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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SH (A2 nationals-worker authorisation exemption) Bulgaria [2009] UKAIT 00020 (27 May 2009) URL: http://www.bailii.org/uk/cases/UKIAT/2009/00020.html Cite as: [2009] UKAIT 20, [2009] UKAIT 00020

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SH (A2 nationals-worker authorisation exemption) Bulgaria [2009] UKAIT 00020

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 15 January 2009

Date Determination notified: 27 May 2009

Before
Senior Immigration Judge Storey
Between

SH	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant: None For the respondent: Ms Z Kiss, Home Office Presenting Officer
DETERMINATION AND REASONS

(i) The exemption afforded by the Accession (European Economic Area) Regulations 2006 to A2 nationals (nationals of Bulgaria and Romania) legally working in the United Kingdom at the date of accession (1 January 2007) and for an uninterrupted period of 12 months is not contrary to either the relevant Accession Treaty provisions or to the general EU principle of proportionality.

(ii) The decision in EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 is confirmed. Its reasoning is consistent with that applied by the House of Lords in the recent case of Zalewska v Department for Social Development [2008] UKHL 67.

(iii) Albeit as illustrated by the instant case and that of the appellant in EA, the terms of the exemption can result in hard cases, that does not suffice to show they are contrary to Community law.

(iv) For A2 nationals who find themselves just short of being able to meet the requirement of 12 months lawful employment there are no relevant Home Office policy concessions.

1. The appellant is a national of Bulgaria aged 27. This is a reconsideration of a determination by Immigration Judge (IJ) Turcan notified on 10 November 2008 which allowed his appeal against a decision by the respondent dated 10 July 2008 refusing to grant him a registration certificate as confirmation of his right of residence in the United Kingdom under European Community law. Having noted that the appellant was duly served with a notice of hearing but failed to respond, I decided to exercise my discretion to reconsider the case in the absence of one of the parties.
2. The events leading up to the respondent's decision are these. On 10 February 2006 the appellant was issued with a work permit to undertake employment as an Analyst Programmer with a software company based in Oxford. The "Period Covered by the Permit" was stated on this document to be "12 months from the date of leave to enter". The appellant then applied for a work permit visa and on 16 February 2006 the Visa Officer in Sofia stamped in his passport a "UK Entry Clearance". It states that it is valid from 16 February 2006 until 16 February 2007. On 18 February the appellant travelled to the United Kingdom, his entry clearance being stamped by an Immigration Officer at Luton Airport the same day. The appellant also began his employment that same day.
3. A further 10 and half months later there was an important event affecting the appellant's immigration status. From 1 January 2007 Bulgaria, along with Romania, became a member of the European Union (EU). However, they did not become full EU members and their nationals became known as "A2 nationals" to differentiate them from earlier "accession nationals" and from other EU nationals generally. That was because Bulgaria's and Romania's membership was made subject to a derogation from provisions of Community law relating to workers (art 39 of the Treaty establishing the European Communities, articles 1 to 6 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community and Council Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the Citizens Directive)). That derogation, as set out in the Accession Treaty for Bulgaria and Romania (signed in Luxembourg on 25 April 2005), applies during the accession period which began on 1 January 2007 and can be applied by Member States for a transitional period of 5 years, i.e. from 1 January 2007 to 31 December 2011 with a provision for a Member State to continue to maintain restrictions for a further two years in the case of disturbances to its labour market. (A similar derogation had been made in respect of the previous group of new Member States known as "A8 nationals"; the legal provisions relating to them have been the subject of close scrutiny by the House of Lords recently, in Zalewska v Department for Social Development [2008] UKHL 67.)
4. This derogation is not in absolute terms. It is intended to regulate freedom of movement within the Community for nationals of Bulgaria and Romania rather than exclude their EU employment-related rights entirely. Art 2, Annex VI of this Treaty authorises Member Stated during the accession period to apply "national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Bulgarian nationals ". However, the second and fourth paragraphs of the same article go on to provide a specific exception designed to cover nationals of Bulgaria who were already working in a Member State at the date of accession, 1 January 2007. They stipulate:

"Bulgarian 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 Member State but not to the labour market of other Member States applying national measures".

....

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

5. In order to give effect to these Accession Treaty provisions the United Kingdom enacted the Accession (European Economic Area) Regulations 2006 (SI 2006/3317) (hereafter the "2006 Accession Regulations"); these were the subject of amendment by the Accession (Worker Authorisation and Worker Registration) (Amendment) Regulations 2007 (SI 2007/3012). The 2006 Accession Regulations require that for the duration of the accession period nationals of Bulgaria and Romania who wish to work in the UK need to apply for "worker authorisation" in order to be able to work in the UK. They only have a right to reside in the UK by virtue of their worker status whilst they are working in accordance with the worker authorisation scheme.
6. Regulations 9(2) and 9(3) provide in their relevant parts are as follows.

"9.— (2) For the purpose of these Regulations, an accession worker authorisation document is—

(a) a passport or other travel document endorsed before 1st January 2007 to show that the holder has leave to enter or remain in the United Kingdom under the 1971 Act, subject to a condition restricting his employment in the United Kingdom to a particular employer or category of employment;

....

(3) But a document shall cease to be treated as an accession worker authorisation document under paragraph (2)—

(a) in the case of a document mentioned in paragraph (2)(a), at the end of the period for which leave to enter or remain is given;…."

7. Mirroring the Accession Treaty provisions, however, these regulations also identify certain exceptions or exemptions from the requirement to obtain worker authorisation. They include one relating to persons who, like the appellant, were legally working in the UK on 1 January 2007, the date when Bulgaria acceded to the European Community.
8. In reg 2, headed "Accession State national subject to worker authorisation", it is stated:

"(3) A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31 December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date;

(4) A national of Bulgaria or Romania who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 31st December 2006 shall cease to be an accession State national subject to worker authorisation at the end of that period of 12 months".

9. In para 12 of the same reg we find this at sub-paras (a) and (b):

"(a) a person working in the United Kingdom during a period falling before 1^st January 2007 was working legally in the United Kingdom during that period if –

(i) he had leave to enter or remain in the United Kingdom under the 1971 Act for that period, that leave allowed him to work in the United Kingdom, and he was working in accordance with any condition on that leave restricting his employment; or

(ia)- (ii) [do not apply]

(b) a person working in the United Kingdom on or after 1st January 2007 is legally working during any period in which he—

(i) [does not apply]

(ii) holds an accession worker authorisation document and is working in accordance with the conditions set out in that document;…."

10. On 4 June 2008 the appellant applied for a registration certificate to confirm that he was an EEA national who was exercising a Treaty right in the UK under the Immigration (European Economic Area) Regulations 2006 and was exempt from these work authorisation requirements.
11. As already noted, the respondent refused his application on 10 July 2008. She stated that she was not satisfied that he had been working legally in the UK without interruption for a period of 12 months ending on or after 31 December 2006. Her letter pointed out that the appellant did not have permission to work after 10 February 2007, which meant he had failed to complete 12 months of uninterrupted lawful employment. In his subsequent determination IJ Turcan allowed the appellant's appeal. The IJ considered determinative the fact that the appellant had been working in the UK without interruption for a period of 12 months and that this period fell partly after 31 December 2006 and ran until 17th February 2007. In the IJ's view that brought him squarely within reg 2(4) of the 2006 Accession Regulations.
12. The respondent's grounds for reconsideration expressed disagreement. They stated that:

"The appellant in this case was required to show that he had been working legally in the UK for a period of 12 months. In order to work legally the appellant had to be working under the authority of a work permit. In this case the appellant's work permit was granted on 10 February 2006 for 12 months, his visa was granted on 16 February 2006 until 16 February 2007. The appellant could only work legally up until 10 February 2007.

The appellant's work employment contract shows that his employment started on 18 February 2006. He could not work legally for a year as his work permit only lasted until 10 February 2007. The appellant's work permit was valid from its issuance and this is the point at which time would begin to run. Therefore, the appellant's work permit did run out on 10 February 2007 and the Judge's error on this point resulted in him erroneously finding that the appellant had completed 12 month's legal work."

13. It is not clear why the respondent thought that the appellant's work permit ran out on "10 February 2007", 12 months after the date of issue of the work permit. The same permit stated that the period covered by the permit was "12 months from the date of leave to enter"; it did not state that the period covered was from the date of issue.
14. However, this mistake in the respondent's grounds does not help the appellant, since in order to show that he had completed 12 uninterrupted months of lawful employment in the United Kingdom (so as to fulfil the exemption requirements set out in reg 2 (2)-(4)) he would have had to have completed 12 months uninterrupted lawful employment prior to his leave to enter expiring on 16 February 2007. Whereas he did not start his employment until 18 February 2006. By 12 months on from that date, i.e. on 18 February 2007, he no longer had valid leave to enter: that had expired two days before.
15. Hence the appellant missed out on being able to meet the requirements of the 2006 Accession Regulations by a frustratingly thin margin of two days.
16. In his grounds of appeal the appellant had argued that the respondent's decision on the basis that when the work permit stated that it covered the period of 12 months "from the date of leave to enter" it meant the date that he was admitted to the UK, which was the 18^th February, and so met the 12 months requirement. The IJ accepted that argument.
17. In order to decide whether the IJ erred in accepting this argument it is first helpful to examine the position under UK immigration law considered in isolation from any EEA context. The previous position under which the expiry of a period of leave to enter could only ever be calculated by reference back to the date of arrival in the United Kingdom was changed as a result of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161); see also para 25A of the Statement of Changes in the Immigration Rules HC 395 (inserted from 30 July 2000 by HC704). Art 4(3) of this Order provides that in the case of entry clearance to which that paragraph applies (and the appellant's entry clearance is such an entry clearance) the period of leave is a period "being the period beginning on the date that the holder arrives in the United Kingdom and ending at the date of the expiry of the entry clearance" (emphasis added). One of the consequences of this provision is that unless the issue of entry clearance and arrival in the country take place on the same day, the period of leave granted will always be less than the period of leave that can be spent in the UK (unless extended). And so it was with this appellant, who by virtue of his leave to enter expiring 12 months after his grant of entry clearance on 16 February 2006 was left 2 days short of being able to show 12 months in lawful employment, even though he had commenced work on the same day as he had arrived (on 18 February 2006).
18. At the hearing I put to Ms Kiss that it was not entirely clear how within this legal framework an A2 national who had been granted a work permit for 12 months (the normal period) and had arrived in the United Kingdom on or after 1 January 2007 could ever qualify for the exemption set out in the 2006 Accession Regulations unless he were to achieve the herculean feat of obtaining his work permit visa, arriving in the United Kingdom and commencing work here - all on the same day. I sought to know whether the respondent considered this was the true legal position and whether, if it was, there was any relevant policy guidance on the operation of this exemption, so as to ameliorate the apparent insurmountability of the 12 months requirements as stated in the Regulations. Her further written submissions made two main points regarding the law.
19. First she submitted that the 12 months requirement contained in the UK 2006 Accession Regulations mirrored that contained in the relevant Accession Treaty Annex and in both texts the relevant provision was in mandatory language and admitted of no discretion.
20. Second she submitted that existing Tribunal authority was against the appellant, the Tribunal having held in EA (EEA: 3 months residence) Bulgaria [2008] UKAIT 00017 that an A2 national "has to comply strictly with the provisions of the 2006 Regulations in order to obtain the benefits derived from them".
21. Ms Kiss also addressed the question of whether any policy guidance existed relating to this 12 months requirement. She stated that although policy guidance was silent about the problem, the respondent considered that existing legal provisions afforded A2 nationals in the appellant's position certain ameliorative steps. Her written submissions stated:

"It is accepted that the guidance does not specifically deal with applicants who fall short of the legal requirements marginally because they did not travel/begin work on the day in the UK on the date that entry clearance was issued. However, applicants in this position have the option to ask their employer to apply for a work permit extension which could form the basis of an in-country accession worker card application; there is nothing to stop an A2 national making a pre-emptive application so that an accession worker card can be issued before the entry clearance expires. Alternatively a work permit could have been sought from another employer and the same process followed by [the] applicant; EEA applications are non-chargeable and A2 nationals naturally cannot be removed. An A2 national has avenues open through which to address the issue."

"Admitted to the labour market…"

22. As regards Ms Kiss's first point, it is not strictly correct that the 2006 Accession Regulations mirror the terms of the Accession Treaty. Whereas reg 2(4) of the Accession Regulations excludes those "legally working" for a period of less than 12 months, the Treaty provision (art 2 annex VI ) excludes those "admitted to the labour market of that Member State" for a period of less than 12 months. The question is, however, can the difference in wording of the Treaty provision assist the appellant.
23. In order to answer that question it is first necessary to ascertain what is meant in temporal terms by the art 2, second para, Annex VI phrase "admitted to the labour market …". In Zalewska the House was required to consider precisely the same phrase, albeit in the context of Treaty provisions made in relation to the previous group of accession states (the 'A8'). At para 43 Lord Hope considered that the phrase meant that admission to the labour market was obtained as soon as the accession national began work for an authorised employer; none of the other law Lords disagreed. In my view Lord Hope's opinion represents powerful authority for interpreting the very same phrase in the present case in the same way.

Lawful employment

24. The next issue is whether admission to the labour market must take the form of lawful employment. The second para of art 2 Annex VI guarantees access to the labour market of the Member State to "Bulgarian nationals legally working …at the date of accession and admitted to the labour market of that Member State for an uninterrupted period of 12 months or longer…". It might be contended that all this required of the appellant was to show (1) that on 1 January 2007 he was legally working in the United Kingdom; and (2) he had completed 12 months uninterrupted employment in that same employment (which he had). On that construction it would be immaterial that for 2 days of the 365 days involved he had no lawful permission to work. However, that view could only be correct if the Annex VI Treaty provisions contemplated that (apart from the position obtaining on 1 January 2007) the 12 months in continuous employment could be 12 months in illegal employment. But such a construction cannot be sustained. For one thing it would entail having to treat the "legally working" requirement as applying not to the entirety of the period during which they are admitted to the labour market, but only to one day out of the 365 (the date of accession (1 January 2007) and so contemplating the most unlikely possibility of application to a person who had worked illegally for up to 364 days. For another, the same article (art 2) states in its first paragraph that, by way of derogation from EU free movement law, "the present Member States will apply national measures…regulating access to their labour markets by Bulgarian nationals". In other words the Article empowers Member States to apply national measures to determining labour market access in respect of accession nationals.
25. That the phrase "admitted to the labour market…" in the relevant Accession Treaty provisions must refer to lawful employment is supported by the opinions of their lordships in Zalewska. In Zalewska, although the question was a different one it raised a similar underlying issue. This case concerned whether a Polish accession national who had worked in the United Kingdom without interruption for 12 months had a right of access to the labour market of the United Kingdom so as to enable her to qualify for income support under the relevant social security legislation as a person who is habitually resident in the UK, despite her failure to comply with national measures requiring her to be in work with an authorised employer throughout that period (the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219)). Their Lordships had to decide whether the registration requirements in reg 7 of the 2004 Regulations were compatible with Community law (art 7(2) of Regulation 1612/68, which entitles EU nationals to the same social and tax advantages as workers who are nationals of the United Kingdom. At para 27 Lord Hope held that the derogating provisions of the Accession Treaty (derogating from arts 1 to 6 of 1612/68) only permitted A8 accession nationals to benefit from the art 7(2) Community law rights if they complied with national measures:

"But the rights conferred on Polish workers by article 7 were to depend on their compliance with the national measures. It is those measures that determine their eligibility to obtain access to the national labour market on which the rights given by article 7 in their turn depend. The reference to Polish nationals "admitted to the labour market of a present member state" in the third paragraph of paragraph 2 of Part 2 of Annex XII is a reference to Polish nationals who have been admitted to it under the national measures regulating access."

26. At para 28 he added:

"So long as the requirements of the national rules are satisfied an A8 national is entitled to the benefit of article 7(2) of the Regulation because he is a person who is admitted to the labour market, but not otherwise. Conversely an A8 state national is not admitted to the labour market if he does not comply with national measures…"

27. The approach taken here also accords with existing Tribunal authority, that of EA, which was heard by Deputy President Mr C M G Ockelton and SIJ Latter. Although decided prior to Zalewska, the Tribunal's approach in EA is entirely consistent with it and, because it concerns a case very similar to that of the appellant, sheds helpful light on the underlying issues. In EA the Tribunal had to consider the case of a national of Bulgaria who had arrived in the United Kingdom on 14 April 2006 in reliance on entry clearance issued to him on 12 April and set to expire on 12 April 2007. He worked in virtue of a work permit which expressed the period for which permission is given to work as 12 months from the date of leave to enter the United Kingdom. However, by 12 April 2007, when he leave to enter expired, he had only completed 363 days in employment.
28. In concluding that he could not benefit from the exemption set out in reg 2 of the 2006 Accession Regulations the Tribunal stated:

"Although his permission to work, if he otherwise met the requirements of UK immigration law, expired two days later, he had no leave to enter the United Kingdom after 12 April 2007. It would appear to follow from that, taken by itself, that the appellant's last two days of his twelve months' work, upon which he relies, were not days on which he was working legally here: they were days on which he was working here in accordance with a work permit, but contrary to the provisions of immigration law, because he had no extant leave."

29. Turning to the appellant's attempt to pray in aid various provisions of the 2006 Accession Regulations the Tribunal stated:

"Unfortunately for the appellant those Regulations exactly confirm the position argued by Mr. Tarlow [the Presenting Officer]. At the end of the period of validity of the visa the appellant ceased to have leave to enter under the Leave to Enter and Remain Order. On that date, which was 12 April 2007, the document on which he relied for the purposes of the Accession Regulations ceased to be an accession worker authorisation document. The last two days of the work, which he undertook under his work permit, were therefore days on which, according to the very Regulations on which he relies for the relief he seeks, his work was not legal work and he accordingly cannot bring himself within the provisions of reg 2(4). "

30. The Tribunal went on to reject the appellant's contention that he could make good the 2 days deficit by relying on reg 13(1) of the 2006 EEA Regulations (art 6 of the Citizens Directive), which enshrines an initial right of residence of 3 months.
31. Earlier on the Tribunal had said at para 13:

"We do not find the decision in this case easy, not only because neither party has been able to give us a great deal of assistance with the detailed law, but also because it may seem hard that a decision depends on two days. There is no doubt, however, that the structure of immigration law does require that presence be lawful presence, and unlawful presence (that is to say presence after expiry of existing leave, or presence without leave) has the character of unlawful presence however short it is".

32. Thus there is also Tribunal authority in support of Ms Kiss's central contention.
33. Hence I consider Ms Kiss is right to say that the appellant is excluded from the exemption by operation of both the 2006 Accession Regulations and the terms of the Accession Treaty. She is also right to say that existing Tribunal authority supports the respondent's position.

Proportionality

34. That, however, is not the end of the matter. In order for the EEA decision in this case to stand I must be satisfied not only that it was in accordance with the 2006 Accession Regulations and the Accession Treaty provisions, but also that it accorded with general principles of EU law, in particular the general Community law principle of proportionality. Here, once again, the Zalewska case is instructive. For whilst Lord Hope's analysis confirms the primacy of national measures in the context of Accession Treaty provisions, it also highlights the fact that it remains the case that national measures are only compatible with Community law if they also accord with this general Community law principle: see para 30. One of the key questions in Zalewska was whether it was proportionate for (United Kingdom) national measures to say that only those A8 nationals who work for an authorised employer for an uninterrupted period of 12 months are entitled to the status of "worker", having regard to the consequences of not according them that status. On behalf of the appellant it was argued that the consequences of the claimant's failure to re-register after she left her first employment were a complete denial of Community law rights: she lost her right to reside in the United Kingdom and, as a consequence of losing that right, access to social security benefits. On this matter their lordships were not in agreement, although by a 3 to 2 majority Lord Hope's opinion prevailed. His opinion was that the UK's accession legislation for A8 nationals and in particular the formalities of registration and re-registration (i) pursued a legitimate aim of enabling the Government to monitor the numbers working and the sectors where they were employed; and (ii) were proportionate to those aims because the requirement to re-register enabled the Government to obtain up-to date statistics and means of verification of past employment and to impose some degree of pressure on A8 nationals to register and re-register their employment. He echoed Social Security Commissioner Rowland's observation (at the earlier stages of the appeal) that although such a conclusion could result in "hard cases" missing out, the Treaty provisions themselves contemplated that workers who became temporarily sick or unemployed after being employed for just under 12 months (paras 42-44) would lose out.
35. In considering the issue of proportionality in the present case it must be accepted that the way the 12 months rule can operate at least in the UK context, as illustrated by the appellant's case, can have harsh consequences. It might appear that unless a person is given a work permit and corresponding leave to enter of sufficient duration so as to enable the A2 national to complete 12 months uninterrupted employment whilst still working legally, he or she can never effectively qualify for the exemption even though completing the formalities of obtaining a work permit, obtaining entry clearance, travelling to the United Kingdom and commencing employment in as rapid a fashion as possible. He faces denial of key Community law rights and lack of access to social security. It might also be thought that to say to an A2 national in this position that he could have taken ameliorative steps in the form of making an application (in-country) for an accession worker authorisation scheme card is not good enough, since what that person seeks is to benefit from an exemption from such a scheme and in effect to be treated as an ordinary EU national exercising Treaty rights. Ms Kiss's first suggestion was that persons granted 12 months work permits due to expire before completion of 12 months employment could have sought to ask their employer to apply for a work permit extension which could form the basis of an in-country accession worker card application: "there is", she wrote, "nothing to stop an A2 national making a pre-emptive application so that an accession worker card can be issued before the entry clearance expires". But such an option is only open to someone who is not exempt and requires, in order to be able to work legally, worker authorisation. Whereas what this appellant sought was to qualify under the Immigration (European Economic Area) Regulations 2006 for a certificate of registration on the basis of being a worker within the meaning of Community law.
36. The same problem afflicts Ms Kiss's only other suggestion, namely that alternatively "a work permit could have been sought from another employer and the same process followed by the applicant".
37. Nevertheless, despite these features, I do not consider that the requirement of 12 months continuous lawful employment as set out in the 2006 Accession Regulations offends the Community law principle of proportionality, for several reasons.
38. First, in much the same way as arose under the similar scheme put in place for A8 nationals, the 2006 Accession Regulations pursue a legitimate aim of enabling the Government to monitor through the worker authorisation scheme the numbers working and the sectors where they were employed. As is made clear in the November 2008 UKBA Casework Instructions (Chapter 7 section 2) and the UKBA notices of 18 December 2008 regarding continuing restrictions, they have also enabled the Government to obtain up-to date statistics and means of verification of past employment and to impose some degree of pressure on A2 nationals to seek worker authorisation.
39. Second, unlike the United Kingdom registration and re-registration requirements for A8 nationals in focus in Zalewska, the requirement of 12 months continuous lawful employment is, as we have seen, imposed by the relevant Accession Treaty provisions themselves; it is they which restrict the exemption to those who can show 12 months uninterrupted employment that is lawful according to national law measures. In the instant case, although it is the national law measure which causes an A2 national in the appellant's position to miss out (by just 2 days) from being able to show 12 months in lawful employment, that is a direct consequence of the Accession Treaty provision (here under art 2, Annex VI) leaving access to the national labour market as a matter for national law regulation.
40. Third, it is also the relevant Treaty provisions themselves that choose not to make provision for "hard cases". As was pointed out in Zalewska in relation to very similar Accession Treaty provisions applying to A8 nationals, no provision is made for accession nationals who miss out on being able to benefit from a Community law right of residence by virtue of temporary illness or unemployment causing their employment to fall just short of 12 months.
41. Fourth, even though none of Ms Kiss's suggested ameliorative steps help persons in the appellant's position to benefit from the exemption, they do nevertheless offer real avenues for an A2 applicant to remain in the United Kingdom in employment. Put another way, they do show it was open to persons in the appellant's position (and in EA's position) to have tried to avoid wholesale exclusion from the United Kingdom labour market by finding employment in compliance with the worker authorisation requirements.
42. Fifth, it would appear that in law there was an avenue open to applicants in the appellant's position to actually obtain exemption. It would have been open to the appellant's employer sometime before 16 February 2007 to apply for an extension of his work permit and for him then to have applied for a short extension of stay.
43. At first sight it might appear that this type of avenue, whilst it may have been open to a third-country national work permit holder, was not open to the appellant, by virtue of the fact that he was an EEA national and EEA nationals are not subject to immigration control. It might be thought that the respondent has no power in law to grant leave to enter or remain in respect of EEA nationals. However, such would be to misread the correct position in law. Section 7 of the Immigration Act 1988 does indeed contain a provision whose effect is to remove the requirement to have leave to enter or remain from EEA nationals and their family members. But it only removes that requirement from those exercising enforceable Community rights. It states in its relevant parts:

7. Persons exercising Community rights and nationals of member States

(1) A person shall not under the principal Act [1971 Act] require leave to enter or remain in the United Kingdom in any case in which he is entitled to do so by virtue of an enforceable Community right or of any provision made under section 2(2) of the European Communities Act 1972.

…"

44. The compatibility of United Kingdom immigration control measures with Community law in some circumstances where Community nationals are not exercising enforceable Treaty rights was confirmed in Reg.v Immigration Appeal Tribunal, Ex parte Antonissen (Case 292/89) [1991] ECR I-745 and Chief Adjudication Officer v Wolke [1997] UKHL 50. The appellant in this case has never shown that he is exercising enforceable rights under the Treaty or secondary legislation. The normal employment-related rights of a Community national were removed from him by the provisions of the Accession Treaty derogating from the free movement rights of workers. He was only in a position to exercise an enforceable right if he first met the requirements for exemption from the worker authorisation scheme. Hence, if the appellant had made an in-time application shortly before his existing leave to enter or remain expired (16 February 2007) the respondent would have been able, lawfully, to grant him a short extension, thus enabling him to benefit from the exemption.
45. Whilst this last point adds to the reason for finding the 12 months requirement proportionate, it is one to which I attach minimal weight. That is with the following in mind. Despite being given an opportunity to clarify the position, Ms Kiss was unable to point me to any Home Office publicity or literature informing A2 nationals of this potential avenue. She herself did not identify this as a possible avenue. Whilst it might be thought that an A2 national in the appellant's position should have realised that his leave to enter or remain was due to expire before he had completed 12 months in employment, it is difficult to see that he should have realised there was a legal avenue open to him to apply for a short extension of his existing leave, especially since the November 2008 UKBA European Casework Instructions asserts near the beginning that as from 1 January 2007 A2 nationals were not subject to immigration control. The Community law principle of legal certainty requires rules to be clear, precise and predictable in their effects, with clear criteria known in advance: see Forster (free movement of persons) [2008] EUECJ C-158/07.
46. In the circumstances I consider that the respondent's principal grounds for reconsideration are made out. In finding that the appellant was exempt from the worker authorisation requirements and so entitled to a registration certificate, the IJ materially erred in law.
47. It follows logically that the decision I must substitute for that of the IJ is to dismiss the appellant's appeal.
48. I have not dealt with whether the appellant was actually in a position to benefit from the worker authorisation scheme. The evidence and information that would have been relevant to that matter is lacking. All that is known is that he was still in employment with the software company in Oxford on 20 February 2007. But in general terms, it is worth recalling that to obtain authorisation an applicant has to obtain employment falling within one of the categories of employment designated by this scheme. Either he would have to fall into one of the "permit-free" categories set out in Annex A of the November 2008 UKBA guidance (eg airport-based operational ground staff of an overseas airline; au pair placements; domestic workers in a private household) or he would have to fall into one of the categories which require an employer to apply for a work permit. The November 2008 UKBA guidance states that:

"Approvals under the work permit arrangements are generally only given for skilled jobs and where suitably qualified resident labour is unavailable to fill the vacancy. However, the work permit arrangements also include the Sectors Based Scheme under which a quota of permits may be issued for lower skilled jobs in the food processing industry…"

49. For the above reasons:

The IJ materially erred in law.

The decision I substitute is to dismiss the appellant's appeal.

Signed

Senior Immigration Judge Storey