Supreme Court finds UK breached residence rights of hundreds of thousands of EU citizens
In a case referred to as Gubeladze [2019] UKSC 31, the Supreme Court has decided that the Home Office has breached residence rights of EU citizens. You might be forgiven for assuming that this is not headline news. However, to top London immigration solicitors the case is of importance as the ruling affects hundreds of thousands of EU citizens.
The case of Gubeladze is all about the Accession Eight (otherwise known as “the A8”) countries that became part of the European Union in 2004. The UK decided to impose a registration system (referred to as the Worker Registration Scheme) on citizens from the A8 countries. The scheme was in operation from 2004 until 2009. The government decided to extend the Workers Registration Scheme in 2009 so it continued until 2011. The court has ruled that the decision to extend the Workers Registration Scheme from 2009 to 2011 was unlawful.
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The A8 Worker Registration Scheme
The Workers Registration Scheme was created to address the public concern about expansion of the EU and workers from the A8 EU countries coming to the UK to take ‘’British jobs’’.
EU law allowed any existing EU countries to impose transitional arrangements on A8 employed workers provided that:
• The country considered it proportionate to impose transitional arrangements; and
• The scheme did not remain in place for more than seven years
Accordingly, the Home Office devised the Workers Registration Scheme.
The case of Gubeladze [2019] UKSC 31 was not about the lawfulness of imposing transitional arrangements on A8 EU citizens but about the legality of extending the operation of the Workers Registration Scheme in 2009. Mrs Gubeladze asserted that the Workers Registration Scheme rules were too burdensome on A8 EU workers and that the 2009 scheme extension was not proportionate and therefore non-compliant with EU law. The Supreme Court agreed with Mrs Gubeladze.
The requirements of the Workers Registration Scheme
It is often said the devil is in the detail and that is where the extension of the Workers Registration Scheme fell foul of EU law. The Supreme Court held the 2009 extension of the Workers Registration Scheme was disproportionate because, for example:
• There was a requirement that workers register on the scheme at a cost of £90 for registration;
• A fee of £90 was required for every change of employer;
• An employer committed a criminal offence if some of the Workers Registration Scheme rules were not complied with;
• An A8 citizen could encounter difficulties in obtaining UK settlement or in claiming benefits if they had not complied with the Workers Registration Scheme rules.
The best London immigration solicitors say that it is reported that non-compliance with the Workers Registration Scheme was about thirty percent. As about 100,000 A8 EU citizens applied to join the Workers Registration Scheme in 2009 alone, then over the years from 2009 to 2011 many EU citizens were affected by the scheme.
Of greatest concern to A8 EU citizens was that non-compliance with the Workers Registration Scheme affected:
• Entitlement to claim UK state benefits;
• Securing permanent residence in the UK;
• Eligibility for British Citizenship.
The Workers Registration Scheme and lawful residence
Mrs Gubeladze brought the court proceedings as she was refused benefits and permanent residence because of non-compliance with the Workers Registration Scheme.
Put simply, Mrs Gubeladze argued that the decision was wrong, as she had resided in the UK for three years so was entitled to retire and seek permanent residence in the UK. The Home Office case was that the residence had to be ‘’lawful residence’’ and an applicant for permanent residence would fail the lawful residence test if they had not complied with the Workers Registration Scheme.
The Supreme Court decided that if an EU citizen wants to retire and seeks permanent residence rights in an EU member state based on three years residence (one year of which must have been as a worker) the applicant does not have to prove lawful residence during the three-year period. Residence alone is sufficient under Article 17 of the Citizens Directive.
The Workers Registration Scheme and implications for A8 citizens
The top London immigration solicitors know that it is all very well to report on important Supreme Court decisions but what does the Gubeladze decision mean in real terms for those who had to sign up to the Workers Registration Scheme from 2009?
The implications of the Gubeladze judgment in practice are:
• The extension of the Worker Registration Scheme between 2009 and 2011 was unlawful;
• A8 EU citizens who paid the £90 Workers Registration Scheme fee to register on the scheme between 2009 and 2011 should get a refund. For some, the refund could run into several hundred pounds as the £90 fee had to be paid when a worker on the scheme took a new job;
• If you were convicted of criminal offences because of non-compliance with the Workers Registration Scheme rules between 2009 and 2011 it may be possible to overturn the conviction;
• A8 EU citizens who applied to the Home Office for permanent residence on the basis of lawful residence and were refused because of non-compliance with the Workers Registration Scheme between 2009 and 2011 were wrongly refused permanent residence;
• A8 EU citizens who were not granted British Citizenship because they did not meet either the lawful residence or good character requirements because of failure to comply with the Workers Registration Scheme between 2009 and 2011 can ask for the decision to refuse British Citizenship to be reconsidered by the Home Office;
• Any A8 citizen retirees who were denied UK state benefits and permanent residence because of non-compliance with the Workers Registration Scheme between 2009 and 2011 can ask that the Home Office reconsider the decision. The applicant may also be eligible for missed state benefits because of the earlier Home Office refusal.
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