The Queen, on the application of Ezgi Payir, Burhan Akyuz and Birol Ozturk v Secretary of State for the Home Department.
Date: 2008-01-24
28. The first of those conditions concerns the status of worker. It is settled case-law that, in order to satisfy that condition, the Turkish national must perform activities which are real and genuine, to the exclusion of activities which are 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 (see Birden , paragraph 25 and the case-law cited).
29. The second condition concerns the concept of being duly registered as belonging to the labour force. The Court has held that this concept embraces all workers who have met the conditions laid down by law or regulation in the host Member State and who are thus entitled to pursue an occupation in its territory (see Birden , paragraph 51).
30. The third condition laid down in Article 6(1) of Decision No 1/80 is that of legal employment, that is to say, a stable and secure situation as a member of the labour force of the host Member State and, by virtue of that situation, an undisputed right of residence (see Case C-188/00 Kurz  [2002] ECR I‑10691, paragraph 48).
35. In that regard, it should first be pointed out that a social objective pursued through granting leave to enter as students or as au pairs, together with the related right to work, does not, of itself, take away the lawful character of the activities performed by the persons concerned and, consequently, does not prevent them from being regarded as ‘duly registered as belonging to the labour force’ of the host Member State. The Court held in paragraph 51 of Birden  that the concept of being duly registered as belonging to the labour force cannot be interpreted as applying to the labour market in general as opposed to a specific market with a social objective supported by the public authorities.
36. It should also be recalled that Decision No 1/80 does not encroach upon the competence retained by the Member States to regulate both the entry into their territory of Turkish nationals and the conditions under which they may take up their first employment, but merely regulates (in Article 6) the situation of Turkish workers who are already integrated into the labour force of the host Member State (Case C-98/96 Ertanir  [1997] ECR I‑5179, paragraph 23).
37. According to settled case-law, the aim of Article 6(1) of Decision No 1/80 is to consolidate progressively the position of Turkish workers in the host Member State (see, inter alia, Case C-230/03 Sedef  [2006] ECR I‑157, paragraph 34).
38. Article 6(1) of Decision No 1/80 thus covers Turkish nationals who have the status of workers in the host Member State without, however, requiring that they have entered the Community as workers. They can have acquired that status after their entry into the Community. Thus, in the case leading to the judgment in Birden , Mr Birden, who had been permitted to enter the territory of a Member State, found himself at the outset unemployed in that State and only later found paid employment there. In the case which led to the judgment in Kurz , the Turkish national concerned had been authorised to enter the Community at the age of 15, not as a worker but in order to train to be a plumber.
40. In order to determine whether Turkish nationals meet those conditions, no account is taken of the aim pursued in permitting the persons concerned to enter the Member State in question. The Court has consistently held that Article 6(1) of Decision No 1/80 does not make recognition of the rights which it confers on Turkish workers subject to any condition connected with the reason for which the right to enter, work or reside was initially granted (see Case C-36/96 Günaydin  [1997] ECR I-5143, paragraphs 51 and 52 and the case-law cited). Accordingly, the Court has held that the intention expressed by a Turkish national to return to his country of origin after spending a number of years in the host Member State cannot prevent him from being able to rely on the rights conferred by Article 6(1). It would only be otherwise if the person in question had set out to deceive the competent authorities by making a false declaration with the sole intention of inducing them to issue the requisite authorisation (see, to that effect, Günaydin , paragraphs 54 and 60).
42. Nor can the fact that the employment contract is of fixed duration preclude the application of Article 6(1) of Decision No 1/80. The Court has held that, if the temporary nature of the employment contract could suffice to call into question the legality of the employment of the person concerned, Member States would be able wrongly to deprive Turkish migrant workers whom they have 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 Birden , paragraph 64).
43. Thus, in order to determine whether a Turkish national who has entered the territory of a Member State lawfully may, after working for a year in that territory, rely on the rights conferred by Article 6(1) of Decision No 1/80, it must be determined whether he meets the objective conditions laid down in that provision, without it being necessary to take into account the reasons for which he was first granted the right to enter that territory or any temporal limitations attached to his right to work. According to settled case-law, it is not open to the national authorities to attach conditions to such rights or to restrict their application, as they would otherwise undermine the effect of Decision No 1/80 (see Günaydin , paragraphs 37 to 40, and 50; Birden , paragraph 19; Kurz , paragraph 26; Joined Cases C-317/01 and C-369/01 Abatay and Others  [2003] ECR I‑12301, paragraph 78; and Sedef , paragraph 34).
45. Provided that the conditions referred to in paragraphs 27 to 30 of the present judgment are met and provided, in particular, that the genuineness of the work performed by the Turkish nationals in question is confirmed, the fact that they have entered as students in order to pursue a course of studies or as au pairs with the aim of mastering the language of the host Member State is immaterial. If those Turkish nationals succeed, objectively, in fulfilling the conditions laid down in the three indents of Article 6(1) of Decision No 1/80, they cannot be deprived of the rights which that provision progressively grants them on the basis of the duration of their paid employment (see, to that effect, Günaydin , paragraph 37).