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The extension of the Workers’ Registration Scheme in 2009 was a disproportionate measure, unlawful under EU law

Secretary of State for Work and Pensions v Gubeladze [2019] UKSC 31

Related Member(s):
Helen Mountfield QC
Related Practice Area(s):
EU Law
Court:

This appeal considered whether the UK’s decision to extend the applicability of Workers’ Registration Scheme (which applied to individuals coming to work in the UK from the eight Accession States which joined the EU in 2004) by two years was lawful.

The Supreme Court unanimously dismissed the appeal. The Court considered that there was no intention under the Act of Accession to confer an unfettered right to derogate from general principles of freedom of movement, and that rather this must be subject to the principles of proportionality. Considering the three stage test of proportionality, the Court held that the continuation of the Workers’ Registration Scheme is suitable or appropriate to achieve the objective pursued. This was because the Migration Advisory Committee report showed that extending the Scheme would have a material, though small, effect in mitigating the serious disturbances to the UK labour market by reducing the flow of workers from eight Accession States which would otherwise occur. However, though the Court found no issue with the second stage, the Court found the third stage of the proportionality test not to be satisfied. This was because the assessment in the report found that the extension would have only a small speculative mitigating effect, whilst imposing substantial and serious burdens and detriments on employers and nationals from the Accession states. As such the Court dismissed the appeal as it considered that the extension of the Workers’ Registration Scheme in 2009 was a disproportionate measure which was unlawful under EU law.

The Court concluded that, on a textual interpretation of the relevant provisions, the concept of residence as referred to in the Citizens Directive, art 17(1)(a) is factual residence, not a ‘legal residence’.

Helen Mountfield QC was involved in this case.