England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th July 2005

Mr Justice NEWMAN :

1. These two claims have been ordered to be heard together. The relevant legal issues are identical and there is no factual difference between the cases which suggests a different application of the legal principles.
2. The claims raise important issues of Community-wide application concerning the scope of the residence and employment rights (if any) of Turkish citizens who enter the Member States of the European Union as students with a limited ability to undertake some employment.
3. Both claimants entered the United Kingdom having been granted leave to enter and remain as a student. Each was entitled, according to the leave which was granted, to enter into part-time employment. Each has made an application for further leave to remain in employment pursuant to the EC-Association Agreement with Turkey ("the Association Agreement"). The Secretary of State has refused to vary the leave for the following reason:

"Your previous category was that of a student. Your objective when you chose this category was that of study/vocational training. You were allowed to undertake some limited employment as a student. However, this is not a category that would allow you to work full time for a continuous period of twelve months. Therefore the Secretary of State is not satisfied that you qualify under the provisions of the agreement."

The Community Law Legal Framework

4. The basis of the claimants' claim is Article 6 of Decision No. 1/80 of the Association Council constituted under the EC-Turkey Association Agreement. The Council of Association was set up by the agreement establishing an association between the European Economic Community and Turkey, signed at Ankara on 12^th September 1963 by the Republic of Turkey and by the Member States of the EEC and the Community, and concluded, approved and confirmed on behalf of the Community by Council Decision 64/732/EEC of 23^rd December 1963 (OJ 1973 C 113, p. 2). The United Kingdom became a party to the Association Agreement on accession to the European Community on 1^st January 1973. The aim of the Association Agreement is set out in Article 2 which provides as follows:

"The aim of this Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of Turkish people."

5. Decision 1/80 of the Council provides, in material part, as follows:

"Article 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.

2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absences on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.

3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules.

Article 7

The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him:

shall be entitled – subject to the priority to be given to workers of Member States of the Community – to respond to any offer of employment after they have been legally resident for at least three years in that Member State;

shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.

Children of Turkish workers who have competed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years".

6. Article 12 of the Association Agreement provides that for the purpose of progressively securing freedom of movement for workers,

"The Contracting Parties agree to be guided by Articles 48, 49 and 50 (now Articles 39, 40 and 41 EC Treaty post-Amsterdam) of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them."

7. The European Court of Justice (ECJ) has repeatedly held that Article 6(1) has direct effect (see Sevince, C-192/89 [1990] ECR I-3461, Kus, C-237/91 [1992] ECR I-6781). Although there is no definition of a "Turkish worker", in the Association Agreement and its associated legislation, reference to the EC Treaty and the general commitment in the Ankara Agreement towards the eventual accession of Turkey to the Community means that the "Turkish worker" should take on the Community law definition of "worker" (see Mehmet Birden v Stadtgemeinde Bremen Case C 1/97 [1998] ECR I-7747 at paragraph 24):

"Reference should consequently be made to the interpretation of the concept of worker under Community law for the purposes of determining the scope of the same concept employed in Article 6(1) of Decision No. 1/80."

8. The basic Community definition of a "worker" is that the individual, for a certain period of time, performs services, for and under the direction of another, in return for which he receives remuneration (see Case 53/81 Levin v Staatssecretaris van Justitie [1982] ECR 1035). The term "worker" includes part-time workers. The underlying requirement is that the person is engaged in a "genuine and effective economic activity, rather than work which is marginal or ancillary" (see Ruzius-Wilbrink v Bestuur van de Bedrijfsvereniging voor Overheidsdiensten [1989] ECR 4311).
9. In order to identify the point which is in issue in these cases it will be convenient to emphasise the non-contentious areas. It is not the Secretary of State's position that applying a Community law test of economic activity, the type and nature of the work undertaken by each of the claimants in this case would not make them "workers" as a matter of general Community law. The submission which is advanced on his behalf is that, because they entered the United Kingdom as students, albeit with permission to enter into part-time employment, they entered as students and not as workers. The issue is whether persons who enter as students fall within Article 6 of Decision 1/80. It is submitted that a person who has been permitted to enter the United Kingdom as a student with an ancillary permission to work for limited periods is not to be treated as a worker within the meaning of "worker" under Article 6(1) and thus does not enjoy the substantial rights which the Association Agreement confers on workers. It is submitted that the intent and purpose of the Association Agreement is to provide facilities for those who have been permitted to enter as workers and to establish a more secure basis over time for them to remain as workers in the Member State which they have entered. Applying a purposive construction to the Association Agreement, it is submitted that that purpose is not advanced by allowing a wholly different class of entrants, students with an ancillary limited right to work, to transform themselves into "workers".
10. In support of the purposive construction placed before the court for consideration, it was submitted that the regime contemplated by the Association Agreement would be set at nought if Turkish nationals could simply enter as students and then use the ancillary right to work associated with that status to transform their status overall into that of "workers". It was submitted that that cannot have been the intention behind Article 6 of the Decision. If this was the true meaning of the Association Agreement and Article 6(1) in particular, it was submitted Member States would, in order to avoid the consequences, allow students entry, but wholly prohibit any employment. This action, it was said, would be taken in order to counter the accident that by allowing some employment, the status of the student can mutate into that of "worker".
11. Since the court is considering an issue of Community law, the parties agree that the court must approach the question having in mind the guidance and direction given in connection with referring questions to the ECJ. In R v The International Stock Exchange ex parte Else [1993] QB 534 CA at 545, the Master of the Rolls explained the test as follows:

"… I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer…"

With that in mind, I turn to consider the issue.

12. Ms Rogers, counsel for the claimants, has drawn the court's attention to a number of ECJ decisions in connection with the Association Agreement. In none of them are the facts on "all fours" with the facts in the claimants' cases, but she submits that the court can conclude, with confidence, after due consideration has been given to the decisions, that the claimants are correct in law in their challenge to the decision of the Secretary of State.
13. The survey can commence with the case of Kus (ibid). One of the questions to the ECJ in that case was:

"Do the provisions of the first indent of Article 6(1) of the above mentioned decision apply if a Turkish national, who entered the Federal Republic of Germany in order to marry a German national and whose marriage was terminated by divorce after three years, applies after his divorce for a residence permit for the purpose of engaging in employment and if at the time when that application is refused he has already been employed for two and a half years by the same employer under a valid work permit?"

14. Ms Rogers relies upon the case because she submits it closely resembles the claimants' cases. She submits that the conclusion of the ECJ that Mr Kus was entitled to the benefits conferred by the Association Agreement was reached without the reason why Mr Kus had entered into Germany being regarded as relevant. Equally, the fact that the reason for him having entered Germany had terminated was not treated as relevant to the decision. She refers to the following paragraphs of the judgment of the court:

(1) Paragraph 20 where the court held that Article 6(1) of Decision No. 1/80 is confined to regulating the situation of the Turkish worker with respect to employment, and makes no reference to his situation as far as the right of residence is concerned.

(2) Next, in particular, paragraph 21 where the court held:

"It should be noted that, according to its wording, Article 6(1) applies to Turkish workers duly registered as belonging to the labour force of a Member State and that, under the first indent, a Turkish worker needs only to have been in legal employment for more than one year in order to be entitled to the renewal of his permit to work for the same employer. That provision does not therefore make that right dependant on any other condition, such as the circumstances under which the right of entry and residence was obtained."

She submits that this holding is conclusively in favour of the claimants in this case and that no material factual distinction can be drawn between Mr Kus who entered as a spouse, who, after entry, was able to work and the claimants who were entitled to enter as students and, after entry, were entitled to work. In Kus the cessation of his status as a married person could not have any bearing upon his rights as a "worker". More so, she relies upon paragraph 22 as follows:

"Accordingly, even though legal employment within the meaning of Article 6(1) presupposes a stable and secure situation as a member of the labour force and, by virtue of this, implies the existence of an undisputed right of residence and indeed, if necessary, possession of a lawful residence permit, the reasons for which that right was conferred, or for which the residence permit was granted, are not decisive for the purposes of their application."

And next paragraph 23:

"It follows that once a Turkish worker has been employed for more than one year under a valid work permit, he must be regarded as fulfilling the conditions laid down in the first indent of Article 6(1) of Decision No. 1/80, even though his residence permit was initially granted to him for a purpose other than that of engaging in paid employment."

15. It is noteworthy that the submission, made on behalf of the Secretary of State, to the effect that if the court was to uphold the claimants' case a likely consequence would be that Turkish students would be treated differentially from other students, because the United Kingdom and other Member States might consider it necessary to prohibit part-time working for students, was advanced to the court in the case of Kus and was rejected by the ECJ as not material. At paragraphs 24 and 25 the court set out the argument that a decision in favour of Mr Kus could:

"result in differential treatment for Turkish nationals depending on whether the national legislation of the Member State in which they are staying permits them to work, where the initial reason for their stay was not to engage in paid employment".

In paragraph 25 the court stated:

"However that may be, it should be pointed out that such a situation would merely reflect the fact that Decision No. 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates, particularly in Article 6, the situation of Turkish workers already integrated into the labour force of a Member State. That situation cannot, therefore, in the case of Turkish workers who are already in possession under the legislation of a Member State of a work permit and who, where required, hold a right of residence constitute justification for depriving them of the rights provided for in Article 6(1) of Decision No. 1/80."

16. It will be convenient next to consider the case of Faik Gunaydin and Others v Freistaat Bayern C-36/96 [1997] ECR I-5179. Mr Gunaydin was permitted to enter Germany in April 1976. He completed a German language course and then undertook a course of study at the end of which, in 1986, he received a diploma in engineering. During these studies he had been granted residence permits with restrictions as to time and place. Paid employment was not permitted. In 1982 he married a Turkish national. In November 1986 he was taken on by Siemens with a view to pursuing, at the factory in Germany, a training course of several years' duration, at the end of which he was to be transferred to Turkey in order to manage there a subsidiary of that company. Employment and residence permits were granted to him solely for the purpose of preparing to take up the post with a Siemens' subsidiary in Turkey. Mr Gunyadin had stated that he intended to return with his family to that country in the latter half of 1990. The last permit he received was granted on 5^th July 1990. The permit bore the remark that it would lapse upon his ceasing to be employed by Siemens and that it had been granted exclusively for the purpose of introducing its holder to the commercial and working methods of the company in question. In February 1990 Mr Gunyadin applied for a permanent residence permit on the ground that, as a result of his career development in Germany, that country had become his home, that he would now feel like a stranger in Turkey and that his two minor children, born in Germany and attending German schools, would experience the greatest difficulty in integrating into his country of origin. The salient facts to be noted are that Mr Gunaydin entered Germany, not as a worker, but as someone who was entitled to pursue courses of education but without permission to work. He was subsequently granted limited permission to work within Germany and, from the circumstances and terms of the permits, it could be taken that it was understood that he was working for the purposes of preparing himself to return to Turkey where he would work for Siemens.
17. The first question considered by the court (see paragraph 19) was the application of Article 6(1) of Decision No. 1/80 where the "worker" was permitted to pursue gainful employment only temporarily for a specific employer for the purpose of becoming acquainted with and preparing for work in a subsidiary in Turkey. In addressing the question in paragraph 23 of the judgment, the court observed:

"Likewise, the Court has consistently held (see, in particular, Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, paragraph 25) that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates, in Article 6, the situation of Turkish workers already integrated into the labour force of the host Member State."

Next it observed (see paragraph 26) that the court has consistently held:

"that the rights which the three indents of Article 6(1) confer on Turkish workers in regard to employment necessarily imply the existence of a right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect".

In the reasoning of the court leading to the conclusion in paragraph 52 upon which Ms Rogers places reliance, the court observed (see paragraph 50) that:

"if conditions or restrictions applied by a Member State to residence and/or work permits for Turkish nationals could result in their lawful employment there being regarded as not legal, Member States would be able wrongly to deprive Turkish migrant workers whom they permitted to enter their territory and who have been legally employed there for an uninterrupted period of more than three years of rights on which they are entitled to rely directly under Article 6(1)".

Thus paragraph 52 concludes:

"Article 6(1) does not make the recognition of the rights it confers on Turkish workers subject to any condition connected with the reason the right to enter, work or reside was initially granted (Kus, paragraphs 21 to 23 and, by analogy, Eroglu, paragraph 22)."

Conclusion

18. As to the purpose of the Association Agreement and Article 6(1) in particular, it is clear, according to the third recital of the preamble, that it seeks to improve, in the social field, the treatment accorded to workers and members of their families, in relation to the arrangements introduced by Decision No. 2/76 which, by agreement, established an association between the European Economic Community and Turkey. The purpose embraces the implementation of a system of gradual integration of Turkish workers into the host state's labour force. I am unable to accept the submission that the integration of workers would be undermined by the Member States prohibiting students from working. If the Secretary of State's submission is correct, to deny students the right to work will not undermine the Association Agreement because students, as "workers", are not within the Association Agreement or any of its purposes. If students are, as the argument suggests will occur, denied the right to work, they will not accrue, by virtue of being workers, rights conferred by the Association Agreement. That may result in students not being integrated, but that will be a consequence of them not being workers. It will not amount to the Association Agreement being undermined. In my judgment, a purposive interpretation points to student workers being within the Association Agreement because their inclusion will lead to greater integration.
19. I reject the submission which suggests that there is a mutual incompatibility between a person's status as a student and a person's ability to work so as to become a worker. The argument has involved suggestions that to accept the claimants' argument would allow students to "mutate" or to transform their status as students and to become workers in circumstances which cannot have been envisaged. A student who is allowed to work part-time, and does work part-time, in such a way as to meet the definition of "worker" within the Association Agreement, accrues the rights conferred by the Association Agreement upon a "worker" by meeting the definition of worker under the Agreement. He does not mutate or transform himself; he merely exercises his right to work part-time and, in so doing, brings himself within the one or other of the indents in Article 6(1).
20. According to the case law of the ECJ, the fact that he entered as a student is not in any way connected with the enjoyment of the rights which he has acquired through legally working. It follows that I am entirely satisfied that the claimants' argument on this issue is correct. I have no doubt that the argument is correct. It follows that I have the confidence which the Master of the Rolls calls for to resolve the issue myself and I shall not refer the issue to the ECJ. The Secretary of State erred in law in concluding that the claimants did not "qualify under the provisions of the agreement".

Ground 2

21. Ms Rogers advanced another ground of challenge. In view of the conclusion I have reached on her principal ground, I shall deal with it briefly.
22. She submitted that, as a result of the failure of the defendant to include reference to rights for Turkish nationals under Article 6(1) of Decision 1/80 in the Immigration Rules, the claimants are ineligible to appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 by virtue of section 88(2)(d) of the 2002 Act. She submitted that the lack of a statutory appeal breached EU law principles of equivalence and effectiveness.
23. The Secretary of State submitted, in my judgment correctly, that the principle of equivalence only obtains where there is a difference between the rights accorded to Turkish nationals and those granted to others in the United Kingdom in "a comparable domestic law action" (see Preston v Wolverhampton NHS Trust [1998] 1 WLR 280 (HL) p. 283. The equivalent relied upon by the claimants is a non-EEA national seeking leave to remain as a work permit holder, but there is not an equivalent because such a person would have already lawfully entered with an original work permit. Under the Immigration Rules, in order to extend work permit employment, one must have originally obtained a work permit. A student entitled to work is not in an equivalent position.
24. As to the reliance upon the principle of effectiveness, in my judgment, as the defendant submitted, the existence of judicial review satisfies that requirement.
25. The court grants judicial review upon the principal ground advanced. Counsel should submit an appropriate draft order in connection with relief and costs.