Resounding victory in the case of Payir: Earning right to work after entry as a student

Wednesday 30 January 2008

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Two different situations are dealt with in the case - au pairs and students.

- Au pairs: according to the UK Immigration Rules, Turkish nationals (among others) between 17 - 27 can get entry clearance to come to the UK to work as au pairs for up to two years. According to the Rules, they must have the purpose of learning English, live with an English speaking family and help in the home for a maximum of 5 hours per week in return for a reasonable allowance. Can an au pair who fulfils the Rules claim the right to an extension of his/her work and residence under the EC Turkey Agreement - Decision 1/80?

- Students: the Home Office permits students (including Turkish students) to take up work for up to 20 hours a week during term time and during the vacations. Can a Turkish student who works in accordance with these conditions claim the right to an extension of his/her work and residence under the EC Turkey Agreement Decision 1/80?

EC Turkey Agreement - Decision 1/80 Article 6(1)

Pursuant to Article 6(1) of Decision 1/80 adopted under the EC Turkey Association Agreement, Turkish nationals who are workers in the Member States are entitled to an extension of their permission to work after twelve months employment with the same employer provided that they have an offer of continued employment with that employer. After three years working for the same employer the Turkish worker is entitled to change employer but remain in the same occupation and after four years he/she is entitled to free access to the labour market.

The ECJ held that in order to qualify as a worker under Article 6(1) there are three conditions that must be first be fulfilled:

- The activities performed must be real and genuine and not on such a scale as to be marginal and ancillary; the employment relationship must be genuine;

- The worker must be registered as belonging to the labour force; this means the worker meets the conditions laid down in law or regulation which entitle him/her to pursue an occupation;

- The employment must be stable and secure namely that the person must have been given lawful residence and a right to work during the first year in the Member State.

The national court confirmed that all the applicants were working lawfully and the UK authorities did not dispute that they had leave to remain. Accordingly, the ECJ held that the jobs were genuine and the applicants all fulfilled the other two requirements of the test.

The UK authorities (and Lord Justice Laws who gave judgment in the Court of Appeal before referring the issues to the ECJ) argued that au pairs and students should not be given rights to continued employment under Article 6(1) as they are only permitted to work to achieve a social objective. The ECJ rejected this argument. It held that just because there is a social element to the intention of the Immigration Rules that does not take away the lawful character the activity as work. The ECJ confirmed that it does not matter in what capacity a Turkish national enters a Member State (this being a matter for national authorities) but once he/she is lawfully working he/she can benefit from the right to continue to work contained in Decision 1/80. The ECJ even went so far as to state "no account is taken of the aim pursued in permitting the persons concerned to enter the Member State...Article 6(1) of Decision No 1/80 does not make recognition of the rights which it confers on Turkish workers subject to any condition connected with the reason for which the right to enter, work or reside was initially granted." (para 40).

Further, the ECJ confirmed that it is irrelevant that the au pair or the student made a declaration that he/she would leave the country at the end of the period - such a statement cannot affect the acquisition of rights under Decision 1/80.

Nicola Rogers of Garden Court Chambers represented Mr Ozturk and Mr Akyuz before the ECJ in Luxembourg instructed by Rachel Meates of Irving & Co solicitors.

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