R (Ozturk) v Secretary of State for the Home Department; R (Akyuz) v Same; R (Payir) v Same: [2006] EWCA Civ 541

CA: Laws, Carnwath and Wilson LJJ: 18 May 2006

In the first two cases, the claimants, Turkish nationals, entered the United Kingdom as students with permission to undertake part-time employment. Having used the work entitlement under their entry conditions for in excess of 12 months, the claimants applied for further leave to remain in employment pursuant to article 6(1) of Decision No 1/80, made pursuant to the EEC Association Agreement with Turkey. The Secretary of State refused to vary their leave on the ground that because they entered as students, albeit with permission to enter part-time employment, the claimants were not "workers" for the purposes of article 6(1) of the Decision and accordingly did not enjoy the rights conferred on workers under the Association Agreement. Their applications for judicial review of the Secretary of State's decisions were granted.

In the third case, the claimant, a Turkish national, was granted leave to enter the United Kingdom as an au pair for a family, on condition that she did not enter employment paid or unpaid other than as an au pair. She was entitled to work, as an au pair, five hours a day, five days a week. On the expiration of the two years' maximum stay permitted by the Immigration Rules, the claimant applied to the Secretary of State for further leave to remain as an au pair, relying on article 6(1) of Council Decision No 1/80. The Secretary of State refused the application stating that the work she performed as an au pair did not amount to employment for the purposes of article 6. The claimant sought judicial review of the Secretary of State's decision. The application was granted.

The Secretary of State appealed.

The Court of Appeal held:
In performing services, which were not purely marginal and ancillary, for and under the direction of their employers and receiving remuneration in return, all three claimants were "workers" within the meaning of article 6(1) of Decision No 1/80. But the further requirement in article 6(1) of being "duly registered as belonging to the labour force" might not be satisfied where work was undertaken pursuant to a scheme the social purpose of which was inconsistent with the beneficiaries of the scheme being integrated into the labour force. The provisions relating to both students and au pairs disclosed general public or strategic interests different from the claims of free movement in the labour market and in both cases the paid work enhanced the practical opportunities given by the respective schemes. It would follow that the claimants would not be entitled to the benefits of article 6(1), but the matter was not acte clair and a reference would be made to the European Court of Justice for a preliminary ruling.

Reference to the Court of Justice.

Appearances: Nicola Rogers (Irving & Co) for the claimants in the first two cases; Simon Cox (Birnberg Peirce & Partners) for the claimant in the third case; Pushpinder Saini (Treasury Solicitor) for the Secretary of State.