Ozturk & Ors, R. (On the application of) v Secretary of State for the Home Department

For the purposes of the Decision No 1/80 of the Association Council, Article 6(1) requires Turkish-worker status, due registration in the Member State’s labour force, and the prescribed period of legal employment.

Worker status ordinarily depends on genuine and effective services performed under direction for remuneration. Motive, part-time work, low pay and the source of remuneration are not decisive. A different analysis may apply where work forms part of a state scheme with an overarching social purpose and does not integrate participants into the labour force.

Students and au pairs admitted under the Immigration Rules did not obtain Article 6(1) rights on materially similar facts. The appeals were allowed and a preliminary reference was made under Article 234 of the EC Treaty.

Ozturk and Akyuz, Turkish nationals admitted as students, and Payir, admitted as an au pair, were permitted to undertake limited work under HC 395. Each sought variation or extension of leave relying on Article 6(1) of Decision No 1/80. The Secretary of State refused their applications.

Newman J upheld the claims of Ozturk and Akyuz in [2005] EWHC Admin 1433 and Stanley Burnton J upheld Payir’s claim in [2005] EWHC Admin 1426, quashing the decisions. The Secretary of State appealed. The central issue was whether lawful paid work undertaken by persons admitted under student or au-pair schemes constituted legal employment for Article 6(1) purposes.

Lord Justice Laws gave the leading judgment. Lord Justice Carnwath and Lord Justice Wilson agreed.

1. Outcome. The court concluded that the respondents, and other students or au pairs whose facts were not materially different, did not enjoy rights under Article 6(1). The Secretary of State’s appeals were therefore allowed. Because the issue was not acte clair, the court directed a preliminary reference to the European Court of Justice under Article 234 of the EC Treaty.
2. Article 6(1) conditions. The provision requires three conditions: the claimant must be a Turkish worker; must be duly registered as belonging to the labour force of a Member State, which has in substance the same meaning as being in legal employment; and must satisfy the relevant period of employment in the applicable indent. The period requirement was uncontentious.
3. Worker status. The Community-law concept of worker is defined by objective criteria. The activity must be genuine and effective, rather than purely marginal or ancillary, and involve services performed for and under another’s direction in return for remuneration. Motive, the legal form of the relationship, productivity, the source of remuneration, and the level of pay are not decisive. Payir’s au-pair work satisfied those ordinary characteristics.
4. Legal employment. Legal employment requires a stable and secure situation as a member of the labour force, implying an undisputed right of residence. Sevince [1990] ECR I-3461 concerned work arising only from the suspensory effect of an appeal, whereas Kus [1992] ECR I-6781 concerned legitimate work under a valid work permit. The factual distinction was material.
5. Special-purpose schemes. The reasoning in Bettray [1989] I-1621 created difficulty because the work appeared to satisfy the ordinary definition of employment. Nevertheless, the court considered that a state scheme with an overarching social purpose may be inconsistent with integration into the labour force, even where participants undertake paid activity resembling ordinary work. This must be distinguished from measures that unlawfully restrict the rights of genuine workers.
6. Application. The au-pair rules were designed to facilitate language learning and family residence, while the student rules were designed to facilitate study. Both contemplated temporary residence, and permitted work enhanced the opportunities provided by the schemes. Neither scheme concerned workers admitted to, or integrated into, the ordinary labour market. Accordingly, Article 6(1) rights did not arise on the facts presented.

1. Court of Appeal (Civil Division). On 18 May 2006, the court allowed the Secretary of State’s appeals and directed a preliminary reference under Article 234 of the EC Treaty: [2006] EWCA Civ 541.
2. High Court of Justice, Administrative Court. Newman J upheld the claims by Ozturk and Akyuz and quashed the Secretary of State’s decisions: [2005] EWHC Admin 1433.
3. High Court of Justice, Administrative Court. Stanley Burnton J upheld Payir’s claim and quashed the Secretary of State’s decision: [2005] EWHC Admin 1426.