England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE CRANSTON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th January 2009

Lord Justice Sedley:

1. Ali Oczelik is a Turkish national. He entered the United Kingdom lawfully on 24 September 2003 as the spouse of a British citizen who by reason of the marriage had become Leyla Ann Oczelik. He had obtained entry clearance the month before, and his visa accordingly was subject to any conditions that might be lawfully imposed on entry. On arrival with his wife he was given leave to enter without any condition restricting employment; the only condition was that he should not have recourse to public funds. The leave to enter was valid, in the first instance, until 25 August 2004, the anniversary of the grant of entry clearance.
2. In January 2004 Mr Oczelik was given a national insurance number and took up paid employment as a waiter in the Moonlight Café, Faversham. The Inland Revenue taxed his earnings.
3. In August 2004, before the expiry of his initial leave to enter, Mr Oczelik's lawyers applied for leave for him to remain on the basis of his marriage, either for a fixed period or indefinitely. The form was imperfectly completed and had to be resubmitted in November 2004, but the Home Secretary has very fairly taken no point on this. On 21 March 2005, however, the application was refused on the grounds that because Rule 284(vi) of the Immigration Rules required a subsisting marriage and the wife had earlier in March 2005 moved out of the matrimonial home, Mr Oczelik had not been able to establish his claim. On appeal, this decision was upheld by an immigration judge.
4. Mr Oczelik sought a declaration by way of judicial review that the consequent removal directions are unlawful. Although in form he made no such declaration, in substance Cranston J found in the claimant's favour: [2008] EWHC 859 (Admin). He held, in short, that the effect of s.3C of the Immigration Act 1971 was to extend Mr Oczelik's leave to enter while the Home Office considered his application to vary it, with the consequence that by the time the decision was taken he had completed a year's lawful employment and so had an indefeasible right under art. 6(1) of the EC-Turkey Association Agreement to renewal of his leave.
5. The Home Secretary now appeals to this court with the permission of Tuckey LJ on what is clearly a question of general importance: does the time taken to process a Turkish national's application to extend his period of leave to enter count towards the one year period of lawful employment which entitles him to remain? If it does, it is accepted that subsequent events -- here the failure of the marriage -- cannot undo the renewal.
6. The EC Turkey Agreement, the background to which is described by the judge at the start of his judgment, set up an Association Council which in 1980 issued decision 1/80. It is accepted that in the present context this Decision has direct effect: see Kus v Landeshauptstadt Wiesbaden [1992] c-237/91, ECR 1-6781, §19, 37. The Decision provides by art. 6(1):

"Subject to Article 7 on free access to employment for members of his family, 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 be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;

shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment."

7. In the present case the one-year period ran from 6 January 2004, when Mr Oczelik began lawful employment, to 5 or 6 January 2005. In the course of that time, on 25 August 2004, his initial leave to enter expired, and with it, absent some suspension or extension, his entitlement to work. It was Mr Oczelik's case, which Cranston J upheld, that the necessary continuity was created by s.3C of the Immigration Act 1971:

"3C Continuation of leave pending variation decision

(1) This section applies if—

(a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave,

(b) the application for variation is made before the leave expires, and

(c) the leave expires without the application for variation having been decided.

(2) The leave is extended by virtue of this section during any period when—

(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought while the appellant is in the United Kingdom] against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision , brought while the appellant is in the United Kingdom,] is pending (within the meaning of section 104 of that Act).

(3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom.

(4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section.

(5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a).

(6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; and the regulations—

(a) may make provision by reference to receipt of a notice,

(b) may provide for a notice to be treated as having been received in specified circumstances,

(c) may make different provision for different purposes or circumstances,

(d) shall be made by statutory instrument, and

(e) shall be subject to annulment in pursuance of a resolution of either House of Parliament."

8. No regulation has been made by the Home Secretary under subsection (6) which permits the date of the material decision to be treated as other than it actually was. It follows that Mr Oczelik's application was decided on 21 March 2005. The question is whether Cranston J was right to conclude that by virtue of s.3C Mr Oczelik had meanwhile, from January 2004 to January 2005, been not merely lawfully present, as the Home Secretary accepted he had been, but "in legal employment".
9. In deciding this question, Cranston J had no evidence before him that the marriage had broken up by any ascertained date before the wife left in March 2005. He approached the case, in the absence of any finding about the state of the marriage between the application in August 2004 and the end of the first year of employment in January 2005, on the footing that there was nothing to suggest "that if the Claimant's application for any extension had been decided at any point before 6 January 2005 it would have been rejected". While the facts might have been examined and presented differently, this was in my view a proper approach to the material before the judge, and before us Katherine Olley for the Home Secretary has not sought to go behind it.
10. The relevant case law of the ECJ is helpfully summarised by Cranston J at §6-8 of his judgment. His conclusion was that the effect of s.3C, both literally and substantively, was not merely to suspend the effect of overstaying, as in Kus and Sevincé v Staatsecretaris van Justis [1990] ECR 1-3461, but to negative overstaying by enlarging the period of leave to enter. On the present facts, this meant that Mr Oczelik was lawfully present from 24 September 2003 and lawfully employed from 6 January 2004, and that the legality of both his presence and his employment was extended by operation of law until at least 6 January 2005, giving him for at least the time being a right to remain. The judge said at §10:

"In my judgment the Claimant's employment position can be regarded as stable and secure for a year from 6 January 2004. It thus constituted legal employment for the purposes of Article 6 (1)"

11. The Home Secretary's critique of this decision includes a disagreement with one sentence in the judge's final paragraph:

"To put it no higher, throughout that second period, from August 2004 until January 2005, the Claimant had a legitimate expectation that if the Defendant had made a decision then his right to stay and work as a spouse would be extended"

I confess that I have had difficulty with this sentence. Although the Home Office's letter of acknowledgement said that applications would normally be dealt within 13 weeks of receipt, the claim was not predicated on any legitimate expectation to that effect; nor does what the judge is here describing seem to me to rank as a legitimate expectation which the law would recognise. But the passage is an aside; it has no discernible influence on the remainder of the reasoning, and Ms Olley has wisely not sought to build on it in argument before us today.

12. The thrust of her argument is that the decision falls foul of the requirement implicit in art. 6(1) that the Turkish national in question must at the material time have had "a stable and secure situation as a member of the labour force". This, she submits, cannot be the case for someone whose continued right to reside and work here is still undetermined and therefore precarious. From 25 August 2004 this was Mr Oczelik's situation.
13. The test relied on by Ms Olley does not feature in the text of Decision 1/80. It comes from the jurisprudence of the ECJ and is encapsulated in its decision in Birden v Stadtgemeinde Bremen [1998] ECR 1-7747 §55-58:

"The concept of legal employment

55. Finally as regards the question whether such a worker was in legal employment in the host Member State for the purposes of Article 6(1) of Decision No 1/80, it should be recalled that, according to settled case-law (judgments in Sevincé, paragraph 30, Bozkurt, paragraph 26, and Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR 1-6781, paragraphs 12 and 22), the legality of the employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence.

56. In Sevincé, paragraph 31, the Court held that a Turkish worker was not in a stable and secure situation as a member of the labour force of a Member State during a period in which a decision refusing him the right of residence was suspended as a consequence of his appeal against that decision and he obtained authorisation, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question.

57. Likewise, in Kus, paragraph 13, the Court held that a worker who has a right of residence only as a result of the effect of national legislation allowing a person to reside in the host country during the procedure of granting a residence permit does not satisfy that condition of stability, on the ground that the person concerned had obtained the rights to reside and work in that country on a provisional basis only pending a final decision on his right of residence.

58. The Court considered that periods during which the person concerned was employed could not be regarded as legal employment for the purposes of Article 6(1) of Decision No 1/80 so long as it was not definitely established that, during those periods, the worker had a legal right of residence. Otherwise, a judicial decision finally refusing him that right would be rendered nugatory and he would thus have been enabled to acquire the rights provided for in Article 6(1) during a period when he did not fulfil the conditions laid down in that provision (judgment in Kus, paragraph 16)."

14. The effect is that an applicant cannot count towards his period of lawful employment the time taken in applying to make his presence and employment lawful. The rationale is probably twofold. First, to do so would be to enable an application to succeed by assuming the very thing that the application was designed to establish. Secondly, the policy of the Decision, as of the Agreement, is to permit integration only on the foundation of secure employment, which is something that employment of still uncertain legality cannot be. If a variation of leave is ultimately granted, the Home Secretary accepts that it relates back and makes the full period of employment both lawful and stable. But if it is not granted, the fact that the applicant's rights were preserved by law pending the application does not enlarge the necessary period of stable employment.
15. For Mr Oczelik, Rambert de Mello submits that the meaning and effect of s.3C are determinative in his favour: the section does not simply suspend any illegality while the applicant seeks to regularise his situation: in explicit language it temporarily legalises the applicant's position.
16. Mr de Mello disclaimed any argument to the effect that if the Home Secretary wishes to produce a result parallel to that in Kus, she may lay before Parliament a statutory instrument under s.3C(6) to relate any adverse decision back to an earlier date. He was understandably concerned that any such exercise might backfire on other classes of entrant or in other situations. For my part I would wish to reserve the possibility that the very reason why s.3C(6) is there is that, absent such a modifying provision, the effect of the section is designed both to be substantive and prospective.
17. Mr de Mello does nevertheless submit that that is what s.3C is. He points out that the phrase "stable and secure", whether applied simply to employment or to the more elaborate expression "situation as a member of the labour force", is not part of the Agreement. It is a summary of what the Agreement's three requirements amount to. These are (a) to be a worker who is legally employed, (b) to be duly registered as a member of a national labour force and (c) to have been so employed for the necessary period. If all three of these criteria are met, as on the accepted facts of the case they are, Mr de Mello contends that Mr Oczelik's right not to be removed is made out. The breakdown of his marriage does not relate back.
18. Mr de Mello also points out that if the Home Office had dealt with the application within its target time of 13 weeks, the present issue would not have arisen. This may be true, but it comes ill from a party whose application was held up by incompleteness, and it is not in any case a factor which will always be material. It cannot affect the true construction of the Act and the Decision.
19. Is the effect of s.3C then, as Ms Olley submits, suspensive only in the sense that the section does no more than provisionally defer the consequences of illegality? That was held to be the position in the ECJ cases on which the Home Secretary relies, but the respondent's argument is that s.3C does more than suspend the consequences of illegality: it legalises a situation which would otherwise be illegal. In aid of this argument Mr de Mello relies on indications in the Opinions of Advocate General Darmon that national systems may confer greater security than the Agreement and the Decision do: see the Opinions in Kus at §30-46 and in Sevincé at §68. It is sufficient to cite the latter part of the last of these passages:

"It is for the Member States to ensure compliance with their own legal systems, having recourse if necessary to internal procedures which make it possible to eliminate decisions which are incorrect and, thereby, illegal. If they have not done so, Community law must not thereby be interpreted in such a manner as to safeguard them."

20. The arguments seem to me to be closely balanced. The view which ultimately appealed to Cranston J has the virtue of loyalty to the wording of the UK statute by virtue of which Mr Oczelik remained and worked here without infringing the law until January 2005 and beyond. But it still requires the court to ask itself whether, given the undoubted legality of Mr Oczelik's continued presence and employment here, his employment after August 2004 had the necessary security and stability to bring him within art. 6(1) of the Decision. Could he from that point be regarded as an established member of the workforce?
21. After some hesitation, not least because of the cogency of Cranston J's judgment, I have been persuaded by Ms Olley that the Home Secretary's position is the correct one. This does not mean that the effect of s.3C is in any way diluted: in domestic law it does what it says, which is to extend the duration of leave to enter or remain in those cases to which it applies. But its significance in Community law is not necessarily identical. It remains to be decided whether, for the purposes of the Agreement and the Decision, the domestic effect also confers on the applicant's membership of the national workforce the security and stability which are implicit in the concept of "belonging to" a national labour force. The jurisprudence of the ECJ strongly suggests that it does not. It suggests that, whatever the mechanism by which national legal systems place illegality in abeyance while the continuation of leave to remain is decided on, the substance of such procedures is to remove for the time being the requisite security and stability of employment. If the eventual decision is favourable, well and good. If not, the entrant cannot rely on the pendency of his application to supply the additional time he needs to bring him within art. 6 of the Decision.
22. It follows that from 25 August 2004 Mr Oczelik's employment, while perfectly lawful, could not count towards the computation of a year's employment within art. 6(1). I would allow the appeal accordingly.

Lord Justice Jacob:

23. I agree that the appeal should be allowed. Were it not for the trio of cases in the European Court of Justice, Sevincé, Kus and Birden, I would have agreed with Cranston J. To my mind, the case turns entirely on the meaning of "legal employment" in art. 6. Mr de Mello rightly accepted that that phrase has the same meaning in each of the indents of art. 6. If one were starting from scratch, one might have thought that "legal employment" was being used in contrast to "illegal employment", but this trio of cases has settled that it has not been used in that sense at all. "Legal employment" means, as decided by the European Court of Justice, having a stable and secure situation as a member of the labour force of a Member State, see for example §55 of Birden. Given that specialised meaning of the expression "legal employment", one must ask what the position of the appellant was after the expiry of his original leave to enter. He had an application for more time. He did not know whether it was going to be granted, or when, or whether it was going to be refused; his position was precarious. He was therefore not within the meaning of "legal employment" as laid down by the European Court of Justice.
24. It follows therefore, although he was not in any way doing anything unlawful in this country, he was not in legal employment. It was suggested by Mr de Mello that the trio of cases could be distinguished on the basis that they were all concerned with situations where the would-be permanent worker was appealing an adverse decision in some way or other. Here, things were different, he said, because there was no more than a pending application. I have to say that in the end I think that is a distinction without a difference. The precariousness was exactly the same in either case. Unlike my Lord, I do not think this is a finely balanced case. I think it is reasonably clear. The only other observation I would make is that I for my part think it very doubtful that the Home Secretary could make an order under s.3C(6) retrospectively bringing a decision back in time. The consequences of so doing would be very likely to have the effect of making an employer guilty of a crime, having employed somebody who ought not to have been working, and unless the Secretary of State could make some incredibly elaborate order backdating a decision for some purposes but not for others, as to which I see no sign of any power in the section, that would well be the likely effect of a backdating.
25. I think Mr de Mello, with that characteristic frankness of a member of the English Bar, rightly disclaimed the suggestion that came from my Lord.

Sir Peter Gibson:

26. I also agree that this appeal should be allowed. The question for the judge was whether the respondent satisfied the condition of the first indent of art. 6(1) of Decision 1/80 EC Turkey Association Agreement that he had achieved "one year's legal employment". The meaning of "legal employment", to which reference is made, may not be that which an English lawyer would give to those words where found in a purely English context, but, as was said by the European Court of Justice in Birden at §55, for the purposes of art. 6(1):

"…according to the settled case law … the legality of the employment presupposes a stable and secure situation as a member of the labour force of a Member State and, by virtue of this, implies the existence of an undisputed right of residence."

27. From 25 August 2004, when the respondent's limited leave to enter expired, he did not have an undisputed right of residence. Before his limited leave to enter expired, he applied for a variation of the leave by seeking further leave to remain or alternatively indefinite leave to remain. That application enabled him to have the benefit of s.3C of the Immigration Act 1971. Thus, pending the variation decision, his leave was extended. In consequence, he was for the time being lawfully in this country, could lawfully work and his employer could lawfully employ him, but his situation as a member of the UK labour force was neither stable nor secure as he did not have an undisputed right of residence. The reason given in the European Court of Justice authorities is that this was because, pending a final decision, his rights were only provisional. Were it otherwise, a decision against him would be rendered nugatory, see for example Kus §12-18.
28. With all respect to the judge, he has not given proper effect to the European jurisprudence, nor has he in my judgment given the correct interpretation of the effect of s.3C. It seems to me plain on the face of the section headed "Continuation of leave pending variation decision" that the effect is only suspensive. The judge also gave his views as to what might have been decided if the respondent's application had been determined at a time earlier than it was. This was not his function. He has thereby ignored the fact that until there was a decision on the application the respondent did not have an undisputed right of residence and so his employment was not stable.
29. I am unable to accept Mr de Mello's ingenious suggestion that a distinction should be drawn between subsection (1)(a) and subsection (2)(b) of s.3C, subsection (1)(a) relating to an application for variation of a limited leave to remain, an application which would be determined administratively, and subsection (2)(b), relating to an appeal from a judicial decision. He submitted that in the former case it would be possible for a Turkish worker, seeking to satisfy the requirement of one year's legal employment pending the administrative decision, to do so by working lawfully for that period. He referred us to the remarks of Advocate General Darmon in §68 of his opinion in Sevincé, with which, he said, his submissions were not inconsistent. In my judgment they do not help Mr de Mello. He was not able to refer us to any decision of the European Court of Justice which showed that, in the circumstances relied on by Mr de Mello, the meaning of "legal employment" had any different meaning from that which is well established by the European cases.
30. For these reasons I too have reached the decision, and I have to say I do so without hesitation, that from 25 August 2004 the respondent did not have an undisputed right of residence. Accordingly, I agree that this appeal should be allowed.

Order: Appeal allowed