Payir, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 1426 (Admin)

“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.”

“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. 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; ” - 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; ”

“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.”

“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.”

“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.”

“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?”

“Cultural exchange and not ‘work’ is the essential aspect and the defining feature of the relationship.”

“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.”

“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.”

“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. ”