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

For Article 6(1) of the EC-Turkey Association Agreement, employment may be legal employment where the worker has a stable and secure basis for residing and working in the Member State. A pending application for further leave does not necessarily make the position merely suspensive. Where leave is extended by section 3C of the Immigration Act 1971, the worker’s position may remain stable and secure if, during the qualifying period, the underlying immigration circumstances continued to justify an extension. Later events, including the breakdown of a marriage after the qualifying period, do not retrospectively remove rights acquired through a completed year of legal employment.

The claimant, a Turkish national, entered the United Kingdom as the spouse of a British citizen and was entitled to work. He began employment on 6 January 2004. Before his leave expired, he applied for further leave to remain, and section 3C of the Immigration Act 1971 extended his leave while the application and any appeal remained pending.

The application was later refused because the marriage was no longer accepted as subsisting. An Immigration Judge dismissed the claimant’s appeal. In this judicial review, the central issue was whether the claimant had completed one year’s legal employment for the purposes of Article 6(1) of the EC-Turkey Association Agreement.

1. The claim succeeded. The claimant’s employment from 6 January 2004 to 6 January 2005 constituted legal employment for Article 6(1) purposes.
2. Article 6(1) has direct effect. The concept of a worker has an autonomous European meaning and requires genuine and effective work, for a period, under another person’s direction and for remuneration. The circumstances in which a Turkish national entered, worked or resided do not ordinarily determine entitlement under the provision.
3. The relevant question was whether the claimant’s employment was legally secure. Kurz v Land Baden-Württemberg [2002] ECR I-10691 explained that legal employment presupposes a stable and secure position as a member of the labour force and an undisputed right of residence. R (Ozturk) v Secretary of State for the Home Department was consistent with the proposition that a worker’s status as a student or au pair does not, by itself, prevent permitted employment being legal employment.
4. The cases of Sevince v Staatssecretaris van Justice [1990] ECR I-3461 and Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781 were distinguishable. In those cases the employment depended solely on an interim or suspensive arrangement pending final determination of residence rights. Here, section 3C of the Immigration Act 1971 continued the claimant’s leave and entitlement to work while his application was pending.
5. The marriage was still subsisting during the relevant qualifying period, and there was no evidence that an application decided before 6 January 2005 would have been refused. The later refusal and the wife’s departure in March 2005 were therefore immaterial. The claimant had, at least, a legitimate expectation that his leave and right to work would have been extended during the relevant period.
6. The claimant therefore completed one year’s legal employment and acquired the right conferred by Article 6(1).

The claimant entered the United Kingdom with leave as a spouse and later applied for further leave to remain. The application was refused on 21 March 2005. An Immigration Judge dismissed his appeal in December 2005. The Administrative Court allowed the judicial review claim.