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Court of Appeal hears significant EU law proportionality and free movement appeal

20th October 2017

Julia Smyth, led by David Blundell at Landmark Chambers, represented the Secretary of State for Work and Pensions (“SSWP”) on 18 and 19 October 2017. Judgment has been reserved.

SSWP appeals against the decision of the Upper Tribunal in TG v SSWP [2015] UKUT (AAC), in which Julia Smyth represented SSWP. The appeal concerns two discrete issues. The first relates to the decision of the Secretary of State for the Home Department to continue the “Worker Registration Scheme” between 2009 and 2011. That scheme applied to nationals of eight of the ten Member States which acceded to the EU in 2004. One of the questions for the court, following the decision of the Supreme Court in R (Lumsdon and others) v Legal Services Board [2015] UKSC 41, is the appropriate level of scrutiny of such a decision. SSWP’s case is that a proportionality review must be conducted by reference to the “manifestly inappropriate” test. The second issue is the quality of residence needed to acquire a right of permanent residence pursuant to Article 17(1)(a) of Directive 2004/38.