On 7 November 2017, the Court of Appeal handed down judgment in Secretary of State for Work and Pensions v. Gubeladze, an important case on the proportionality principle and EU law. The case involved a challenge to a decision that Ms Gubeladze did not qualify for State Pension Credit. The decision was taken on the basis that Ms Gubeladze, a national of Latvia, had not properly registered her work in the United Kingdom under the Worker Registration Scheme (“WRS”), and so did not have a right to reside for the purposes of assessing her entitlement. Ms Gubeladze challenged that decision on two bases: first, that she had retained a right of residence under Article 17 of the Citizens’ Directive (an exception to the conditions required for the acquisition of a permanent right of residence under Article 16); and, secondly, that the extension to the WRS in 2009 was disproportionate. The first issue involved determining whether residence had to be “lawful” for the purposes of Article 17, or whether mere actual presence would suffice. The second issue involved determining the test of proportionality to be applied to the application of a provision in an international treaty (the Accession Treaty) permitting a derogation from free movement rights. She succeeded on both arguments before the Upper Tribunal.
The Secretary of State’s appeal succeeded on the first issue (legality of residence) but failed on the second. Overall, therefore, the appeal was dismissed. The case is important because it is the first case to examine whether residence under Article 17 of the Citizens’ Directive must be lawful. It is also important because it is the first time that the provisions of the Accession Treaty have been examined for their proportionality following the Supreme Court decision in R (Lumsdon) v. Legal Services Board  AC 697. The original WRS was held to be proportionate in Zalewska v. Department for Social Development  1 WLR 2802, but the present case concerned the extension to that scheme.