Challenging the UK rules on the rights of EU8 workers

Abstract

Following the enlargement of the European Union in 2004, the UK implemented a relatively open labour market policy that allowed migrants from the eight central and eastern European accession states to take up work in the UK providing that they complied with registration requirements. At the same time, however, the UK sought to prevent EU8 migrants who found themselves without work from accessing benefits in its territory. This article analyses the House of Lords decision in Zalewska v Department for Social Development [2008] UKHL 67 in which the UK rules were challenged. Although the majority of the House of Lords upheld the decision that the UK's rules of registration are compatible with the Accession treaties and broader provisions of Community law on free movement and citizenship, it is submitted here that the opinions of the minority represent a more accurate application of the relevant Community law principles, notably proportionality, as interpreted by the European Court of Justice. Overall, the article emphasises how individuals' access to rights enshrined in provisions of Community law depends largely upon the goodwill of the national courts.

Notes

1. Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia. Cyprus and Malta acceded to the EU at the same time as the EU states.

2. Analogous transitional arrangements were also included in the Accession Treaties signed with Bulgaria and Romania, the Member States that acceded in 2007: Treaty of Accession 2005 [2005] OJ L157/11.

3. Article 24, Act of Accession [2003] OJ L236/33 refers to a series of Annexes that contain the details of the transitional arrangements in respect of each accession Member State (Annexes V–XIV). For example, in relation to Poland see Annex XII [2003] OJ L236/875.

4. The reports from the series can be accessed at: http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/reports/accession_monitoring_report/.

5. Note that the data from the WRS is by no means an estimate of net migration to the UK from the EU8 Member States as it only presents a cumulative figure of those that have applied to the scheme from the date of accession. It does not measure, to any extent, the outflow of EU8 migrants as there is no requirement for those who leave to “de‐register” from the scheme.

6. The decision of the NI Court of Appeal was discussed in an earlier volume of this journal: see Cousins (2008).