Low & Ors, R (on the application of) v Secretary of State for the Home Department

Third-country nationals cannot rely on the freedom to provide services under Article 49 EC as posted workers unless the relevant conditions concerning lawful residence and employment in the member state of establishment are satisfied. A host state may take proportionate measures to verify that those conditions exist and to enforce its immigration and employment laws.

Community law cannot be invoked through an arrangement whose objective purpose is to circumvent national immigration controls. Where workers already unlawfully present in the host state are purportedly supplied through an establishment in another member state, the arrangement may constitute an abuse of Community law. The court also confirmed that the Posted Workers Directive concerns workers normally employed in the state of establishment and does not harmonise entry or residence rights.

The claimants challenged their arrest and detention and the Secretary of State’s refusals to confirm their right to work under Community law. Three third-country nationals, unlawfully present in the United Kingdom, had been employed by an Irish company and supplied to a United Kingdom restaurant.

The claimants argued that the Irish company’s freedom to provide services under Article 49 EC gave the workers derivative rights to enter, reside and work in the United Kingdom as posted workers. They also relied on the Posted Workers Directive and several European authorities. The issues were whether Article 49 was engaged, whether the arrangement was abusive, whether a public policy governed permission to work, and whether a reference to the European Court was required.

1. The court granted permission for judicial review as part of the rolled-up hearing, but dismissed the substantive application.

2. The posted-worker authorities did not assist the claimants. Rush Portuguesa Limitada v Office National D’Immigration concerned movement of a workforce from one member state to another. Raymond Vander Elst v Office des Migrations Internationales proceeded on the basis that the third-country workers were lawfully resident and lawfully and habitually employed in the state of establishment. The other Commission cases likewise required the service provider to establish that the workers’ situation was lawful in that state.

3. The court identified three conclusions: the claimants could not rely on Article 49 because they were not resident in Ireland; the United Kingdom could adopt proportionate measures to ensure that third-country nationals were legally employed and lawfully resident in the state of establishment; and the decisions not to regularise, and to detain and remove, the claimants were proportionate and compatible with Community law.

4. Article 2 of the Posted Workers Directive was interpreted as covering a worker normally working in member state A who is posted by a service provider established in member state A to work in member state B. None of the claimants normally worked in Ireland; on the evidence, they worked illegally in the United Kingdom.

5. The arrangement was abusive in any event. Objectively, the Irish company directed its services at the United Kingdom to avoid United Kingdom immigration and criminal law. There was no genuine posting and Article 49 was invoked solely to obtain an advantage unavailable to a United Kingdom company.

6. Loutchansky, Carpenter, Gamelli, Centros, Chen and Metock concerned materially different areas of Community law and did not establish the claimed rights.

7. The relevant policy on permission to work for persons granted temporary admission was publicly available. There was no sufficient doubt to justify a preliminary reference. The absence of lawful residence in Ireland was fatal to the Article 49 claim, and the decisions were lawful.

The judgment itself records that permission had been addressed by orders dated 31 July and 18 August 2008. The court treated the hearing as a rolled-up hearing and granted permission formally before dismissing the substantive judicial review claim.