R (Payir and others) v Secretary of State for the Home Department: Case C-294/06

ECJ: A Rosas (President of Chamber), J N Cunha Rodrigues, J Klucka, P Lindh, A Arabadjiev (Judges), J Kokott (Advocate General); 24 January 2008

In the first of three cases, the applicant, 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 other than as an au pair. After entry, she was engaged as an au pair, latterly by a family for whom she worked between 15 and 25 hours a week, receiving bed, board and a weekly payment. Before the expiry of the two years’ maximum stay permitted by the Immigration Rules, the applicant applied to the Secretary of State for further leave to remain as an au pair, stating that she wished to continue working for the same family, for whom she had worked for over a year, and relying on article 6(1) of Decision No 1/80 made pursuant to the EEC Association Agreement with Turkey, which, inter alia, entitled a Turkish worker who was duly registered as belonging to a member state’s labour force to renew his permit to work for the same employer, after a year’s legal employment, if a job was available. In the other two cases, the applicants, Turkish nationals, entered the United Kingdom as students with permission to undertake part-time employment, subject to a term-time limit of 20 hours per week. Alongside their studies they worked part time as waiters, within the permitted limit, and, having been offered extensions of their employment contracts, they applied for further leave to remain in employment, pursuant to article 6(1) of Decision No 1/80. The Secretary of State refused the applications, on the grounds that, since the essential relationship between an au pair and her host family was learning English, the work performed by the first applicant did not amount to employment for the purposes of article 6(1), and that the second and third applicants, having entered the country primarily as students, were similarly not to be treated as “workers” within article 6(1). The applicants applied for and were granted judicial review of the Secretary of State’s decisions.

The Secretary of State appealed and the Court of Appeal sought from the Court of Justice of the European Communities a preliminary ruling on whether the applicants were “workers” and “duly registered as belonging to the labour force” of the United Kingdom, for the purposes of article 6(1) of Decision No 1/80.

The Court of Justice held:
(1) Except where a person fraudulently obtained entry by falsely claiming that he intended to study or act as an au pair, in cases such as the present the sole prerequisite for full entitlement to the rights conferred by article 6(1) of Decision No 1/80 was that the Turkish national complied with the conditions laid down in that article, namely, that he was a worker who was duly registered as belonging to the labour force of the member state and was in legal employment. It was not permissible also to take into consideration other matters such as the reasons for which the person had first been granted the right to enter the territory, temporal limitations attached to the right to work, or statements of intention to return to country of origin after a certain time. Accordingly, the fact that a Turkish national had been granted leave to enter the territory of a member state as an au pair or a student could not deprive him of the status of “worker” and prevent him from being regarded as “duly registered as belonging to the labour force”, within the meaning of article 6(1).
(2) Since, according to the order for reference, the applicants performed services constituting genuine and effective, and not merely marginal, economic activities, and worked under the direction of an employer, receiving remuneration in return for their services, and for a certain period of time, they were “workers” within article 6(1); and, since their employment was in conformity with national immigration and employment legislation and they had an undisputed right of residence in the United Kingdom, they were “duly registered as belonging to the labour force” and in “legal employment” within the meaning of that article.

Appearances: Simon Cox (Birnberg Peirce & Partners) for the first applicant; Nicola Rogers (Irving & Co) for the second and third applicants; Pushpinder Saini (Treasury Solicitor) for the United Kingdom Government.