Ozturk & Ors, R. (On the application of) v Secretary of State for the Home Department

These appeals are brought, with permission granted by myself on 26 August 2005, against the judgments of Newman J and Stanley Burnton J respectively given in the Administrative Court on 6 July and 7 July 2005. The claimants before Newman J, Ozturk and Akyuz, both had leave to enter and remain in the United Kingdom as students. The claimant before Stanley Burnton J, Payir, had leave to enter as an au pair. For economy’s sake I will refer to the claimants (respondents to these conjoined appeals) by their surnames; I mean no discourtesy. All three are Turkish nationals. All three applied to the Secretary of State to have their leave varied or extended so that they might remain in the United Kingdom in employment. In each case the application was based on Article 6 of Decision No 1/80 of the Association Council constituted under the EC-Turkey Association Agreement, whose relevant terms I will set out shortly. The Secretary of State refused the applications. The claimants brought judicial review proceedings. Newman J ([2005] EWHC Admin 1433, [2005] 2 CMLR 26) and Stanley Burnton J ([2005] EWHC Admin 1426, [2005] 1 WLR 3609) upheld the claims and quashed the Secretary of State’s decisions. Newman J said (paragraph 2 of his judgment:

“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 [sc. in the case of Payir as an au pair] with a limited ability to undertake some employment.”

The EC-Turkey Association Agreement was signed at Ankara on 12 September 1963 by the Republic of Turkey, the Member States of the EEC, and the Community. It was confirmed on behalf of the Community by Council Decision 64/732/EEC of 23 December 1963. Article 6 provided:

“To ensure the implementation and the progressive development of the Association, the Contracting Parties shall meet in a Council of Association, which shall act within the powers conferred upon it by this Agreement.”

I should also refer to Article 36 of the 1970 Additional Protocol to the Association Agreement, by which freedom of movement for workers between Member States of the Community and Turkey was to be secured by progressive stages.

Decision No 1/80 of the Association Council was made on 19 September 1980. Article 6(1) provides:

“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 service 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.”

I should notice some other provisions in the Decision. Article 7 provides in part:

“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.”

Article 9:

“Turkish children residing legally with their parents, who are or have been legally employed in a Member State of the Community, will be admitted to courses of general education, apprenticeship and vocational training under the same educational entry qualifications as the children of nationals of the Member States…”

Article 17:

“The Member States and Turkey shall co-operate, in accordance with their domestic situations and their legal systems, in appropriate schemes to promote the social and cultural advancement of Turkish workers and the members of their family, in particular literacy campaigns and courses in the language of the host country, activities to maintain links with Turkish culture and access to vocational training.”

The Immigration Rules in force at all material times were those contained in HC (that is, House of Commons Paper) 395. There are separate rules, or groups of rules, dealing with “Persons Seeking to Enter or Remain in the United Kingdom for Employment” (Rules 128 – 135), “‘Au Pair’ Placements” (88 – 93), and “Persons Seeking to Enter or Remain in the United Kingdom for Studies” (57 – 62). The requirements to be met by someone seeking entry to take employment include possession of a work permit issued by the Department of Employment and an ability “to maintain and accommodate himself and any dependants adequately without recourse to public funds” (Rule 128(v)). Leave to enter may be granted for a period up to four years (Rule 129), and there are provisions allowing for an extension of stay if certain conditions are met.

The Rules relating to au pairs and students are quite distinct, and I must set them out.

“Definition of an ‘au pair’ placement

88.

For the purposes of these Rules an ‘au pair’ placement is an arrangement whereby a young person:

(a)

comes to the United Kingdom for the purpose of learning the English language; and

(b)

lives for a time as a member of an English speaking family with appropriate opportunities for study; and

(c)

helps in the home for a maximum of 5 hours per day in return for a reasonable allowance and with two free days per week.

Requirements for leave to enter as an ‘au pair’

89.

The requirements to be met by a person seeking leave to enter the United Kingdom as an ‘au pair’ are that he:

(i)

is seeking entry for the purpose of taking up an arranged placement which can be shown to fall within the definition set out in paragraph 88; and

(ii)

is aged between 17 – 27 inclusive or was so aged when first given leave to enter in this capacity; and

(iii)

is unmarried; and

(iv)

is without dependants; and

(v)

is a national of one of the following countries: … Turkey; and

(vi)

does not intend to stay in the United Kingdom for more than 2 years as an ‘au pair’; and

(vii)

intends to leave the United Kingdom on completion of his stay as an ‘au pair’; and

(viii)

if he has previously spent time in the United Kingdom as an ‘au pair’, is not seeking leave to enter to a date beyond 2 years from the date on which he was first given leave to enter the United Kingdom in this capacity; and

(ix)

is able to maintain and accommodate himself without recourse to public funds.

Leave to enter as an ‘au pair’

90.

A person seeking leave to enter the United Kingdom as an ‘au pair’ may be admitted for a period not exceeding 2 years with a prohibition on employment except as an ‘au pair’, provided the Immigration Officer is satisfied that each of the requirements of paragraph 89 is met…”

There follow paragraphs dealing with refusal of leave, and the requirements for an extension of stay as an au pair. I need not set them out. I turn to the Rules for students.

“Requirements for leave to enter as a student

57.

The requirements to be met by a person seeking leave to enter the United Kingdom as a student are that he:

(i)

has been accepted for a course of study at:

(a)

a publicly funded institution of further or higher education; or [there follow references to private educational institutions]; and

(ii)

is able and intends to follow either:

(a)

a recognised full-time degree course at a publicly funded institution of further or higher education; or [there follow references to other classes of full-time education]; and

…

(iv)

intends to leave the United Kingdom at the end of his studies; and

(v)

does not intend to engage in business or take employment, except part-time or vacation work undertaken with the consent of the Secretary of State for Employment; and

(vi)

is able to meet the costs of his course and accommodation and the maintenance of himself and any dependants without taking employment or engaging in business or having recourse to public funds.

Leave to enter as a student

58.

A person seeking leave to enter the United Kingdom as a student may be admitted for an appropriate period depending on the length of his course of study and his means, and with a condition restricting his freedom to take employment…”

As with the Rules for au pairs, there follow paragraphs dealing with refusal of leave, and the requirements for an extension of stay.

The substantive issue is whether the respondents, though they were admitted to the United Kingdom as students (Ozturk and Akyuz) or as an au pair (Payir) under the Immigration Rules which I have just set out, are by law entitled to the benefit of Article 6(1) of Decision No 1/80 of the Association Council (“Article 6(1)”). As I have indicated the judges below held that they are. In advancing these appeals the Secretary of State does not contend that the court should simply overturn those rulings and hold that no such benefit runs. He accepts that the matter is not acte clair and submits that we should refer an appropriate question or questions to the European Court of Justice pursuant to Article 234 of the EC Treaty.

It is convenient to indicate at once that for my part I would make a reference. At the same time I hope and believe that it will be helpful if this court expresses its own view on the issue, and I will proceed to do so.

Given the stark nature of the issue it is only necessary to describe the facts in outline.

Ezgi Payir was born on 2 February 1979. She was granted leave to enter the United Kingdom on 20 April 2000 for two years pursuant to HC 395 Rules 88 – 93. She first worked as an au pair for a Mr and Mrs Williams by whom she was paid £45 per week in addition to her bed and board. In early March 2001 she was engaged as an au pair by Mr and Mrs Fitzherbert who paid her about £70 per week. On 17 April 2002 (thus three days before expiry of her two years leave) she applied to the Secretary of State for further leave to remain working as an au pair with the Fitzherberts. She relied on the first indent to Article 6(1). After a long delay the Secretary of State replied on 18 August 2004 as follows:

“Your previous category was that of an au pair. As such you entered the United Kingdom to learn English, and to help in the home you are staying in for five hours a day. This is not employment. It 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.”

There followed Payir’s application for judicial review.

Birol Ozturk arrived in the United Kingdom in 1997 and was granted leave to enter as a student pursuant to HC 395 rules 57 – 62. He was subsequently granted further leave to remain as a student, ultimately until 31 January 2004. In 2001 he started part-time employment at Little Italy Pizzas. On 15 January 2004 he applied for leave to remain in the United Kingdom, relying on Article 6(1). That was refused by the Secretary of State on 18 August 2004. On 2 September 2004 his representatives asked for a review of that decision. That request was acknowledged on 13 September 2004. However Ozturk’s judicial review application, for which the papers were lodged in the Administrative Court office on 17 December 2004, seems to have supervened.

On 18 January 1999 Burhan Akyuz was granted entry clearance at the British Consulate in Istanbul to enter the United Kingdom as a student pursuant to HC 395 Rules 57 – 62. On 25 January 1999 he arrived here and obtained leave to enter until 31 July 1999. He studied English at an institution called Callan School. On 1 September 1999 he was granted further leave to remain as a student until 31 May 2000. On 15 November 1999 he started part-time employment at Best Mangal, West Kensington, working for 20 hours work per week as a waiter. On various dates he obtained further leave to remain as a student. He attended Evendine College, continuing his studies in English. At length on 23 July 2003 he applied for leave to remain in the United Kingdom, relying on Article 6(1). That was refused by the Secretary of State on 18 August 2004. His representatives sought a review. There was some further correspondence. On 16 November 2004 Akyuz’ judicial review claim form was lodged with the Administrative Court office.

Some points are beyond contention. (1) Article 6(1) has direct effect in Member States, so that a Turkish national who satisfies its conditions may rely on the rights which it confers in the courts of the Member State where he finds himself. This proposition has been repeated in a number of authorities: see for example Sevince v Staatssecretaris van Justitie [1990] ECR I-3461, paragraph 26. (2) It is likewise common ground that a Turkish worker who by force of Article 6(1) is entitled to work in a Member State, is also entitled to reside there, since otherwise the right to work would be frustrated. See for example Birden [1998] ECR I-7747 paragraph 20, Kurz [2002] ECR I-10691 paragraph 26. (3) The expression “Turkish worker” in Article 6(1) is to be understood in light of the meaning of the term “worker” as it has been explained in the Community law cases relating to freedom of movement, and the principles enshrined in what are now Articles 39, 40 and 41 of the EC Treaty must be applied for the purposes of Article 6(1): see for example Bozkurt [1995] ECR I-1475, paragraphs 14, 19 and 20; Birden paragraphs 23, 24. (4) The motive which actuates a person to undertake economic activity in a Member State is irrelevant to the question whether he thereby exercises Community rights as a worker, whether under the Treaty or Article 6(1): see Levin [1982] ECR 1035, paragraph 23; Hacen Akrich (Case C-109/01, 23 September 2003) paragraphs 55-56. (5) Part-time work, or work at less than subsistence rates of pay, may engage workers’ rights under the Treaty or Article 6(1), provided that the person concerned is demonstrably pursuing “effective and genuine [economic] activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal or ancillary”: Levin paragraph 17.

The Court of Justice has explained the meaning of “worker” for the purposes of Community law as follows:

“[I]t is settled case-law that the concept of worker has a specific Community meaning and must not be interpreted narrowly. It must be defined in accordance with objective criteria which distinguish an employment relationship by reference to the rights and duties of the person concerned. In order to be treated as a worker, a person must pursue an activity which is genuine and effective, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. The essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which he receives remuneration. By contrast, neither the sui generis nature of the employment relationship under national law, nor the level of productivity of the person concerned, the origin of the funds from which the remuneration is paid or the limited amount of the remuneration can have any consequence in regard to whether the person is a worker for the purposes of Community law…” (Kurz [2002] ECR I-10691 paragraph 32, and citing other authority)

Against this background, the respondents had no difficulty in persuading the courts below that on the facts of their cases they were “workers” within the meaning of Article 6(1). In his submissions before us (though not in his skeleton argument) Mr Pushpinder Saini for the Secretary of State accepted that a person admitted under paragraph 57 of the Immigration Rules, and working (perfectly lawfully) to the extent that Akyuz and Ozturk are doing so, indeed falls to be accepted as a “worker”. However Mr Saini makes no like concession in relation to Payir or any au pairs in her position. But as it seems to me Payir is just as much a “worker” as the students. She performs services for and under the direction of her employers and receives remuneration in return. Her work, or economic activity, cannot be said to be “purely marginal and ancillary”. Her motives in undertaking it are irrelevant.

In connection with the status of au pairs as workers I should indicate at this stage, if only for completeness, that since the hearing Mr Saini has provided us with a note referring to a decision of the Court of Justice that had not earlier been canvassed in argument. This was Watson & Belmann [1976] ECR 1185. A British national who had entered Italy (Ms Watson), and the Italian who had provided her with accommodation, were charged with failing to report Ms Watson’s entry and place of residence. The validity of the law requiring that to be done was disputed before the Court of Justice. Nothing in the judgment of the Court bears on these appeals, but Mr Advocate General Trabucchi had this to say (paragraph 2 of his Opinion, p. 1202):

“If… [Ms Watson] was [in Italy] as an ‘au pair’ employed as a family help to look after the children of the co-defendant, she would undoubtedly come into one of the categories of person upon whom the treaty confers the right to move freely within the Community. As this would in fact be work performed for a consideration (board and lodging), she could be classified as coming within a master and servant relationship or, if this were not the case, she would at least come under the alternative heading of provision of services.”

Plainly the case has nothing directly to do with Article 6(1), but it tends to confirm Stanley Burnton J’s view (judgment paragraph 23) that an au pair, at any rate one who works and is paid as Payir was, is properly to be regarded as a “worker”. Mr Saini was quite right to draw this authority to our attention.

With one possibly important reservation I cannot see how the judges in the Administrative Court can be faulted for holding that the claimants in these cases fell to be treated as “workers”. They possessed all the defining characteristics of “worker” as those are explained in the mainstream learning of the Court of Justice. The reservation is more easily explained later, when I come to discuss the decision in Bettray [1989] I-1621.

This issue, qualification as “workers”, predominated before Newman J and Stanley Burnton J. Thus Stanley Burnton J stated at paragraph 13 of his judgment that “the crucial question [was] whether an au pair within the meaning of the Immigration Rules may be a worker for the purposes of Article 6”. However the status of “worker” is only the first of three conditions which have to be satisfied by a person seeking to enjoy the rights conferred by Article 6(1). The second is that he should be “duly registered as belonging to the labour force of a Member State”. The third is that he should fulfil the time requirements progressively prescribed by the three indents to Article 6(1), to the extent that he seeks to rely on any or each of the indents. This third condition is as I understand it uncontentious in these appeals. But the second is not; although it is right to point out that before Stanley Burnton J the Secretary of State accepted (paragraph 12 of the judgment) that if Payir was a worker, she also fulfilled this second condition. The argument, however, has moved on.

What is meant by “duly registered as belonging to the labour force of a Member State”? If it required only that the person concerned should have fulfilled the domestic regulations or procedures for admission to whatever activity makes him a “worker” in the Member State in question, the respondents pass the test as readily as they pass the test for “worker”: the relevant regulations or procedures are simply the Immigration Rules under which they were, without doubt, duly admitted. But there is a question whether this second condition imposes an altogether more substantive requirement.

The jurisprudence of the Court of Justice shows that the second condition has in effect the same meaning as “legal employment”, which appears on the face of the first and third indents to Article 6(1), but is plainly a requirement for any access to the Article 6(1) right. Here Birden is an important case. It concerned a Turkish national who had been permitted to reside in Germany, where he worked but at length became unemployed. He was then given work pursuant to a scheme under which unemployed persons’ remuneration was funded by the government. The court stated at paragraph 53:

“[T]he concept of being duly registered as belonging to the labour force of a Member State, used in Decision No 1/80 alongside that of legal employment, cannot be interpreted as further restricting the rights derived by workers from Article 6(1) of Decision No 1/80 on the ground that it sets out an additional condition, different from the condition that the person concerned be in legal employment for a certain period.”

How then are we to understand the term “legal employment”? In Birden the court continued as follows:

“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 Sevince, paragraph 30, Bozkurt, paragraph 26, and Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR I-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.”

Mr Saini submits that this requirement of “a stable and secure situation as a member of the labour force” is not fulfilled in the case of students and au pairs. It is instructive next to consider the decisions in Kus and Sevince.

Mr Sevince was issued with a residence permit in the Netherlands to join his wife there. However they stopped living together and his application for an extension of the permit was rejected. Mr Sevince appealed against that decision. His doing so had suspensory effect as regards any step to expel him from the Netherlands. The appeal was in due course dismissed, but during the period of suspension Mr Sevince was allowed to work. On this he sought to build rights under Article 6(1). The Raad van State made a reference to the Court of Justice. One of the questions was as to the meaning of “legal employment”. The court said:

“30.

The legality of the employment within the meaning of those provisions, even assuming that it is not necessarily conditional upon possession of a properly issued residence permit, nevertheless presupposes a stable and secure situation as a member of the labour force.

31.

In particular, although legal employment over a given period gives rise, at the end of that period, to recognition of a right of residence, it is inconceivable that a Turkish worker could contrive to fulfil that condition, and consequently be recognised as being vested with that right, merely because, having been refused a valid residence permit by the national authorities during that period and having exercised the rights of appeal provided for by national law against such refusal, he benefited from the suspensory effect deriving from his appeal and was therefore able to obtain authorisation, on a provisional basis pending the outcome of the dispute, to reside and be employed in the Member State in question.

32.

Consequently, the expression ‘legal employment’ contained in… the third indent of Article 6(1)… cannot cover the situation of a Turkish worker who has been legally able to continue in employment only by reason of the suspensory effect deriving from his appeal pending a final decision by the national court thereon, provided always, however, that that court dismisses his appeal.”

Mr Kus came from Turkey to Germany and married a German national. He obtained a residence permit. From 1 April 1982 he worked in Germany under a valid work permit. His marriage was dissolved by a court judgment of 18 October 1983, and on 6 August 1984 his application (issued before the divorce) for an extension of his residence permit was refused. He lodged an objection against that decision. The refusal was first held by the Verwaltungsgericht Wiesbaden to be suspended by the objection, and then on 30 October 1987 was annulled by the court, which made an order for Mr Kus’ residence permit to be extended. The appeal court sought a preliminary ruling from the Court of Justice. The court said:

“21.

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 were obtained.

22.

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.

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)…, even though his residence permit was initially granted to him for a purpose other than that of engaging in paid employment.

24.

At the hearing the United Kingdom argued that such a view of the matter 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.

25.

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)…”

The factual differences between Sevince and Kus are, I think, instructive. Sevince’s putative right under Article 6(1) depended wholly on the suspensory effect of his appeal, and ultimately his appeal was dismissed (a fact to which the Court of Justice attached importance: see paragraph 32). Kus had been working, perfectly legitimately, from a date before the dissolution of his marriage or his application for an extension of his residence permit. What is the principle by whose application Sevince lost and Kus won?

The question brings me to an important case decided by the Court of Justice before Sevince, Kus and Birden, namely Bettray [1989] I-1621, to which I have already referred in passing. Mr Bettray was a German national. He made two applications for a residence permit in the Netherlands. In one the purpose of his stay was described as “marriage and residence with his fiancée and residence in a therapy centre for drug addicts”. His applications were refused, but in the meantime he started work at a job offered to him by the City of Eindhoven under a rehabilitation scheme pursuant to the Social Employment Law. He submitted a new application for residence, stating as his purpose “work as an employed person”. That was refused, and the Staatssecretaris van Justitie turned down his application for a review. Mr Bettray appealed to the Raad van State. There was a reference to the Court of Justice. The government of the Netherlands contended that employment under the scheme for rehabilitation of drug addicts did not qualify a person as a worker for the purposes of Article 48 of the Treaty. The court said:

“14.

It appears from the order for reference that persons employed under the scheme set up by the Social Employment Law perform services under the direction of another person in return for which they receive remuneration. The essential feature of an employment relationship is therefore present.

15.

That conclusion is not altered by the fact that the productivity of persons employed in the scheme is low and that, consequently, their remuneration is largely provided by subsidies from public funds. Neither the level of productivity nor the origin of the funds from which the remuneration is paid can have any consequence in regard to whether or not the person is to be regarded as a worker.

16.

Nor can the person cease to be regarded as a worker merely by virtue of the fact that the employment relationship under the Social Employment Law is of a sui generis nature in national law…

17.

However, work under the Social Employment Law cannot be regarded as an effective and genuine economic activity if it constitutes merely a means of rehabilitation or reintegration of the persons concerned and the purpose of paid employment, which is adapted to the physical and mental possibilities of each person, is to enable those persons sooner or later to recover their capacity to take up ordinary employment or to lead as normal as possible a life.

18.

It appears from the order of reference that the jobs in question are reserved for persons who, by reason of circumstances relating to their situation, are unable to take up employment under normal conditions and that the social employment ends once the local authority is informed by the employment office that the persons concerned will be able within a short period to take up employment under normal conditions.

19.

It also appears from the order of reference that persons employed under the Social Employment Law are not selected on the basis of their capacity to perform a certain activity; on the contrary, it is the activities which are chosen in the light of the capabilities of the persons who are going to perform them in order to maintain, re-establish or develop their capacity for work. Finally, the activities involved are pursued in the framework of undertakings or work associations created solely for that purpose by local authorities.

20.

The reply to the national court’s question must therefore be that Article 48(1) of the EEC Treaty is to be interpreted as meaning that a national of a Member State employed in another Member State under a scheme such as that established under the Social Employment Law, in which the activities carried out are merely a means of rehabilitation or reintegration, cannot on that basis alone be regarded as a worker for the purposes of Community Law.”

Stanley Burnton J expressed the view (judgment, paragraph 25) that “Bettray may be regarded as a case in which the state established that the claimant did not perform any effective or genuine economic activity”, and he drew attention to the court’s observations in Birden at paragraph 31:

“… [T]he conclusion reached by the Court in Bettray, according to which a person employed under a scheme such as that at issue in that case could not, on that basis alone, be regarded as a worker and the fact that that conclusion does not follow the general trend of the case-law concerning the interpretation of that concept in Community law… can be explained only by the particular characteristics of that case and it cannot therefore be applied to a situation such as that of the applicant in the main proceedings, the features of which are not comparable.”

As it seems to me there is, with great respect, a difficulty with the case of Bettray which perhaps begins to provide some illumination as to the Article 6(1) claims in the cases before us. It is that it is very hard to see how Mr Bettray did not qualify as a worker given the consistent thrust of the jurisprudence of the Court of Justice. There was an employment relationship in which remuneration was paid for work done; the activity constituting the work was not on “such a small scale as to be regarded as purely marginal and ancillary”, and on that basis one might have thought it would fall to be regarded as “genuine and effective”; and the motive with which the work was undertaken (or, presumably, offered) should on the court’s mainstream approach have been regarded as irrelevant.

Now, plainly it is not for the national courts to go behind the conclusion reached by the Court of Justice in Bettray that on the facts the claimant was not a worker. But I think it is legitimate to ask what is the principle which led to the result in that case. It seems to me to consist in the court’s recognition that a Member State might develop and bring into effect a scheme or arrangement with an over-arching social purpose which is inconsistent with the beneficiaries of the scheme being “integrated into the labour force of [the] Member State” (see Kus paragraph 25, set out above), notwithstanding that the scheme permits (or even, I suppose, requires) those admitted to it to undertake paid activity which cannot in truth be distinguished from the activity of a “worker”. Such a scheme is not to be confused with a categorically different state of affairs which the Court of Justice has without qualification condemned as illegitimate, namely the promulgation by Member States of rules which diminish or expunge the EU rights (including rights under Article 6) of persons who are, in truth, workers in legal employment in the Member State’s labour force.

I have used the term “over-arching social purpose” (there may well be more apt descriptions) merely in order to suggest that within the Member States there may be regimes involving work which possess an autonomous claim to public merit, different from but no less valid than the claims enjoyed by the ideal of free movement within the labour markets of the EU. Neither the text of Article 6(1) in particular, nor the jurisprudence of the Court of Justice in general, demand the conclusion that once a Turkish national is allowed in a Member State to undertake activity which is for all the world what “workers” do, the result, or even the presumption, is always that he enjoys the rights given by Article 6(1).

The facts of Bettray undoubtedly disclose a scheme with an over-arching social purpose, that of rehabilitation. The facts of Sevince disclose a state of affairs in which the claimant’s relevant right to work arose in a context – the suspensory effect of his appeal against the refusal of an extension of his residence permit – which was likewise located in a general public interest quite different from the interest of free movement of labour: namely the efficacy and fairness of the judicial appeal process.

The facts of these present cases, in my opinion, also disclose general public or strategic interests alongside, but different from, the claims of free movement in the labour market. Under the Immigration Rules which I have set out, the provisions relating to au pairs are fashioned so as to allow and encourage young persons without dependants to benefit from time spent here to learn English living with an English-speaking family. The provisions relating to students are fashioned to allow and encourage foreign persons to study at British institutions. In both cases paid work enhances the practical opportunities given by the scheme. In both cases the schemes contemplate a temporary stay in the United Kingdom. Neither case involves measures to restrict the rights of workers admitted to or integrated in the United Kingdom labour market. Accordingly the efficacy of Article 6(1) is untouched by a judicial determination that the rights it confers are not (other things being equal) given to persons admitted here as students or au pairs. The opposite view, as it seems to me, calls up the tired but telling aphorism, the best is the enemy of the good. Member States should not be constrained in the breadth of schemes such as those in hand in these cases by an interpretation of workers’ rights which amounts to a cruder bludgeon than either the language, or the policy, of the material EU legislation requires.

If there is any force in this line of reasoning, it may be thought that the quality of such schemes which takes them out of Article 6(1) might best be recognised not on the footing that their beneficiaries are not workers, but rather that they are not in “legal employment” as we have seen that term is understood. It is clear from Sevince and other learning that this is a condition, additional to the status of “worker”, which must be fulfilled if Article 6(1) rights are to accrue. This approach would allow room to be made for such over-arching schemes to have effect free of Article 6(1)’s application without having to find somewhat strained exceptions to the meaning of “worker”. In short, there is good reason to put the matter on the basis that students and au pairs are not in “a stable and secure situation as [members] of the labour force” (see eg Birden paragraph 55, cited above).

That said however, the Court of Justice in Bettray unequivocally held that Mr Bettray was not a “worker”. If my Lords concur in my view, which I have foreshadowed in paragraph 7, that we should order a reference so as to obtain a preliminary ruling by the Court of Justice as to the existence and scope of this class of case where Article 6(1) rights do not run, no doubt questions should be framed which would permit or invite alternative analyses in terms of the “worker” condition and the “legal employment” condition.

For all these reasons I would myself hold that these respondents, and other students and au pairs where the facts are not materially different, do not enjoy rights under Article 6(1). I would allow the Secretary of State’s appeals. However the matter is certainly not acte clair, as the Secretary of State recognises. Accordingly, as I have said, I would order a reference to the European Court of Justice pursuant to Article 234 of the EC Treaty so that the issue may be determined by a preliminary ruling. I apprehend that we should hear argument or receive written submissions as to the form of the questions to be submitted to the Court of Justice.

I agree.

I also agree.