Court of Justice of the European Communities
Regina (Payir and Others) v Secretary of State for the Home Department Case C-294/06
Before A. Rosas, President of Chamber and Judges J. N. Cunha Rodrigues, J. Klucka, P. Lindh and A. Arabadjiev Advocate General J. Kokott (Opinion July 18, 2007)
Judgment January 24, 2008
Published January 29, 2008

The right of a Turkish national to continue in employment in an EC member state after working there for more than a year, was not affected by the fact that that person had initially been given leave to enter the country as an au pair or as a student.

The Third Chamber of the Court of Justice of the European Communities so held when giving a preliminary ruling on a reference under article 234 EC by the Court of Appeal, on questions on the interpretation of article 6(1) of Decision No 1/80 of the Association Council established under the EEC-Turkey Association Agreement of September 12, 1963, (OJ 1964 L217/3685) concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of December 23, 1963 (OJ 1973 C113 p1).

Article 6 states: “(1) ... a Turkish worker duly registered as belonging to the labour force of a member state: shall be entitled in that member state, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available ... shall enjoy free access ... to any paid employment ... after four years of legal employment.”

Rules 88 to 90 of the Immigration Rules 1994 (HC 395) prescribe conditions for admission to the United Kingdom as an au pair from, inter alia, Turkey, including that the person must work, as an au pair only, for no more than five hours a day, must not intend to stay for more than two years as an au pair, and may not be admitted for more than two years.

Equivalent conditions for the admission of students, under rules 57 and 58 of the 1994 Rules, include a prohibition on taking employment except part-time work and the intention, on seeking leave to enter, to leave the United Kingdom at the end of the course of studies.

The first applicant, Ezgi Payir, obtained leave to enter the United Kingdom from Turkey for a limited time, subject to the condition that she did not enter into employment other than as an au pair.

After she had worked for a family for a year, receiving bed, board and £70 per week for between 15 and 25 hours of work per week, and before her leave expired, the applicant applied for leave to remain, relying on article 6(1) of Decision No 1/80 and stating that she wished to continue in employment with the same family.

The second and third applicants, Burhan Akyuz and Birol Ozturk, were given leave to enter as students, with permission to work a maximum of 20 hours per week, and after they had worked part-time as waiters in a restaurant and had been offered an extension of their work contracts, they applied, before the expiration of their leave, for leave to remain on the basis of article 6(1).

The applications were refused but the refusal decisions were quashed by the High Court in proceedings for judicial review (see The Times July 20, 2005).

On appeals by the secretary of state, on the ground that article 6(1) did not apply to au pairs or students, the Court of Appeal referred questions on that issue to the European Court.

In its judgment, the Third Chamber held:

Three conditions had to be satisfied for article 6(1) to apply, the first being status as a worker.

By settled law, that required the performance of activities that were real and genuine, to the exclusion of activities on such a small scale as to be marginal and ancillary.

The applicants’ activities came within that description and so were such as to enable them, in principle, to be regarded as workers.

The second and third conditions, due registration as part of the labour force, and being in legal employment, were also in principle satisfied, as the jobs held by the applicants were in conformity with both immigration rules and employment law.

In determining whether a Turkish national who had entered the territory of a member state lawfully could, after working lawfully for a year there, rely on the rights conferred by article 6(1), it was not relevant to take into account the reasons for which he was first granted the right to enter or any temporal limitations attached to his right to work.

The argument of member states that had submitted observations, that a student or au pair could circumvent the member state’s legislation in order progressively to obtain an unlimited right of access to the labour market, could not be accepted.

There could be no question of the legislation being circumvented so long as the person was merely exercising a right expressly provided for in Decision No 1/80.

It would only be otherwise if the person had fraudulently obtained a right of entry into the member state by falsely claiming that he intended to study or act as an au pair.

Provided that: (i) the genuineness of the person’s intention was confirmed by his actual pursuit of a course of studies or by acting as an au pair, (ii) he obtained work lawfully in the member state, and (iii) he satisfied the conditions laid down in article 6(1) of Decision No 1/80, he could fully rely on the rights which that provision conferred on him.

On those grounds the Court ruled:

The mere fact that a Turkish national was granted leave to enter the territory of a member state as an au pair or as a student could not deprive him of the status of worker and prevent him from being regarded as duly registered as belonging to the labour force of that member state, within the meaning of article 6(1) of Decision No 1/80.

Accordingly, that fact could not prevent that national from being able to rely on that provision for the purposes of obtaining renewed permission to work and a corollary right of residence.

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