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

Article 49 protects genuine temporary movement of an undertaking’s workers from the Member State of establishment to a host State. It does not confer a general right to access the host State’s labour market. The protection may extend to third-country nationals, but the posted-worker jurisprudence assumes lawful residence and employment in the State of establishment. A host State may use proportionate measures to verify that position and may apply its immigration laws where workers are unlawfully present and employed. Community law cannot be relied on for abusive or fraudulent purposes. An undertaking cannot create an Article 49 right by interposing an establishment and describing illegally working persons as posted workers. An asserted economic need cannot cure the absence of a Treaty right.

The Irish company claimed that Article 49 entitled it to employ three Malaysian and Chinese nationals in the United Kingdom as workers posted from Ireland. The employees had never lawfully resided or worked in Ireland and were unlawfully present and working in the United Kingdom.

The Secretary of State refused applications for temporary residence permits. HHJ David Pearl, sitting as a deputy High Court judge in the Administrative Court, granted permission for judicial review but dismissed the substantive claims. The appeal concerned whether Article 49 applied despite the workers’ unlawful status and, alternatively, whether the arrangements constituted an abuse of Community law.

The appeal was dismissed. The judgment was delivered for the Court by Lord Justice Rix.

1. Article 49 concerns the temporary movement of an undertaking’s own workforce from the Member State of establishment to a host State so that the undertaking can provide services there. It is distinct from a right to enter the host State’s general labour market. This was the principle illustrated by Rush Portuguesa Lda v Office National d’Immigration C-113/89.
2. The cases relied upon concerning third-country nationals, including Raymond Vander Elst v Office des Migrations Internationales C-43/93, Commission v Luxembourg C-445/03 and Commission of the European Communities v Germany C-244/04, proceeded on the basis that the workers were lawfully and habitually employed and resident in the State of establishment. That lawful status was critical to the genuine posted-worker context. Article 49 did not create a novel advantage for an undertaking using workers with no lawful status in either the State of establishment or the host State.
3. The United Kingdom was entitled to take proportionate measures to verify the workers’ lawful residence and employment in Ireland. Since the employees had no such lawful status and were also unlawfully present and employed in the United Kingdom, the Secretary of State was entitled to refuse regularisation and to apply national immigration law.
4. Alternatively, Community law cannot be relied on for abusive or fraudulent ends. The assessment must be objective and consistent with the purpose and objectives of the freedom relied upon. The authorities, including Van Binsbergen v Bedrifsvereniging Metaalnijverheid [1974] ECR 1299, TV 10 SA v Commissariaat voor de Media [1994] ECR I-4795 and Halifax plc v Commissioners of Customs and Excise C-255/02, supported that approach. The arrangements were a sham designed to convert illegally present and working persons into protected posted workers.
5. The claimed economic need for catering staff was irrelevant. The Court declined an ECJ reference because the issue was acte clair.

1. Court of Appeal (Civil Division) dismissed the appeal and upheld the refusal of judicial review relief.
2. Queen’s Bench Division, Administrative Court, before HHJ David Pearl sitting as a deputy High Court judge, granted permission for judicial review but dismissed the substantive application following a rolled-up hearing.