KP Turkey, R (On the Application Of) v Secretary of State for the Home Department

Article 13 of Decision No 1/80 does not protect a Turkish worker who has already acquired employment and residence rights under Article 6(1). The two provisions address different situations. Article 13 governs access to employment before those Article 6(1) rights arise, whereas Article 6(1) determines the residence rights of an integrated worker.

Where Article 13 applies, residence may fall within its scope because it is necessary to make access to employment effective. That connection does not extend the standstill clause to settlement or permanent residence. New restrictions on settlement are therefore outside Article 13.

The appellant, a Turkish national lawfully employed in the United Kingdom, had completed four years of legal employment and enjoyed the third-indent rights under Article 6(1) of Decision No 1/80. The Secretary of State granted three years’ further leave rather than indefinite leave to remain.

His application for permission to seek judicial review was refused by a deputy High Court judge in the Administrative Court: [2013] EWHC 2649 (Admin). On appeal, the Court of Appeal was invited to determine the substantive legal issues. The central questions were whether Article 13 applied after Article 6(1) rights had arisen and, if so, whether it preserved settlement conditions existing in 1980.

Decision

1. Appeal dismissed. Richards LJ, with whom McCombe LJ and Maurice Kay VP agreed, held that the proposed judicial-review claim was bound to fail. The deputy judge had correctly refused permission.

2. Article 13 of Decision No 1/80 did not apply to the appellant. The consistent case law of the Court of Justice established that Article 6(1) and Article 13 concern different situations. Article 13 protects legally resident Turkish nationals who have not yet acquired Article 6(1) rights. A worker who has acquired those rights is already integrated into the host state’s labour force, and the worker’s employment-related residence rights are determined by Article 6(1), not Article 13.

3. The appellant had acquired rights under the third indent of Article 6(1). He could therefore not invoke Article 13 to require his application for indefinite leave to remain to be assessed under the Immigration Rules in force in 1980. That conclusion alone disposed of the appeal.

4. Richards LJ nevertheless determined the settlement issue because other cases had been stayed pending the appeal. Article 13 can encompass residence conditions, since residence is a corollary of effective access to employment. The same approach applies to Article 41(1) of the Additional Protocol.

5. That necessary connection with employment does not create a right to settlement or permanent residence. Article 13 concerns residence needed for work before Article 6(1) rights arise; it does not prohibit new restrictions on settlement. The appellant’s Article 13 case therefore failed independently on that ground also.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the refusal of permission to apply for judicial review: [2014] EWCA Civ 1109.

• High Court, Administrative Court: Mr Simon Picken QC, sitting as a deputy High Court judge, refused permission to apply for judicial review: [2013] EWHC 2649 (Admin).