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
		23/04/2008

Mr Justice Cranston:

1. As part of its relations with other countries, the European Union enters Association Agreements. These Association Agreements have different aims and even those with Mediterranean neighbours vary in detail. In broad outline, however, they have certain aspects in common - promoting political dialogue and the respect for human rights and democracy, establishing free trade, and furthering cooperation on matters such as economic and cultural matters and social affairs and migration. For the implementation of Association Agreements there is typically an Association Council at ministerial level. The EC-Turkey Association Agreement is one of, if not, the oldest of the Association Agreements and was signed in Ankara in September 1963: see [1973] OJ C113/1. There was an additional protocol to the Association Agreement in 1970. An Association Council was established under the Agreement.
2. Decision No. 1/80, made by the Association Council on 19 September 1980, is at issue in this case. Article 6 (1) of that Decision provides that Turkish workers duly registered as belonging to the labour force of a Member State of the European Community shall be entitled, after a year's legal employment, to the renewal of their permit to work for the same employer if a job is available. The Article continues that after 3 years of legal employment, and subject to the priority of workers of Member States of the European Community, Turkish workers can move to another employer in that Member State for the same occupation, and after 4 years they have freedom to take any employment in that Member State. The Claimant in this judicial review contends that he is entitled to take advantage of Article 6 (1) in that he was in legal employment for a year in the United Kingdom. The Defendant says that he did not clock up a year's legal employment.

Background

3. The Claimant came to the United Kingdom on 24 September 2003 as the spouse of Mrs Leyla Ann Oczelik, a British citizen. He was given leave to enter under s.3 (1) (c) (i) of the Immigration Act 1971 and paragraph 281 of the Immigration Rules. That was good until 25 August 2004 and under it the Claimant had an entitlement to work. On 6 January the next year he was issued with a full National Insurance number and he commenced employment with the Moonlight Café in Faversham. His employment was registered with the Inland Revenue. Shortly before his leave to enter was due to expire in August his solicitors lodged an application for further leave to remain or, alternatively, indefinite leave to remain. That was on 16 August 2004 and pursuant to the Immigration Rules. Although the application was not in proper form and was initially rejected, no point was taken by the Defendant as to the lateness of the correct application, which was eventually lodged in November.
4. The Defendant refused the Claimant's application on 21 March 2005 on the basis that the Claimant had failed to supply evidence which he was requested to do by the Defendant to establish his claim: Immigration Rules para. 322 (9). Moreover, the Defendant was not satisfied, as a consequence of such failure, that each of the parties to the marriage intended to live permanently together as husband and wife and that the marriage was subsisting: Immigration Rules, para 284 (vi). In fact the Claimant's wife had moved out of the matrimonial home earlier in March and they have never lived together since. The Claimant appealed that decision and eventually the matter was heard by an Immigration Judge in late December 2005. The Immigration Judge dismissed the appeal because, in short, the marriage had broken down, and because in his judgment any claim under Article 8 of the European Convention of Human Rights failed.

The Law

5. Article 6 (1) of the EC-Turkey Association Agreement has been considered a number of times by the European Court of Justice, and it is to its jurisprudence we must turn. Certain matters are clear. Article 6 (1) has direct effect in Member States so that a Turkish national can invoke it in the courts of this country. The article does not prevent Member States regulating the entry of Turkish nationals and the conditions under which they take up their first employment. The circumstances under which the Turkish national is able to enter, work or reside in a Member State are irrelevant to any claim under the article. Therefore it does not matter that someone comes as a spouse and resides and works on that basis. The phrase "worker" in Article 6(1) has an autonomous meaning, so that it can be applied uniformly throughout the European Union: it involves pursuing an activity which is genuine and effective, for a certain period of time, for and under the direction of another person in return for remuneration. What happens subsequent to the relevant qualification period, such as a period of unemployment or, as in this case, the end of cohabitation, has no bearing on the rights conferred during the relevant period.
6. The issue in this case is different and turns on the concept of legal employment: was the Claimant in legal employment for a year from early January 2004? A decision of the European Court of Justice summarises the law relating to this concept: Case C-188/00, Kurz v Land Baden-Württemberg [2002] ECR I-10691. There the Court said that legal 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": [48]. In that case the Court held that Mr Kurz had been permitted to enter Germany and reside there to pursue vocational training, with a right to residence, and it was in the course of that training that, having obtained national authorisation permitting work, he was legally employed. It held that his legal position was regular throughout that period, notwithstanding that his authorisation to work and reside were limited to temporary employment with a specific employer: [53]. In the more recent decision, Case C-294/06, R (Ozturk) v Secretary of State for the Home Department, the Third Chamber of the Court held that the status of a Turkish national as an au pair or a student could not, for that reason alone, mean that any permitted employment was not legal employment for the purposes of Article 6 (1).
7. Contrast these cases with the findings in some earlier decisions of the Court. In the seminal case, Case C-192/89, Sevince v Staatssecretaris van Justice [1990] ECR I-3461, the Turkish worker was refused a residence permit by the Dutch authorities but under Dutch law, while he was appealing, the effect of the refusal was suspended so he could still work. The court held that if the Dutch court finally dismissed the appeal it was "inconceivable" that he could be regarded as having been in "legal employment" for the purposes of Article 6 (1) when he was legally able to continue in employment only by reason of the suspensory effect deriving from the appeal: [31] - [32]. Similarly, in Case C-237/91, Kus v Landeshauptstadt Wiesbaden [1992] ECR I-6781, the Turkish worker had been in employment on the basis of a right of residence because he had married a German. Following his divorce there was an administrative decision refusing to extend it. However, it was automatically extended by German legislation while he appealed the refusal. He won his first appeal but subsequently lost. It was held that he did not satisfy the four year period set out in Article 6 (1) since he was employed for some of the period only by reason of the German legislation giving him that right while his application was finally determined.
8. The rationale of Kus was explained by the Court in Case C-1/97, Birden v Stadtgemeinde Bremen [1998] ECR I-7747. There the court said that the period in Kus could not be regarded as legal employment for the purposes of Article 6 (1) so long as it was not definitely established that during that period the worker had a legal right to residence. Otherwise, a judicial decision finally refusing him that right would be rendered nugatory and he would thus have been able 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: [58]. At a broader level the legal policy underlying the Court's decisions on legal employment seems to be that a Turkish national taking advantage of these provisions must have a "stable and secure" base for doing so. The effect of Article 6 (1) is to integrate the worker into the labour force of a Member State by steps, but that integrative process must build on the firm foundation of legal employment.

Analysis

9. In an attractive argument, fully conversant with the European jurisprudence, Miss Olley contended that this Claimant was not "legally employed" for a whole year from January 2004. He was lawfully present during that period, not lawfully employed. His employment was not "stable and secure" as required by the European Court of Justice, since he had not completed the one year period before having to apply in August 2004 to extend his leave to remain. It was a situation akin to that in Sevince and Kus. The Claimant's original leave to remain as a spouse expired on 25 August 2004. He applied for an extension before that date and as a result of section 3C of the Immigration Act 1971 his leave to remain was extended while the application, or any appeal from it, remained pending. In Ms Olley's submission, from that point in August, when the Claimant's original leave expired, his situation as a member of the labour force was neither stable nor secure, nor his right of residence undisputed. It was wholly dependent upon the outcome of his ultimately unsuccessful application for leave to remain. Had the application for further leave to remain been successful, or had the appeal against the refusal been upheld, the period between August 2004 and January 2005 would be retrospectively viewed as counting towards the qualifying periods under Article 6 (1). In this case, however, the marriage upon which the Claimant had applied for further leave to remain had ceased to subsist by March 2005 and, of course, his application was refused.
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). Partly this conclusion derives from section 3C of the Immigration Act 1971, which extends leave to remain during any period when an application is being decided or during any period of appeal. So in this case, by virtue of the legislation, the Claimant's leave to remain was extended until January 2005 and beyond. That leave to remain included, of course, the entitlement to work, which the Claimant continued to exercise at the Moonlight Café.
11. More importantly, however, are the facts in this case. There is no evidence that if the Claimant's application for any extension had been decided at any point before 6 January 2005 it would have been rejected. Certainly when the Defendant finally decided the application, on 21 March 2005, he refused it because there was insufficient evidence of cohabitation. The Claimant had failed to supply the evidence requested to establish his claim and the Defendant was not satisfied that each of the parties to the marriage intended to live permanently with each other as husband and wife. When, some nine months later, in January 2006 the matter came before an Immigration Judge, he held that the Claimant had not satisfied him that, whatever the Claimant intended, his wife intended to live permanently with him. But there is no finding as to the situation between the date of the application for extension, in August 2004, and the end of the one year, on 6 January 2005. The only relevant findings of the Immigration Judge were (1) that Mrs Ozcelik had written to the Defendant on 10 March 2005 saying that she did not receive utility bills, the water rates being included in the rent and there being no gas or electricity bills since payment meters were used [17]; and (2) that she had moved out of the matrimonial home on 19 March 2005 [6]. What happened in March 2005 is irrelevant, however, to the present issue, the situation from 6 January 2004 to 6 January 2005. During that period I am entitled to assume that the marriage was subsisting. There was no submission by the Defendant to the contrary. That may not have been the case but it seems to me that the Defendant, not having made a decision until after the one year period, cannot now say that at any point before 6 January 2005 each of the parties to the marriage did not intend to live permanently with the other as his or her spouse.
12. The situation is distinguishable from that in Sevince and that in Kus. During the crucial period, given that the marriage was subsisting, the effect of section 3C of the Immigration Act 1971 was not simply suspensive, ensuring the Claimant's position was not impaired before it was finally defined on appeal. Neither was the Claimant's right to reside and work after August 2004, and up to January 2005, subject to upset: the marriage was subsisting and there was no reason for the Defendant not to extend leave to remain, with a right to work. Finally, it cannot be said that the protective purpose of section 3C was being used against the Defendant to found rights under Article 6 (1), given that the Claimant's marriage was subsisting and that in those circumstances the application of the Immigration Rules would lead to an extension of the leave to remain.
13. In summary, until August 2004 there is no difficulty: the Claimant had leave to remain and the right to work. After that the extension of leave to remain, by virtue of section 3C of the Immigration Act 1971, coupled with the fact that the marriage was still subsisting, meant that that situation continued until 6 January 2005. 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. By March 2005 the position was different, but for the purposes of the one year period of legal employment required by Article 6 (1) that is immaterial. What matters is that for the purposes of Article 6 (1) his employment was stable and secure from January 2004 until January 2005. The Claimant therefore benefited from the right conferred by that article of the Association Agreement for Turkish nationals having completed a year's legal employment.