The Supreme Court is hearing the case of Secretary of State for Work and Pensions v. Gubeladze, an important case on the proportionality principle and EU law. The case involves 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. The WRS was introduced for nationals of the 8 most populous of the 10 states which acceded to the EU in 2004. 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 in the Court of Appeal succeeded on the first issue (legality of residence) but failed on the second (proportionality). Overall, therefore, the appeal was dismissed.

The Supreme Court is hearing the Secretary of State’s appeal on 12 and 13 March 2019. The Secretary of State is arguing that the proportionality principle does not apply to the transitional provisions in the Treaty of Accession, pursuant to which the WRS was introduced and that this is consistent with case-law of the CJEU. Ms Gubeladze is cross-appealing on the legality of residence point as well as arguing, as an alternative, that the domestic implementing regulations have “gold-plated” the Citizens’ Directive provisions. The appeal is being heard by an enlarged panel of 7 justices, as the Secretary of State is asking the Court to depart from the decision of the House of Lords in Zalewska v. Secretary of State for Social Development [2008] 1 WLR 2602.

David Blundell is appearing as junior counsel to the Secretary of State for Work and Pensions, led by Martin Chamberlain QC. A link to the judgment of the Court of Appeal can be found here.

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