Payir, R (on the application of) v Secretary of State for the Home Department

The Claimant is a Turkish national born on 2 February 1979. On 20 April 2000, she was granted leave to enter the United Kingdom pursuant to Rules 88 to 94 in Part 4 of the Immigration Rules on condition that she “does not enter employment paid or unpaid other than … as an au pair”. She worked as an au pair for a family, and was paid £45 per week in addition to her bed and board. In early 2001 she became an au pair with a Mr and Mrs Fitzherbert and worked for them and was paid about £70 a week by them. On 17 April 2002, she applied to the Home Secretary for further leave to remain as an au pair working for Mr and Mrs Fitzherbert, relying on the first indent of Article 6(1) of Decision 1/80 (“the Decision”) of the Council of the Association between the European Union and Turkey.

Pending consideration of her application, the Claimant’s leave to remain was extended by the operation of section 3C of the Immigration Act 1971.

After considerable delay, by letter dated 18 August 2004, the Secretary of State refused the Claimant’s application, and denied a right of appeal, on the ground that her application was for a purpose not covered by the Immigration Rules. The letter stated:

“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.”

In these proceedings, the Claimant seeks an order quashing the Secretary of State’s decision, declaratory relief as to the invalidity of Rules 92 to 94 of the Immigration Rules and other consequential relief on the ground that she was a “Turkish worker duly registered as belonging to the labour force of a Member State” and as such after one year’s employment entitled to the renewal of her permit to work, and therefore of her leave to remain, under Article 6 of the Decision.

The Home Secretary contends that as an au pair the Claimant is not and cannot be a “worker” within the meaning of Article 6.

Rules 88 to 94 of the Immigration Rules, so far as is relevant, are as follows:

“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: Andorra, Bosnia-Herzegovina, Republic of Bulgaria, Croatia, The Faroes, Greenland, Macedonia, Monaco, Romania, San Marino or 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. (A non visa national who wishes to ascertain in advance whether a proposed ‘au pair’ placement is likely to meet the requirements of paragraph 89 is advised to obtain an entry clearance before travelling to the United Kingdom).

Refusal of leave to enter as an ‘au pair’

91.

An application for leave to enter as an ‘au pair’ is to be refused if the Immigration Officer is not satisfied that each of the requirements of paragraph 89 is met.

Requirements for an extension of stay as an ‘au pair’

92.

The requirements for an extension of stay as an ‘au pair’ are that the applicant:

(i)

was given leave to enter the United Kingdom as an ‘au pair’ under paragraph 90; and

(ii)

is undertaking an arranged ‘au pair’ placement which can be shown to fall within the definition set out in paragraph 88; and

(iii)

meets the requirements of paragraph 89 (ii)-(ix); and

(iv)

would not, as a result of an extension of stay, remain in the United Kingdom as an ‘au pair’ to a date beyond 2 years from the date on which he was first given leave to enter the United Kingdom in this capacity.

Extension of stay as an ‘au pair’

93.

An extension of stay as an ‘au pair’ may be granted with a prohibition on employment except as an ‘au pair’ provided the Secretary of State is satisfied that each of the requirements of paragraph 92 is met.

Refusal of extension of stay as an ‘au pair’

94.

An extension of stay as an ‘au pair’ is to be refused if the Secretary of State is not satisfied that each of the requirements of paragraph 92 is met.

Rule 322(1) of the Immigration Rules provides that a variation of leave to enter or remain may be refused on the ground that the variation is sought for a purpose not covered by the Rules.

The Association between what is now the European Union and Turkey was established in 1963 by an Agreement between the then European Economic Community and Turkey. Article 36 of the Additional Protocol to that agreement provides:

“Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of the Association ….

The Council of Association shall decide on the rules necessary to that end.”

Article 6(1) of the Decision is 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; ”

It is settled law, and is common ground, that Article 6 has direct effect in the Member States of the European Union and can therefore be relied upon by individual Turkish nationals against Member States before domestic courts: see Case C192/89 Sevince [1990] ECR I-3461 at paragraph 26; Case C-1/97 Birden [1998] ECR I-7747 at paragraph 19, Case C-188/00 Kurz [2002] ECR-I 10691 at paragraph 26.

It is also settled law, and common ground, that a Turkish worker who by virtue of the Decision is entitled to work in a Member State has the corresponding right to reside in that Member State, since otherwise the right to work would be deprived of practical effect. See, e.g., Birden at paragraph 20, Kurz at paragraph 27.

The Home Secretary accepts that if the Claimant was a worker within the meaning of Article 6, she was, when she made her application, “duly registered as belonging to the labour force of (the United Kingdom) in legal employment” within the meaning of Article 6. She was “duly registered”, and the requirement that she belonged to the labour force adds nothing to the requirement that she be a worker.

Thus the crucial question is whether an au pair within the meaning of the Immigration Rules may be a worker for the purposes of Article 6.

The concept of worker under EU law and the requirement of Article 6 have been considered by the European Court of Justice in a number of cases. In Case 53/81 Levin [1982] ECR 1035, the claimant was a British subject who had applied for a residence permit in the Netherlands. Her application had been refused on the ground that her remuneration in her employment was insufficient to qualify her as a worker within the meaning of the Treaty, and that she was disqualified from being a worker entitled to freedom of movement because she had taken employment for a purpose other than the pursuit of an economic activity or the provision of services. She appealed to the Raad van State, which referred a number of questions to the Court for a preliminary ruling. On the first issue, the Court ruled in favour of the claimant:

“11.

… As the Court has already stated in its judgement of 19 March 1964 in Case 75/63 Hoekstra (nee Unger) [1964] ECR 1977 the terms “worker” and “activity as an employed person” may not be defined by reference to the national laws of the Member States that have a Community meaning. If that were not the case, the Community rules on freedom of movement for workers would be frustrated, as the meaning of those terms could be fixed and modified unilaterally, without any control by the Community institutions, by national laws which would thus be able to exclude at will certain categories of persons from the benefit of the Treaty.

12.

Such would, in particular, be the case if the enjoyment of the rights conferred by the principle of freedom of movement for workers could be made subject to the criterion of what the legislation of the host State declares to be a minimum wage, so that the field of application rationae personae of the Community rules on this subject might vary from one Member State to another. The meaning and the scope of the terms “worker” “activity as an employed person” should thus be clarified in the light of the principles of the legal order of the Community.

13.

In this respect it must be stressed that in these concepts define the field of application of one of the fundamental freedoms guaranteed by the Treaty and, as such, may not be interpreted restrictively.

…

15.

… Since part-time employment, although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions, the effectiveness of Community law would be impaired and the achievement of the objectives of the Treaty would be jeopardised if the enjoyment of rights conferred by the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage are at least equivalent to the guaranteed minimum wage in the sector under consideration.

16 It follows that the concepts of “worker” and “activity as an employed person” must be interpreted as meaning that the rules relating to freedom of movement for workers also concern persons who pursue or wish to pursue an activity as an employed person on a part-time basis only and who, by virtue of that fact obtain or would obtain only remuneration lower than the minimum guaranteed remuneration in the sector under consideration. In this regard no distinction may be made between those who wish to make do with their income from such an activity and those who supplement that income with other income , whether the latter is derived from property or from the employment of a member of their family who accompanies them.

17 It should however be stated that whilst part-time employment is not excluded from the field of application of the rules on freedom of movement for workers, those rules cover only the pursuit of effective and genuine activities, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary. It follows both from the statement of the principle of freedom of movement for workers and from the place occupied by the rules relating to that principle in the system of the Treaty as a whole that those rules guarantee only the free movement of persons who pursue or are desirous of pursuing an economic activity.

18 The answer to be given to the first and second questions must therefore be that the provisions of community law relating to freedom of movement for workers also cover a national of a member state who pursues, within the territory of another member state, an activity as an employed person which yields an income lower than that which, in the latter state, is considered as the minimum required for subsistence, whether that person supplements the income from his activity as an employed person with other income so as to arrive at that minimum or is satisfied with means of support lower than the said minimum, provided that he pursues an activity as an employed person which is effective and genuine.”

With regard to the relevance of the motives of the worker in entering into employment, the Court stated:

“23.

… the motives which may have prompted a worker of a Member State to seek employment in another Member State are of no account as regards his right to enter and reside in the territory of the letter State provided that he there pursues or wishes to pursue an effective and genuine activity.”

Thus the concept of “worker” is not to be restrictively interpreted. Furthermore, the fact that the principal purpose of a Turkish national who seeks to enter the UK as an au pair is to learn English (c.f. rule 88(b) of the Immigration Rules) is irrelevant to the question whether she qualifies as a worker for the purposes of Article 6. It is similarly irrelevant that her wage may be less than the minimum or a living wage (although the combination of board and lodging and a reasonable allowance is likely to take the total consideration received by an au pair above the minimum wage). Part time work will nonetheless qualify a worker as such unless it is “on such a small scale as to be regarded as purely marginal and ancillary”.

In Kurz, a Turkish national had received an entry visa and temporary residence authorisation entitling him to enter Germany for the purposes of vocational training only. He underwent training as a plumber in Germany between October 1992 and May 1997. He attended theory classes once or twice a week, and spent the rest of the time working for his employer, Schulz, by way of practical training, in return for which he was paid a monthly wage. In February 1997 he passed the practical part of the final apprenticeship examination end terminated his training, without having passed the theoretical part of his examination. In July 1997, he applied for a residence permit allowing him to reside in Germany permanently end, in the alternative, for an extension to his temporary residence authorisation. His application was refused, and he was deported to Turkey in January 1999. Mr Kurz brought proceedings in the domestic court challenging the refusal to grant him a residence authorisation in Germany. The domestic court referred a number of questions to the European Court of Justice for a preliminary ruling. The Court considered the concept of worker in paragraphs 32 to 36 of its judgment:

“The concept of worker

30 … it should be recalled at the outset that the Court has consistently concluded from the wording of Article 12 of the EEC-Turkey Association Agreement of 12 September 1963 and Article 36 of the Additional Protocol, signed on 23 November 1970, annexed to that agreement and concluded by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18), as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48 and 49 of the EC Treaty (now, after amendment, Articles 39 EC and 40 EC) and Article 50 of the EC Treaty (now Article 41 EC) must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80 (see to that effect, inter alia, Case C-434/93 Bozkurt [1995] ECR I-1475, paragraphs 14, 19 and 20; Case C-171/95 Tetik [1997] ECR I-329, paragraphs 20 and 28; Birden, paragraph 23; and Case C-340/97 Nazli [2000] ECR I-957, paragraphs 50 to 55).

31 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.

32 In that respect, it 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 persons 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 or not the person is a worker for the purposes of Community law (see, as regards Article 48 of the Treaty, in particular Case 66/85 Lawrie-Blum [1986] ECR 2121, paragraphs 16 and 17; Case 197/86 Brown [1988] ECR 3205, paragraph 21; Case 344/87 Bettray [1989] ECR 1621, paragraphs 15 and 16; Case C-357/89 Raulin [1992] ECR I-1027, paragraph 10; and Case C-3/90 Bernini [1992] ECR I-1071, paragraphs 14 to 17; and, as regards Article 6(1) of Decision No 1/80, Case C-36/96 Günaydin [1997] ECR I-5143, paragraph 31, Case C-98/96 Ertanir [1997] ECR I-5179, paragraph 43, and Birden, paragraphs 25 and 28).

33 As regards, more specifically, activities which, as in the main proceedings, have been carried out in the course of vocational training, the Court has held that a person who serves periods of apprenticeship in an occupation that may be regarded as practical preparation related to the actual pursuit of the occupation in question must be considered to be a worker, provided that the periods are served under the conditions of genuine and effective activity as an employed person. The Court has stated that that conclusion cannot be invalidated by the fact that the productivity of the person concerned is low, that he does not carry out full duties and that, accordingly, he works only a small number of hours per week and thus receives limited remuneration (see to that effect, in particular, Lawrie-Blum, cited above, paragraphs 19, 20 and 21, and Bernini, cited above, paragraphs 15 and 16).

34 It follows that any person who, even in the course of vocational training and whatever the legal context of that training, pursues a genuine and effective economic activity for and under the direction of an employer and on that basis receives remuneration which can be perceived as the consideration for that activity must be regarded as a worker for the purposes of Community law.

35 It is apparent from the documents before the Court that, from 1 October 1992 to 5 May 1997, Mr Kurz pursued a genuine and effective economic activity for and under the direction of Schulz, in return for which he received monthly remuneration which increased from DEM 780 in the first year to DEM 1 030 in the fourth year. That progressive increase in remuneration is indeed an indication that the work performed by Mr Kurz was of growing economic value to his employer.

36 Since persons such as Mr Kurz thus satisfy the fundamental criteria of an employment relationship, they must be considered to be workers within the meaning of Article 6(1) of Decision No 1/80.”

It is clear from paragraph 30 of this judgment that the concept of worker in Article 6 of the Decision is the same as that concept in the context of the free movement of workers provisions of the EEC Treaty: see the EC Treaty, Article 39 (formerly Article 48 and renumbered by virtue of the Treaty of Amsterdam). It follows, and was common ground before me, that European authorities on what is now Article 39 are relevant to the definition of a worker in Article 6 of the Decision. See too paragraph 24 of the judgment of the Court in Case C-197 Birden [1998] ECR I-7747.

In Case 196/87 Steymann [1988] ECR 6159 the Court considered the question whether activities performed by a member of a religious community constituted economic activities or services within the meaning of articles 2, 59 and 60 of the EEC Treaty. The plaintiff, a German national, had settled in the Netherlands. He became a member of the Bhagwan Community, which supplied its material needs by means of commercial activities, including running a discotheque, a bar and a launderette. The plaintiff performed plumbing work on the community’s premises and general household duties. He also took part in the community’s commercial activity. The community provided for the material needs of its members in any event, irrespective of the nature and extent of their activities. He applied for, but was refused, a Netherlands residence permit in order to pursue an activity as an employed person. He appealed to the Raad van State, which referred a number of questions to the Court, the first of which was:

“Can activities which consist in, and are entirely centred around, participating in a community based on religion or on another form of philosophy and in following the rules of life of that community, whose members provide each other with benefits, be regarded as an economic activity or as a service for the purposes of the Treaty establishing the European Economic Community?”

This question was considered in paragraphs 8 ff. of the judgment of the Court.

“The first question

8.

The first question seeks essentially to establish to what extent activities performed by members of a community based on religion or another form of philosophy as part of the activities of such a community may be regarded as economic activities within the meaning of the EEC Treaty.

9.

It must be observed in limine that, in view of the objectives of the European Economic Community, participation in a community based on religion or another form of philosophy falls within the field of application of Community law only in so far as it can be regarded as an economic activity within the meaning of Article 2 of the Treaty.

10.

As the Court held in its judgment of 14 July 1976 in Case 13/76 (Donā v Mantaro [1976] ECR 1333), the pursuit of an activity as an employed person or the provisions of services for remuneration must be regarded as an economic activity within the meaning of Article 2 of the Treaty.

11.

As regards the activities in question in this case, it appears from the documents before the Court that they consist of work carried out within and on behalf of the Bhagwan Community in connection with the Bhagwan Community’s commercial activities. It appears that such work plays a relatively important role in the way of life of the Bhagwan Community and that only in special circumstances can the members of the community avoid taking part therein. In turn, the Bhagwan Community provide for the material needs of its members, including pocket-money, irrespective of the nature and the extent of the work which they do.

12.

In a case such as the one before the national court it is impossible to rule out a priori the possibility that work carried out by members of the community in question constitutes an economic activity within the meaning of Article 2 of the Treaty. In so far as the work, which aims to ensure a measure of self-sufficiency for the Bhagwan Community, constitutes an essential part of participation in that community, the services which the latter provide to its members may be regarded as being an indirect quid pro quo for their work

13.

However, it must be observed, as the Court held in its judgment of 23 March 1982 in Case 53/81 (Levin v Staatssecretaris van Justitie [1982] ECR 1035), that the work must be genuine and effective and not such as to be regarded as purely marginal and ancillary. In this case the national court has held that the work was genuine and effective.

14.

Accordingly, the answer given to the first question must be that Article 2 of the EEC Treaty must be interpreted as meaning that activities performed by members of a community based on religion or another form of philosophy as part of the commercial activities of that community constitute economic activities in so far as the services which the community provides to its members may be regarded as the indirect quid pro quo for genuine and effective work.”

The Home Secretary contends that the facts of employment, remuneration and work are necessary not necessarily sufficient conditions of qualification as a worker. Referring to the above decisions of the European Court of Justice, he submits that the work performed by an au pair is indeed to be classified as “purely marginal and ancillary”. In addition, he contends that the essential feature of the relationship between an au pair and her host family is not the “performance of services for and under direction of another for remuneration”, but learning the English language and living as part of an English-speaking family with appropriate opportunities for study. According to Mr Saini’s skeleton argument: “Cultural exchange and not ‘work’ is the essential aspect and the defining feature of the relationship.”

It is noteworthy that the Home Secretary has not been entirely consistent in his treatment of au pairs. In a letter dated 3 May 1995, the Immigration and Nationality Department stated:

“Au pairs

6.

An EEA national who is working in the UK is of course considered to be exercising a Treaty right here. Because au pairs are in receipt of payment for their services (a combination of payment in kind and pocket money) our practice is to treat them as workers (whether female of male!) and to issue them, on application, with a residence permit. That an individual was working as an au pair would not be indicated on the residence permit, in the same way that we do not identify type of employment on permits issued to workers in other forms of employment.”

However, the Immigration Directorate’s Instructions relating to the EC-Turkey Association Agreement state that Turkish au pairs are outside the scope of Article 6 “because they come to learn English, are required to leave and cannot, by their 5 hours helping in the home, be said to be integrated into the work force”.

In my judgment, the work that is performed by an au pair is genuine and effective. There is a genuine employment relationship between an au pair and the family for whom she works. The family are entitled to give instructions to the au pair as to what work she is to do and, in general, how it is to be done. The work done by an au pair is just as valuable and valid as the same work done by a domestic employee. The work of a person who works 5 hours per day, 5 days a week, cannot be regarded as purely marginal and ancillary. If work in the context of a religious community qualifies the worker as such (Steymann), I do not see why work in a family context should not. Although an au pair lives as a member of the family, she also works and is rewarded for her work; and it is her work that qualifies her under Article 6 of the Decision. As already mentioned, the purpose of her taking the work is irrelevant. It follows that the fact that the au pair entered this country to learn English is irrelevant, as is the fact (if it be the case) that she wishes to learn about English culture, or that the family wish to learn about Turkish culture.

The Home Secretary relied on the decision of the Court in Case 344/87 Bettray [1989] ECR I-1621. That case concerned the refusal of the Netherlands authorities to grant the claimant a residence permit. He was a German national who had been employed under a scheme aimed at the rehabilitation of drug addicts. The Government of the Netherlands contended that employment under that scheme did not qualify a person as a worker for the purposes of Article 48 of the Treaty. The Court stated:

“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, they 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 ceased 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 person concerned will be able within a short period to take up employment under normal conditions.

19.

It is also appears from the order for 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 will reintegration, cannot on that basis alone be regarded as a worker for the purposes of Community law.”

That case was very different from the present. An au pair is selected for her capacity to perform her work as such. Her work is performed because the host family has a requirement for it, and not as a means for the au pair’s rehabilitation. There is nothing abnormal about an au pair’s employment. Bettray may be regarded as a case in which the state established that the claimant did not perform any effective or genuine economic activity.

The decision in Bettray was considered by the Court in Birden. Birden concerned a Turkish national who had been permitted to reside in Germany, had worked and become unemployed. He was then given work under a scheme under which unemployed persons’ remuneration was funded by the government. He contended that he was a worker within the meaning of Article 6 of the Decision, and as such entitled to an extension of his residence permit. The Court agreed.

“23 As regards the first of those concepts [i.e. that of worker], it should be recalled at the outset that the Court has consistently concluded from the wording of Article 12 of the EEC-Turkey Association Agreement and Article 36 of the additional protocol, signed on 23 November 1970, annexed to that Agreement and concluded by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C 113, p. 18), as well as from the objective of Decision No 1/80, that the principles enshrined in Articles 48, 49 and 50 of the EC Treaty must be extended, so far as possible, to Turkish workers who enjoy the rights conferred by Decision No 1/80 …

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.

25 In that respect, the Court has consistently held 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 the employment relationship by reference to the rights and duties of the persons concerned. In order to be treated as a worker, a person must pursue an activity which is effective and genuine, 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, the nature of the legal relationship between the worker and the employer is not decisive for the purposes of determining whether a person is a worker within the meaning of Community law …

26 A Turkish national such as Mr Birden, who is employed on the basis of a law such as the BSHG, performs, as a subordinate, services for his employer in return for which he receives remuneration, thus satisfying the essential criteria of the employment relationship.

27 Since Mr Birden worked 38.5 hours per week and received net pay of DM 2 155.70 per month, in keeping, moreover, with the collective agreement applicable to workers in the Member State concerned, it cannot be argued that he pursued an activity which was purely marginal and ancillary.

28 That interpretation is not altered by the fact that the remuneration of the person concerned is provided using public funds since, by analogy with the case-law relating to Article 48 of the Treaty, neither the origin of the funds from which the remuneration is paid, nor the `sui generis’ nature of the employment relationship under national law and the level of productivity of the person concerned can have any consequence in regard to whether or not the person is to be regarded as a worker (see, for example, Case 344/87 Bettray [1989] ECR 1621, paragraphs 15 and 16).

29 Contrary to the assertions of the German Government, that conclusion is also not affected by the fact that, in Bettray, the Court held that work which constitutes merely a means of rehabilitation or reintegration for the persons concerned cannot be regarded as a genuine and effective activity and concluded that such persons cannot be regarded as workers for the purposes of Community law (paragraphs 17 to 20).

30 As the Commission pointed out in its observations and the Advocate General stated at paragraphs 25 and 45 of his Opinion, the situation of a person such as the applicant in the main proceedings differs considerably from that at issue in Bettray. It is thus apparent from the reasoning of that judgment that that case concerned a person who, by reason of his addiction to drugs, had been recruited on the basis of a national law intended to provide work for persons who, for an indefinite period, are unable, by reason of circumstances related to their situation, to work under normal conditions; furthermore, the person concerned had not been selected on the basis of his ability to perform a certain activity but, to the contrary, had performed activities adapted to his physical and mental possibilities, in the framework of undertakings or work associations created specifically in order to achieve a social objective.

31 Under those circumstances, the 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 (see paragraph 25 above) 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.

32 A person such as Mr Birden must consequently be regarded as a worker within the meaning of Article 6(1) of Decision No 1/80.”

Thus, Bettray must be regarded as a special case decided on its particular facts and outside the general trend of the case-law on the concept of worker in Community law. In Birden,the Court also considered the contention of the German Government that the claimant’s employment was essentially of a social nature: a contention not dissimilar to that advanced by the Home Secretary in the present case. The Court rejected the German Government’s contention:

“40 The German Government also submitted that, even though Mr Birden received the usual remuneration, subject to income tax and the payment of compulsory social security contributions, for the work he performed and did not simultaneously receive social assistance and although, in accordance with the BSHG, he was thus in an employment relationship with his employer for the purposes of German employment law, the employment in question was none the less of an essentially social nature. That employment consisted of public utility work which, in other circumstances would not be carried out; it was financed by public funds and intended to improve the integration into working life of a limited group of persons unable to compete with most other job seekers. Those persons can therefore be distinguished from workers as a whole and consequently do not belong to the general labour force of the Member State concerned.

41 Likewise, the Commission submitted that a Turkish worker such as Mr Birden cannot be regarded as being duly registered as belonging to the labour force of a Member State within the meaning of Article 6(1) of Decision No 1/80, on the ground that that provision lays down two separate conditions, namely that the worker be duly registered as belonging to the labour force and that he be in legal employment. The first of those requirements should not be interpreted as referring to the lawful pursuit of a paid activity, since to do so would duplicate the second; it can therefore be regarded only as referring to the pursuit of a normal economic activity on the labour market, as opposed to employment created artificially and financed by the public authorities such as that undertaken by Mr Birden.

42 In that respect, it should be recalled, first, that a migrant Turkish worker - the applicant in the main proceedings - was recruited legally, within the terms of the requisite national permits and for a continuous period of two years, under an employment contract which involved the pursuit of a genuine and effective economic activity for the same employer in return for the usual remuneration. In that respect, the legal position of a person such as Mr Birden is therefore no different from that of migrant Turkish workers in general working on the territory of the host Member State.

43 Second, in accordance with the case-law of the Court, the specific purpose which the paid employment in question sought to achieve is not capable of depriving a worker who satisfies the conditions laid down in Article 6(1) of the progressive rights which that provision confers upon him (Günaydin, paragraph 53).

44 It follows that a worker in Mr Birden’s position, to whom a new contract of employment had been offered by his employer from 1 January 1996, was therefore entitled, in accordance with the first indent of Article 6(1) of Decision No 1/80, to continue working for that employer until, after three years, he had the possibility of changing employer within the same occupation pursuant to the second indent of that provision. ”

The Court also considered and rejected the submission that the facts that Mr Birden’s employment and residence permit had been temporary, or that fact that he had been permitted to enter Germany because of his marriage to a German citizen which had later been dissolved, precluded his reliance on Article 6 of the Decision.

“63 The foregoing interpretation cannot be affected by the fact that the two employment contracts awarded to Mr Birden in 1994 and in 1995 were for a limited period pursuant to the national legislation.

64 If the temporary nature of the employment contract was sufficient to raise doubts as to whether the employment of the person concerned was in fact legal, Member States would be able wrongly to deprive Turkish migrant workers whom they permitted to enter their territory and who have lawfully pursued an economic activity there for an uninterrupted period of at least one year of rights on which they are entitled to rely directly under Article 6(1) of Decision No 1/80 (see paragraphs 37 to 39) above.

65 Likewise, the fact that Mr Birden’s residence permit was issued to him only for a fixed period is not relevant, since it is settled case-law that the rights conferred on Turkish workers by Article 6(1) of Decision No 1/80 are accorded irrespective of whether or not the authorities of the host Member State have issued a specific administrative document, such as a work permit or residence permit (see, to that effect, the judgments in Bozkurt, paragraphs 29 and 30, Günaydin, paragraph 49, and Ertanir, paragraph 55).

66 Furthermore, the fact that, in a case such as the present, work and residence permits were granted to the worker only after his marriage to a German national does not affect that interpretation, even though the marriage was subsequently dissolved.

67 According to settled case-law, Article 6(1) of Decision No 1/80 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, Günaydin, paragraph 52, and, by analogy, Case C-355/93 Eroglu v Land Baden-Württemberg [1994] ECR I-5113, paragraph 22).

68 A Turkish worker such as Mr Birden must consequently be regarded as having been in legal employment in the host Member State for the purposes of Article 6(1) of Decision No 1/80.”

On the basis of these authorities, therefore, I would conclude that work as an au pair may qualify a Turkish national as a worker for the purposes of Article 6 of the Decision. I say “may” because of the exceptional possibility that the work of a particular au pair may be so minor as to be properly regarded as purely marginal and ancillary. But work for anything like 25 hours a week cannot be so regarded. The facts that the original leave to enter is limited in time, and that the work is intended to be temporary, are irrelevant.

A similar conclusion was reached by the Social Security Commissioner in R(IS) 12/98, in which he held that a French au pair had acquired the status of a worker for the purposes of Council Regulation (EEC) No. 1612/68, because her activities as an au pair were genuine and effective and not on such a small scale for it to be appropriate to regard them as marginal and ancillary. As appears from the foregoing, I respectfully agree with that decision, and I agree with the reasons given by the Commissioner. A different conclusion was reached by the Immigration Appeal Tribunal in K v Secretary of State for the Home Department [2003] UKIAT 00033, which concerned a Turkish au pair. I regret that I am unable to reconcile that decision with the principles laid down by the European Court of Justice or the decision in R(IS) 12/98, which had unfortunately not been cited to the Tribunal.

The Home Secretary reminded me that if I entertain any doubt as to the effect and application of Article 6 of the Decision to au pairs I should refer a question for determination by the European Court of Justice. As I have I hope made clear, I have no doubt as to the decision that would be made by the Court, and accordingly I shall not make a reference.

It follows that the Claimant was entitled to rely on the rights granted by Article 6 of the Decision. The decision of the Home Secretary to refuse to extend her leave to remain must be quashed.

Rules 92 to 94 of the Immigration Rules and section 322(1) of the Immigration Act 1971 together preclude (except in the exercise of the Home Secretary’s discretion) the grant of an extension of stay to a Turkish au pair who would otherwise be entitled to an extension under Article 6. In Case C-98/96 Ertanir [1997] ECR I-5179, the European Court of Justice held that Article 6 of the Decision does not permit Member States to adopt national legislation that limits the rights conferred by it. The Home Secretary accepts that, it follows that if he has misconstrued the requirements of Article 6 in relation to its application to Turkish au pairs, as I have held that he has, the Immigration Rules are unlawful to that extent. The Claimant seeks and is entitled to a declaration as to the unlawfulness of those provisions of the Immigration Rules in so far as they apply to Turkish au pairs. I shall make a declaration in terms to be discussed with counsel after this judgment has been handed down.

It also follows from my decision that the Claimant was entitled to appeal to the Asylum and Immigration Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002. Her right of appeal could not have been lawfully excluded by section 88(2)(c) or (d).

The Home Secretary also accepts that if the Claimant was entitled to an extension of stay under Article 6, she may be entitled to damages for any loss she has suffered in consequence of his refusal of an extension of her leave to remain. If she can establish the conditions for State liability in Community law. It was agreed that in the event I found for the Claimant on the principal issue, I should adjourn the damages claim, and I shall do so.