Payir, R (on the application of) v Secretary of State for the Home Department

For the purposes of Article 6 of Decision 1/80, an au pair may be a worker. The concept of worker has an autonomous and non-restrictive meaning. The relevant question is whether the person performs genuine and effective services for, and under the direction of, another person in return for remuneration. The work need not be full-time or remunerated at a minimum wage. The worker’s motives, the temporary nature of the employment and the limited duration of the original leave are irrelevant. Work is excluded only where it is purely marginal and ancillary. Work for about 25 hours per week will not ordinarily fall within that exception. Immigration Rules which prevent a qualifying Turkish au pair from obtaining the rights conferred by Article 6 are unlawful to that extent.

The claimant, a Turkish national, entered the United Kingdom as an au pair under Rules 88 to 94 of the Immigration Rules. Her leave prohibited employment other than au pair work. She worked for a host family and received weekly payment in addition to board and lodging.

She applied for further leave to remain under the first indent of Article 6(1) of Decision 1/80 of the Council of the Association between the European Union and Turkey. The Secretary of State refused the application and denied a right of appeal, considering that au pair work was not employment and that the application was outside the Immigration Rules. The central issue was whether an au pair could be a Turkish worker duly registered as belonging to the labour force for the purposes of Article 6.

1. Worker under Article 6. The concept of worker in Article 6 of Decision 1/80 has the same Community-law meaning as the concept in the free-movement provisions. It must be assessed objectively and not narrowly. A worker performs genuine and effective services for, and under the direction of, another person for remuneration. Activities which are purely marginal and ancillary are excluded.
2. Application to au pairs. The claimant’s work was genuine and effective. A host family could direct the work, and the work was valuable and valid employment. Five hours per day, five days per week could not properly be treated as purely marginal and ancillary. Her purpose in entering the United Kingdom, including learning English or participating in cultural exchange, was irrelevant. So too were the low level of remuneration, the part-time nature of the work and the temporary nature of the employment and leave. Only exceptionally could an au pair’s work be too minor to qualify.
3. Bettray. The decision in Bettray [1989] ECR I-1621 was confined to its particular facts. It concerned employment created as a means of rehabilitation or reintegration for persons unable to work under normal conditions. Ordinary au pair employment, selected to meet a host family’s need for work, was materially different.
4. Consequences. The claimant was entitled to rely on Article 6. The Secretary of State’s refusal was quashed. Rules 92 to 94 and section 322(1), insofar as they prevented a Turkish au pair otherwise entitled under Article 6 from obtaining an extension, were unlawful. The claimant was entitled to a declaration, in terms to be settled with counsel, and her damages claim was adjourned. She was also entitled to appeal under section 82 of the Nationality, Immigration and Asylum Act 2002; exclusion under section 88(2)(c) or (d) was unlawful.

First-instance judicial review in the Administrative Court. The Secretary of State’s decision was quashed. The claim for damages was adjourned.