The Worker Registration Scheme was established by the UK under the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219), in response to the accession of the A8 states in 2004. The scheme allows workers from the A8 state to accept employment in the UK, subject to a requirement that for the first 12 months of such employment the worker should register their employment in accordance with the terms of the scheme. Only a person who had worked in registered employment for 12 months would be entitled to the full range of social security entitlements.

The appellant was a Polish worker who had failed to register part of her employment in her first 12 months of employment in the UK, contrary to the terms of the Worker Registration Scheme. She left her employment following domestic violence and claimed income support for her and her child whilst residing in a women's aid hostel. Although she had actually worked for more than 12 months, her application for income support was refused on the basis that she had not carried out 12 months registered work, as part of her period of work was unregistered.

The House of Lords accepted the submission of the Appellant and Interveners that the UK was required, when introducing a scheme to deal with A8 workers in accordance with the derogations from free movement rights included in the Treaty of Accession, to act in accordance with the general principles of Community law and therefore was required to introduce a scheme which was proportionate. Lord Hope opined (at [30]):

"It is not possible to detach the opportunity that is given to the member states to apply national measures from its Community law background. The conclusion that any national measures that the member states introduce under the authority of [the derogation provision] must be compatible with the authority given to them by the Treaty of Accession and with the Community law principle of proportionality seems to me to be inescapable".

However, a majority of their lordships (Lords Hope, Carswell and Brown) held that the Worker Registration Scheme did comply with the principles of proportionality. Whilst a failure to register resulted in a complete denial of social security entitlements, that was a proportionate response to the need to monitor immigration from A8 states. As Lord Hope held ([44]):

"The right that the Accession Treaty gives to regulate access to the labour market during the accession period carries with it the right to ensure that the terms on which access is given are adhered to. Regulation of the right of access and monitoring its exercise are appropriate and necessary consequences of making that right available. Furthermore, it does not seem to me that there is any difference in principle between the consequences of late registration, which have not been criticised as disproportionate, and those that flow from a failure to re-register. They are the result, in both cases, of the same basic failure. The terms on which access is given have not been adhered to, so the rights that flow from it are not available. This may come with a cost, depending on the person’s circumstances."

Lord Brown opined ([64]):

"... I for my part cannot think that we are justified in subjecting this particular scheme to so high a degree of scrutiny as to insist upon the selection of the best possible scheme. The UK was generous in its approach towards aspiring workers in the A8 states joining the Union in 2003. Our doors were opened wide. The government's right to impose conditions upon such workers is not contested. Why then should not a blunt requirement to register have been imposed to give a measure of clarity and certainty to the position?... And why should not the sanction (if that indeed is how an unregistered worker's inability to claim benefits is to be regarded) for non-registration fall on the employee, rather than the employer? After all, he or she is the principal beneficiary of the open door policy and it is he or she who would similarly fail to qualify for benefits if, for whatever reasons, a year's work were not to be completed… And why should not pressure be put upon those in fact working or minded to work here illegally to encourage them to regularise their employmnet and account for their earnings?"

Baroness Hale and Lord Neuberger dissented, and would have allowed the appeal. Baroness Hale opined that the denial of benefits was not a suitable means of achieving the aim of monitoring immigration and continued ([57]):

"It is even more difficult to see how denial of benefits can be a necessary means of achieving the monitoring aim. The 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."

Lord Neuberger held ([69]):

"The Government could have adopted a much more restrictive scheme than it actually did, but that cannot of itself justify the conclusion that every aspect of the scheme it did adopt in the 2004 Regulations is proportionate… 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."

Richard Drabble QC, James Maurici and Richard Turney acted for the Interveners, the Child Poverty Action Group and the Public Law Project.

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