Hi,
I've found this information and I do believe it gives the applicant some solid arguments to appeal their nationality refusal based on WRS issues (not registered at all or not notified about change of employment):
I Upper Tribunal decision
The Upper Tribunal has ruled that the government acted unlawfully when it extended the controversial Workers Registration Scheme (WRS) for a further two years.
The WRS required nationals from Czech Republic, Estonia, Lithuania, Latvia, Hungary, Poland, Slovakia, and Slovenia to register each time they started a new job. Nationals from these countries were also prevented from relying on their EU law right to reside in respect of any period where they did not register.
Many workers inadvertently fell foul of what was seen by some as an unnecessarily bureaucratic scheme. Even though the WRS ended in 2011, its effects have continued to be felt because past non compliance with the WRS has in many cases caused a person not to retain a right of residence, or not to develop a permanent right of residence.
The case of TG v Secretary of State for Work and Pensions (PC) [2015] UKUT 0050 (AAC) was heard by the Administrative Appeals Chamber of the Upper Tribunal in January 2015. The Appellant was represented by Tom Royston from Garden Court North, instructed by Howells Solicitors, Sheffield.
In what was the first successful challenge to the WRS, Judge Ward found that the decision to continue the WRS until 2011 was ‘manifestly inappropriate’ and therefore unlawful. The finding will potentially affect the past and future social security, housing and immigration law rights of hundreds of thousands of EU workers.
Subject to any appeal, the government will have to change domestic law to make it compliant with the decision. Therefor, it will no longer be lawful to refuse EU workers the right to reside on the ground of not having complied with the WRS requirements in the period 1 May 2009 and 30 April 2011.
CPAG understands that the Secretary of State has sought permission to appeal from the Upper Tribunal, but this has been refused and there is now an application to appeal before the Court of Appeal. In the meantime, the decision of the Upper Tribunal is binding on decision makers, although they may choose to stay decisions relying on this judgment pending the outcome of any appeal.
II Human Rights Commission
1
SUBMISSION OF EVIDENCE TO THE UK BORDER
AGENCY REGARDING THE IMPACT OF THE WORKER
REGISTRATION SCHEME, 10 MARCH 2009
Summary
The Worker Registration Scheme, a tool for monitoring inward
migration from the new accession states, was introduced in 2004
and is due to end on 31 April 2009 unless the UK government can
argue that there are “serious disturbances to the labour market”.
Drawing from its current investigative work on ‘no recourse to
public funds’ the Commission have taken the opportunity to submit
evidence to the UK Border Agency (UKBA) in advance of the
government’s decision on whether or not to extend the Worker
Registration Scheme (WRS) beyond 31 April 2009.
The evidence submission adopts a two tiered approach the first of
which focuses on the human rights implications for vulnerable
groups of the scheme and recommends that it be discontinued. The
second part of the submission provides detailed recommendations
in the event that the scheme is extended against the advice of the
Commission. The recommendations emphasise the need for
flexibility in the administration of the scheme to allow people in
crisis to access essential services. Other recommendations highlight
the necessity of widely disseminated comprehensive information for
workers and employers and a reconsideration of the burdensome
registration fee.
The government is due to make an announcement at the end of
March on whether or not to extend the scheme for up to a further
two years.
2
Recommendations
Main recommendation: The Commission recommends that the
Workers Registration Scheme is discontinued in its entirety.
Further Recommendations: In the event that the scheme is
continued, the Commission recommends the following:
1. The government’s administration of the scheme should consider
compassionate grounds to allow those people at risk of destitution
to access support.
2. The government must allow victims of domestic violence access
to the services they desperately need to ensure their protection and
safety.
3. The government should carefully review existing interagency
information sharing protocols to prevent access to support being
denied.
4. The government should ensure that all employers are clearly
aware of their obligations under the scheme and are in a position to
assist their employees with the process.
5. The government should effectively make use of available
sanctions for those employers who ignore their obligations under
the scheme and seek to exploit their employees.
6. Registration of a change of employment should not be a
requirement of the Worker Registration Scheme.
7. The government must lower the fee attributed to the Workers
Registration Scheme with a view to phasing out the fee in line with
the end of the scheme.
8. The government should take all necessary measures to ensure
that guides for migrant workers, outlining their rights, can be
reproduced and disseminated, at all appropriate points throughout
the UK, for workers, voluntary organisations, employers and
government service providers.
9. The government should ensure that information is available to
migrants before they arrive in the UK by arranging for the
dissemination of guides in co-operation with the countries of origin.
3
Introduction
1. The Northern Ireland Human Rights Commission (the
Commission) is a statutory body created by the Northern
Ireland Act 1998. It has a range of functions including
reviewing the adequacy and effectiveness of Northern Ireland
law and practice relating to the protection of human rights,1
advising on legislative and other measures which ought to be
taken to protect human rights,2
advising on whether a Bill is
compatible with human rights3
and promoting understanding
and awareness of the importance of human rights in Northern
Ireland.4
In all of that work, the Commission bases its
positions on the full range of internationally accepted human
rights standards, including the European Convention on
Human Rights (ECHR), other treaty obligations in the Council
of Europe and United Nations systems, and the non-binding
‘soft law’ standards developed by the human rights bodies.
2. The Commission welcomes this opportunity to submit
evidence to the UK Border Agency (UKBA) in advance of the
government’s decision on whether or not to extend the
Worker Registration Scheme (WRS) beyond 31 April 2009.
The Commission understands that the UKBA will receive
evidence from the Migration Advisory Committee and the
Migration Impacts Forum, which will outline the impact of A8
migration on the UK labour market and the potential
implications of removal of the scheme. As a statutory body
whose remit includes advising government on legislative and
other measures which ought to be taken to protect human
rights, the Commission is also mandated to give evidence and
views its role as equally important in this regard.
3. The Commission is currently engaged in an investigation into
homelessness for people with no or limited recourse to public
funds. As part of this investigation, the Commission has
considered, among other matters, the circumstances of
individuals who are excluded from accessing homeless
services as a direct result of the requirements of the Worker
Registration Scheme. The Commission plans to publish a full
report of its investigation findings in summer 2009. In the
meantime, the Commission will use its knowledge, gained
from this primary investigative work, to inform its submission
of evidence to UKBA.
1
Northern Ireland Act 1998, s.69 (1).
2 Ibid, s.69(3).
3 Ibid, s.69(4). 4 Ibid, s.69(6).
4
4. At the outset, the Commission notes that the concerns raised
in this submission regarding exclusion from homelessness
services and social security benefits also apply to other nonUK
nationals as well as nationals from the A8 accession
states. Nevertheless, given that the submission of evidence
relates directly to the operation of the WRS, the Commission
confines its comments to the impacts of exclusion from
services on individuals from the A8 states.
WRS as a regulatory mechanism
5. The Commission recognises the right of the State to regulate
migration in a way which is compatible with human rights. If
a mechanism, such as the Worker Registration Scheme, has
the potential to engage or interfere with certain human rights,
the government must demonstrate that this interference is
necessary, proportionate, in pursuance of a legitimate aim,
and adequately prescribed by law. However, the Commission
is concerned that the Worker Registration Scheme is
disproportionate as a regulatory mechanism because the
consequences of failure to register may result in grave
interference with fundamental human rights. In addition,
available information would suggest that the scheme is
unnecessary.
6. The need for and aims of the scheme are set out in the
government’s most recent WRS monitoring report, “The UK
Government put in place transitional measures to regulate A8
nationals’ access to the labour market (via the Worker
Registration Scheme) and to restrict access to benefits”. 5 In
terms of the first aim, to regulate access to the labour
market, the Commission notes that the government has
already had 5 years since the introduction of the scheme in
which to fulfil this aim. It is therefore difficult to understand
how further monitoring is required. Moreover, successive
Home Office reports have cast doubt on the effectiveness of
the WRS as a labour market monitoring tool. The latest Home
Office monitoring report states that the figures generated by
the WRS represent only:
[...] a gross (cumulative) figure for the number of workers
applying to the Worker Registration Scheme. The figures are
5
UK Borders Agency (2008) Accession Monitoring Report: May 2004 – September
2008, A joint online report between UK Borders Agency, Department for Work
and Pensions, HM Revenue and Customs, and Communities and Local
Government at p. 1.
5
not current: an individual who has registered to work and who
leaves employment is not required to de-register, so some of
those counted will have left the employment for which they
registered and indeed some are likely to have left the UK. 6
This suggests that the scheme is only partially effective in
pursuance of its monitoring aim. Consequently, the
Commission suggests that it is inappropriate to continue with
a scheme that has the potential to result in considerable
suffering and hardship when it delivers, at best, limited
information in terms of monitoring.
7. For the second aim, the government states that the WRS will
restrict access to benefits. In this way, it is portrayed as a
mechanism to prevent the financial consequences of reliance
on benefits. In addition to the potential human rights
implications, the Commission suggests that in practice the
scheme does not achieve this aim. Instead, it appears that
the WRS merely shifts the financial consequences associated
with access to benefits from social security and housing
departments onto other agencies. During the Commission’s
investigation, it was apparent that social services or voluntary
sector agencies were often relied upon to assist individuals
disentitled to benefits and homelessness support because of
the WRS. For voluntary organisations, the financial
consequences are considerable. In most cases, they must
rely on private donations or reserve finds because they risk
financial penalties if public funding is used to help non-UK
nationals who are ineligible for benefits and housing support.
Taking full account of the role of social services and the
voluntary sector, the Commission submits that, while the WRS
restricts access to benefits, it does not really avoid the
financial consequences that would result if access to benefits
was allowed. The Commission proposes that the financial
impact that does exist would be better managed if people
were permitted to access the more visible systems of state
housing and social security benefits.
Human Rights Instruments
8. The Worker Registration Scheme is due to expire on 31 April
2009. However, the government may extend the WRS for a
further period of 2 years if there are “serious disturbances to
the labour market or a serious threat thereof”.7
In addition,
6
As above, p. 2
7
The Accession Treaty 2003: The Accession (Immigration and Workers)
Regulations 2004.
6
the Commission suggests that the government should apply a
second test when deciding to remove or extend the WRS, that
is, one which tests whether the scheme is compatible with the
government’s obligation to protect human rights.
9. In making this submission of evidence to UKBA, the
Commission wishes to highlight the government’s
responsibilities under domestic and international human rights
instruments, which are particularly relevant to the practical
impacts of the Worker Registration Scheme. The Commission
emphasises that human rights apply to everyone and are not
dependent upon nationality or citizenship. Although the
International Convention on the Elimination of All Forms of
facial Discrimination (ICERD) contains human rights
provisions, some of which apply universally and some others
to citizens, the UN makes clear that any differential treatment
between citizens and non-citizens constitutes discrimination
unless it is proportional and pursuant to a legitimate
Convention aim.8
In addition, the UN recommends that State
Parties:
Review and revise legislation, as appropriate, in order to
guarantee that such legislation is in full compliance with the
Convention, in particular regarding the effective enjoyment
of the rights mentioned in Article 5, without discrimination9
Article 5 of the ICERD requires State Parties to prohibit and to
eliminate facial discrimination and to guarantee the right of
everyone to equality before the law, in particular in the
enjoyment of various civil, political, economic, social and
cultural rights as specified in Article 5 (a) to (e). The
Commission is deeply concerned that the WRS has the
potential to preclude enjoyment of these rights without
discrimination, especially rights to housing and social security,
and that this differential treatment has not been shown to be
proportional or pursuant to a legitimate Convention aim. In
addition, the Commission reminds the government of the
following human rights provisions, which are guaranteed to
everyone independent of citizenship and nationality:
• The European Convention on Human Rights (ECHR), in
particular: Article 2 (right to life); Article 3 (freedom
from inhuman, degrading treatment and torture);
Article 5 (right to liberty); Article 8 (right to private and
8
General Recommendation No. 30 (General Comments): Discrimination against
non-citizens, Office of the High Commissioner for Human Rights, 1 October 2004.
9
As above, paragraph 6.
7
family life); and Article 14 (non-discrimination).
• The International Covenant on Economic, Social and
Cultural Rights (CESCR), in particular: Article 1
(realisation of, and non-discrimination in respect of,
economic, social and cultural rights); Article 9 (the right
to social security and social assistance); and Article 11
(right to an adequate standard of living, including food,
clothing and housing).10
• The European Social Charter (ESC), in particular: Article
13 (right to social and medical assistance)11; Article 16
(right of the family to social, legal, and economic
protection); and Article 17 (right of mothers and
children to social and economic protection).
• The UN Convention on the Rights of the Child (CRC), in
particular; Article 3 (best interests principle); Article 16,
(right to private and family life); Article 18 (appropriate
assistance to parents for the upbringing of the child);
and Article 27 (right of the child to an adequate
standard of living and measures to assist parents).
10. The Commission also draws attention to the International
Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families. Although the UK
government has not yet ratified this Convention, it contains
internationally accepted standards, establishing basic norms
to ensure protection of migrant worker rights. Article 43 of
the Convention requires that migrant workers enjoy equal
treatment in respect of access to housing, an entitlement
which at present the Worker Registration Scheme prevents.
Human Rights Impact of the WRS
11. The Commission is seriously concerned that the Worker
Registration Scheme has the potential to result in breach of
human rights provisions particularly for vulnerable groups.
Indeed, from its investigations, the Commission is aware of
instances where this may already have occurred. Drawing on
its primary investigative work, the Commission presents the
following evidence regarding the human rights impact of the
WRS and submits that, from a human rights perspective, the
10 Article 2 (3) CESCR contains a concession in relation to non-citizens for
developing nations only, which does not apply to the UK.
11 Article 13 (1) to ensure that any person who is without adequate resources and
who is unable to secure such resources either by his own efforts or from other
sources, in particular by benefits under a social security scheme, be granted
adequate assistance, and, in case of sickness, the care necessitated by his
condition.
8
Worker Registration Scheme should not be extended.
12. Right to life: The Worker Registration Scheme prevents access
to essential services such as homelessness assistance and
welfare benefits for individuals out of work who have not
completed a continuous 12 month period of registered work.
In extreme cases, exclusion from services in this way results
in serious threat to life, particularly where the individual
concerned is homeless and vulnerable. Article 2 of the ECHR
(right to life) does not only require the State to refrain from
causing unlawful death, it may also impose positive
obligations:
[…] the Court reiterates that Article 2 does not solely concern
deaths resulting from the use of force by agents of the State but
also, in the first sentence of its first paragraph, lays down a
positive obligation on States to take appropriate steps to
safeguard the lives of those within their jurisdiction.12
Therefore, while a general right to housing and social security
assistance cannot be spelled out in the meaning of Article 2 of
the ECHR (right to life); there are still circumstances where
the State must intervene to ensure protection of the right to
life. The European Court of Human Rights (ECtHR) has not
yet decided a case regarding access to homelessness and
social security services for foreign nationals. Nevertheless,
case law in other areas has established the general principle
of state responsibility under Article 2 of the ECHR. State
responsibility exists if the State is responsible (whether by act
or omission) for the risk to life or, if the State is not directly
responsible, if it knows, or ought to know, about a real and
immediate risk to life.13
13. The Commission submits that the WRS may result in violation
of the right to life where a homeless and vulnerable person,
presenting to state authorities (whether in person or through
a voluntary agency), is refused assistance solely because they
do not meet the terms of the scheme. In this case, the State,
having become aware of the person’s vulnerability and the
fact that they are homeless, may have a duty of care to
respond. From its primary investigative work, the
Commission can state categorically that there are instances in
Northern Ireland where homeless people have been declined
12 Öneryildiz v. Turkey (Application no. 48939/99), 30 November 2004,
paragraph 71.
13 See Osman v United Kingdom (1998) Case No 87/1997/871/1083, 5 November
1998.
9
assistance due to the WRS. Individuals without any form of
accommodation, including those suffering from ill-health,
physical and mental disability, and people with dependent
children are refused homelessness assistance and/or welfare
benefits because they have not been registered (or have not
been registered for a continuous 12 month period) on the
scheme.
14. Although in some instances a person may receive help from
social services, (in Northern Ireland under Article 15 of the
Health and Personal Social Services (NI) Order 1972 and in
England and Wales under Section 21 of the National
Assistance Act 1948), there is no clear guidance on when
social services assistance should be provided. For instance,
Commission investigators were regularly informed that unless
a person fits within a specific category of vulnerability
corresponding to existing social services departments, they
will not receive help. At present, it seems that social services
departments in Northern Ireland are set up to respond only to
those with children, with mental or physical disability
(including learning disability), with sensory impairment, and
older people. This means that in practice, there is no real
safety net for individuals from the A8 states who are
homeless unless they can demonstrate these very specific
vulnerabilities.
15. The Commission recognises that from a housing perspective,
not all homeless people are entitled to homelessness
assistance. Therefore, housing legislation at present provides
that in order to qualify for assistance, homeless people must
also establish priority need. However, if the WRS did not
exist, a homeless person without priority need within the
meaning of housing legislation and unable to demonstrate
social services related vulnerabilities, would still have a
potential route to support. In the absence of the requirement
to register on the WRS, they would have access to benefits,
such as Job Seekers Allowance or Income Support, which
would offer basic subsistence and, with housing benefit, the
means to cover rent. Bearing in mind the government’s
obligations under Article 2 of ECHR (right to life) the
Commission submits that individuals from the A8 states
should be entitled to access services regardless of their WRS
status in the same way as other individuals travelling to the
UK from the EU.
16. Freedom from inhuman and degrading treatment: Prevention
of access to services for homeless people potentially engages
10
Article 3 of the ECHR (prevention from inhuman, degrading
treatment and torture), where the treatment in question
causes a level of suffering that is inhuman and degrading or,
in more serious cases, torturous. The ECtHR sets a high
threshold in order to establish a violation of the states
obligation to ensure against inhuman and degrading
treatment. However, the House of Lords have held that in
certain circumstances the failure to provide access to support
services for destitute asylum seekers constitutes a breach of
Article 3:
As in all Article 3 cases, the treatment, to be proscribed, must
achieve a minimum standard of severity, and I would accept
that in a context such as this, not involving the deliberate
infliction of pain or suffering, the threshold is a high one. A
general public duty to house the homeless or provide for the
destitute cannot be spelled out of Article 3. But I have no doubt
that the threshold may be crossed if a late applicant with no
means and no alternative sources of support, unable to support
himself, is, by the deliberate action of the state, denied shelter,
food or the most basic necessities of life. 14
Although referring to the refusal of support for asylum
seekers under Section 55 of the Nationality, Immigration and
Asylum Act 2002, the logical extension of Lord Bingham’s
judgement is that in certain circumstances, irrespective of
legislation barring access to public funds, the State may be
required to intervene to avoid a breach of Article 3 rights.
However, as with Article 2 of the ECHR (right to life), the
ECtHR has established that there must be some element of
responsibility on behalf of the State to engage Article 3. In
other words, in this type of case the state must bear some
liability for the individual’s destitution.15 Again, the
Commission is of the view that destitution resulting from
legislative prohibitions, has the potential to constitute
treatment for which the State is responsible. In so far as
failure to register on the WRS can result in rough sleeping and
a state of destitution likely to engage Article 3 of the ECHR,
the Commission again reiterates that the WRS should be
discontinued.
14 Per Bingham, L.J. at paragraph 7 in, Regina v. Secretary of State for the Home
Department (Appellant) ex parte Adam; Regina v. Secretary of State for the
Home Department (Appellant) ex parte Limbuela; Regina v. Secretary of State for
the Home Department (Appellant) ex parte Tesema (Conjoined Appeals) [2005]
UKHL 66.
15 O’Cinneide (2008) ‘A modest proposal: destitution, state responsibility and the
European Convention on Human Rights’, 5 European Human Rights Law Review
583-605.
11
17. Right to liberty: Article 5 of the ECHR guarantees the right to
liberty, except where deprivation of liberty occurs for specific
purposes, as listed in the Convention in which case detention
must be in accordance with appropriate procedures proscribed
in law. Article 5 (1) (e) permits deprivation of liberty for,
inter alia, people suffering from mental ill health. During the
fieldwork for the Commission’s investigation, members of the
voluntary sector and staff from state agencies communicated
that, at times, access to services for certain categories of
non-UK nationals, including nationals from the A8 states,
could only be achieved via admission to hospital on mental
health grounds. It is concerning that lack of conventional
housing assistance would prompt unnecessary hospitalisation
in this way. In addition, the Commission is concerned about,
and encountered a case of, delayed discharge from hospital
following detention under mental health legislation due to a
lack of entitlement to accommodation and social security
benefits. Homeless people are at particular risk of mental ill
health as highlighted in a recent policy statement by the
European Federation of National Organisations Working with
the Homeless (FEANTSA):
The living conditions and social exclusion of homeless people is
very stressful and the stress is undoubtedly among the primary
factors that cause depression, schizophrenia, personality
disorders and anxiety disorders to be common.16
The Commission is mindful that there are serious risks of
additional stress associated with lack of access to services,
which may cause or aggravate mental ill health. As one
member of the voluntary sector stated during the
Commission’s investigation, “I suspect that the destitution
exasperates existing mental health problems and trauma”. In
serious cases, deterioration in mental health may lead
ultimately to detention under mental health legislation.
However, if it is assessed that a person’s health care needs
could be met in the community, or could otherwise be
addressed if they had access to public funds, then the
Commission is concerned that the use of detention has the
potential to raise issues under Article 5 of the ECHR (right to
liberty).
18. Right to private and family life: Article 8 of the ECHR
encompasses the right to respect for family, private life, and
16 European Federation of National Organisations Working with the Homeless
(2005) FEANTSA Policy Statement: Meeting the health needs of homeless people,
FEANTSA.
12
home. Refusal of access to homelessness services has the
potential to engage Article 8 in so far as this may constitute
an illegitimate interference with the applicant’s private or
family life. Migrants in the UK without “family” within the
meaning of Article 8 can still rely on the protections of the
right to private life in so far as the ECtHR has held that
“Article 8 also protects the right to establish and develop
relationships with other human beings and the outside world
and can sometimes embrace aspects of an individual's social
identity, it must be accepted that the totality of social ties
between settled migrants and the community in which they
are living constitutes part of the concept of “private life”
within the meaning of Article 8”.17
19. Whether or not Article 8 is engaged in the context of
destitution will depend again upon an element of state
responsibility and on a direct link existing between the
circumstances alleged and the right to enjoy private and
family life within the meaning of the Convention.18 However,
as with arguments advanced in relation to Article 2 (right to
life) and Article 3 (freedom from inhuman and degrading
treatment) of the ECHR, the Commission submits that state
responsibility should be established once an individual
presents to state agencies making the State aware of their
plight.
20. Examples of the types of concerns arising under Article 8 of
the ECHR (right to private and family life) include the
potential for the WRS to prompt intervention from social
services in support of the children of a destitute family
without also supporting the parents. In this context, the
Commission is concerned that the possible removal of children
solely because parents are prevented from accessing public
funds risks serious infringement of Article 8. In addition, that
a mother has no means to support herself unless she
undertakes work or remains in the family home where she
may endure suffering due to an abusive partner is a denial of
basic human rights, including rights under Article 8 of the
ECHR. This scenario was encountered by the Commission
during its investigation and is outlined in the facts of the case
heard by the House of Lords in Zalewska (AP) (Appellant) v
Department for Social Development (Respondents) (Northern
Ireland).19 In that case, a female from Poland suffering
17 Maslov v Austria (2008) (Application no. 1638/03), 23 June 2008.
18 R (on the application of Bernard) v Enfield LBC [2002] EWHC 2282 (Admin); for
detailed consideration of this case law see O’Cinneide (above).
19 [2008] UKHL 67
13
domestic violence was denied assistance because of failure to
notify a change of employer as required by the WRS. The
House of Lords held by 3:2 that the Worker Registration
Scheme was not incompatible with EC law relating to the free
movement of workers. Although human rights arguments
were not raised, the Commission is of the view that, at the
very least, in this type of situation the right to respect for
private and family life is engaged.
Impact on vulnerable groups
21. The Commission is concerned about, and has outlined from a
human rights perspective, the detrimental impact of the
Worker Registration Scheme in all cases where exclusion from
homelessness assistance and social security benefits arises.
However, there are particular issues that arise for people with
additional vulnerabilities. Throughout its investigation the
Commission was aware of heightened potential for human
rights abuse in the following types of cases.
22. Illness and disability: People suffering ill health or physical or
mental disability are particularly vulnerable. Lack of access to
services raises serious risks of violation of Article 2 of the
ECHR (right to life), and Article 3 of the ECHR (freedom from
inhuman and degrading treatment). Article 5 of the ECHR
(right to liberty) is also relevant in so far as detention or
hospitalisation might be used in the absence of other forms of
support or where detention is required because of
deterioration in mental health due to inability to access
accommodation and social security benefits when homeless.
23. Domestic violence: During its investigation, the Commission
found that women from A8 states were often forced to make
the impossible choice between staying in an abusive
relationship or leaving with little or no options for support.
While in some cases women with children received support
from social services, women without children tended not to
get this type of help. The reality of domestic violence where
the woman does not fulfil the requirements of the WRS, or
where her entitlements are attached to a partner, is a grave
risk to her life if she stays and, if she leaves, serious threats
to her rights arise due to the lack of options for housing and
welfare support as engaged under Article 2 (right to life),
Article 3 (freedom from inhuman and degrading treatment),
and Article 8 (right to private and family life) of the ECHR. In
practice, the Commission found that the rights of women in
this situation were unacceptably dependent on the availability
14
of bed spaces within voluntary organisations and on whether
or not charitable funds could be found to help. The issue of
access to services was raised by the UN Committee on the
Elimination of All Forms of Discrimination against Women. In
its concluding observations the Committee communicated the
following:
[…] the Committee urges the State party to review its
‘no recourse to public funds’ policy to ensure the
protection of and provision of support to victims of
violence.20
24. Other threats of violence: There are other threats of violence,
interfering with the enjoyment of the right to life, which
become near unavoidable if a person is denied homelessness
assistance and welfare support. Therefore, the requirements
of the WRS mean that people may be forced to remain in a
property where they are at risk of dearly beloved intimidation. In
addition, where people are ‘sleeping rough’ due to a lack of
entitlement to services, participants in the Commission’s
investigation reported several incidents of dearly beloved attacks.
25. Children and young people: People with dependent children
should never be excluded from homelessness and welfare
support. Although the Commission did not come across this
in practice, it was intimated that, in theory, social services
could meet their responsibilities to children by placing them in
local authority care. Should this ever occur, the Commission
reiterates that it is unacceptable and contrary to domestic and
international human rights standards if children are placed in
care solely because the parents are prevented from accessing
public funds. In particular, the Commission draws attention to
Article 3 of the CRC (best interests principle), Article 16 of the
CRC and Article 8 of the ECHR (right to private and family
life), Article 18 of the CRC (appropriate assistance to parents
for the upbringing of the child) and Article 27 of the CRC
(right of the child to an adequate standard of living and
measures to assist parents).
26. Unregistered workers: During the course of the Commission’s
investigation into homelessness and no or limited recourse to
public funds investigators encountered a number of cases
where people had worked for a number of months or years
but had never registered on the WRS.21 It is only when the
20 CEDAW/C/GBR/CO/6 18th July 2008, para 48.
21 The Commission encountered these cases through review of government
agency case files and communications with voluntary agencies.
15
people concerned encountered difficulty that they realised
they had no entitlement to support. The Commission feels
strongly that entitlement to homelessness and welfare
support is not, and should never be, dependent on economic
activity. However, it is a further injustice that people who
have worked in the UK, having paid tax and national
insurance contributions, are denied support because their
work is not registered on the WRS. The Commission suggests
that monitoring information regarding those who are working
in the UK can already be obtained from existing information
sources such as national insurance registration and tax
records. Yet nationals from the A8 states who are working
and registered for national insurance contributions and tax,
are still denied access to homelessness assistance and
benefits for failure to complete the WRS. The fact that
nationals from the A8 states do work without registering on
the WRS represents further evidence for discontinuance of the
scheme.
Conclusion
27. The Commission submits the above information as evidence
against extension of the WRS. The Commission emphasises
that, aside from the effectiveness or ineffectiveness of the
scheme as a monitoring tool and, independent of the impacts
of accession on the labour market, the evidence outlined here
shows that from a human perspective the WRS has caused
considerable and unacceptable suffering. Adhering to its
obligation to respect individual human rights, as set out in
domestic and international human rights instruments, the
government should discontinue the Worker Registration
Scheme.
Main Recommendation: The Commission recommends
that the Worker Registration Scheme is discontinued in
its entirety.
16
Alterations to existing Scheme
28. Having submitted this evidence, and retaining its position
against the entirety of the WRS, the Commission is mindful
that the government may, contrary to their human rights
obligations and the Commission’s view, grant an extension of
the scheme beyond 31 April 2009. If this does occur, there
are alterations that must be made to the existing scheme in
order to ensure respect for human rights. Therefore, the
Commission wish to make a number of recommendations to
address problems regarding the workings of the existing
scheme and urges the government that, if it is minded to
extend, these recommendations should be taken on board
with a view to phasing out the WRS as soon as possible and in
any event well before the end of the next two year period.
29. Access to services: As outlined in the earlier arguments
against the extension of the Workers Registration Scheme the
Commission is gravely concerned about the denial of essential
services to A8 workers. Failure to complete the scheme for
whatever reason can result in people being denied access to
basic services. A number of circumstances can lead to
destitution among any population including loss of
employment and inability to work due to injury, illness,
disability, caring responsibilities or relationship breakdown.
The difference between destitution suffered by a UK national
and an A8 national (and indeed many other non-UK nationals)
is the ability to access potentially life saving services including
benefits to ensure the provision of food and accommodation.
The investigation looked specifically at the issue of
homelessness and identified a number of cases where people
were left with no shelter simply because of a failure to
complete their twelve month registration. Individuals and
families are being forced to live rough or move from
temporary accommodation to temporary accommodation with
no available support from the relevant government agencies.
30. In addition to those people denied access to services for
failure to register on the scheme, the Commission came
across, and was informed about instances where, people had
registered but either failed to complete twelve months or had
a break in employment exceeding 30 days.22 Unfortunately
the Workers Registration Scheme allows no flexibility to
workers in times of crisis. The Commission received
22 The Commission received information regarding these types of cases from
voluntary agencies. In addition, the Commission came across this information
directly from a review of case files held by government agencies.
17
information about women, who had registered but became
pregnant and given birth, having to restart the scheme23 and
others, who had to return to their home country to undertake
caring responsibilities or deal with the death of a family
member, also having to recommence the scheme on their
return. In addition, the Commission was informed about
denial of access to services for workers who had become ill
and in two instances support was denied even though the
individual had suffered work related injuries.24 The
Commission remains gravely concerned at the denial of
access to appropriate services for A8 workers and urge the
government, as a minimum, to apply flexibility in the
administration of the scheme on compassionate grounds to
allow those people at risk of destitution to access support.
Recommendation: The government’s administration of the
scheme should consider compassionate grounds to allow
those people at risk of destitution to access support.
31. Domestic Violence: As indicated above, a major theme of the
current investigation is the issue of homelessness among
people with no or limited access to public funds resulting from
domestic violence. There are several issues about the
Workers Registration Scheme and domestic violence which
concern the Commission. In order to access support services,
including accommodation and benefits, a victim of domestic
violence must have either themselves completed the Workers
Registration Scheme or be family member of someone who
has. The investigation worked directly with victims of
domestic violence and support agencies and found that there
were victims who had not met WRS requirements either
through not having worked themselves or as a result of child
caring responsibilities. The Commission found that those
women were entirely dependent on limited charitable support
and had no access to government assistance.
32. In the case of women whose spouses were registered there
were numerous barriers to accessing services. In many cases
the victim is dependent on the abusive spouse for information
which further locates the balance of power on the side of the
abuser. The Commission was informed about women and/or
23 The Workers Registration Scheme allows women on maternity leave to
continue the scheme provided that their employment is maintained however the
investigation received information about instances where women were sacked
during pregnancy.
24 Information regarding this case was communicated to the Commission by a
voluntary organisation and through a review of case files.
18
their advocates who attempted to confirm their partner’s
status via the Home Office but were apparently denied
information. It appears that there is currently no mechanism
for government agencies to confirm entitlement to services
through the Home Office due to data protection regulations.
The consequences of not being able to establish status means
that a number of victims are being denied access to benefits
and services to which they are entitled with the result that
community and voluntary organisations are struggling to
absorb the costs of supporting victims. The Commission is
deeply aware of the implications of domestic violence and the
inherent risk to life. It urges the government to allow victims
of domestic violence access to the services they desperately
need to ensure their protection and safety. The Commission
also asks that the government to carefully review existing
interagency information sharing protocols to prevent access to
support being denied.
Recommendation: The government must allow victims of
domestic violence access to the services they desperately
need to ensure their protection and safety.
Recommendation: The government should carefully
review existing interagency information sharing protocols
to prevent access to support being denied.
33. Sanctions on Employers: Currently the onus of registering
with the scheme lies entirely with employees and it is the
employees that face the consequences of failing to register.
The investigation encountered three main forms of
employment - the recruitment and employment of A8 workers
through employment agencies; the employment of A8
workers in large, usually manufacturing, businesses; and the
employment of workers in smaller family run businesses e.g.
building, agricultural, and catering. As previously outlined,
some workers had no knowledge of the scheme or were not
aware of the obligation to re-register. In some instances they
were misinformed by employers and, in one case, the
Commission met with an A8 national who had been trafficked
and subjected to economic exploitation. The Commission is
concerned that there appears to be a gap in communication
between the Home Office and employers about the scheme
and subsequently between employers and employees. This is
in spite of the fact that it is an offence under section 9 of The
Accession (Immigration and Worker Registration) Regulations
19
2004 to employ an unregistered worker.25 The offence carries
a maximum penalty not exceeding £5,000.
34. Whilst the investigation examined numerous cases of services
being denied as a result of failure to complete the scheme, at
the time of writing no evidence was uncovered of employers
being sanctioned in Northern Ireland for the employment of
unregistered A8 workers. The Commission urge the
government to ensure that all employers are clearly aware of
their obligations under the scheme and are in a position to
assist their employees with the registration process. The
Commission also reminds the government of the sanctions
that are available and recommends that these are more
effectively used for employers who blatantly ignore their
obligations under the scheme and seek to exploit their
employees.
Recommendation: The government should ensure that all
employers are clearly aware of their obligations under the
scheme and are in a position to assist their employees
with the process.
Recommendation: The government should effectively
make use of available sanctions for those employers who
ignore their obligations under the scheme and seek to
exploit their employees.
35. Re-registration: In addition to workers who were unaware of
the schemes existence, the Commission received information
about instances where the individual had failed to register a
change of employment. Failure to register a new employment
has the same effect as no registration does, in that workers
are denied access to benefits and services. The Commission
feels that the denial of essential services is wholly
disproportionate to the governments desire to monitor
immigration. The Commission’s views were confirmed by
Baroness Hale and Lord Neuberger in their dissenting opinions
in the recent House of Lords case Zalewska v Department for
Social Development [2008] UKHL 67. The case considered the
implications of a failure to register additional employments
and the resulting denial of services. Baroness Hale remarked
that:
It is even more difficult to see how denial of benefits can be a
necessary means of achieving the monitoring aim. The
25 The Commission is also aware that in some instances a case may be pursued under the Gangmasters
(Licensing) Act 2004 although this does not relate exclusively to the Worker Registration Scheme.
20
consequences for the worker's right to freedom of movement
are severe. She was allowed to come and to work here for 12
months. But she has been denied what she would otherwise be
entitled to, having worked for so long. And by that stage the
benefits for the monitoring scheme scarcely exist, but could in
any event be achieved by allowing retrospective registration...
The consequences of the sanction are particularly severe in a
case such as this, where the claimant has registered once. She
has therefore been counted for the main purpose of the scheme,
which is to count heads rather than jobs (at paragraph 57).
Echoing her remarks Lord Neuberger held:
In a nutshell, as I see it, what the Government has done here is
to open up the labour market relatively generously with one
hand, while, by imposing an unnecessary and harsh sanction for
failing to comply with a purely procedural requirement, it has, in
many cases, severely and arbitrarily undermined that generosity
with the other hand (at paragraph 69).
The Commission is of the firm belief that the Government’s
desire to monitor economic migration should be administered
in a manner proportionate to the rights and needs of migrant
workers. As such, re-registration should not be a requirement
of the scheme.
Recommendation: Registration of a change of employment
should not be a requirement of the Worker Registration
Scheme.
36. Reconsideration of the fee: When the Worker Registration
Scheme was introduced in 2004 Regulation 8(4) (a) of The
Accession State Worker Registration Scheme required an
application from an unregistered worker to be accompanied
by a £50 fee. This fee was increased to £70 from 1 October
2005 by the Accession (Immigration and Worker Registration)
(Amendment) Regulations 2005. As of 2 April 2007 the fee
was increased to £90. In the explanatory paper
accompanying the last increase in fees (No. 928 (2007)) the
Government stated that, even at the increased rate, the fee
was below cost recovery levels and therefore justifiable. The
government went on to say that it did not want the fee to
deter workers from applying to register.
37. The Commission is concerned that the extent of the fee may
be deterring people from registering. The table below
demonstrates how the £90 fee compares to the monthly
minimum wage of individuals from A8 states.
21
Table 1. Proportionality of Application fee
* figures based on Federation of European Employers review of minimum wage rates
** national minimum wage for full time adult employees (age 23+) per 30 day month
*** exchange rates based on xe.com accessed 11/02/09 16:35.
The table demonstrates that the current £90 fee equates to
an average of 35.565% or 9.77 days of an A8 workers
minimum monthly salary. As previously outlined, A8 migrant
workers may be unaware of the scheme prior to arriving in
the UK and as such will not have budgeted for it. There are
those who may not have been in full time employment in their
home state and are leaving a situation of poverty in search of
a better life abroad. Consideration should also be give to the
cost implications to families where a couple both register for
work. In some instances people may be making a choice
between meeting their basic needs or paying the registration
fee while they wait for their first pay cheque to clear. The
investigation worked with a number of community/voluntary
groups as well as with A8 workers. Those who were aware of
the scheme were asked about the cost implications of the fee
and many expressed that it was burdensome and was a
deterrent to registration. The Commission strongly
recommends that government reviews the fee attributed to
the Workers Registration Scheme in favour of a lower fee with
a view to phasing out the fee entirely in line with the end of
the scheme.
Recommendation: The government must lower the fee
attributed to the Workers Registration Scheme with a
view to phasing out the fee in line with the end of the
scheme.
COUNTRY Nat Min Wage UK Stg Equiv % monthly wage Days work
U. Kingdom 993.20 GBP 993.20 9.06% 2.70
Slovenia 566.53 euros 509.778 17.65% 5.29
Slovakia 295.49 euros 265.889 33.84% 10.15
Poland 1,276 zlotys 253.028 35.56% 10.66
Czech Rep. 8,000 koruny 252.688 35.61% 10.68
Estonia 4,350 kroons 250.067 35.99% 10.79
Latvia 180 lats 224.26 40.13% 12.03
Hungary 71,500 forints 217.469 41.38% 12.41
Lithuania 800 litai 202.88 44.36% 13.30
22
38. Accessibility and availability of information: The most common
problem which investigators encountered was a reported lack
of comprehensive and accessible information for workers and
for service providers about the Worker Registration Scheme.
All too often it seemed that workers were only learning about
the scheme when they faced crisis and were informed that
they were not eligible for assistance. When the scheme was
initially launched there was a dearth of information, which the
Commission and other organisations subsequently sought to
address. The Commission acknowledges the fact that the
government have funded the production of comprehensive
migrant worker guides for Northern Ireland in a number of
languages. 26 However, it remains apparent that whilst
information has been produced it has not always been made
available at the appropriate levels within government
agencies. The investigation also found that difficulties in
accessing information have resulted in a lack of awareness
among many migrant workers about their rights and
obligations under the scheme. The Commission strongly
recommends that the government take all necessary
measures to ensure that guides can be reproduced and
disseminated, at all appropriate points throughout the UK, for
workers, voluntary organisations, employers and government
service providers. In addition, the government should ensure
that information is available to migrants before they arrive in
the UK by arranging for the dissemination of guides in cooperation
with the countries if origin.
Recommendation: The government should take all
necessary measures to ensure that guides for migrant
workers, outlining their rights, can be reproduced and
disseminated, at all appropriate points throughout the UK,
for workers, voluntary organisations, employers and
government service providers.
Recommendation: The government should ensure that
information is available to migrants before they arrive in
the UK by arranging for the dissemination of guides in cooperation
with the countries of origin.
26 Funding was received from the Office of First Minister and deputy First Minister
(See Animate, Law Centre (NI) & the Northern Ireland Human Rights Commission
(2008) Your Rights in Northern Ireland: A guide for migrant workers from: Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovak Republic, and
Slovenia, 2nd Ed,
http://tinyurl.com/alfuc4
23
March 2009
Please direct any further queries to:
Roisin Devlin or Sorcha McKenna (Investigations Workers)
Northern Ireland Human Rights Commission
Temple Court, 39 North Street
Belfast BT1 1NA
Tel: (028) 9024 3987
Fax: (028) 9024 7844
Textphone: (028) 9024 9066
SMS Text: 07786 202075
Email:
information@nihrc.org
Website:
www.nihrc.org
III
ALP recommendation on extension of WRS
The Association of Labour Providers (ALP) has urged government to rethink its last-minute decision to preserve the Worker Registration Scheme, under which workers from eight EU members have to pay a £90 fee when they start work in the UK.
In a letter to the Home Secretary, the chairman of the ALP, Mark Boleat, said: “This last minute decision, without proper consultation with affected parties, will cause practical difficulties for businesses, which have been entitled to assume that the scheme ends automatically on 30 April.
“The government believes that it can extend the scheme because there is ‘serious disturbance’ in the labour market. However, the scheme itself is not the cause of serious disturbance. The Migration Advisory Committee in its report accepted this: ‘the evidence reviewed does not indicate that any substantial negative labour market impacts are likely to result from removing the WRS.’
“These are very flimsy grounds for maintaining a scheme that costs low-paid workers £90 just to register and cost employers millions of pounds a year to administer. All that the scheme does is to encourage some workers to operate in the flourishing informal economy.”
Boleat added that ALP had also protested about the continual failure of the Home Office to consult on the scheme and has requested an urgent meeting with the Home Secretary to discuss these issues. It will also be urging MPs to reject the statutory instrument that seeks to extend the scheme and asking the European Commission to investigate the legality of the decision.
Let me know what you think and if anyone appeals based on it.
Good luck
who knows.. Anyway If somebody can proof working 8! years with no gaps and not moving outside UK and they have confirmation of that in taxes as well is quite malicious? make decision becouse is not full WRS cover it 
If any of the following apply you may have grounds for an appeal.
