Act: Caskie; McGill & Co

Alt: McIver; Solicitor to the Office of the Advocate General

4 December 2013

[1] The reclaimer is a Turkish national. He entered the United Kingdom on 30 April 2011 in terms of a permission granted by the respondent to enter as a Tier 4 Migrant, as a student. He was granted leave to remain until 27 March 2012. He obtained part-time employment, as he was entitled to do, on 2 May 2011 and started work on that day. On 22 February 2012, he applied for an extension to his permission to remain in this country. Although his permission expired on 27 March 2012 by virtue of the provisions of section 3C(2) of the Immigration Act 1971 as amended, he was entitled to continue to reside in the United Kingdom until his application for extension was determined. On 19 April 2012, the respondent refused the reclaimer's application for an extension of his permission to reside in the United Kingdom and that decision was issued on 23 April 2012. Despite that decision, he continued to reside within the United Kingdom as he was entitled to do by reason of the provisions of section 3C of the 1971 Act as amended. We are told that he continued to work and he completed one year's employment with the same employer on 3 May 2012.

[2] It was agreed between parties that the time limit for the petitioner lodging an appeal expired on 8 May 2012. On 3 May 2012 the petitioner made an application to remain in the United Kingdom in terms of article 6(1) of Decision 1/80 of the Association Council of 19 September 1980, which 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."

It is common ground between the parties that "legal employment" for the purpose of article 6(1) is not employment which is not illegal, but is employment which is stable and secure within the labour force of a Member State: Case C-1/97, Birden v Stadtgemeinde Bremen [1999] 1 CMLR 420; R on the application of Ali Oczelik (Turkey) v Secretary of State for the Home Department [2009] EWCA Civ 260.

[3] On 8 October 2012 the respondent refused the petitioner's application of 3 May 2012. The petitioner sought judicial review of that refusal in these proceedings. By Interlocutor dated 12 April 2013 the Lord Ordinary dismissed the petition. It is against that decision that this reclaiming motion is directed.

[4] The argument that was presented to us on behalf of the reclaimer was to the effect that there is a distinction between a situation in which an individual is not in dispute with a State with regard to his continued residence, that being the situation in section 3C(2)(a) and (b) of the 1971 Act as amended, and the situation in which the individual is in dispute with the State in that regard, which is the situation in section 3C(2)(c), namely when he has lodged an appeal.

[5] We are unable to find an authoritative basis for that distinction, in the terms of the 1971 Act, or in the jurisprudence of the European Court of Justice, or in domestic authority. We note that in case C-192/89, Sevince v Staatssecretaris van Justitie [1992] 2 CMLR 57 the court was in fact concerned with the situation in which the applicant was in dispute with the State as to his continuing residence and accordingly that factor was reflected not unnaturally in the court's opinion. However, Mr Caskie on behalf of the appellant sought to rely also on the case C‑237/91 Kus v Landeshauptstadt Wiesbaden [1993] 2 CMLR 887 in which the first question that was asked of the European Court of Justice by the national court was in the following terms:

"Does a Turkish worker meet the conditions of the third indent of Article 6(1) of Decision 1/80 of the EEC-Turkey Association Council on the development of the Association if, under national law, his residence is deemed to be authorised pending the completion of the procedure for granting a residence permit and if on the basis of that right of residence and a concomitant work permit, he has been employed for over four years?"

The ECJ addressed that issue in paragraphs 11 and following, and gave its answer at paragraph 18 which was in general terms and not confined to the circumstances of the individual being in dispute with the Member State. They answered the first question as follows (at paragraph 18):

"The reply to the first question must be that the third indent of Article 6(1) of Decision 1/80 must be interpreted as meaning that a Turkish worker does not fulfil the condition of at least four years' legal employment laid down by that provision if he has been employed on the basis of a right of residence conferred upon him only by the effect of a national provision permitting residence in the host country during the procedure for the grant of a residence permit, even if the legality of his right of residence has been confirmed by a judgment of a first instance court against which an appeal is lodged."

[6] The answer relates to the procedure permitting residence in the host country for the grant of a residence permit. It does not depend upon a dispute or an ongoing appeal. That was made abundantly clear by the decision of the ECJ in case C-1/97 Birden v Stadtgemeinde Bremen [1999] 1 CMLR 420 where at paragraphs [57] and [58] the court was considering procedures generally, not just procedures which were disputed between the individual and the Member State for granting a residence permit. Paragraph [58] states:

"The court considered that periods during which the person concerned was employed could not be regarded as legal employment for the purposes of Article 6(1) of Decision 1/80 so long as it was not definitely established that, during those periods, the worker has a legal right of residence. Otherwise, a judicial decision finally refusing him that right would be rendered nugatory and he would thus have been enabled to acquire the rights provided for in Article 6(1) during a period when he did not fulfil the conditions laid down in that provision."

[7] It appears to us that the law as it has been laid down by the European Court of Justice is clear. That is reinforced by the decision of the Court of Appeal in England and Wales in the case of Ali Oczelik (Turkey) v Secretary of State for the Home Department [2009] EWCA Civ 260, 2009 WL 6458. In that case the arguments (which were very substantially the same as the arguments advanced by Mr Caskie on behalf of the reclaimer in this case) were rejected unanimously by the Court of Appeal. We note that Sedley LJ who delivered the leading opinion observed at paragraph 21 that he had been persuaded by counsel for the Secretary of State that the Home Secretary's decision was the correct one. He went on to say:

"This does not mean that the effect of s.3C is in any way diluted: in domestic law it does what it says, which is to extend the duration of leave to enter or remain in those cases to which it applies. But its significance in Community law is not necessarily identical. It remains to be decided whether, for the purposes of the Agreement and the Decision, the domestic effect also confers on the applicant's membership of the national workforce the security and stability which are implicit in the concept of "belonging to" a national labour force."

Sedley LJ concluded that they did not and it followed that Mr Oczelik's employment after 25 August 2004 in that case, while perfectly lawful, could not count towards the computation of a year's employment within article 6(1). The same view was taken by Jacob LJ; indeed, he took a rather more robust view. He did not consider that that was a finely balanced case - he thought it was reasonably clear. Sir Peter Gibson agreed and said that he agreedwithout hesitation.

[8] As we have observed, this court is not bound by the decision of the Court of Appeal although, of course, that decision is entitled to very considerable weight. For our part we can find no error in the way in which the Court of Appeal approached the matter and, indeed, we agree with that approach. The Lord Ordinary was also persuaded by it and in his opinion (in particular at paragraph 28), he said that the position, in his opinion, is simple and clear. He observed:

" 'Legal employment' is employment in a secure and stable situation. Once the period of leave expires, the stability and security no longer exists even if the right to remain in the United Kingdom and to work is extended by the suspensory effect of section 3C of the 1971 Act. His employment position is precarious."

We can find no error of law in that passage nor indeed in any other part of the Lord Ordinary's opinion.

[9] For these reasons, we shall refuse the reclaiming motion.