October 2017 – EU Nationals & Right to Reside
There are now several cases awaiting the outcome of a Court of Appeal hearing regarding the rights of an EU national to reside permanently in the UK.
In the latest case, a Polish national had been working for a short time before she obtained a worker registration certificate in December 2006. She continued working until March 2007, when she went on maternity leave. After a period of illness and several unsuccessful attempts to return to work, her employment was terminated on 1 November 2007. On 11 November 2007, she experienced acute psychosis and was sectioned under the Mental Health Act 1983.
Her employment and support allowance appeal reached the Upper Tribunal, where Judge Ward made an interim decision that she had ‘permanent incapacity to work’ for the purposes of Article 17 of EC Directive 2004/38.
Judge Ward summarised the issues as –
Whether, because the claimant had not completed 12 months in registered work, meant she was not a worker for the purposes of Article 17 and
Whether Article 17 requires a person to be able to show two years legal residence (rather than actual residence) at the material time.
Issuing an interim decision, Judge Ward found that, but for the impact of the Worker Registration Scheme, the claimants inability to point to twelve months of registered work does not preclude her from relying on Article 17 if she can satisfy its remaining conditions. Judge Ward agreed that it was appropriate to stay final determination of the case, pending the decision or further order by the Court of Appeal in Gubeladze (due to be heard on 18 October 2017).
However, he observed that although Article 17 had been introduced by the Directive and the 2006 Regulations that sought to implement it, the derogations in the Worker Registration Regulations contained no provision expressly directed to Article 17.
That is considered significant as, in his view, the derogations set out in regulation 5 (based upon not having particular qualified person status) could not apply to the claimant because Article 17 of the Directive did not require qualified person status in the context of acquiring a permanent right to reside due to incapacity.
He concludes that the UK has not effected a valid derogation from Article 17. As a person who would but for the impact of the worker registration scheme otherwise on any view have been a worker, the claimants inability to point to 12 months of registered work does not preclude her from relying on Article 17 if she can satisfy its remaining conditions. We will update this feature when the judgement is known.
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