Szpak v Secretary of State for Work and Pensions

A registration certificate issued under the Accession (Immigration and Worker Registration) Regulations 2004 has prospective effect only. It does not retrospectively make an employer an authorised employer during a period when the worker failed to apply within the first month of employment. Only employment for an authorised employer counts towards the 12-month qualifying period. The consequences of late registration are not disproportionate merely because they may affect entitlement to income-based benefits. An appellate court should be slow to disturb an evaluative proportionality assessment unless it rests on defective reasoning, omits relevant considerations, includes irrelevant considerations, or is obviously wrong.

The appellant, a Polish A8 national, worked continuously in the United Kingdom for more than 12 months. He applied for a worker registration certificate approximately three months after beginning his first employment. The certificate recorded the original employment start date but was issued only after the first month.

His claim for income-based Jobseeker’s Allowance was refused because he had not completed 12 months of legally working for an authorised employer and therefore remained an accession State worker requiring registration. The First-tier Tribunal dismissed his appeal. Upper Tribunal Judge Ward dismissed his further appeal: [2011] UKUT 452. The central issues were whether the certificate operated retrospectively and, if not, whether the resulting consequence was disproportionate under European Union law.

1. Appeal dismissed. Lord Justice Rimer gave the judgment, with which Lord Justices Hughes and Pill agreed. The appellant was not legally working during the period between the expiry of the first month of employment and receipt of the registration certificate. He therefore could not count that period towards the 12 months required by regulation 2(4) of the Accession (Immigration and Worker Registration) Regulations 2004.
2. Regulations 2(7)(b) and 7 focus on whether, on each day of employment, the worker was working for an authorised employer. Regulation 7(3) creates a one-month grace period from the first day of employment. If the worker applies during that month, authorised status continues while the application is pending under regulation 7(2)(b). A certificate then maintains that status prospectively under regulation 7(2)(c).
3. Where the worker applies only after the first month, the employer’s authorised status lapses at the end of that month. Regulation 7(2)(c) cannot be read as selectively restoring that status for the worker’s benefit while leaving any offence under regulation 9 unaffected. The certificate therefore has no retrospective effect.
4. The information required by regulation 8, including the employment start date, was a factor in the interpretation exercise but did not overcome the stronger indications from regulations 7 and 9. The certificate was not conclusive of the relevant facts and could require further inquiry.
5. The proportionality challenge also failed. The majority reasoning in Zalewska v Department for Social Development [2008] UKHL 67 supported the proportionality of the registration scheme. Lord Hope’s observations specifically concerning late registration were treated as obiter, but Judge Ward was entitled to apply the same reasoning in Secretary of State for Work and Pensions v ZA [2009] UKUT 294 (AAC). His evaluative assessment was not shown to be flawed.

• Upper Tribunal (Administrative Appeals Chamber): Upper Tribunal Judge C.G. Ward dismissed the appeal from the First-tier Tribunal and held that the registration certificate did not retrospectively validate the earlier employment: [2011] UKUT 452.
• Court of Appeal (Civil Division): dismissed the appeal and upheld the construction of the 2004 Regulations and the proportionality assessment: [2013] EWCA Civ 46.