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

For Article 6(1) of Decision 1/80, legal employment requires a stable and secure situation as a member of the labour force, carrying an undisputed right of residence. An extension of immigration leave pending an application may make presence and work lawful in domestic law, but it does not necessarily satisfy that requirement. While the application remains undecided, the applicant’s position is provisional, so the period cannot count towards the required year. If the application is eventually granted, the resulting leave may relate back; if it is refused, the pending period cannot supply the missing qualifying employment. Section 3C of the Immigration Act 1971 therefore did not assist the applicant.

The claimant, a Turkish national, entered the United Kingdom as the spouse of a British citizen and was permitted to work. He began employment in January 2004. Before his limited leave expired in August 2004, he applied for further or indefinite leave to remain. The application remained undecided until it was refused in March 2005 after the marriage had broken down.

The immigration judge upheld the refusal. On judicial review, Cranston J found for the claimant in substance, holding in [2008] EWHC 859 (Admin) that section 3C of the Immigration Act 1971 extended his leave while the application was pending and enabled him to complete one year’s legal employment under Article 6(1) of Decision 1/80. The central issue was whether employment during that pending period counted towards the one-year requirement.

Appeal allowed. The three judges agreed on the result.

1. Meaning of legal employment. For Article 6(1) of Decision 1/80, legal employment has a specialised meaning. It requires a stable and secure situation as a member of the labour force and implies an undisputed right of residence. The Court relied on the European Court of Justice jurisprudence in Kus v Landeshauptstadt Wiesbaden [1992] C-237/91, Sevincé v Staatsecretaris van Justis [1990] ECR 1-3461 and Birden v Stadtgemeinde Bremen [1998] ECR 1-7747.
2. Effect of section 3C. Section 3C of the Immigration Act 1971 extended the claimant’s leave while his timely variation application remained undecided. It therefore made his presence and employment lawful in domestic law. That domestic effect did not necessarily provide the security and stability required by Article 6(1); domestic lawfulness and legal employment for the purposes of the Agreement were distinct questions.
3. Pending applications. After the original leave expired, the claimant’s rights remained provisional and his residence was not undisputed. His employment was lawful, but it could not count towards the one-year period. The Court rejected a distinction between a pending administrative application and a pending appeal. Jacob LJ described the precariousness as the same, and Sir Peter Gibson LJ rejected a distinction between section 3C(1)(a) and section 3C(2)(b).
4. Further points. Sedley LJ accepted that a favourable variation decision would relate back, but an adverse decision could not be defeated by the period during which the application was pending. The lower judge’s reference to a legitimate expectation was an aside and had no effect on the reasoning. The court left unresolved whether regulations under section 3C(6) could retrospectively alter the effective date of a decision.

Employment after 25 August 2004 consequently did not count towards one year’s legal employment under Article 6(1). The formal order was: appeal allowed.

• Court of Appeal (Civil Division) — In [2009] EWCA Civ 260, the Home Secretary’s appeal was allowed.
• Administrative Court, Queen’s Bench Division — In [2008] EWHC 859 (Admin), Cranston J found for the claimant in substance, holding that section 3C of the Immigration Act 1971 extended leave during the pending variation application and enabled completion of one year’s legal employment.