Last week the Court of Justice of the European Union upheld the UK’s approach to the Worker Registration Scheme in force between 2004 and 2011 for citizens of new EU countries. The case is C-618/16 Prefeta v UK. The judgment in effect endorses the Home Office view that time spent working in breach of the registration scheme will not count towards permanent residence.

The Worker Registration Scheme applied to “A8” countries like Poland, Lithuania and the Czech Republic that joined the EU in 2004. Under the scheme citizens of those countries were allowed to work in the UK but only if they registered under the scheme or had already worked legally for a continuous 12 month period.

As background, citizens of the newly joined countries were immediately permitted to travel freely around the whole EU. They were not necessarily immediately permitted to work, however. Member States are permitted under EU law to impose restrictions on citizens of new countries working for the first seven years after accession. In what is now considered a very controversial decision (but which was supported by all political parties at the time), the UK decided not to impose any such work restrictions.

Given that citizens of A8 countries could immediately travel to the UK and could immediately enter self employment and given that the UK does not have any system of ID cards which might enable controls on employment, there was little the UK could do to control the number of A8 workers. Any law prohibiting work would have been utterly unenforceable. The requirements of the Worker Registration Scheme were light, simply requiring a form to be sent to the Home Office with no fee payable. As it was, though, it seems that quite a few newly arrived A8 citizens did not comply with these requirements.

In Prefeta, the claimant was a Polish national who arrived in 2008 and worked from 2009 to 2011 when his employment came to an end due to injury. He applied for welfare support and would have been entitled to support if he could show that he had been a “worker” within the meaning of EU law. His application was refused on the basis that he had never been a “worker” because he had not registered under the Worker Registration Scheme and therefore the work had not been lawful.

The Court of Justice agrees. While the judgment specifically addresses retention of worker status for the purpose of entitlement to welfare support, the logic of the reasoning is clearly that work in breach of the WRS was not “work” within the meaning of the Directive. This means that any such work would not count towards permanent residence, and this also means that the Home Office revocation of the British passports of the children of certain A8 citizens is strictly legally correct. There have also been rumours that working in breach of the WRS has been used to refuse naturalisation as a British citizen on good character grounds but I am yet to see a substantiated example.

One thing missing from the judgment is any discussion of whether the extension of the Worker Registration Scheme in 2009 was lawful. The original scheme was in place from 2004 to 2009 for five years but was then extended for a further two years until 2011, the maximum permissible under EU law. The UK’s Court of Appeal held in Secretary of State for Work and Pensions v Gubeladze [2017] EWCA Civ 1751 that this extension of the scheme was unlawful (Worker Registration Scheme extension unlawful, Court of Appeal confirms). The period of work in Prefeta fell into the extension period.

Tom Royston of Garden Court North, who was briefed in both Prefeta and Gubeladze, tells me that the CJEU was aware that the extension of the Worker Registration Scheme was under challenge domestically in the UK but received no submissions on the issue and expresses no opinion. The Secretary of State for Work and Pensions was granted permission to appeal to the Supreme Court on 19 June 2018. We’ll await the outcome with keen interest.