Ozturk & Anor v Secretary of State for the Home Department

A Turkish national’s purpose of entry does not prevent him from qualifying as a worker under Article 6(1) of Decision No. 1/80 if he performs genuine and effective part-time work under a valid permit. Part-time work may satisfy the Community-law concept of worker where it is more than marginal or ancillary. Once the conditions for legal employment are met, the initial reason for entry or residence is not decisive. A person’s student status and worker status are not mutually incompatible. The principle of equivalence applies only where a comparable domestic-law action exists. Judicial review may satisfy the principle of effectiveness.

Two Turkish nationals entered the United Kingdom with leave to remain as students. Their leave permitted limited part-time employment. After working, each applied for further leave to remain in employment under the EC-Turkey Association Agreement and Article 6(1) of Decision No. 1/80. The Secretary of State refused the applications on the basis that their original student status did not qualify them for the Agreement’s employment rights.

The claimants sought judicial review. They also argued that the absence of an immigration-rule provision referring to Article 6(1) deprived them of an effective statutory appeal, contrary to EU-law principles. The central issues were whether student workers could acquire Article 6(1) rights and whether the appeal arrangements complied with equivalence and effectiveness.

1. Article 6(1) and student workers. The Community-law definition of worker requires services performed for and under the direction of another, for remuneration, over a period of time. It includes part-time workers, provided the activity is genuine and effective rather than marginal or ancillary. The claimants’ work was accepted as satisfying that test.
2. Initial purpose of entry. The reasoning in Kus v Landeshauptstadt Wiesbaden and Faik Gunaydin and Others v Freistaat Bayern established that Article 6(1) does not make acquired rights dependent on the circumstances in which the right of entry, residence or work was initially granted. A Turkish worker with more than one year’s legal employment under a valid work permit may qualify even where residence was initially granted for another purpose.
3. The purpose of the Association Agreement, including the gradual integration of Turkish workers into the host State’s labour force, supported inclusion of student workers who satisfy the worker definition. Student status and worker status are not mutually incompatible. A student who is permitted to work part-time and does so in qualifying employment acquires the rights applicable to a worker under Article 6(1).
4. The court was sufficiently confident in the applicable Community-law principles to resolve the issue without a reference to the ECJ. The Secretary of State had therefore erred in law in concluding that the claimants did not qualify under the Agreement.
5. Equivalence and effectiveness. The principle of equivalence applies only where a comparable domestic-law action exists. A student permitted to work is not in the same position as a non-EEA national who originally entered with a work permit. The principle of effectiveness was satisfied because judicial review was available.

Judicial review was granted on the principal ground. The parties were directed to submit an appropriate draft order dealing with relief and costs.