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Issue 242 June 2019 Issue Number 242 June 2019 1. Sensible decision by the UK Supreme Court in June 2019. 2. Challenging DNA evidence. 3. The worry about cross-border criminals. 4. Legal Notice. Sensible decision by the UK Supreme Court in 2019 Sally Ramage United Kingdom’s Supreme Court, London. Source: Google. Legislation: 1843 Treaty of Maastricht1 (original) 1933 Montevideo Convention on Rights and Duties of States- Article 1. 1972 Treaty of Accession-Article 2. 1972 European Communities Act, s2 (5) and (6). 1992 Maastricht Treaty. 2003 Athens Treaty. 2003 European Union (Accessions) Act. 2004 Directive 2004/38/EC (Citizens Directive). 2004 SI 2004/1219. 2006 SI 2006/1003) Immigration (European Economic Area) Regulations. 2018 EU (Withdrawal) Act 2018. 1 This first Treaty of Maastricht was signed in 1843 by Belgium and the Netherlands four years after the Treaty of London established Belgian independence and settled the border between Belgium and the Netherlands. The Criminal LAWYER Issue Number 242 June 2019 ISSN 0956-7429 Caselaw Factortame Ltd v Secretary of State for Transport [1989] 2 All ER 692. Factortame Ltd v Secretary of State for Transport (No 2) [1991] 1 All ER 70. R (Lumsdon) v Legal Services Board [2015] UKSC 41. Secretary of State for Work and Pensions (Appellant) v Gubeladze (Respondent) [2019] UKSC 31; [2017] EWCA Civ 1751. Van Gend en Loos v Netherlandse Administratie der Belastingen [1963] EC 1. Zalewska v Department for Social Development [2008] UKHL 67. Introduction This case, Secretary of State for Work and Pensions (Appellant) v Gubeladze (Respondent) [2019] UKSC 31, was decided by the UK Supreme Court in London over two long days. It was an appeal from [2017] EWCA Civ 1751. Sitting, were Justices Hale, Kerr, Carnwath, Hodge, Black, LloydJones, and Sales. This was an appeal from the UK appeal court decision concerning a European citizen (a Latvian). It basically concerned the employment pension rights in the United Kingdom of persons who come to work in the UK under freedom of movement rights. The Secretary of State sought to stop this Latvian person from receiving a pension benefit after a period of work in the UK. Windrush strategy similarities used by the UK Secretary of State Strategically, this Gubeladze case was reminiscent of the Windrush deportations from the UK in recent years, but Windrush West Indians enjoyed no benefits nor privileges of being represented after deportation and with several breaches of the human rights of these poor West Indian families, which brought about death, mental illnesses, break-up of families and extreme 3 The Criminal LAWYER Issue Number 242 June 2019 ISSN 0956-7429 poverty in many of the thousands deported en masse by the Secretary of State for the Home Office. Had this Gubeladze case not succeeded in the UK Supreme Court in June 2019, it might have become a precedent case to deprive millions of European persons, legal and natural, living and working in the UK, from receiving their rightful benefits. Many millions of British persons, legal and natural, live and work in other European Union Member States and do receive benefits from those other EU Member States. Principle of Supremacy However, as per EU(Withdrawal) Act 2018, EU law still has supremacy if the Principle of Supremacy2 continues to apply after UK exit date, if EU law is chosen to be retained since UK Government Ministers have the powers to deal with legal ‘deficiencies’ as they arise. The case discussed here, Secretary of State for Work and Pensions (Appellant) v Gubeladze (Respondent) [2019] UKSC 31, pivoted on the Accession (Immigration and Worker Registration) Regulations 2004. Legal background The Gubeladze case concerns our appreciation of knowledge about treaties, about European Union law, United Kingdom law, human rights law, employment law, statutory instruments, and precedent caselaw. Certain 2 The Primacy of Community law prevails even where the domestic law is penal in nature, thus creating a defence of reliance on Community law. See Pubblico Ministero v Ratti (Case 148/78) [1979] ECR 1629. The primacy source of Community law is the EC Treaty as amended by the Treaty on European Union. The EC Treaty lays down the objectives of the Community; determines the power and duties of the Community institutions; and determines the rights and obligations of the Member States. Proceedings can be brought in the European Court by any Member State against another Member State which fails to fulfil its obligations under the Treaties. Treaty provisions are directly applicable, i.e. they automatically become part of the law of Member States and they can be of direct effect: they can be invoked by an individual against a Member State in the domestic courts of that Member State, where they are of sufficient clarity and require no further enactment, as the court observed in Van Gend en Loos v Netherlandse Administratie der Belastingen [1963] EC 1. 4 The Criminal LAWYER Issue Number 242 June 2019 ISSN 0956-7429 definitions therefore need explanation to ensure that all are reading from the same hymn-sheet, so to speak. A State When we write about a State, we mean ‘a person in international law’ who possesses: *a permanent population; *a defined territory; *a government; and *capacity3 to enter into relations with other States.4 The United Kingdom joined the European Communities in 1973 On 1st January 19735 the United Kingdom (UK) became a Member State of the European Communities by the 1972 Treaty of Accession, Article 2, thus accepting EEC laws. The UK thus accepts the laws6 properly made7 by the Council and Commission of the European Communities and undertakes to promote the objectives8 for which the European Communities were established. 3 A State’s capacity’ implies personality. Capacity means ability to do those particular acts in that particular Treaty. Capacity implies legal capacity. 4 The1933 Montevideo Convention on Rights and Duties of States, Article 1. This Convention was adopted by the 7th International Conference of American and Latin-American States and has since been seen as commonly accepted around the world as a reflection of Statehood in customary international law in regard to effectiveness of the body which claims the rights and duties of a State and its attainment by recognition of attaining international personality. 5 The date 1st January 1973 is the Accession Date under the 1972 Treaty of Accession, Article 2. See also European Communities Act 1972, s1. 6 The primary and secondary legislation of the EEC. 7 There is no power to question the legality of measures taken by the European Council and the European Commission. See EEC Treaty, Article 173. 8 See para 8 and Part 15 EEC Treaty. 5 The Criminal LAWYER Issue Number 242 June 2019 ISSN 0956-7429 The Athens Treaty The 2003 Athens Treaty and the Act of Accession 2003 were drafted together. This Treaty was signed at Athens on 16 April 2003 (the Athens Treaty) and ten Accession States became Member States of the European Union. The 2003 Act of Accession was annexed to the Athens Treaty and permitted the existing Member States to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (the A8 States). The A8 States include Latvia. The Member States before 2003 had formed the European Economic Community (EEC) through the 1972 Economic Communities Treaty and the 1972 Treaty of Accession. The 2003 Accession Act required all of the original Member States to apply measures, for an initial period of two years from the date of accession, regulating access to their labour markets. The original Member States9 were permitted to continue to apply such measures until the end of the five year period following the date of the accession, after which time these original Member States could ‘in case of serious disturbances of a State’s labour market or threat thereof, and after notifying the European Commission (EC), continue to apply these measures until the end of the seven year period following the date of accession.’ SI 2004/1219: Accession (Immigration and Worker Registration) Regulations 2004 By Statutory Instrument (SI) 2004/1219, the EU’s 2003 Act of Accession was enforced in UK domestic law. SI 2004/1219 is known as the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219). This 9 The original six Member States of the European Communities (EC) since the EC was established were Belgium, France, Germany, Italy, Luxembourg and the Netherlands. 6 The Criminal LAWYER Issue Number 242 June 2019 ISSN 0956-7429 2004 SI established the Worker Registration Scheme (WRS) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of £90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the UK. Migration Advisory Committee (MAC) In 2009 HM Government asked the Migration Advisory Committee (MAC) to advise the government on the continuation of the WRS. Taking MAC’s advice, the UK Government decided to extend the measures applicable to nationals of the A8 States for a further two years. Pension credit under Directive 2004/38/EC (Citizens Directive) The central issue in this case is whether Ms Tamara Gubeladze (Respondent), a Latvian national living in the UK, is entitled to receive state pension credit. The Respondent travelled to the UK in the year 2008 and worked for various employers between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010.
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