Miskovic & Anor v Secretary of State for Work and Pensions (Rev 1)

The Worker Registration Scheme lawfully required A8 nationals who had only temporary admission as asylum seekers, or who were unlawfully resident, to complete registered employment before acquiring the enhanced residence and benefit rights associated with worker status. The national rules defining “legally working” were proportionate and could exclude employment which was lawful for another purpose.

A family member could not rely on article 23 of the Directive 2004/38/EC unless the relevant Union citizen had exercised free-movement rights. An appellate court may entertain a new point of law arising from the decision below. It should do so cautiously, particularly where relevant facts remain unfound or the other party would suffer unfairness.

Two A8 nationals appealed from separate decisions of the Upper Tribunal refusing their claims to income support. Each claimant was treated as a person from abroad because neither had acquired a qualifying right to reside through registered employment under the Worker Registration Scheme.

Mr Miskovic, a Czech national, had worked while temporarily admitted during an unresolved asylum appeal. Ms Blazej, a Polish national, had continued working after her leave to remain expired and had never registered her employment. They contended on different grounds that their earlier employment was “legally working”, that the registration requirements were unlawful, or that EU law independently conferred a right to work.

Ms Blazej also raised a new discrimination ground governed by the pending appeal in Patmalniece. The court had to determine the substantive Worker Registration Scheme issues and whether it had jurisdiction to entertain that new point.

1. Disposition. The appeals failed on every determined ground. Ms Blazej’s discrimination ground was admitted but stayed pending the Supreme Court’s decision in Patmalniece. Elias LJ delivered the principal judgment. Sedley and Moore-Bick LJJ agreed.
2. The registration requirement imposed on A8 asylum seekers who had temporary admission and permission to work was proportionate. Temporary admission was precarious, conferred no right to reside and did not amount to established access to the labour market. Registration legitimately enabled monitoring and protected the social-security system. The majority approach in Zalewska v Department for Social Development [2008] UK HL 67 supported that conclusion.
3. The non-regression requirement in paragraph 14 of the accession arrangements concerned rights obtained by reason of Czech nationality. Mr Miskovic’s pre-accession permission to work arose from his distinct status as an asylum seeker. The post-accession registration scheme therefore did not make the conditions attached to rights derived from Czech nationality more restrictive. Nor did it unlawfully discriminate against him.
4. It was for the United Kingdom to define access to its labour market, subject to proportionality and public-law principles. Employment could be excluded from “legally working” under the Accession (Immigration and Worker Registration) Regulations 2004 even if it infringed no domestic prohibition for another purpose. Mr Miskovic’s unregistered employment while temporarily admitted and Ms Blazej’s employment while unlawfully resident did not qualify.
5. A person unlawfully present could not accumulate employment so as to acquire residence and social-security rights. EU authority concerning Turkish workers confirmed that de facto employment without a stable and secure residence position could not establish legal employment. Ms Blazej’s contract was also illegal at common law, although the court did not decide whether her employer committed an offence by retaining her after her visa expired.
6. Article 23 of the Directive 2004/38/EC did not assist Ms Blazej. Her British husband had always resided in his own state and had not exercised free-movement rights. She could not combine her restricted right as an A8 national with her marital status to construct a composite right to work outside the registration scheme.
7. Section 14 of the Tribunals, Courts and Enforcement Act 2007 permitted the court to hear a new point of law arising from the Upper Tribunal’s decision. The power is discretionary. A new point should rarely be admitted where necessary facts have not been found or its admission would be unfair. The facts necessary for Ms Blazej’s discrimination ground had been found, so that ground was admitted and stayed.

1. Court of Appeal (Civil Division): Both appeals failed on the determined grounds. Ms Blazej’s new discrimination ground was admitted but stayed pending the Supreme Court’s decision in Patmalniece.
2. Upper Tribunal (Administrative Appeals Chamber): In Mr Miskovic’s case, Upper Tribunal Judge Jacobs held that regulation 2(7) exhaustively defined “legally working” and rejected the proportionality challenge: [2009] UKUT 236 (AAC). In Ms Blazej’s case, the judge held that her unregistered employment after her leave expired did not confer worker status: [2010] UKUT 126 (ACC).
3. First-tier proceedings: The claimants’ challenges to the refusal of income support were unsuccessful.