JK v Secretary of State for Work and Pensions (SPC)

A failure to comply with a temporary worker-registration regime may exceptionally be disproportionate where its effect is to disregard years of genuine economic activity and deny a long-settled Union citizen a permanent right of residence. Proportionality is ordinarily inferred from the conditions of Council Directive 2004/38/EC. It may nevertheless require a different result where the obstacle arises from domestic implementing rules rather than the Directive itself.

The assessment may take account of the duration of residence, documented employment and jobseeking, the person’s efforts to comply with immigration law, and a reasonable belief that registration was unnecessary. A tribunal decision founded on a materially erroneous factual understanding may also be set aside where procedural unfairness prevented relevant evidence being obtained.

The claimant, a Polish national dependent on her son, claimed state pension credit in September 2013. The Secretary of State decided that she lacked a relevant right of residence. The First-tier Tribunal dismissed her appeal on 16 December 2014.

The claimant contended that her son had acquired a permanent right of residence through his employment before becoming self-employed. The Tribunal had rejected his evidence that he had worked lawfully before the Workers’ Registration Scheme began. Further documentary evidence showed lengthy employment, jobseeking and residence in the United Kingdom.

On appeal, the Secretary of State conceded that, although the son had not technically complied with the registration requirements, it would be disproportionate to disregard his subsequent employment. The central issue was whether that proportionality assessment gave him a permanent right of residence and, consequently, gave the claimant a derivative right of residence.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The Upper Tribunal substituted a decision that the claimant had a right of residence for the purpose of her state pension credit claim.

2. The First-tier Tribunal’s failure to seek available payslips and other evidence produced a potential procedural unfairness. That unfairness justified setting aside its decision because the new evidence showed that it had proceeded on a materially erroneous understanding of the facts. The approach in E v Secretary of State for the Home Department [2004] EWCA Civ 49, read with Hussain v Secretary of State for Work and Pensions [2016] EWCA Civ 1428, applied.

3. The claimant’s son had not technically fulfilled the requirements of Regulation 2(3) of the Accession (Immigration and Worker Registration) Regulations 2004. The resulting difficulty arose from those domestic registration rules, rather than directly from the conditions in Council Directive 2004/38/EC.

4. Zalewska v Department for Social Development [2008] UKHL 67 established that the temporary labour-market rules had to pursue a legitimate aim and be proportionate. It did not decide that the 2004 Regulations could never be disapplied on proportionality grounds. The Upper Tribunal therefore assessed their effect in this case.

5. It was disproportionate in 2013 to deny the son a permanent right of residence solely because of his failure in 2004 to register work which he had undoubtedly performed. Material considerations were his ten years’ residence, seven years of evidenced employment and jobseeking after accession, his attempt to avoid unlawful work when his visa expired, and his understandable belief that registration was unnecessary. He had acquired permanent residence by April 2011. As his dependent family member, the claimant also had a right of residence.

6. Other issues on the state pension credit claim were remitted to the Secretary of State.

• Upper Tribunal (Administrative Appeals Chamber): allowed the claimant’s appeal and substituted a decision that she had a right of residence for her state pension credit claim: [2017] UKUT 179 (AAC).
• First-tier Tribunal: dismissed the claimant’s appeal on 16 December 2014 against the Secretary of State’s decision.
• Secretary of State: on 5 December 2013 decided that the claimant was not entitled to state pension credit because she lacked a relevant right of residence.