TG v Secretary of State for Work and Pensions (PC) (European Union law : free movement) [2015] UKUT 50 (AAC)

UKUT-AAC

TG v Secretary of State for Work and Pensions (PC) (European Union law : free movement)

[2015] UKUT 50 (AAC) · 2015-01-30

[56]I also accept that as a matter of domestic law – such as under the IEEA Regulations or their predecessor – there is a distinction between a right to reside and lawful presence without any such right: see Abdirahman v Secretary of State for Work and Pensions

[2007] EWCA Civ 657

. But here we are concerned not with lawful presence alone – which I accept would not be sufficient to establish a right to reside, but with lawful presence – or rather, residence – as a possible condition, with others for establishing a right to reside under European law. 57. Article 17 is indeed expressed to be by way of derogation from Article 16: but that does not necessarily mean that it was derogating only by accepting a lesser period of the same quality of residence as Article 16 envisages, for it could have been derogating both as to period and as to that quality. That does not mean to say that it was doing so and to that extent I do not think Mr Royston’s point(a) above helps him. It is entirely possible that Regulation 1251/70 might have required legal residence, not because it was mysteriously anticipating a piece of legislation to be made 34 years later, but simply because that was what the legislator of those days thought fit. 58. I do not derive assistance from Ms Smyth’s reliance on para 69 of the Advocate General’s opinion in Lassal . The Advocate General’s purported quotation from Article 16 does not match the text of the Directive in English and, significantly, overlooks the presence of the word “legally” which is part of the basis for the claimed distinction between the two articles. It mattered not in Lassal , where the point whether to take into account pre-Directive residence was one which could be answered without reference to that distinction. 59. Nor do I consider it determinative that the opening words of Article 17(1) refer only to “residence”: in effect at that point the text is merely providing a précis of the requirements of Article 16. 60. Givane , it seems to me, cuts both ways. While it applied the stricter of the available constructions (which might avail Ms Smyth) it also cautioned against reading words in – which it seems to me would extend to reading in words such as “lawfully” as Ms Smyth is inviting me to do. 61. The policy intention is not entirely clear-cut but I do consider that the wording of Regulation 1251/70 provides more positive indications as to what may have been intended. I am mindful that it is European legislation, not a domestic statute. Ms Smyth argued against the legitimacy of the approach to the following points, though I note that the passage in Lassal on which she relies at [52g] acknowledges the legitimacy of looking not only at the legislative context and objectives but also the wording of a provision, as do certain of the arguments on which she relies. 62. It seems to me first that in creating two conditions, both needing to be fulfilled, with a distinction between having been “employed in that State for at least the last twelve months” and having “resided there continuously for more than three years” prior to retirement, the Regulation gives us an indicator. If it had wanted three years as a worker, it could easily have said so, as for example Article 2(1)(c). That provision also clearly uses “residence” to mean actual residence. 63. Further, alternative bases for having a right to reside in 1970 were, as noted at [55], limited. The likelihood of someone of retirement age having worked for the last 12 months but preceded that with 2 years of activity not as a worker but still generating the right to reside might be thought slight. Either the Regulation was contemplating actual residence, or it was being a good deal less generous than might at first appear. The former seems the more likely given the aim of the original Article 48. 64. Further, Article 4 allows “temporary absences” totalling up to three months per year for the purposes of “continuity of residence as provided for in Articles 2(1) and 3(2).” Such a saving is more consistent with continuity of residence being to do with physical presence – which would otherwise be interrupted by “temporary absences” than to do with a right to reside based on carrying out a particular type of activity. 65. While I accept that the legislative context is with the passage of time a little obscure, I consider that it, taken together with the wording of Regulation 1251/70, points for the above reasons towards actual residence having been sufficient under that regulation. If that is so, then I do not see how the Directive can be construed otherwise than as preserving that position for this limited class of cases. 66. Such a view is consistent with that apparently taken by the draftsman of the IEEA Regulations, who on Ms Smyth’s view would have been entitled to include provision requiring residence “in accordance with these Regulations” for those asserting rights derived from Article 17 just as was done for those asserting rights derived from Article 16, yet did not do so. The view is consistent too with the conclusion reached by the three judge panel in MAH and, having already rejected Ms Smyth’s contention that that decision is obiter on the point, I reject the argument that it is wrong. Certainly there are not compelling reasons not to follow it and in any event, I think it is correct. For the reasons given in [46], I decline to follow ID and I also decline to follow CPC/2314/2011, a case in which likewise MAH (Canada) does not appear to have been cited and in which there was no participation at all by or on behalf of the claimant. 67. Like Longmore LJ in RM (Zimbabwe) I acknowledge that the presence of the parallel systems in Article 16 and 17 can lead to some perhaps surprising results but that is a reflection of the importance attached by the European legislator to the preservation of existing rights, reflected in recital (19) of the Directive and in the Metock principle. 68. Although neither party asked me to do so, I did give some consideration whether to make a reference under Article 267 TFEU on this point, but concluded that it was not necessary to do so (a) because a combination of my own view and that of the panel in MAH leads me to the view that the law is sufficiently clear to meet the test in C-283/81 CILFIT s.r.l. v Ministry of Health and

(b) because in view of the conclusion I have reached on issues B and C, under which the appellant wins anyway, I was not satisfied in any event that such a reference would be necessary to enable the Upper Tribunal to give judgment. Issue B: whether the extension of the worker registration scheme effected by the Extension Regulations was compatible with EU law. 69. The Treaty of Accession, signed at Athens on 16 April 2003, by which Latvia (and the other so-called “A8” states) acceded to the European Union, by its Article 24 brought into play a series of Annexes, one for each new Member State. They are in materially identical form for present purposes. That for Latvia, so far as material, is set out below.

[70]Paragraph 2 of Annex VIII provides: "1. By way of derogation from Articles 1 to 6 of Regulation (EEC) No 1612/68 and until the end of the two year period following the date of accession, the present Member States will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Latvian nationals. The present Member States may continue to apply such measures until the end of the five year period following the date of the accession…” … 3. Before the end of the two year period following the date of accession the Council shall review the functioning of the transitional provisions laid down in paragraph 2, on the basis of a report from the Commission. On completion of this review, and no later than at the end of the two year period following the date of accession, the present Member States shall notify the Commission whether they will continue applying national measures or measures resulting from bilateral agreements, or whether they will apply Articles 1 to 6 of Regulation (EEC) No 1612/68 henceforth. In the absence of such notification, Articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply. 4. Upon Latvia’s request one further review may be held. The procedure referred to in paragraph 3 shall apply and shall be completed within six months of receipt of Latvia's request. 5. A Member State maintaining national measures or measures resulting from bilateral agreements at the end of the five year period indicated in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven year period following the date of accession. In the absence of such notification, Articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply. … 7. Those Member States in which, by virtue of paragraphs 3,4 or 5, Articles 1 to 6 of Regulation (EEC) No 1612/68 apply as regards Latvian nationals, may resort to the procedures set out in the subparagraphs below until the end of the seven year period following the date of accession. When a Member State referred to in the preceding first subparagraph undergoes or foresees disturbance on its labour market which could seriously threaten the standard of living or level of employment in a given region or occupation, that Member State shall inform the Commission and the other Member States thereof and shall supply them with all relevant particulars. On the basis of this information, the Member State may request the Commission to state that the application of Articles 1 to 6 of Regulation (EEC) No 1612/68 be wholly or partly suspended in order to restore to normal the situation in that region or occupation. The Commission shall decide on the suspension and on the duration and scope thereof not later than two weeks after receiving such a request and shall notify the Council of such a decision. Any Member State may, within two weeks from the date of the Commission’s Decision, request the Council to annul or amend the Decision. The Council shall act on such a request within two weeks, by qualified majority. A Member State referred to in the first subparagraph may, in urgent and exceptional cases, suspend the application of Articles 1 to 6 of Regulation (EEC) No 1612/68, followed by a reasoned ex-post notification to the Commission.” Such provisions accordingly serve to offer a degree of protection to the labour markets of existing Member States if a State chooses to avail itself of them. However: ”The starting point under the Accession Treaty is that A8 nationals have the full rights of free movement conferred unless a State chooses to limit them” (per Elias LJ in Miskovic and Blazej v Secretary of State for Work and Pensions

[2011] EWCA Civ 16

). For the extension of the scheme, it is on the power conferred by para 5 of Annex VIII that the UK relies in relation to Latvia. 71. The Extension Regulations were made under the negative resolution procedure. They were made on 6 April 2009, laid before Parliament on 8 April and came into effect on 29 April 2009. 72. The Explanatory Memorandum records: “7. Policy background What is being done and why7.1 The WRS was introduced in the UK as a transitional measure to monitor A8 nationals’ access to the UK labour market. The WRS does not place any restriction on nationals of the A8’s access to the labour market in terms of numerical ceilings, resident labour market test or skills test but does make employment subject to a requirement that the worker register their employment under the WRS within one month of starting work. Workers cease to be subject to the requirement to register after 12 months continuous employment in the UK.

7.2 The 2004 Regulations provided for the WRS to continue until the end of April 2009 on the basis that any further continuation of the WRS beyond that point would need to be subject to an assessment of the labour market circumstances at that point in time. That labour market assessment has recently been undertaken by the Migration Advisory Committee (MAC) and, in the light of the MAC’s advice, it is has been decided that the WRS should continue until the end of April 2011. … 8. Consultation outcome 8.1 The decision to extend the 2004 Regulations for a further two years is based on advice from the Migration Advisory Committee. The MAC’s report, including details of the consultation it undertook in connection with it, is being made publicly available. … . 10. Impact

10.1 The impact on business, charities or voluntary bodies is negligible. Employers of workers subject to the registration requirement may be guilty of an offence if those workers fail to register. It is, however, for the worker, and not the employer, to apply for registration. Applications to register are subject to a fee of £90.

10.2 The impact on the public sector is the cost of continuing to administer the WRS. These costs are, however, recovered through the fee charged for applications.

10.3 An Impact Assessment has not been prepared for this instrument.” 73. The Migration Advisory Committee (“MAC”) was described by the Court of Appeal in R(MM)(Lebanon) v Secretary of State for the Home Department

[2014] EWCA Civ 985

at para 35 as “a non-departmental public body consisting of distinguished economists and migration experts, who provide independent, evidence-based advice to the government on migration issues.” 74. The MAC was asked by the Government in February 2009 to: “consider what the likely labour market impact of relaxing transitional measures [for A8 nationals] would be and whether it would be sensible to do so.” Advice was required by 20 March 2009, resulting in “limited time” being available to the MAC (report, para 1.9) and a “tight timescale” for replies to consultation (ibid. para 1.11). 75. The MAC’s report is dated April 2009 and I return to it more detail below. For now it suffices to note that its view that at the time it was writing (and at the time the Extension Regulations were made) the UK labour market was seriously disturbed is not disputed. The gateway condition in para 5 of the Annex is thus met. 76. It is not Mr Royston’s argument before me that paragraph 5 could not apply at all unless serious disturbance would result from the ending of the WRS. He further accepts that the power to extend restrictions could be engaged by an existing as well as future disturbance. His position is that the restrictions must tackle that disturbance proportionately. 77. Accordingly, the areas of dispute in relation to issue B are the following:

(a) While it is not in dispute that proportionality is a principle of EU law, Ms Smyth submits that because the power relied upon is in a negotiated treaty and because the right to extend for a further two years only arises on fulfilment of a condition pitched at a demanding level, para 5 has proportionality built in and there is no room for a proportionality analysis by the Upper Tribunal.

(b) Relying principally on the decision of the Court of Appeal in R(Sinclair Collis Limited) v Secretary of State for Health and Another

[2011] EWCA Civ 437

, she submits that, if the Upper Tribunal is against her on (a), then the intensity of review for the purposes of an EU proportionality analysis is a matter that falls on a spectrum ranging from “manifest error” at one extreme to detailed examination applying traditional proportionality criteria at the other and that in this case, the appropriate intensity of review, if not at the “manifest error” end of the spectrum, is certainly a good deal nearer to it than to the other end.

(c) Ms Smyth submits that if I were to be against her on both (a) and (b), then nonetheless even on the more intensive basis of review, the Extension Regulations pass it. Sub-issue (a): Proportionality built in? 78. I do not find this argument compelling. Lord Hope noted, rejecting a submission there was no room for a proportionality analysis in relation to para 2 of the equivalent schedule for Poland in Zalewska at para 30:

[30]“The only authority that the United Kingdom has to introduce national measures to give access to nationals of an A8 state to its labour market in place of article 39EC and Title I of Regulation 1612/68 is that which is given to it by paragraph 2 of Part 2 of Annex XII. As article 10 of the Treaty of Accession makes clear, this derogation from the application of the original Treaties and acts adopted by the institutions of the Community was agreed to by the member states under the umbrella of Community law. ” This of course is not a complete answer to an argument, not that proportionality does not apply, but that it is inbuilt. The House of Lords was dealing with an empowering provision, para 2 of the Annex, which contained on its face no condition governing when it could be applied, unlike para 5 which the present case concerns. 79. I asked Ms Smyth if there were other cases in which proportionality had been found to have been built into the terms of a European measure and was not taken to any. The Judicial Review Handbook by Michael Fordham QC cites at 58.4.5 a number of authorities (albeit none of them in relation to EU law) under the rubric “Whether proportionality built into statutory scheme”. I can see that such an argument might be conceptually possible, as it is in relation to compliance with a requirement of the ECHR for action to be proportionate. As Baroness Hale said in Belfast City Council v Miss Behavin’ Limited

[2007] UKHL 19

[2007] 1 WLR 1420

[36]“I do agree, of course, that there are situations in which the court is entitled to say that the legislation itself strikes a fair balance between the rights of the individual and the interests of the community, so that there is no room for the court to strike the balance in the individual case. That is what this House decided in Kay v Lambeth London Borough Council

[2006] 2 AC 465

. At issue there was whether a landowner with the right to possession of land (in that case a public authority, but the same question would arise with a private landowner whose rights are protected under Article 1 of Protocol 1) could be deprived of that right because to enforce it against the particular individual occupier would be a disproportionate interference with the occupier's right to respect for his home under

Article 8 of the Convention

, even though he had no right in domestic law to be or to continue in occupation. The whole history of housing law since rent control began has been an attempt by the legislature to strike just that balance. In those circumstances, the courts are entitled to say that unless the legislation itself can be attacked, the issue cannot be raised in an individual case.” 80. I do not think that, if there is indeed room for the parallel argument in EU law, this is such a case. This is not a case where the legislation itself (or Treaty) contains an express provision aimed at protection of the other interests that would fall to be taken into account on a proportionality analysis, as in R(London and Continental Stations and Property Ltd) v Rail Regulator

[2003] EWHC 2607 (Admin)

or in the planning legislation considered in Lough v First Secretary of State

[2004] EWCA Civ 905

[2004] 1WLR 2557

. As can be seen from the terms of Annex VIII above, what was being implemented was a staged procedure, under which by mechanisms of phasing, increasingly rigorous criteria and reviews, the ability of Member States to restrict access to their labour markets by A8 nationals would diminish over time. Against that background, the pre-condition that there be actual or threatened serious disturbance of the labour market in my view was setting, in effect, a minimum standard of severity, five years down the line from accession, for an aim of dealing with it to be capable of being a legitimate aim for the purposes of proportionality analysis. 81. While the reason why the Annexes to the Treaty of Accession make the provision under discussion is the protection of existing Member States’ labour markets, that is not to the total exclusion of principles of freedom of movement, as Elias LJ noted (see [70] above.) For the reasons given by Lord Hope set out at [78], in my view fundamental principles of the EU such as freedom of movement for workers (and with it the notion that derogations from such principles are to be construed narrowly: C-77/82 Peskeloglou ) and that the actions of (among others) Member States when implementing EU law or when limiting or regulating in the context of freedoms guaranteed by EU law are required to be proportionate must be taken to have been in the contemplation of the negotiating parties. There is in my judgment no compelling reason to suppose that the contracting parties thought that Member States would be entitled to take the step for which para 5 of Annex VIII provides automatically on fulfilment of the condition, irrespective of whether such a step would be proportionate, rather than that Member States would in those circumstances be entitled to take proportionate action. There is no reason why the signatories to the 2003 Treaty should have contemplated that the continuation of labour market restrictions, adopted pursuant to the Treaty in 2004, would necessarily represent an appropriate and proportionate measure to deal with serious labour market disturbances in 2009. Of course, one is dealing with a situation where, ex hypothesi, there are actual or threatened serious disturbances of the labour market but the balancing exercise which proportionality requires has ample scope for weight to be given to the seriousness of the situation. Sub-issue (b): What level of intensity of review? 82. Sinclair Collis is not an entirely straightforward decision, having been taken by a majority and with the majority expressing themselves differently on some aspects. However, I need not concern myself with the divergences of view in that case about the extent to which Parliament as well as the Executive may have been involved in making the particular order that was challenged in that case. In the present case, the order was made by the Secretary of State under a procedure which provided for the lowest level of Parliamentary involvement.

[83]Members of the Court of Appeal cited as a statement of the core principle of proportionality the decision of the CJEU in R v Minister of Agriculture, Fisheries and Food, Ex parte Federation Européenne de la Santé Animale (FEDESA) and Others

[1990] ECR I-4023

which stated:

"The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."

[84]Arden LJ proceeded to discuss the role of the “manifestly inappropriate” test found in some proportionality cases, indicating at para 116 that she considered that : “The "manifestly inappropriate" test is a statement of the level of intensity of review that is applicable to any of the requirements of the test of proportionality. It can, therefore, either form part of, or appear side-by-side with, a conventional statement of the core principle of proportionality. “85. She went on to note some of the examples where the “manifestly inappropriate” test arose. In FEDESA it was in relation to a decision by the Community legislature about the common agricultural policy. At para 120 she cited R v Secretary of State ex p BAT and Imperial Tobacco

[2002] ECR I-1453

, where the CJEU observed: “123. With regard to judicial review of the conditions referred to in the previous paragraph, the Community legislature must be allowed a broad discretion in an area such as that involved in the present case, which entails political, economic and social choices on its part, and in which it is called upon to undertake complex assessments. Consequently, the legality of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent institution is seeking to pursue (see, to that effect,

Case C-84/94

United Kingdom v Council

[1996] ECR I-5755

, paragraph 58;

Case C-233/94

Germany v Parliament and Council

[1997] ECR I-2405

, paragraphs 55 and 56, and

Case C-157/96

National Farmers' Union and Others

[1998] ECR I-2211

, paragraph 61)."

86. The Court in Sinclair Collis was concerned with a decision (the banning of cigarette vending machines) where issues of public health were involved. That is an area where, in genuine cases (para 124), Member States have also been made subject to the “manifestly inappropriate test”, reflecting the diversity of circumstances in Member States with regard to public health issues which, within the broadest limits, individual Member States are considered in a better place to judge (cf. Arden LJ at para 127).

87. At para 126 she examined the effect of the “manifestly inappropriate” standard for review:

[126]“The effect of the level of intensity of review denoted by the expression "manifestly inappropriate" is that the Court of Justice does not apply the "least intrusive means" requirement (as in FEDESA ), or, if it does, it applies it with the lower level of intensity of scrutiny consistent with the "manifestly inappropriate" level: see, for example, R (o/a National Federation of Fishermen's Organisations) v Minister of Agriculture, Fisheries and Food and Fish (cited by Laws LJ at paragraph 38 above) at [59]: "Nor can doubt be cast on the finding that the disputed measures are proportionate merely because other kinds of measures could have been adopted, since the selection of measures to be taken is a political decision falling within the purview of the Member State concerned, within the limits set by Decision 92/593."88. At para 129 she rejected a submission that “the manifestly inappropriate” level of intensity was limited to judicial review of EU policy measures, citing inter alia R v Secretary of State for Health ex p. Eastside Cheese

[1999] 3CMLR123

and indicated that the test also applied to decision makers other than the national legislature, citing R(Mabanaft) v Secretary of State for Climate Change

[2009] EWCA Civ 224

. This latter case, unlike many of the others, was not a public health case, but was concerned with the requirement on Member States to ensure sufficient reserves of oil stocks, a process which involved both complex calculations in order to achieve a fair balance between the commercial interests of different categories of business in the oil industry and numerous rounds of policy papers and consultations.

89. Nonetheless, she noted at para 132:

[132]“The approach of the Court of Justice is bound to vary according to whether the act in question is that of a European Union institution or that of a national institution, since in the former case, the Court of Justice will be deciding whether an interest of the Union should prevail over that of a person or state, whereas in the latter case it is concerned also to ensure that the member state has resisted any temptation to favour its national interest at the expense of the Union's interest. That, no doubt, is why there are only a limited number of situations in which the Court of Justice applies the lower level of intensity of scrutiny to the acts of a member state institution. ” There were, she noted, agreeing with Lord Bingham CJ in Eastside Cheese , not just the two tests for which the Secretary of State in Sinclair Collis had contended at para 128, namely the “normal” test and the “manifestly inappropriate” level of scrutiny, but “many points on a spectrum”. 90. Turning to the judgment of the then Master of the Rolls, the other member of the majority, he expressed the issue in terms of ”the width of the discretion, or margin of appreciation, to be accorded to the Government”. At para 197 he cited with approval the observations of Lord Bingham CJ in Eastside Cheese : "41. Because the principle [of proportionality] is so general (and may affect a range of issues from the validity of primary legislation … to much narrower points …) it must be related to the particular situation in which it is invoked. … 48. … The margin of appreciation for a decision-maker … may be broad or narrow. The margin is broadest when the national court is concerned with primary legislation enacted by its own legislature in an area where a general policy of the Community must be given effect in the particular economic and social circumstances of the member state in question. The margin narrows gradually rather than abruptly with changes in the character of the decision-maker and the scope of what has to be decided. …” And then at para 199:

[199]“…Lord Bingham said "It is clear that the national legislature has a considerable margin of appreciation, especially in legislating on matters which raise complex economic issues connected with the Community's fundamental policies." It is worth noting that this observation related to the legislature, but it must also apply to the executive, albeit with less force, in the light of what he had said at

[1999] CMLR 123

, para 48. ” 91. He further noted at para 200:

[200]“The breadth of the margin of appreciation in relation to any decision thus depends on the circumstances of the case and, in particular, on the identity of the decision-maker, the nature of the decision, the reasons for the decision, and the effect of the decision. Further, because the extent of the breadth cannot be expressed in arithmetical terms, it is not easy to describe in words which have the same meaning to everybody, the precise test to be applied to determine whether, in a particular case, a decision is outside the margin. It is therefore unsurprising that in different judgments, the same expression is sometimes used to describe different things, and that sometimes different expressions are used to mean the same thing. ” 92. While there may be some scope for debate about whether both roads with their differing terminology lead to exactly the same place (see Arden LJ at para 181), it has not been suggested to me that there is any material difference in this case. I accept therefore that proportionality is a flexible tool, whether because there is a spectrum of intensity of review, with the manifestly inappropriate test at one end of it, or by virtue of the differing margin of appreciation which it is appropriate to accord in differing categories of case. I also accept that that is equally true, in relation to decisions of the Secretary of State as well as to those of Parliament and to those of Community institutions. The task I am faced with is to decide where in the spectrum to place the proportionality review of the present decision (or how widely to set the margin of appreciation.) 93. Both members of the majority provided helpful guidance for present purposes, As well as the guidance provided by the Master of the Rolls, set out at [91] above, at para 136 Arden LJ observed:

[136]“The factors that may be taken into account in determining the application of the three elements of proportionality include the nature of the decision-maker but go far beyond this. The subject matter of the decision is clearly relevant: does it relate to policy or strategy, or is it about the implementation of a policy decision, which has already been taken? If it is a policy decision, does the decision fall in one of the areas that are generally left to member states, such as national security, domestic economic policy or public health? In this case, the subject matter is public health, which has the highest priority under European Union law…. Other factors include how the decision was reached and the quality of the decision-making process. ” 94. Arden LJ took a different view from her colleagues as to the effective identity of the decision maker in the particular circumstances of the Sinclair Collis case. Lord Neuberger MR at para 200 held that ”the decision to impose the ban must…be assessed on the basis that it was made by the executive arm of the Government of a single member state” before indicating at para 214 that, even allowing for various factors which are of little or no relevance to the present case:

[214]“I do not consider that the margin is as broad as it would be if the decision had been that of the democratically elected national legislature. Even less do I consider that the margin is as broad as it would be if the decision had applied across all EU member states. ”

[95]For his part, Laws LJ, the dissenting member of the Court, on this issue agreed (at para 33) that “ the proportionality of the ban cannot be judged by reference to the margin of appreciation which might aptly be applied to the product of primary legislation” (and thus by implication that the two are different).96. Before turning to determining the correct basis of applying the test of proportionality in the present case, I should briefly refer to the decision in R(Rotherham BC) v Secretary of State for Business, Innovation and Skills

[2014] EWCA Civ 1080

. A central feature of that case was whether proportionality could only apply where there was a derogation from a specific legal standard and whether, in other circumstances, it would add anything to a rationality challenge. The present case sits more with cases such as Eastside Cheese and Sinclair Collis which involved derogations from specific Treaty articles than with Rotherham . In Rotherham it was expressly acknowledged in the Court’s reasoning at para 49 that the right of free movement was an example of the sort of “legal reference point” that enabled a proportionality test to be meaningfully applied.

97. I begin by noting that under para 5 of Annex VIII, the United Kingdom had a very restricted choice. It could either continue to maintain, for a further two years, “these measures” i.e. the national measures it had been maintaining for five years already, or it had to operate the default position of Arts 1 to 6 of regulation 1612/68. Mr Royston accepts that it may theoretically have been open to the UK to have maintained a part only of its existing controls, but it is hard to see what sort of intervening position there could have been in practice, as the MAC noted at para 3.5 of its report, and in any event the options would still have been highly restricted. The position may be contrasted with the matters in issue in cases where the margin of discretion – or intensity of scrutiny – was a particularly generous one to the decision-taker. In Rotherham , for instance, the decision concerned the allocation of European Structural Funds with a view to the reduction of disparities between levels of economic development of regions, “not hard-edged decisions which admit of clear and straightforward answers”. The issues

[57]“ specifically included detailed guidelines on employment policies, a target of improving conditions for research and development and a target for reducing greenhouse gas emissions and increasing energy efficiency. These objectives could be achieved in many different ways. In our view, this is classic territory for affording the decision-maker a wide margin of discretion. Adopting the language of Sinclair Collis , we consider that the court should only interfere if satisfied that the decisions were manifestly inappropriate or manifestly wrong. ” (per the Master of the Rolls at para 57). A similar breadth of choice in how to achieve an underlying objective can be found in other cases where a wide margin of appreciation was allowed, such as those cited in [85] above, which concern respectively wide-ranging measures to promote the health and safety of employees across Europe, measures to protect the security of deposits of bank customers across Europe and emergency restrictions on export in response to a risk to animal – and possibly also human- health from the BSE outbreak. That breadth is lacking in the present case.98. Of Lord Neuberger’s factors quoted at [91] above, the Court of Appeal in Rotherham regarded the nature of the decision as usually the most important. I acknowledge the need for “a broad discretion in areas that involve political economic or social choices” ( Sinclair Collis at paras 120, 136 and 199; Rotherham at para 57). I do not view the present matter as one involving political choice to a significant degree (this is reflected in the Secretary of State’s reliance on technical advice from an outside body and also in the lack of Parliamentary scrutiny) but it does involve “economic or social choices”, albeit, those choices are, as shown above, limited in range.

99. It is also the case that the evidence, and the MAC’s ability to analyse it, were constrained by factors identified at para 5.3 of its report – the uniqueness of the WRS, the difficulty of finding a counterfactual (i.e. of knowing what would happen were the WRS to be maintained) and the limited evidence available on the labour market impacts of immigration in a recessionary environment. Those uncertainties in my view tend to broaden the margin of discretion that ought to be accorded.

100. Factors from Lord Neuberger’s list tending to a more intensive degree of scrutiny include that the measure was adopted by delegated legislation, that it was implemented through the negative resolution procedure and, in my view, that it was adopted in reliance on a report which the MAC itself clearly considered rushed and as allowing less time for consultation than it might have wished.

101. Also, there is no evidence before me of the Secretary of State having conducted his own proportionality analysis, despite the limitations in the question put to the MAC, and the need, identified by the MAC, for their answer to it to be weighed against other factors. I am not deciding a judicial review and so do not base my decision on this procedural flaw (if such it was), but the lack of evidence of reasoned evaluation of proportionality by the Secretary of State is a further factor tending towards a greater, rather than a lesser, degree of scrutiny being appropriate.

102. Further, as Arden LJ identified (see [89]), the Court of Justice in applying proportionality may be concerned to ensure that the member state has resisted any temptation to favour its national interest at the expense of the Union's interest and thus the cases in which a generous margin of appreciation has been afforded to national governments is limited. Section 2 of the European Communities Act 1972 (see [9]) makes it as necessary for domestic courts to apply EU law where relevant as it is for the CJEU and it is right for the Upper Tribunal to maintain an appropriate degree of alertness that the balance between the principle of freedom of movement of workers and the time-limited restriction of it given the circumstances in the domestic labour market has been appropriately struck.

103. It follows that I aim to apply an approach to proportionality which is not confined to the “manifestly inappropriate” test but is a good way along the spectrum towards the core principles of proportionality as set out in cases such as FEDESA , while nonetheless being prepared to afford some margin of appreciation to the Secretary of State in relation to what is an economic and social decision, taken in an uncertain environment. With that in view, I turn to the MAC Report. Sub-issue (c): do the Extension Regulations pass the proportionality test on the appropriate level of scrutiny?

104. It is necessary to start with the question the MAC was asked, namely “to consider what the labour market impact of relaxing transitional measures [for A8 nationals] would be and whether it would be sensible to do so.” The MAC’s answer was in the following terms (emphasis in original):

“6.4 It is likely that net inflows of A8 immigrants to the UK will fall in the next few years due to the economic downturn and reducing income differentials between the UK and A8 countries. Indeed there is evidence suggesting that these factors have already contributed to reduced flows of immigrant labour from A8 countries, and this has been supported by some stakeholder evidence. Nonetheless, our remit requires us to consider the impact of abolishing the scheme relative to the position if it was to be maintained rather than relative to the position now or at any other point in time. 6.5 The WRS was designed on the basis of a Treaty of Accession power to control (or monitor) access to EU labour markets. It does not, in practice, provide any substantial barriers to employment for A8 immigrants. We would therefore expect any impact of abolishing or retaining it on the number of A8 immigrants employed to be small. The evidence reviewed does not indicate that any substantial negative labour market impacts are likely to result from removing the WRS. Nevertheless, negative impacts of a lower order are plausible, even though evidence is limited and this is only a possibility. 6.6 We emphasis that any impacts resulting from removal of the WRS would be small in comparison to the overall negative labour market consequences of the economic downturn. Nonetheless, we believe that it would be sensible to retain the WRS for two more years due to the possibility of small but adverse labour market impacts from abolishing it. 6.7 The Government will, justifiably, want to weigh the above factors against the longer-term aim of free movement of labour within the EU and the spirit of the Treaty of Accession. However, in the immediate future, even if retaining the WRS has only a small positive impact, that would be important to the domestic workers affected. Furthermore, the restrictions can only be maintained for two more years, beyond which the worst of the labour market disturbance will hopefully be over. So retaining the WRS would not, in itself, hinder the free movement of labour within the EU in the longer term. 6.8 Other factors are also worth mentioning, although our recommendation is not determined by these. First, it is clear that the WRS creates burdens for employers and immigrants. While we do not wish to trivialise these, they need to be assessed against the benefits of the scheme. 6.9 Second, WRS abolition may have a very small impact on spending on social security benefits, as it would slightly increase the numbers among the existing stock of A8 workers eligible to receive benefits. 6.10 Finally, the absence of the WRS would reduce the stock of data available to the Government for monitoring labour market conditions. While WRS data is not perfect, it complements other data sets, and it can potentially play an important role in helping us to understand the impact of the recession on immigration flows.” 105. The question was put, and answered, in terms of whether it would be “sensible” to retain the WRS for two more years. That question does not directly tie in with the legal test. What is “sensible” can be answered from the point of view of one party, whereas a proportionality analysis requires the weighing of other interests, as the MAC in effect alluded to in paras 6.7 and 6.8 of its report. As noted, there is no evidence from the Secretary of State of such a weighing-up, merely an acceptance of the conclusion that it was sensible to retain the WRS scheme. 106. It is necessary to examine the MAC’s reasoning as set out in its report and, given my conclusion at [103], I do so in relatively general terms. To such extent (if any) as there may be perceived to be a conflict between the Chairman’s foreword and what is said in the body of the report, I prefer the latter, given the inevitable difficulties of summarising a reasoned report in four paragraphs. At para 3.16 it listed six factors which could potentially increase the volume of inflows of A8 workers, if the WRS were to be removed. At para 3.18 it listed four factors which could result in disturbance of the labour market if removal of the scheme were to incentivise certain behaviours. All of these were, as the report noted at para 3.19, “hypothetical possibilities”, the direction of the impact of which was, in most cases, ambiguous. For present purposes, it is in chapter 5 of the report that the relevant evidence is weighed and conclusions reached. 107. At para 5.6, the MAC returned to five of the six factors that had been listed in para 3.16. It noted (para 5.9) that removal of the £90 would have “a limited impact” because of relative incomes between the UK and A8 states and that, because of the inability to penalise immigrants who failed to register (and so to pay the fee) the fee was “less likely to be having a substantial impact” (para 5.10). At para 5.13 it noted that there was little reason to expect removal of the WRS to increase flows on this basis. On the impact of social security benefits, the MAC appears to have found the evidence equivocal (paras 5.14 and 5.15) Its conclusion on this section, at para 5.16, was that: “[I]t is very unlikely that removing the WRS would result in any substantial change in A8 immigrant inflows. However, it is possible that some factors, including the £90 registration fee, could have a small effect at the margin. The effect of maintaining the WRS will be to slightly reduce flows relative to what would otherwise be observed. We argue in this report that this slight dampening effect on flows is a positive phenomenon in the current economic circumstances, which is why we have not given detailed consideration to the option of relaxing the WRS by keeping the scheme but abolishing the £90 fee.”

I observe that the key role in the MAC’s reasoning played by the £90 fee payable under the WRS in possibly slightly dampening inflow is made quite explicit by the final sentence of the passage quoted above, as well as being evident from the lack of other reasons for concluding that inflow would be dampened if the WRS were to be lifted. 108. At paras 5.17 and following, the MAC looked at the impact of abolition on behaviour in the labour market, concluding that “there is no clear evidence that abolition would affect behaviour to a significant degree.” 109. In a section at paras 5.22 and following the MAC considered what it termed “likely wider economic impacts”. These included the usefulness or otherwise of the data obtained through the WRS, as to which it concluded (at para 5.30) that:

“it is probable that most, but not all, of the data collected by the WRS could be substituted with other data series. Nevertheless, the WRS could possibly prove to be a useful additional data source during times of economic disturbance, given the limited evidence on the effect of the recession on immigration flows and their impacts.” 110. It continued by noting the representations received from employers’ organisations about the administrative burden of the WRS, noting that “little research has been performed to examine the scale of such a burden”

. At para 5.33 it noted that public spending on social security could potentially increase to a limited extent. Its concluding remarks to chapter 5 require to be set out in full:

“5.35 The evidence reviewed indicates that the abolition of the WRS would not result in substantial changes in flows and therefore there would not be significant labour market impacts. This is because the absence of the £90 fee would probably have only a marginal effect on immigration decisions and behaviour changes resulting from abolition of the scheme would be small. Nevertheless, it is plausible to argue that abolition of the WRS could potentially result in a small positive impact on immigration inflows. 5.36 Abolishing the scheme would potentially lead to additional public expenditure in terms of increased benefit payments to A8 immigrants, although the sums involved would be relatively small. There would also be a loss of data. On the other hand , there would be some easing of administrative burdens on employers and the immigrants themselves.”

The factors referred to in para 5.36 were not those on which the MAC relied for its recommendation: see paras 6.8 to 6.10 quoted at [104] above. 111. It is difficult to imagine a report favouring retention of the WRS couched in weaker or more heavily qualified terms. Evidence of the “small” behaviour changes resulting from abolition was not such as to establish them “to any significant degree”. The abolition of the £90 fee would have an effect that was “probably …only …marginal”. Any positive (i.e. increased) impact on inflows from abolition was (a) “small”; (b) only a “potential[..] result” and (c) only something that could be “plausibl[y] argued”. 112. “Sensible” it may have been, even if the effects were a matter of conjecture and small or marginal, on the basis that if they did come to pass, when seen from the perspective of the government it could only help. But was it proportionate? The MAC’s conclusion depends in very large measure on the deterrent effect of the £90 fee, but is maintaining that fee a measure that is “appropriate and necessary”? This was a scheme which if complied with did not otherwise restrict the access of A8 nationals to the labour market: see MAC report, para 2.36; also the evidence cited by Baroness Hale in Zalewska at para 53. The United Kingdom originally had a wider power to put national measures in place and, albeit by a bare majority, the House of Lords held in Zalewska that the action then was proportionate. But by 2009 it was a question of whether it was a proportionate step to take in the context of there being a serious disturbance to the UK labour market (or threat thereof) and whether maintaining the scheme would help address that disturbance. Because of the passage of time, the appellant’s argument cannot in my view properly be characterised, as does Ms Smyth, as a “challenge to Zalewska itself”. Data collection was more relevant in 2005 than it had become by 2009, because the provisions of Annex VIII and similar annexes for reviews and extensions of the national measures which required data to be gathered as evidence had, with time, fallen away. Any residual value in data derived from the WRS was limited in that it was largely replaceable from elsewhere and was otherwise speculative (“could possibly prove to be…”). Other than that, the WRS had no demonstrable material impact on inflows or behaviour, and so on the labour market, at all. What we are left with as impacting on the labour market is the fee, set to defray the costs of an administrative scheme which does not itself materially help to address the disturbance. I do not regard it as an “appropriate” tool for proportionality purposes for addressing the serious disturbance to the UK labour market in that it relies effectively on payment of a sum of money by A8 nationals, while not otherwise affecting their access to it. 113. Given the prominence given in the MAC’s reasoning to the fee, this conclusion would itself be enough to invalidate the proportionality of a decision taken relying upon that reasoning. However, if I am wrong in that conclusion, I would in any event consider that the disadvantages caused are disproportionate to the aims pursued. 114. There is a burden on employers, even if little research had been done to examine its scale. Regulation 9 of the Registration Regulations created a criminal offence if an employer employed A8 nationals who were required to be registered under the WRS but were not, subject to various defences of due diligence. Even if there is no known instance of anyone ever having been prosecuted, the procedures must have created additional burdens for any conscientious employer: certainly that (or something akin to it) seems to have been the view of the Confederation of British Industry, British Chambers of Commerce, Association of Labour Providers, the Scottish Executive, the Recruitment and Employment Confederation, the Gangmasters Licensing Authority and the National Farmers’ Union (MAC report, para 5.31). 115. The precise effect of the Registration Regulations has been and remains to this day (though they have been repealed) the subject of legal uncertainty and so difficulties for those affected by it. In addition to Zalewska , reference should be made to SSWP v ZA [ 2009] UKUT 294 AAC and Szpak v SSWP

[2013] EWCA Civ 46

which illustrate the inadequacies of the drafting in relation to whether a WRS certificate was when issued retrospective to the start of the employment. Cases on other aspects continue to go through the legal system. On an orthodox view, the effect of the Registration Regulations is that a person who ought to comply with them but does not is excluded from benefits, no matter how unforeseeable the circumstances which have caused them to be in need of them. Such a person is also prevented from relying on that time for the purposes of the 5 years required to establish permanent residence in the UK under Article 16 of the Directive, notwithstanding that he or she may have been working, paying taxes and generally participating actively in UK society. There is, in short, a very real downside for those who do not comply for whatever reason, one regarded by Baroness Hale at para 57 of Zalewska as “severe”. Factors such as language difficulties and the frequent participation of A8 nationals in short-term work obtained through agencies may make it more likely that there is non-registration. The MAC was uncertain (para 5.21) whether such confusion as there may have been on the part of A8 immigrants was as to the WRS or as to employment rights more generally; but even if it was the latter, the WRS can only have served to make an already difficult situation worse. The MAC report cites at para 57, albeit not in wholly unambiguous terms, a study in which (at very least) some 33% of A8 nationals failed to register when they needed or potentially needed to do so. For those who did comply, there was the need to pay a sum equivalent to around 1 per cent of annual gross pay for someone working at the national minimum wage for a 35 hour week for 48 weeks (MAC report, para 5.9). 116. While I acknowledge that the scheme, when introduced, was held by the majority in Zalewska to be proportionate, that was in substantial measure dependent on factors which had ceased to be relevant, such as the need for ongoing monitoring for the purposes of the next level of the graduated accession provisions ( Zalewska at para 33) and the concern about the number of A8 state nationals already working illegally in 2004 ( Zalewska para 34) which, unless the Registration Regulations had proved ineffective in their purpose, would necessarily have been reduced by 2009. Most fundamentally, that decision was concerned with when the United Kingdom had a wider power to introduce “national measures”, so the debate was about whether particular features of those “national measures” were proportionate. In the present case, the debate is about whether it was in 2009 proportionate to retain the national measures at all, to which Zalewska does not provide an answer. 117. I do not base this decision on whether the means adopted were the “least intrusive means”. Rather, the small and speculative advantage is wholly outweighed by the disadvantage to A8 nationals and employers and the limitation on Treaty principles of freedom of movement, even allowing for the argument that “every little helps” in the difficult circumstances which the economy faced. 118. If, contrary to my view, the “manifestly inappropriate “ test were to apply, the Extension Regulations would in my view fail it for the same reasons. 119. For the reason given in [112] and if I am wrong in that the reason in [113], I conclude that the decision to extend the WRS in 2009 was not a proportionate exercise of the United Kingdom’s power under the Treaty of Accession. It follows that the Extension Regulations must be disapplied. 120. The foregoing conclusion is as Mr Royston submits consistent with para 7 of Annex VIII and with Article 37 and 38 of the Treaty of Accession but they have played no significant part in my reasoning and I do not dwell on them. Mr Royston argued also by reference to C-77/82 Peskeloglou and C-9/88 Lopes da Veiga that as a matter of law the capacity of the measure concerned to assist with dealing with the labour market disturbances must be “substantial”. I am unable to derive this proposition from those cases, but Mr Royston does not need it. 121. Mr Royston was at one stage inviting me to refer certain questions relating to proportionality to the CJEU while Ms Smyth was of the view that this was not necessary. I have not done so, because I consider that the relevant principles are acte claire and the assessment of proportionality is pre-eminently a matter for the national court. Issue C: was the appellant a worker or jobseeker for EU purposes at all material times? 122. The periods which we particularly require to examine are those between 27/12/09 (or thereabouts) and 26/03/10 and between 13/6/10 or thereabouts and some time in the week ending 13/07/10. Ms Smyth does not attempt to argue that at other times the appellant was not a worker. Mr Royston’s primary position was that the appellant was at all material times a “worker”, relying on cases such as C-357/89 Raulin

[1992] ECR I-1027

and NE v Secretary of State for Work and Pensions

[2009] UKUT 38 (AAC)

. I have no evidence as to the terms of the appellant’s engagement with the relevant agency. At the start of each of the two periods concerned the appellant was sent form P45 and that fact, coupled with the duration of those periods, leads me to reject this argument. 123. Mr Royston does not seek to argue that the appellant retained “worker” status under article 7(3) of the Directive: such a concession appears inevitable at this level in view of the decision of the Court of Appeal in Secretary of State for Work and Pensions v Elmi

[2011] EWCA Civ 1403

that the requirement to have “registered as a jobseeker with the relevant employment office” creates an additional condition to that prevailing before the Directive. 124. Thus we arrive at whether in the two periods the appellant was a jobseeker. Ms Smyth does not take any point in relation to the periods in question not being periods as a “first-time” jobseeker. That approach is consistent with the government’s approach in other cases, such as Shabani v Secretary of State for the Home Department (EEA-jobseekers; nursery education)

[2013] UKUT 315 (IAC)

. 125. At the material time, regulation 6(4) of the IEEA Regulations provided:

“(4) For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.” 126. As to the requirement of “seeking employment”, Ms Smyth seeks to argue that the appellant has to show that she was doing so “seriously and effectively”

. In support she relies on paras 37, 39 and 41 of the Advocate-General’s Opinion in C-292/89 R v Immigration Appeal Tribunal ex parte Antonissen

[1991] ECR I-745

. But reading the judgment of the Court, there is in my view no indication that it intended to adopt that part of the Opinion. What the Court considered important (paras 16 and 21) was that a person should have “a reasonable time to apprise themselves, in the territory of the Member State concerned, of offers of employment corresponding to their occupational qualifications and to take, where appropriate, the necessary steps in order to be engaged.” Against that background the six month rule then operated in the United Kingdom was considered “in principle not insufficient”, but “if after the expiry of that period the person concerned provides evidence that he is continuing to seek employment and that he has genuine chances of being engaged, he cannot be required to leave the territory of the host Member State.” The Court’s decision appears to acknowledge that a jobseeker from abroad is likely to need a reasonable time to “apprise themselves” of jobs and then apply for them. I reject the proposed “seriously and effectively” test as a gloss on what the Court said. 127. Ms Smyth then relies on C-138/02 Collins v SSWP

[2005] QB 145

and C-22/08 Vatsouras v ARGE [2009] All ER (EC) 747 for the proposition that there is a need to establish “genuinely” having sought work. The context is somewhat different, but the point is not in dispute; however, it does not materially add to the test in Antonissen . Nor does the decision of the Upper Tribunal (Immigration and Asylum Chamber) in AG and others Germany

[2007] UKAIT 00075

, which so far as relevant was a decision on the facts of that case, where the evidence was particularly sparse. 128. I derive no assistance from Begum v SSHD

[2011] UKUT 00275 (IAC)

. That was a case where there were very real credibility issues generally and where the evidence in support of job-seeking consisted of a single sentence, given in response to cross-examination, that the appellant’s husband had been looking for a second job alongside a claimed first job which was correctly held to be neither effective nor genuine. In the present case, by contrast, there is oral evidence as to job-seeking and written and oral evidence as to the work in fact obtained, given in a hearing before the Upper Tribunal and on which Ms Smyth has had the opportunity to cross-examine. I do not think Ms Smyth is suggesting that Begum is authority for the proposition that evidence as to job-seeking requires corroboration; in any event, it is not. 129. I agree with Ms Smyth that: (a) the correct approach to assessing whether the appellant was a jobseeker for the purposes of regulation 6(4) in circumstances where the extension of the WRS has been held to be unlawful is the same as if it were lawful; and (b) “jobseeker” has an independent meaning in EU law and the status of a person as a jobseeker cannot be contingent on entitlement to benefit under domestic law (such as jobseeker’s allowance, which the appellant did not claim.) 130. There is no obligation on anyone to claim jobseeker’s allowance or indeed national insurance credits so, while having done so might have meant that the appellant’s task now would have been straightforward (in that there would have been contemporaneous verification), the fact that she did not do so is not determinative. 131. In order to succeed via this route, the appellant needs to be able to point to three years as a worker or jobseeker, leaving out of account the impact of the WRS, ending on the effective date of her claim, 8 November 2012 or a date shortly thereafter (as to which see [135]). 132. It is a reasonable assumption that by September 2009 when she first obtained work, the £500 with which she had come to the UK in 2008 must have been seriously depleted, even though she had had what must have been substantial help from friends in the Manchester area. She had not attempted to claim social security benefit and in my judgment there would have been powerful economic motivators to look for work when she did not actually have it. It was known that by the time of the DWP’s decision under appeal, the appellant had, for prolonged periods of time, performed unskilled work whenever it was available, despite the inconvenience of fluctuating hours, and often for substantial numbers of hours per week. I do not think there can be any doubt as to her motivation to find work. 133. More to the point is whether, as a person with extremely limited English and new to the UK, she did enough to put that motivation into practice. Much work done by A8 nationals seeking unskilled or manual work is done through agencies (see e.g. MAC report at para 5.27). With her very poor English, it seems to me that she was liable to fare better going through agencies, with whom initial contact could be established with the help of friends, than going for any job whose application process required her personally to take any sort of initiative in the English language. By late December 2009 she had obtained two lots of work through agencies and it was not unreasonable to rely upon them as a key route to further work. Despite language difficulties, she was not totally passive with regard to the agencies, ringing up Heads Recruitment, through whom her most recent assignment had been obtained, at weekly intervals. She was clearly aware of the jobcentre and took some steps to use what it could offer, printing off details of jobs. The jobcentres’ facilities were described by Ms Smyth in terms that “A8 nationals were able to use “Jobpoints” in Jobcentres to conduct job searches, and to use telephones in place at Jobcentre Plus offices for the purposes of telephoning potential employers or using the then available Jobseeker Direct, a telephone job search assist service. “Drop in” services were also available for any customer who did not have a live claim to JSA.” One can imagine though that it may have been difficult for the prospective employers concerned, rung up by the appellant using just one stock English phrase, to respond positively. For that reason, much of what Ms Smyth says was on offer at the jobcentre, heavily dependent on the use of the telephone, may have been of little use to the appellant, so that reliance on her strategy was appropriate. On the basis of Antonissen , a person is entitled to a reasonable opportunity to apprise herself of jobs in the Member State and to apply for them. I construe the requirement of reg 6(4) of “seeking employment” in that light and conclude that by the steps taken, the appellant was indeed seeking employment during the period late December 2009 to late March 2010. In Summer 2010 she did less, but (a) the period was shorter and (b) she had by then had a third assignment from an agency (once again Heads Recruitment) and was in my judgment entitled to rely on the agencies as a suitable means of “seeking employment”. 134. That leaves the limb of regulation 6(4) requiring evidence of a “genuine chance of being engaged”. In my view, the appellant did have such a chance. The “circumstances obtaining” down to the date of the DWP’s decision (cf. Social Security Act 1998, s.12(8)) allow in this case the luxury of a certain amount of hindsight. Her first assignment with Heads Recruitment, making “Christmas sausages”, had evidently been seasonal in character and had duly come to an end after Christmas. There is no suggestion that the appellant had in any way prejudiced her work record by the way she had performed that assignment and indeed it is clear that Heads Recruitment were content to re-engage her in March 2010 and subsequently in July 2010. The evidence shows that the appellant is flexible (having worked in more than one type of work) and ready to take work when offered. While her chances of being engaged, notwithstanding her personal qualities, were also dependent on the availability of work, the work she was prepared to take and did take (factory, warehouse) was not of a restricted type such as would narrow the chances of there being suitable work. The time periods involved (never more than three months) were not such of themselves to suggest that her chances of success were otherwise than “genuine” and she did, in the event, succeed. I conclude accordingly that she fulfilled this limb of the definition of “jobseeker” also in respect of the periods identified at [122]. 135. Consequently, whether or not I am right as to my conclusion on issue A, the appellant also succeeds by virtue of the combination of issues B and C. There is no evidence as to her job-seeking in the period 4 October 2009 to 18 November 2009 and, if she succeeds on the latter basis, she consequently does so only from 19 November 2012 rather than the date stated in the decision at the top of these Reasons. The difference in dates appears academic, in that the appellant was paid by her employer until 25 November 2012 and any substantive entitlement would have to reflect that. C.G.Ward Judge of the Upper Tribunal 30 January 2015 APPENDIX A Summary of the WRS and of relevant parts of the Registration Regulations (as amended)

[1]The basic rule of the scheme that it set out is that a national of an A8 state working in the United Kingdom during the accession period was an accession state worker requiring registration: 2004 Regulations, reg 2(1). He ceased to be an accession state worker requiring registration if he legally worked in the United Kingdom without interruption for a period of 12 months falling wholly or partly after 30 April 2004: reg 2(4). But he would only be treated as legally working in the United Kingdom on or after 1 May 2004 if he was working for an authorised employer: reg 2(7)(b). Regulation 4 dealt with the right of residence of workers and work seekers from the A8 states during the accession period. Reg 4(1) derogated from the relevant Community provisions on the abolition of restrictions on movement and residence within the Community for workers of member states. Reg 4(2) provided that a national of a relevant accession State was not entitled to reside in the United Kingdom as a work seeker if he would be subject to the scheme if he began working. Reg 4(4) provided:

"A national of a relevant accession State who is seeking employment and an accession state worker requiring registration shall only be entitled to reside in the United Kingdom in accordance with the 2006 Regulations as modified by regulation 5."

[2]Regs 5(1) to 5(4) of the 2004 Regulations provided: "(1) The 2006 Regulations shall apply in relation to a national of a relevant accession State subject to the modifications set out in this regulation.

(2) A national of a relevant accession State who is seeking employment in the United Kingdom shall not be treated as a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of the 2006 Regulations and an accession State worker requiring registration shall be treated as a worker for the purpose of that definition only during a period in which he is working in the United Kingdom for an authorised employer.

(3) Subject to paragraph (4), regulation 6(2) of the 2006 Regulations shall not apply to an accession State worker requiring registration who ceases to work.

(4) Where an accession State worker requiring registration ceases working for an authorised employer in the circumstances mentioned in regulation 6(2) of the 2006 Regulations during the one month period beginning on the date on which the work begins, that regulation shall apply to that worker during the remainder of that one month period.”

[3]Regs 7(1), 7(2) and 7(3) of the 2004 Regulations provided:

"(1) By way of derogation from article 39 of the Treaty establishing the European Community and articles 1 to 6 of the Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community, an accession state worker requiring registration shall only be authorised to work in the United Kingdom for an authorised employer. (2) An employer is an authorised employer in relation to a worker if - (a) the worker was legally working for that employer on 30 April 2004 and has not ceased working for that employer after that date; (b) the worker - (i) during the one month period beginning on the date on which he begins working for the employer, applies for a registration certificate authorising him to work for that employer in accordance with regulation 8; and (ii) has not received a valid registration certificate or notice of refusal under regulation 8 in relation to that application or ceased working for that employer since the application was made; (c) the worker has received a valid registration certificate authorising him to work for that employer and that certificate has not expired under paragraph (5); or (d) the employer is an authorised employer in relation to that worker under paragraph (3) or (4). (3) Where a worker begins working for an employer on or after 1 May 2004 that employer is an authorised employer in relation to that worker during the one month period beginning on the date on which the work begins."

Reg 7(5)(b) provided that a registration certificate expired on the date on which the worker ceased working for that employer.

[4]Reg 8 of the 2004 Regulations set out the system that was to be followed for obtaining a registration certificate. The application could only be made by an applicant requiring registration to work for an employer who was working for that employer at the date of the application. It had to be made in writing to the Secretary of State. Except in the case of a first registration, the application had to be accompanied by, among other things, a letter from the employer confirming that the applicant began working for the employer on the date specified in the application. On a first registration a registration fee of £90 was payable. If the Secretary of State was satisfied, he sent the applicant a registration card with a reference number, for use in subsequent applications, and a registration certificate. The registration certificate stated, among other things, that it authorised the worker to work for the employer stated in the certificate and that it would expire on the date the worker ceased working for that employer. Reg 9(1) provided that, subject to various exceptions, an employer who employed an accession state worker requiring registration during a period in which the employer was not an authorised employer in relation to that worker was guilty of an offence. APPENDIX B 1. The appellant was born on 30 July 1951. She is a Latvian national and speaks Russian and Latvian. She moved to the UK in 2008 with £500 in savings, intending to settle and to look for employment. 2. At that time she had little or no knowledge of the English language or of Manchester (where she lived) or the United Kingdom and was dependent on friends to help her. 3. At an unknown date or dates she registered with several employment agencies: Careermakers, Heads Recruitment, Time Recruitment and another whose name is not known but which is based in Middleton, Lancs. 4. The first work she obtained was through Careermakers. She worked for in excess of 30 hours in each of the weeks reflected in payslips dated 18/09/09 (a Friday), 25/09/09 and 02/10/09 and for 6.5 hours in the week in the payslip dated 09/10/09. In the absence of evidence as to the correlation between pay dates and weeks worked it is not possible to make more exact findings as to the dates of that employment. She was paid by BACS transfer. 5. She subsequently obtained work through Heads Recruitment in a meat factory, making what she describes as “Christmas sausages”, commencing on 19 November 2009. In the week ending (Sunday) 22/11/09 she worked 23.5 hours, for which she was paid by cheque. She then worked again (always at least 21 hours) in the weeks ending 13/12/09 to 27/12/09, and was paid by BACS. That job then came to an end and the following week she was paid her holiday pay. She was taxed using Tax Code 647L (which reflects eligibility for a personal allowance). She was sent Form P45. 6. The terms of her engagement with Heads Recruitment (other than as to pay) are not in evidence and no finding is made as to those matters. 7. Between the termination of the work described in [6] some time in the week ending 27/12/09 and 26/03/10 she did no work. 8. On Friday 26 March 2010 the appellant was called up by Heads Recruitment to work 4.5 hours in a clothes warehouse. She was paid by cheque. Tax code BW (an “emergency” code) was applied, resulting in the deduction of tax. Although this was still in the same tax year 2009/10 in which her previous work for Heads Recruitment had fallen, her payslip for the March 2010 work showed figures for cumulative totals such as “Gross Year to Date” which started again rather than carrying figures from the previous work forward. 9. She next worked, in the same place, in the week ending 11/04/10. She worked each week through to w/e 30 May 2010, working hours that were never less than 28.5. During this time she was paid by BACS. Her code was changed from BR to 647L in respect of the week ending 02/05/10. 10. There was no work for her in the week ending 06/06/10. In w/e 13/06/10 she worked 15.75 hours. She was also paid holiday pay and received a tax refund. On the balance of probabilities, she was sent a further P45 at this time. 11. The appellant did no more work until w/e 18/07/10. She was once again on Tax Code BW and the “Gross Year to Date” figure again started from zero. She then worked every week up to and including w/e 15/08/10, never working less than 28 hours. In w/e 22/08/10 she did no work. From w/e 29/08/10 she was once again working through to w/e 05/09/10. She did not work in w/e 12/09/10. She resumed in w/e 19/09/10 working right through to Christmas. She was paid holiday pay in respect of the Christmas/New Year week and then resumed working through to w/e 06/02/11. For w/e 13/02/11 and most of w/e 20/02/11 she received holiday pay, resuming work at the end of the latter week. It suffices to describe the hours worked in each of these weeks when she was working as being for at least the greater part of a conventional 35 hour week. 12. In w/e 27/02/11 she worked for 7 hours only. Thereafter she resumed and worked in each week through to w/e 13/11/11 apart from weeks in which she received holiday pay. In each week she worked she never did so for less than 14 hours and usually worked considerably more. She did not work in w/e 20/11/11. She resumed in w/e 27/11/11, working through to w/e 25/12/11 (with holiday pay in Christmas week). Between w/e 25/12/11 and w/e 15/01/12 the appellant worked (or was entitled to holiday pay for) a little over 6 hours though it is not possible to say when. Thereafter she worked continuously though to w/e 06/05/12. In general the hours worked in that period were, or were approaching, full-time. In w/e 13/05/12 she did not work but received holiday pay. In w/e 20/05/12, 27/05/12 and 03/06/12 she worked for 20, 7 and 21 hours respectively. In w/e 10/6/12 she received a small amount of holiday pay only. In w/e 17/6/12 she worked 7 hours. She resumed more substantial work in w/e/ 24/06/12, working through to w/e 07/11/12, working never less than 18 hours and often a good deal more. She then received holiday pay until her employment ended on 25/11/12. 13. Apart from when she was on holiday, if there were times when she did not work, it was because no work was available for her to do. 14. A registration certificate under the Worker Registration Scheme was issued on 20/08/10. Her employments before that date were not covered by such a certificate. 15. She registered with the agencies with the help of friends. In the period between late December 2009 and late March 2010 her efforts to find work consisted of calling Heads Recruitment every week, to ask if they had any work for her, together with being passively on the books of Career Makers and Time Recruitment. She also went to the jobcentre, where she was shown how to print off particulars of vacancies from the machines there. The appellant made some efforts to follow up the jobs on the printouts by phone (using a simple English phrase she had memorised for the purpose), but these proved unsuccessful due to her poor English at that time. If she had been offered work, she would have taken it. 16. In Summer 2010 at times when there was no work the appellant relied on waiting for the agencies to call and on asking friends about jobs. Again, if she had been offered work, she would have taken it. 17. At no time did she seek to claim jobseeker’s allowance, in the belief that her poor English would prevent her from meeting the jobcentre’s requirements. Once she had started work, in periods when there was no work she was able to support herself from her previous earnings. [1] See Practice Directions – Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (10 February 2010) (paras12.1 and

12.2 ) (the Practice Direction was amended on 13 November 2014 but without affecting these paragraphs) [2] See (then) Practice Statements – Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal (10 February 2010) (in force from 15 February 2010) at para 6.2; and Practice Statement -Composition of tribunals in relation to matters that fall to be decided by the Administrative Appeals Chamber of the Upper Tribunal on or after 1 October 2010

TG v Secretary of State for Work and Pensions (PC) (European Union law : free movement) [2015] UKUT 50 (AAC)

Cited in 4 later judgments