CIS/3232/2006
CIS/160/2007
CJSA/700/2007
CIS/775/2007

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
  
1.	In CIS/3232/2006, I allow the Secretary of State’s appeal.  I set aside the decision of the Fox Court appeal tribunal dated 26 May 2006 and I substitute a decision that the claimant is not entitled to income support from 5 December 2005.

2.	In CIS/160/2007, CJSA/700/2007 and CIS/775/2007, I dismiss the claimants’ appeals.

REASONS

Introduction

3.	These four cases were heard together because they all raise a common issue.  In each case the claimant is a citizen of one of the “A8 States” that joined the European Union in 2004 and whose citizens are required to have worked in registered employment for a year before being entitled to income-related social security benefits and in each case it is contended that the claimant was employed for a year without being registered for that long.  The cases therefore raise a common question as to whether the requirement that employment have been registered is a legitimate one.

4.	Mr Daniel Kolinsky of counsel, instructed by the Solicitor to the Department of Health and the Department for Work and Pensions, appeared on behalf of the Secretary of State for Work and Pensions.  Mr Ahmad Butt of Islington Peoples’ Rights, appeared for the respondent claimant in the first case.  Mr James Maurici of counsel, instructed by, respectively, the Public Law Project and the Child Poverty Action Group, appeared on behalf of the appellant claimants in the second and fourth cases.  The appellant claimant in the third case neither appeared nor was represented at the hearing but I received written submissions on his behalf from Ms Sue Forster of the Liverpool Central Citizens Advice Bureau.  I have also received written submissions and skeleton arguments in the other cases.  I am grateful to all those who have made oral or written submissions in these cases.

The legislation

5.	All four cases arise under the legislation in force before 30 April 2006.  In one of the cases, the Secretary of State did not make his decision until after that date but it has not been suggested that the change in legislation makes any difference to the point in issue and so I will refer only to the earlier version of the legislation.

6.	Before 30 April 2006, regulation 21(1) of, and Schedule 7 to, the Income Support (General) Regulations 1987 (S.I. 1987/1967, as amended) provided that a “person from abroad” had an applicable amount of “nil”, with the consequence that he or she was not entitled to payments of income support under section 124 of the Social Security Contributions and Benefits Act 1992.  Regulation 21(3) defined “person from abroad” in terms of habitual residence which was in turn given a meaning linked to rights of residence.  So far as is material, paragraphs (3) and (3G) provided –

“(3)	Subject to paragraphs (3F) and (3G), in Schedule 7 –
…
‘person from abroad’ means a claimant who is not habitually resident in the United Kingdom, the Channel islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is –
    (a)	a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or a person who is an accession State worker requiring registration who is treated as a worker for the purpose of the definition of ‘qualified person’ in regulation 5(1) of the Immigration (European Economic Area) Regulations 2000 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004;
…

(3G)	In paragraph (3), for the purposes of the definition of a person from abroad no person shall be treated as habitually resident in the United kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.”

7.	Similar provision was made in respect of income-based jobseeker’s allowance by regulation 85 of, and Schedule 5 to, the Jobseekers Allowance Regulations 1996 (S.I. 1996/207).

8.	Article 39 of the EC Treaty provides –

“1.	Freedom of movement of workers shall be secured within the Community.
2.	Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3.	It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:
    (a)	to accept offers of employment actually made;
    (b)	to move freely within the territory of Member States for this purpose;
    (c)	to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
    (d)	to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.
4.	The provisions of this Article shall not apply to employment in the public service.”

9.	Articles 1 to 6 of Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community are concerned with eligibility for employment and prohibit discrimination and other practices in the labour market that might impede freedom of movement.  Article 7(1) and (2) then provides –

“1.	A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re-employment.
2.	He shall enjoy the same social and tax advantages as national workers.”

10.	Various Council Directives (in particular, Council Directive 68/360/EEC) have required Member States to enact legislation conferring the rights of residence necessary to give full effect to the freedom of movement of workers.  Before 30 April 2006, regulation 14(1) of the Immigration (European Economic Area) Regulations 2000 (S.I. 2000/2326) provided that a “qualified person” was entitled to reside in the United Kingdom for as long as he remained a “qualified person”.  So far as is material, regulation 5 provided –

“(1)	In these Regulations, ‘qualified person’ means a person who is an EEA national and in the United Kingdom as –
    (a)	a worker;
    …

(2)	A worker does not cease to be a qualified person solely because –
    (a)	he is temporarily incapable of work as a result of illness or accident; or
    (b)	he is involuntarily unemployed, if that fact is duly recorded by the relevant employment office.

…”

11.	By regulation 3(1), the term “worker” in the 2000 Regulations was defined as “a worker within the meaning of Article 39 of the EC Treaty”.  It may be noted that those who have not yet worked in the United Kingdom but who are seeking work with genuine chances of obtaining it generally have a right of residence because otherwise the rights guaranteed by Article 39 of the EC Treaty and articles Articles 1 to 5 of Regulation (EEC) No. 1612/68 would not be given their full intended effect (Regina v. Immigration Appeal Tribunal, ex parte Antonissen (Case C-292/89) [1991] E.C.R. I-745).  It is unnecessary to decide whether such people have rights of residence by virtue of regulation 5(1) of the 2000 Regulations or whether the rights they have arise outside the Regulations.  Regulation 5(2), however, clearly gave effect to Article 7(1) of Council Directive 68/360/EEC.

12.	In any event, it is clear that an EEA citizen who has been working in the United Kingdom and then becomes temporarily incapable of work or unemployed generally has a right of residence in the United Kingdom and is as entitled to income support or jobseeker’s allowance as a citizen of the United Kingdom, whereas, those EEA citizens who do not have a right of residence in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland are not entitled to income support or income-based jobseeker’s allowance.

13.	However, when the European Union was enlarged on 1 May 2004 by the accession of ten new Member States, the Treaty of Accession contained relevant transitional provisions in respect of eight of the new Member States, the “A8 States”.  The provisions material to these cases relate to the Czech Republic, Lithuania and Slovakia, being in Annexes V, IX and XIV to the Treaty respectively.  The material provisions of the annexes are all in the same terms, save for the names of the Member States, and Annex V may be taken as representative.  So far as is material, it provides –

“1.	Article 39 and the first paragraph of Article 49 of the EC Treaty shall fully apply only, in relation to the freedom of movement of workers … between the Czech Republic on the one hand and … the United Kingdom on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14.

2.	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 Czech nationals.  The present Member States may continue to apply such measures until the end of the five year period following the date of accession.

Czech nationals legally working in a present Member State at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that State but not to the labour market of other Member States applying national measures.

Czech nationals admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights.

The Czech nationals mentioned in the second and third paragraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present Member State in question.

Czech nationals legally working in a present Member State at the date of accession, or during a period when national measures are applied or who were admitted to the labour market of that Member State for a period of less than 12 months shall not enjoy those rights.

…

9.	Insofar as certain provisions of Directive 68/360/EEC may not be dissociated from those of Regulation (EEC) No. 1612/68 whose application is deferred pursuant to paragraphs 2 to 5 and 7 and 8, the Czech Republic and the present Member States may derogate from those provisions to the extent necessary for the application of paragraphs 2 to 5 and 7 and 8.

…”

14.	The Accession (Immigration and Worker Registration) Regulations 2004 (S.I. 2004/1219) take advantage of those rights to derogate.  By regulations 2 and 3, “an accession State worker requiring registration” is defined as a national of an A8 State working in the United Kingdom during the “accession period”, which is the period of five years from 1 May 2004.  However, regulation 2(4) and (8) provides –

“(4)	A national of a relevant accession State who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 30th April 2004 shall cease to be an accession State worker requiring registration at the end of that period of 12 months.

…

(8)	For the purposes of paragraphs (3) and (4), a person shall be treated as having worked in the united Kingdom without interruption for a period of 12 months if he was legally working in the United kingdom at the beginning and end of that period and any intervening periods in which he was not legally working do not, in total, exceed 30 days.”

15.	Regulations 4 and 5 then set out the extent of the derogation in respect of rights of residence and modify the 2000 Regulations mentioned above.  They provide –

“Right of residence of work seekers and workers from relevant acceding States during the accession period

 4.– (1) This regulation derogates during the accession period from Article 39 of the Treaty establishing the European Community, Articles 1 to 6 of Regulation (EEC) No. 1612/68 on freedom of movement for workers within the Community and Council Directive (EEC) No. 68/360 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.

(2) 	A national of a relevant accession State shall not be entitled to reside in the United Kingdom for the purpose of seeking work by virtue of his status as a work seeker if he would be an accession State worker requiring registration if he began working in the United Kingdom.

(3) 	Paragraph (2) is without prejudice to the right of a national of a relevant accession State to reside in the United Kingdom under the 2000 Regulations as a self-sufficient person whilst seeking work in the United Kingdom.

(4) 	An accession State worker requiring registration shall only be entitled to reside in the United Kingdom in accordance with the 2000 Regulations as modified by regulation 5.

Application of 2000 Regulations in relation to an accession State worker requiring registration

5.– (1) The 2000 Regulations shall apply in relation to an accession State worker requiring registration subject to the modifications set out in this regulation.

(2) 	An accession State worker requiring registration shall be treated as a worker for the purpose of the definition of "qualified person" in regulation 5(1) of the 2000 Regulations only during a period in which he is working in the United Kingdom for an authorised employer.

(3) 	Subject to paragraph (4), regulation 5(2) of the 2000 Regulations shall not apply to an accession State worker requiring registration who ceases to work.

(4) 	Where an accession State worker requiring registration  - 
    (a) 	begins working for an authorised employer on or after 1st May 2004; and
    (b) 	ceases working for that employer in the circumstances mentioned in regulation 5(2) of the 2000 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.

(5) 	An accession State worker requiring registration shall not be treated as an EEA national for the purpose of the power in regulation 10 of the 2000 Regulations (dependants and members of the household of EEA nationals) to issue a residence permit or a residence document to a relative of an EEA national or his spouse.

(6) 	An accession State worker requiring registration shall not be treated as a qualified person for the purpose of regulation 15 of the 2000 Regulations (issue of residence permits and residence documents).”

16.	By regulation 1(2), “authorised employer” must be interpreted in accordance with regulation 7, which derogates from the freedom of EC citizens to take up employment in other Member States and provides –

“7.– (1) By way of derogation from Article 39 of the Treaty establishing the European Community and Articles 1 to 6 of 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 30th 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 1st 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.

(4) 	…

(5) 	A registration certificate  - 
    (a) 	is invalid if the worker is no longer working for the employer specified in the certificate on the date on which it is issued;
    (b)	expires on the date on which the worker ceases working for that employer.
    
(6) 	Regulation 2(7)(a) shall apply for the purpose of determining whether a person is legally working on 30th April 2004 for the purpose of this regulation.”

17.	Regulation 8 provides for applications for registration certificates and registration cards and regulation 9 provides that it is a criminal offence for an employer to employ an accession State worker requiring registration during a period in which the employer is not an authorised employer.  An application for registration card requires payment of a fee, proof of identity and the provision of photographs.  When it is issued, the card has details of the person’s name, nationality and date of birth and it bears a photograph and a reference number.  More important for present purposes is the registration certificate.  The relevant paragraphs of regulation 8 provide –

“(5) 	In the case of an application by an applicant who has not been issued with a registration card under this paragraph, the Secretary of State shall, where he is satisfied that the application is made in accordance with this regulation and that the applicant – 
    (a)	is an accession State worker requiring registration; and
    (b) 	began working for the employer on the date specified in the application,
send the applicant a registration card and a registration certificate authorising the worker to work for the employer specified in the application, and shall return the applicant's national identity card or passport.

(6) 	In the case of any other application, the Secretary of State shall, if he is satisfied as mentioned in paragraph (5), send the applicant a registration certificate authorising the worker to work for the employer specified in the application.

(7) 	…

(8) 	A registration certificate issued under paragraph (5) or (6) shall contain – 
    (a) 	the name of the applicant;
    (b) 	the reference number of the applicant's registration card;
    (c) 	the name and address of the head or main office of the employer, as specified in the application;
    (d) 	the date on which the applicant began working for the employer, as specified in the application; and
    (e) 	the date on which the certificate is issued.

(9) Where the Secretary of State receives an application made in accordance with this regulation and he is not satisfied as mentioned in paragraph (5), he shall – 
    (a)	send the applicant a notice of refusal; and
    (b) 	return any documents and fee that accompanied the application to the applicant.”

18.	Thus, subject to transitional provisions for people working at the date of accession, the position for A8 State nationals under the 2004 Regulations is as follows.  By regulation 4(2), workseekers who have not already legally worked in the United Kingdom for 12 months do not have a right of residence by virtue of being workseekers.  By regulations 5(2) and 7, a worker who has not yet worked for 12 months must be working for an authorised employer if he or she is to be treated as a worker and have a right of residence.  Working for an authorised employer generally means having a registration certificate, but the first month of employment is always authorised and so is any further period if an application for registration is made within that month.  By regulations 4(4) and 5(3), a former worker who has not already worked in the United Kingdom for 12 months and who has become temporarily incapable of work or unemployed loses his or her right of residence.  By regulation 4(8), the 12-month period may include one or more periods when the person is not working for an authorised employer totalling up to 30 days in all.

The Facts

CIS/3232/2006 – the first case

19.	The claimant in this case is a Slovakian citizen who is a lone parent with a dependant child who is at primary school in the United Kingdom.  She had worked in the United kingdom for two years from October 1997 but had returned to Slovakia in 2000 for the birth of her child.  She returned to the United Kingdom on 7 August 2004 and worked as a laundry assistant from 1 December 2004 until 22 December 2005, when the business closed down.  She paid tax and National Insurance contributions throughout the period of her employment but she was registered under the 2004 Regulations only from 15 April 2005.  Exactly when she applied for registration is unclear, but it has been accepted that she did not initially know that she had to make such an application and it has not been suggested that she applied within the month allowed by regulation 7(2)(b)(i) of the 2004 Regulations.  Consequently, her claim for income support, made on 5 December 2005 when her hours of work had been reduced to under 16 per week, was rejected on 26 January 2006 and the Secretary of State declined to revise the decision on 20 March 2003.  The claimant appealed and, on 22 May 2006, the tribunal allowed her appeal.  It did so without making any reference to the 2004 Regulations, which might have been because the Secretary of State’s submission to the tribunal had failed to make any explicit reference to them.  The Secretary of State had argued that the claimant did not in any event qualify for income support because she had no right of residence under the 2000 Regulations as income support was what he called an “inactive benefit”.  The tribunal rejected the Secretary of State’s submission both on the ground that the claimant still had links with the labour market and because she had a child at school, which the tribunal regarded as significant in the light of Baumbast v. Secretary of State for the Home Department (Case C-413/99) [2002] E.C.R. I-7091.  The Secretary of State now appeals with my leave.

CIS/160/2007 – the second case

20.	The claimant in this case is a Lithuanian citizen who is a lone parent with two children in primary education in the United Kingdom.  She came to the United Kingdom on 8 November 2004 and started work almost immediately, being employed in a hotel from 26 November 2004 until September 2005.  She was issued with a registration card under the 2004 Regulations on 15 December 2004 and so it is clear that her employment was “authorised” for the purposes of the 2004 Regulations from its commencement.  From 8 August 2005 to 11 September 2006, she also worked for an agency employer, but she did not obtain registration in respect of that employment.  On 20 February 2002, she claimed income support.  Her claim was disallowed on the ground that she had no right of residence because she had not completed 12 months registered employment and so did not fall within the scope of regulation 5 of the 2000 Regulations.  On appeal, it was contended on her behalf that the 2004 Regulations were inconsistent with EC law but the tribunal rejected that submission, regarding itself bound by the Court of Appeal’s decision in Regina (D) v. Secretary of State for Work and Pensions [2004] EWCA Civ 1468.  The claimant now appeals with the leave of the tribunal chairman.

CJSA/700/2007 – the third case

21.	The claimant in this case is a Czech national.  He first came to the United Kingdom in 2002 as an asylum seeker but he was deported the following year and returned, with his wife, two children of theirs and a grandchild, on 18 August 2004.  His first employment was from 26 or 28 August 2004 until 22 October 2004.  He did not apply for registration in respect of that employment, apparently because he and his employers thought that an “IND Application Registration Card”, marked “employment permitted” and issued on 23 August 2004, was adequate.  Quite why he was given such a card is unclear, as I understand they are normally issued to asylum seekers.  He then worked for an hotel from 1 November 2004 to 5 October 2005 and was registered in respect of that employment.  He claimed jobseeker’s allowance on 1 December 2005.  The claim was disallowed and not revised.  The claimant appealed.  In this case, too, it was submitted that the 2004 Regulations were inconsistent with EC law but the tribunal regarded itself as bound by D.  The appeal was therefore dismissed.  The claimant now appeals with the leave of the tribunal chairman.

CIS/775/2007 – the fourth case

22.	The claimant in this case is a Lithuanian national who is a lone parent with one child of primary school age.  She came to the United Kingdom on 28 September 2004.  She worked as an agency worker from 2 November 2004 to 13 August 2008 and was registered in respect of that employment.  She then became directly employed from 13 August 2008 by the company where she had been working but was not registered in respect of that employment, having been wrongly told that there was no need to be.  She remained employed there until 6 February 2006, after she had fallen ill and claimed income support from 3 February 2006.  Her claim was disallowed and that decision was not revised.  She appealed and the appeal was dismissed.  The claimant had relied on Baumbast but the tribunal accepted the Secretary of State’s submission based on the 2004 Regulations.  The claimant now appeals with the leave of the then regional chairman of tribunals.

Regina (D) v. Secretary of State for Work and Pensions

23.	The decision of the Court of Appeal in D was relied upon by two of the tribunals.  D was a Latvian national who had remained in the United Kingdom after being refused asylum and was still here looking for work when Latvia acceded to the European Union on 1 May 2004.  The precise nature of his application for permission to apply for judicial review is not revealed in the judgment of the Court of Appeal but it involved a submission that the 2004 Regulations were inconsistent with EC law and that the claimant was entitled to seek work on the same basis as other citizens of the European union, including access to jobseeker’s allowance.  Collins J refused permission on 4 May 2004 and D renewed the application in the Court of Appeal, who rejected it on 11 October 2004.  The claimant relied on Article 7(2) of Regulation 1612/68 and Article 12 of the EC Treaty but his submissions received short shrift from Maurice Kay LJ, with whom Mummery LJ agreed.  Maurice Kay LJ said –

“In my judgment, those submissions do not raise any point with a real prospect of success for the following reasons. First, as regards the period 1 May to 1 July when the applicant was seeking work, it is abundantly clear, as Mr Justice Collins held, that the position fell four-square within the permitted derogation. At that stage the applicant could not bring himself within Article 7.2 of Regulation 1612/68 because he was not "a worker". The European Court of Justice decided as much in Collins v. Secretary of State for Work and Pensions (Case C-138/02) [2005] Q.B. 145 (also reported as R(JSA) 3/06). When the present case was before Mr Justice Collins Article 12 of the EC Treaty did not feature in the oral submissions although it had been foreshadowed in the pleadings. I do not consider that it avails the applicant in relation to the period 1 May to 1 July. Article 12 is stated to be "without prejudice to any special provisions contained in" the Treaty. Article 39 is one such special provision. It, in turn, has given birth to Regulation 1612/68. The Treaty of Accession permits derogation from Articles 1 to 6 of that Regulation. The domestic Regulations of 2004 are a permissible derogation. The contrary is simply not arguable.”

24.	In the third case before me, Ms Forster argued that D was not binding upon me, because it was merely a decision refusing leave to appeal, and that I should not follow it.  Mr Maurici and Mr Butt accepted that, even if it was not binding on me, it was highly persuasive and were content that I should merely distinguish it.

25.	Not only is D a reasoned decision by two Lord Justices of Appeal, but also it has been followed both by a Deputy Commissioner in Great Britain (CJSA/701/06) and by the Court of Appeal in Northern Ireland (Zalewska v. Department for Social Development [2007] NICA 17), whose decision must also be regarded as highly persuasive, although the claimant has appealed to the House of Lords.  In any event, I am persuaded by the reasoning of Maurice Kay LJ and am content to follow D as far as it goes. The important point that was determined in D was that D could rely upon Article 7(2) of Regulation (EEC) No. 1612/68 while he was actually employed as a worker but not while he was merely seeking work because, in that context, the term “worker” does not include a workseeker.  The decision cannot be regarded as authority for the proposition that the 2004 Regulations are necessarily consistent with EC law in all circumstances, since the Court had to consider only D’s circumstances.  

Argument

For the claimants

26.	Mr Maurici, whose arguments were adopted by Mr Butt, reserved the right to take other points should this case go further, including an argument based on Article 10a of Council Regulation (EEC) 1408/71 that I think was an argument I rejected in CIS/3182/2005, and he confined himself at this level to arguing that the 2004 Regulations were unlawful because they acted in a way that was disproportionate.

27.	In each of these cases, it is not seriously disputed that the claimant had in fact worked in the United Kingdom for twelve months and it is submitted by Mr Maurici that the claimant cannot lawfully be denied a right of residence and therefore entitlement to benefits solely because he or she had failed to apply for registration in respect of part of the period of employment.  He argues that, as a matter of fact, the claimant had been “admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer” for the purposes of paragraph 2 of the relevant annex to the Treaty of Accession and that regulation 7 of the 2004 Regulations cannot have the effect of denying them the rights that should flow from that because to do so would be disproportionate.  He relies in particular on three decisions of the European Court of Justice.

28,	The first decision was Regina v. Pierck (Case 157/79) [1980] E.C.R. 2171.  The claimant was a Dutch national who had been living and working in Wales for some years.  Each time he returned to the United Kingdom after a journey abroad, he was given leave to enter for a period of six months.  He was prosecuted for overstaying and, on a reference by the Pontypridd magistrates’ court, the United Kingdom Government pointed out that the claimant could, during the six months for which he had been admitted, have applied for a special residence permit as prescribed by Article 4 of Council Directive 68/360/EEC.  The European Court of Justice considered whether the failure on the part of a national of a Member State of the Community, to whom the rules of freedom of movement for workers apply, to obtain such a permit might lawfully be punished by measures which included imprisonment or a recommendation for deportation.  The Court said –

“18.	Among the penalties attaching to a failure to comply with the formalities required as proof of the right of residence of a worker enjoying the protection of Community law, deportation is certainly incompatible with the provisions of the Treaty since, as the Court has already confirmed in other cases, such a measure negates the very right conferred and guaranteed by the Treaty.

19.	As regards other penalties such as fines and imprisonment, whilst the national authorities are entitled to impose penalties in respect of failure to comply with the terms of provisions relating to residence permits which are comparable to those attaching to minor offences by nationals, they are not justified in imposing a penalty so disproportionate to the gravity of the infringement that it becomes an obstacle to the free movement of persons.  This would be especially so if that penalty included imprisonment.

20.	It follows that the failure on the part of the national of a Member State of the Community, to whom the rules of freedom of movement for workers apply, to obtain the special residence permit prescribed in Article 4 of Directive No 68/360 may not be punished by a recommendation for deportation or by measures which go as far as imprisonment.”

29.	The second case was Skanavi (case C-193/94) [1996] E.C.R. 929.  Mrs Skanavi was a Greek national who had been resident and working in Germany for more than a year but had not exchanged her Greek driving licence for a German one, as required by German law.  She was prosecuted for driving without a licence.  The German court referred the case to the European Court of Justice who said –

“31.	Under the provisions of Directive 80/1263, a driving licence issued by a Member State is recognized by the other Member States in which the holder is not normally resident and, for one year, also in the State in which he takes up normal residence. 

32.	Although the holder may be required to have his licence exchanged in order to remain entitled to drive motor vehicles within the territory of the host Member State after the expiry of the one-year period, his original licence remains valid in the Member State which issued it and continues to be recognized by the other Member States. 

33.	Member States may indeed refuse to exchange licences in certain circumstances expressly set out in the Directive, but that possibility cannot affect the entitlement of licence holders to have their licences exchanged if there are no such exceptional circumstances.

34.	It follows that the issue of a driving licence by a Member State in exchange for a licence issued by another Member State does not constitute the basis of the right to drive a motor vehicle in the territory of the host State, which is directly conferred by Community law, but evidence of the existence of such a right.
 
35.	In those circumstances, the obligation to exchange driving licences which Member States may impose under the Directive is essentially a way of meeting administrative requirements. 

36.	In the absence of Community rules governing the matter, the Member States remain competent to impose penalties for breach of such an obligation. However, it follows from settled case-law concerning non-compliance with formalities for establishing the right of residence of an individual enjoying the protection of Community law that Member States may not impose a penalty so disproportionate to the gravity of the infringement that this becomes an obstacle to the free movement of persons; this would be especially so if the penalty consisted of imprisonment (see, in particular, Case C-265/88 Messner [1989] ECR 4209, paragraph 14). In view of the effect which the right to drive a motor vehicle has on the actual exercise of the rights relating to the free movement of persons, the same considerations must apply with regard to breach of the obligation to exchange driving licences. 

37.	Treating a person who has failed to have a licence exchanged as if he were a person driving without a licence, thereby causing criminal penalties, even if only financial in nature, such as those provided for in the national legislation in question in this case, to be applied, would also be disproportionate to the gravity of that infringement in view of the ensuing consequences. 

38.	As the national court has pointed out, a criminal conviction may have consequences for the exercise of a trade or profession by an employed or self-employed person, particularly with regard to access to certain activities or certain offices, which would constitute a further, lasting restriction on freedom of movement. 

39.	The answer to the second part of the question submitted by the national court must therefore be that, in view of the resultant consequences, such as may arise under the national legal system in question, Article 52 of the Treaty precludes the driving of a motor vehicle by a person who could have obtained a licence from the host State in exchange for the licence issued by another Member State but who did not make that exchange within the prescribed period from being treated as driving without a licence and thus rendered punishable by imprisonment or a fine.”

30.	The third case was MRAX v Belgium (Case C-459/99) [2002] E.C.R. I-6591.  In this case, a general challenge to provisions of domestic legislation relating to visas was brought before the Belgian Conseil d.État who referred various questions to the European Court of Justice.  The Court said –

“56.	…, in accordance with Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, when a national of a Member State moves within the Community with a view to exercising the rights conferred upon him by the Treaty and those directives, the Member States may demand an entry visa or equivalent document from members of his family who are not nationals of a Member State. The list of third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States was determined by Regulation No 2317/95, which was replaced by Regulation No 574/1999, itself since replaced by Regulation No 539/2001. 

57.	As Community legislation does not specify the measures which a Member State may take should a third country national married to a Member State national wish to enter Community territory without being in possession of a valid identity card or passport or, if necessary, a visa, sending him back at the border does not appear to be precluded (see in particular, to that effect, with regard to Article 3(1) of Directive 68/360 and Article 3(1) of Directive 73/148, Case C-68/89 Commission v Netherlands [1991] ECR I-2637, paragraph 11). 

58.	First, in the absence of a valid identity card or passport, documents which are intended to enable their holder to provide proof of his identity and nationality (see, to that effect, in particular Case C-376/89 Giagounidis [1991] ECR I-1069, paragraphs 14 and 15), the person concerned cannot as a rule properly prove his identity or, consequently, his family ties. 

59.	Second, while, as the Commission correctly points out, the right of a third country national married to a Member State national to enter the territory of the Member States derives under Community law from the family ties alone, the fact remains that, according to the very wording of Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148, exercise of that right may be conditional on possession of a visa. Indeed, Article 5 of Regulation No 2317/95 defines a visa as an authorisation given or a decision taken by a Member State which is required `for entry' into its territory. 

60.	However, Article 3(2) of Directive 68/360 and Article 3(2) of Directive 73/148 state that the Member States are to accord to such persons every facility for obtaining any necessary visas. This means that, if those provisions of Directives 68/360 and 73/148 are not to be denied their full effect, a visa must be issued without delay and, as far as possible, at the place of entry into national territory. 

61. 	In view of the importance which the Community legislature has attached to the protection of family life (see paragraph 53 of this judgment), it is in any event disproportionate and, therefore, prohibited to send back a third country national married to a national of a Member State where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148. 

62.	The answer to the first question referred for a preliminary ruling must therefore be that, on a proper construction of Article 3 of Directive 68/360, Article 3 of Directive 73/148 and Regulation No 2317/95, read in the light of the principle of proportionality, a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.”

See also paragraphs 73 to 80. 

31.	In the light of those authorities, Mr Maurici submits that the claimants cannot be denied the rights that flow from the access to the labour market guaranteed by the Treaty of Accession to those who have been admitted to the labour market for 12 months, although he accepts that regulation 9 of the 2004 Regulations legitimately permits the imposition of sanctions on employers where employment is not registered and he further accepts that it would be permissible for the legislation also to provide for administrative penalties or even, perhaps, fines under the criminal law for employees who failed to register.  He submits that the 2004 Regulations ought to permit retrospective registration, perhaps with a time limit or requirements for proof.

For the Secretary of State

32.	Mr Kolinsky submits that national law must be considered first and he relies in particular on Zalewska, where Girvan LJ, giving the judgment of the Court, said –

“[22]	…  The Community concept of worker is incapable of precise definition since, as Collins makes clear, the concept is not used in the Community law texts in a uniform way. Since the Act of Accession confers on member states in respect of Accession workers a power to make national provisions which, thus, do not have community wide effect it is necessary to ascertain the proper meaning and intent of the national law albeit that national law must be compatible with any overriding Community law requirements that limit the member state in the formulation of national law. Since the Act of Accession clearly confers a wide discretion on member states (which could include total exclusion of Accession workers) it was clearly not the intention of the Act to tie the hands of the national authorities as to how they regulated their national labour markets. 

[23]      Annex XII provides that Polish nationals admitted to the labour market of a member state after accession for an uninterrupted period of 12 months or longer will acquire the full rights of a Community worker within that member state. Since the member state is left to determine the conditions in which an Accession worker will be held to have been admitted to the national market the question whether such a worker has been admitted to the labour market for 12 months must be determined in accordance with national law. If, throughout the uninterrupted period of 12 months the Polish national satisfies the national conditions of admission he or she will acquire the rights of a Community worker thereafter in that national labour market. 

[24]      Under the national law to be found in the relevant Regulations Polish workers are admitted to the labour market conditionally. The registration requirements operate as a condition of employment breach of which results in the Polish worker failing to satisfy the national requirement for lawful admission to the member state's labour market. In Re D Kay LJ considered that the Accession worker remain employed for an uninterrupted period of 12 months he will receive the benefit of the time qualification. It may be that where such a worker has short breaks in continuous registered employment during which work is being sought he may still satisfy the 12 month period requirement. That is not, however, a relevant question in the present case since the applicant only worked as a registered worker for a 6 month period and thereafter took unregistered employment. She, therefore, failed to fulfil the condition to be satisfied if she was to be treated as lawfully admitted to the labour market during the relevant period. 

[25]      In Re D the Court of Appeal concluded that the Registration Scheme is a reasonable and proportionate concomitant of the permitted derogation. The policy behind the Registration Scheme is to enable the Secretary of State to monitor and control those falling within the derogation. It has a national legal basis which is consistent with the right conferred on member states to regulate their own labour market in the context of Accession workers. The applicant is unable to demonstrate that the Scheme lacks rationality or proportionality.”

33.	In the light of that judgment, he submits that the claimants are not persons who had been “admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer”, because they had not complied with the national conditions for admission.  The United Kingdom government does not seek to close the door on A8 State nationals but seeks to monitor their employment.  This is important because the Government wishes to keep a record of the take-up of employment in order to be able to react and keep under review the arrangements for A8 State nationals. He referred to the Government’s response to the Report by the Social Security Advisory Committee on the Social Security (Habitual Residence) Amendment Regulations 2004 (S.I. 2004 No. 1232) (which introduced regulation 21(3G) of the 1987 Regulations), published with the Report in Cm 6181.  The question whether or not a person has been admitted to the labour market is, he submits, a matter of national law.

34.	Therefore, he submits, there is no question of any sanction being imposed on the claimant because the claimant has no right that is being taken away so that proportionality simply is not an issue.  He distinguishes the decisions of the European Court of Justice because in each case the permit or licence was merely evidence of a right that existed by virtue of Community law.  Here, he points out, A8 State nationals could have been excluded from access to the labour market altogether.  Instead, their access is controlled by domestic law, as permitted by the Treaty of Accession.  Employment has to be authorised under regulation 7 and that depends on there being a certificate, save that there is a period of grace of one month.  That scheme suggests, he submits, that retrospective certificates cannot be issued.

The reply on behalf of the claimants

35.	Mr Maurici responds by arguing that the Workers Registration Scheme permits monitoring but does not control access to employment and by pointing out that the question of proportionality was not addressed in Zalewska, even though on the facts it could have been.

Discussion

36.	I start by reiterating my view that the general approach of the domestic legislation is perfectly legitimate, as held in both D and Zalewska which have not been challenged before me.  As Mr Kolinsky has submitted, the 2004 Regulations do not take full advantage of the right to derogate that is recognised in the Treaty of Accession.  The Treaty of Accession permits any of the “present Member States” to prevent access to its labour market entirely, through derogation from Articles 1 to 6 of Regulation (EEC) No. 1612/68.  To the extent that advantage is taken of that right to derogate, it is permissible also not to grant rights of residence to workseekers or to those temporarily unemployed or incapable of work.  Antonissen cannot apply if Articles 1 to 6 of Regulation (EEC) No. 1612/68 are disapplied and paragraph 9 of each of the annexes to the Treaty of Accession permits consequential derogation from Council Directive 68/360/EEC.  The United Kingdom has not prevented access to the labour market but it has decided not to accord rights of residence to workseekers or those temporarily incapable of work until they have worked in the United Kingdom for 12 months.  Regulations 4 and 5(3) of the 2004 Regulations appear to me to be perfectly legitimate and, as held in both D and Abdirahman v. Secretary of State for Work and Pensions [2007] EWCA Civ 657; [2008] 1 W.L.R. 254 (also reported as R(IS) 8/07), it is also legitimate to exclude from entitlement to income support and income-based jobseeker’s allowance those who do not have a right to reside in the United Kingdom.

37.	I agree with Mr Kolinsky’s submission that the question whether or not a person should be admitted to the labour market of a Member State is left to be determined in accordance with national legislation.  I accept also that a person who is not working for an authorised employer is not working legally as a matter of domestic law.  On the other hand, Mr Maurici is right to submit that no real restriction on working in the United Kingdom is imposed on A8 State nationals.  The effect of regulation 7(2)(d) and (3) of the 2004 Regulations is that the first month of any employment is always lawful.  If, during that month, the employee applies for a registration certificate, the remaining period of employment is lawful by virtue of regulation 7(2)(b) or (c).  That is because the effect of regulation 8(5) and (6) is that any application for a registration certificate is guaranteed to succeed provided that the Secretary of State is satisfied that there has been compliance with the formalities, that the applicant falls within the scope of the registration scheme and that the applicant began working for the employer on the date specified in the application.  For that reason, I accept Mr Maurici’s submission that the 2004 Regulations do not in fact control admission to the labour market but merely enable it to be monitored and also, I would add, ensure that contemporaneous evidence of past employment is available in the event of a claim for a right of residence or a benefit where entitlement depends on such a right.

38.	Nonetheless, although an A8 State national is always entitled to continue working if he or she applies for a registration certificate on time, the effect of regulation 7(1) is that he or she is not entitled to remain employed after one month for as long as an application is not made for a certificate.  Thus, although the 2004 Regulations do not in fact control admission to the labour market, they do control it in law.

39.	Moreover, I accept Mr Kolinsky’s submission that regulation 7(1) is not inconsistent with Community law.  It has a rational purpose, which is to require a worker to provide details enabling the up-take of the right to seek employment to be monitored and to do so on time and it falls squarely within the scope of the possible derogation, as the United Kingdom is not required to allow A8 State nationals to work at all.  I also accept Mr Kolinsky’s submission that, although the Secretary of State must, by virtue of regulation 8(5)(b) and (6) be satisfied as to the true starting date before issuing a registration certificate and although the certificate must bear that starting date, the issue of a certificate does not retrospectively render the claimant’s employment lawful during any period that elapsed between the end of the initial month of employment and the date the employee actually receives the certificate in a case where the application for a certificate was made after that month had elapsed.  From the point of view of criminal sanctions under regulation 9, that is entirely understandable and, indeed, necessary.

40,	What is not so necessary is the requirement in regulation 2(4) that a person ceases to be an accession State worker only after working “legally” for a period of 12 months, even when a certificate has been issued recording that the person has worked for a longer period.  In its context, the word “legally” must mean as authorised under regulation 7(1).  At first sight the requirement appears perfectly reasonable but, given the requirement that the true starting date must be established before a certificate is issued, the only effect it has is to provide a sanction against the employee for the delay in registering.  Mr Kolinsky objected to the term “penalty” being used and I accept that the sanction is not technically a penalty.  Nonetheless, it imposes, in some cases but not others, a cost directly attributable to the delay.  It imposes a cost in those cases, like the present, where a person has actually worked for 12 months uninterruptedly but was not authorised to work for the whole of that period because he or she did not apply for a registration certificate at the appropriate time and who wishes to claim a form of social assistance for which it is a condition of entitlement that the claimant should have a right of residence.

41.	Mr Kolinsky likened the cost to that which arises where a claimant makes a late claim for benefit.  The analogy is not, however, an exact one, because the loss that flows from a late claim is almost always in direct proportion to the length of delay in claiming.  Here, a failure to register for a short period may result in a loss of benefit for a much longer period, although it might result in no loss at all.  Indeed, the additional period required to satisfy the condition of regulation 2(4) will not always be in proportion to the delay because, where there has been a period of registration followed by a failure to register for more than 30 days, as in the second and fourth cases before me, the employee has to start all over again in order to gain 12 months’ uninterrupted registered employment.  Better analogies might, perhaps, be a failure to pay voluntary contributions for a short period or a short period of absence abroad, which might have the effect of preventing a person from satisfying a contribution condition or a presence condition, with a consequent loss of benefit for a much longer period.  In any event, it has not been suggested that the inclusion of the word “legally” in regulation 2(4) is ultra vires as a pure matter of domestic law.  It is not irrational: indeed, it can be seen as a rational way of imposing pressure on A8 State nationals to register employment when they are taking advantage of the right afforded them to enter the United Kingdom’s labour market.  Prompt registration is obviously desirable both for the simple provision of up-to-date statistics but also because it is easier to verify the commencement date of the employment, which may have some value when compiling the statistics.

42.	Instead, the claimants rely on Community law and, in particular, the principle of proportionality.  However, I accept Mr Kolinsky’s submission that the three cases relied upon by Mr Maurici are distinguishable from the present cases because in each of the cases considered by the European Court of Justice the relevant right was clearly one guaranteed by Community law.  Here the position is more complicated.  Community law generally guarantees a right to be admitted to the labour market and to reside in a host Member State for that purpose but has here permitted derogation from the relevant provisions.  It also guarantees a right to enter any other Member State and to remain present there, albeit without a right of residence.  The derogation is from the right to work in the United Kingdom otherwise than for an authorised employer and from the right to reside while workseeking or while working otherwise than for an authorised employer or while temporarily unemployed or incapable of work.  In principle, such a derogation is clearly permissible.  The only argument open to the claimants is that regulation 2(4) of the 2004 Regulations is, for reasons of proportionality, inconsistent with the Treaty of Accession insofar as paragraph 2 of each Annex confers rights on those who have been “admitted to the labour market of a present Member State following accession for an uninterrupted period of 12 months or longer”.

43.	Although the construction of regulation 2(4) is a matter of domestic law, the question whether a person has been admitted to the labour market for the purposes of the relevant annex to the Treaty of Accession is a question of Community law.  The term “admitted to the labour market” is capable of more than one meaning. In relation to the United Kingdom, it must involve becoming employed, because A8 State nationals are not admitted to the labour market when merely looking for work.  It must also mean not just becoming employed but also remaining employed.  This is because the legislation refers to admission “for an uninterrupted period of 12 months or longer” and it is plain that a person has been admitted to the labour market for that period only when the period has elapsed.

44.	In some contexts, the term could mean becoming, and remaining, employed simply as a matter of fact, whether legally or not.  That is plainly not its meaning in the present context which is concerned with the rights of Member States to make laws restricting admission.  Mr Kolinsky submits that, in this context, the phrase means becoming, and remaining, employed legally, in accordance with domestic legislation.  Mr Maurici submits, in effect, that it means becoming, and remaining, employed either in accordance with domestic legislation or in circumstances that would be in accordance with domestic legislation had there been compliance with mere administrative formalities.

45.	I find myself driven to the conclusion that Mr Maurici’s submission has no basis in Community law.  On the other hand, I am not entirely convinced that it is open to Member States to impose such administrative formalities for admission to the labour market as they see fit and as are lawful under domestic law.  It is arguable that such formalities must not result in unequal treatment that is not proportionate having regard to the terms of the derogation and the legitimate aims of the Member State concerned.

46.	But even on that test, the claimants do not succeed, given the terms of the derogation permitted by the Treaty of Accession and the limited right of residence that might be in issue.  Because, on any view, the claimants would not have resided in the United Kingdom for long enough to have acquired a permanent right of residence even on the approach I have taken in CIS/408/2006, the right of residence in issue in these cases is a right of residence during a period of temporary incapacity or unemployment.  Unlimited entitlement to benefit is therefore not in issue.  Regulation 2(4) can certainly produce some hard cases but there will always be hard cases where there is a qualifying period and where the consequences of not qualifying are serious.  The consequences for the claimants in these cases are the same as those contemplated by the Treaty of Accession for workers who become temporarily sick or unemployed after being employed for just under 12 months.  The Treaty itself envisages those who interrupt their activities in the labour market having to start the qualifying period all over again.  Although the loss of benefit in these cases may not be in direct proportion to the period in respect of which they did not have registration certificates, the extent to which they failed to fulfil the qualifying period was.  It is true that there are other possible sanctions that could be imposed on employees who fail to obtain registration certificates, but most would have downsides as well as upsides and some would affect people who are not adversely affected by the present regime.  I am not persuaded that the administrative formalities imposed by the United Kingdom for admission to the labour market, or the consequences of failing to comply with them, are disproportionate when they are viewed in context.

47.	That is not to say that the 2004 Regulations might not be improved if they were amended in ways that would have allowed one or more of the present claimants to succeed; just that such amendments are not required by Community law.  I have also not given consideration to the question whether the 2004 Regulations as they now stand preclude the retrospective authorisation of employment where, for instance, a person has been misadvised by the Home Office, as may have happened to the claimant in CJSA/700/2007.  That issue would have to be determined in proceedings against the Home Office, which is responsible for authorising employment, rather than in proceedings on a claim for benefit.

Conclusion

48.	Accordingly, I am not persuaded that the claimants must be treated as having been admitted to the labour market for uninterrupted periods of 12 months or longer.  I turn then to the consequences of that conclusion in the individual cases before me.

CIS/3232/2006

49.	In this case, the tribunal was correct to reject the Secretary of State’s submission that the claimant did not have a right of residence simply because she had claimed income support rather than jobseeker’s allowance.  Until 30 April 2006, an EEA national who had a right of residence as a workseeker could be entitled to income support for reasons I have given in CH/3314/2005.  However, the difficulty facing the claimant is that, as I have rejected the principal issue argued on behalf of the claimants in these cases, regulation 4(2) and (4) of the 2004 Regulations precluded her from relying on her status as a workseeker in order to establish a right of residence.  That was plainly so from 23 December 2005, when the claimant’s employment ceased altogether.  In my judgment, it was also so from 5 December 2005 to 22 December 2005, when her employment had become part-time.  For reasons that I also gave in CH/3314/2005, employment that was not sufficient to preclude the claimant from income support could not be regarded as “effective” and so an EEA national could not be entitled to income support unless seeking additional work, which again makes regulation 4(2) and (4) of the 2005 Regulations relevant.  I acknowledge that that part of CH/3314/2005 has come in for a certain amount of criticism, but I have not been persuaded to resile from it as I take the view that the answer to the question whether work is “effective” turns very much on the context in which the question arises.  Work that may be “effective” in other contexts may not be “effective” in the context of a claim for a particular form of social assistance.

50.	I am therefore satisfied that the tribunal erred in overlooking regulation 4(2) and (4) of the 2004 Regulations.  For reasons I have given in CIS/3444/2006 and CIS/1121/2007, I am also satisfied that the tribunal erred in accepting the claimant’s argument based on Baumbast, the contrary not having been argued before me in this case.  Accordingly, I set the tribunal’s decision aside and substitute a decision that the claimant is not entitled to income support from 5 December 2005.  

CIS/160/2007, CJSA/700/2007 and CIS/775/2007

51.	It follows from my conclusion on the main point in issue in these cases that these appeals must be dismissed.  As in the first case, the Baumbast point has not been argued before me and I would have rejected it if it had been.

52.	In CJSA/700/2007, the Secretary of State has drawn my attention to the fact that, on the basis of the history set out in the Secretary of State’s submission to the tribunal, the claimant’s appeal could have been allowed.  That is because the claimant’s then representative had asserted that the claimant had worked in his first job, in respect of which he had no registration certificate, only from 16 September 2004.  As the first month of that employment would have been authorised notwithstanding the lack of a certificate, there would have been fewer than 30 days between 16 September 2004 and 5 October 2005 when the claimant was not legally working and so the claimant would have ceased to be an accession worker requiring registration, having worked legally for the necessary 12 months.

53.	However, the tribunal accepted a much more detailed submission made by Ms Forster, stating that the claimant had started his first job on 26 August 2004.  On that basis the gap between the claimant’s two periods of authorised working exceeded 30 days and so those periods could not be linked by virtue of regulation 4(8).  The tribunal had no reason to question Ms Forster’s submission, because 16 September 2004 was the date of the earliest wage slip provided to the Secretary of State and it was therefore inherently unlikely that it was the date on which employment actually commenced.  Ms Forster says that the employers have confirmed that 26 August 2004 was the starting date.  Evidence from the claimant’s employer supplied by the Secretary of State following the hearing before me is to the effect that the claimant was employed from 28 August 2006 (sic), which, if it should be 28 August 2004, still leaves a gap of just over 30 days.  Therefore, although I am grateful to the Secretary of State’s representative for drawing my attention to this point, it does not affect the outcome of the case.

54.	What perhaps it does do is illustrate the fact that it may not always be possible to determine whether or not a person has ceased to be an accession State worker requiring registration merely by looking at registration certificates with their accompanying registration card and asking the claimant when employment covered by a certificate ended.  In borderline cases, other employment history may be relevant.  Having the registration card by itself, without any certificate, is even less likely to be adequate without further employment history being provided.

	(signed on the original)	MARK ROWLAND
		Commissioner
		12 March 2008