireland)

The House of Lords considered whether the United Kingdom's worker registration scheme for nationals of A8 accession states (implemented by the Accession (Immigration and Worker Registration) Regulations 2004) was compatible with Community law, particularly article 39 EC and article 7(2) of Regulation (EEC) No 1612/68, and whether the national measures fell foul of the principle of proportionality. The majority held that the derogation in Part 2, Annex XII of the Act of Accession allowed member states to replace articles 1–6 of Regulation 1612/68 with national measures governing eligibility for employment, but that those national measures remain subject to Community law, including proportionality. Applying that test, the majority concluded that the registration and re-registration requirements and the consequences of non-compliance were not disproportionate in light of the legitimate aims of monitoring labour market access and discouraging illegal work; accordingly the appellant was not entitled to be treated as habitually resident for income support. The dissenting opinion concluded the re-registration sanction (loss of entitlement to social assistance despite having worked 12 uninterrupted months) was disproportionate to the monitoring aim and would have allowed the appeal.

The appellant, a Polish national, arrived in Northern Ireland after Poland's accession to the European Union and worked continuously for twelve months for successive employers. The United Kingdom had implemented a worker registration scheme for A8 nationals by the Accession (Immigration and Worker Registration) Regulations 2004 which required initial registration and re-registration on change of employer during the first 12 months; entitlement to reside and to social advantages under domestic rules depended on compliance with that scheme. The appellant had registered her first job but did not obtain fresh registration for a later employer and was refused income support because she lacked a right to reside and so could not be treated as habitually resident.

Procedural posture: The Social Security Appeal Tribunal allowed the appellant; the Social Security Commissioner allowed the respondent's appeal and set aside that decision; the Court of Appeal in Northern Ireland ([2007] NICA 17) upheld the Commissioner. The appellant appealed to the House of Lords.

Issues framed:

• (i) Whether the appellant could rely directly on article 39 EC and article 7(2) of Regulation 1612/68 to claim social advantages despite non-compliance with the UK registration scheme;
• (ii) Whether the national measures introduced under the accession derogation are subject to Community law principles, in particular proportionality, or are wholly national in character; and
• (iii) Whether the re-registration requirement and the consequence of loss of residence/benefit entitlement for failure to re-register are proportionate to the legitimate aims pursued.

Reasoning and disposition: The majority held that paragraph 2 of Part 2 of Annex XII to the Act of Accession permitted member states to replace articles 1–6 of Regulation 1612/68 by national measures, but that those measures must be exercised within the Community law framework and be proportionate. The court accepted the legitimate aims relied upon by the United Kingdom — monitoring the impact of enlargement, obtaining accurate labour market information and discouraging illegal employment — and regarded registration and re-registration as appropriate and necessary means to achieve those aims. The majority therefore dismissed the appeal and affirmed the decision of the Social Security Commissioner. Dissenting Law Lords considered the sanction of denying benefits to a person who had actually worked an uninterrupted 12 months to be disproportionate to the light-touch monitoring aim of the scheme and would have allowed the appeal.

Appeal dismissed. The majority held that the Accession Treaty derogation allowed the United Kingdom to replace articles 1–6 of Regulation 1612/68 with national measures but those measures remain subject to Community law principles including proportionality; on the facts the worker registration and re-registration requirements and their consequences were held to pursue legitimate aims and to be proportionate, so the appellant was not entitled to be treated as habitually resident.

Social Security Appeal Tribunal (appeal allowed); appeal to Social Security Commissioner (Commissioner allowed respondent's appeal and set aside tribunal decision); appeal by way of case stated to Court of Appeal in Northern Ireland, Girvan LJ ([2007] NICA 17) — Court of Appeal upheld the Commissioner's decision; further appeal to the House of Lords ([2008] UKHL 67).