The decision

ar MK (Immigration Rules - Workers - Au Pairs) Turkey [2003] UKIAT 00033


Date of Hearing : 30 April 2003
Date of dictation: 1 May 2003
Date Determination notified:


Mr J Latter (Chairman)
Mr D J Parkes
Mr P Rogers, JP



Secretary of State for the Home Department

For the appellant : Ms N. Loughran, of counsel, instructed by Gray & Co. Solicitors
For the respondent : Mr A. Scarcliffe, Home Office Presenting Officer

1. This is an appeal by Meray Kus, a citizen of Turkey, against the determination of an Adjudicator, Professor R.M.M. Wallace, who dismissed her appeal against the respondent's decision made on 13 October 1999 refusing her leave to remain under paragraph 286 with reference to paragraph 284(2) and 322(1) of HC 395.

2. The appellant entered the United Kingdom on 11 May 1997 having been given leave to enter as an au pair until 11 May 1999. On 7 May 1999 she applied for indefinite leave to remain on the basis of her marriage to a person settled in the United Kingdom and for leave to continue employment under the EU/Turkish Association Agreement. Her application was refused on both grounds. Her husband was not a person present and settled in the United Kingdom. Her application under the Association Agreement was refused on the basis that she had been admitted as an au pair and was expected to leave the United Kingdom at the end of her placement and in the light of this she could not be said to have been integrated into the workforce.

3. At the appeal before the Adjudicator it was agreed that the appeal could not succeed on the basis of the appellant's marriage. Her spouse whom she married on 30 April 1999 is a Turkish seaman currently seeking asylum in the United Kingdom. He was not present and settled within the meaning of paragraph 284(ii) of HC 395. The Adjudicator went on to consider the issue of whether the respondent had been wrong in refusing the application to remain in the United Kingdom to continue employment within the terms of the EU/Turkish Association Agreement.

4. The Adjudicator summarised the relevant facts as follows. The appellant arrived in the United Kingdom on 11 May 1997 and was granted leave to enter for two years as an au pair. She had worked with a family in Glasgow, working two days a week for a total of fifteen hours. She received £30 per week. This was confirmed by a letter from her employer dated 5 May 1999. In that letter it was stated that the appellant worked ‘as a part time au pair’ for the family. The letter also says that the appellant had worked for two years on a full time basis but after her recent marriage she now worked part time. She continued to work for the family from June 1999 until November 2001. In her oral evidence she explained that ‘full time’ in the letter amounted to about 22-25 hours.

5. The Adjudicator has set out her findings in paragraph 10 of her determination. There was no dispute that the appellant entered the United Kingdom as an au pair having been granted entry clearance under the terms of paragraph 88 of HC 395. The endorsement on her passport gave her leave to enter on condition that she did not enter employment paid or unpaid other than as an au pair. It was argued that this recognised the fact that the appellant was a member of the workforce. The Adjudicator was not satisfied that this was the case. She found that the appellant was not exercising a community right to work as her leave to enter was subject to the purposes and rules for entry clearance as an au pair.

6. The Adjudicator went on to consider whether the appellant could claim a right to remain under the Association Agreement without obtaining prior entry clearance. Having found that the appellant was not in the United Kingdom as a worker and was not exercising a right of free movement for workers, she was satisfied that the appellant was not entitled to make an in-country application as the system of prior entry clearance operated by the United Kingdom was permissible within the terms of the Association Agreement.

7. The first question which arises in this appeal is whether the appellant is a ‘worker’ within the provisions of Article 6(1) of the Association agreement. Article 6(1) only benefits those workers who fulfil the following three conditions:

(a) He is a worker and legally employed,
(b) He is duly registered as belonging to the labour force
(c) He has been legally employed for one of the three possible time periods.

These concepts are interconnected as legal employment presupposes a stable and secure situation as a member of the labour force.

8. Miss Loughran referred the Tribunal to Birden (C-1/97, 26 November 1998) which is authority for the proposition that the concept of worker for the purposes of Article 6(1) effectively incorporates the concept of worker under Community Law. The basic community definition of a worker is that an individual for a certain period of time performs services for and under the direction of another in return for which he receives remuneration. This term includes trainees and apprentices, part time workers and those engaged in employment schemes. The underlying requirement is that the person is engaged in a ‘genuine and effective economic activity’ and that ‘he is entitled to the same conditions of work and pay as those which may be claimed by workers who pursue identical or similar activities, so that his situation is not objectively different from that of those of other workers.’

9. The argument on behalf of the appellant is that she is a worker because she has been given leave to enter to work as an au pair. The grant of entry clearance may limit the category of work to being an au pair but the fact that leave is so limited does not mean that she is not a worker.

10. Mr Scarcliffe argues that the appellant is not a worker for the simple reason that she is pursuing an activity as an au pair within the specific provisions of the Immigration Rules. It is provided by paragraph 88 that for the purposes of these rules an au pair placement is an arrangement whereby a young person:

(a) comes to the United Kingdom for purpose of learning the English language;

(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 five hours a day in return for a reasonable allowance and with two free days per week.

It is submitted that this is not work or at least not the exercise of the community right of being a worker in the sense of exercising the right of free movement of workers.

11. In the judgment of the Tribunal, Mr Scarcliffe is right in his argument. The appellant does not meet the basic community definition of a ‘worker’. She has been granted leave to enter as an au pair. The purpose of this arrangement is to learn English and to live as a member of an English speaking family. The restriction in the passport on other types of work cannot be interpreted as an admission or concession that the appellant is in fact a worker. The Adjudicator was correct to find that the appellant's activities in the United Kingdom were within the specific rules prescribed for an au pair placement and did not amount to being a worker.

12. In her skeleton argument and written submissions Miss Loughran relies on a number of authorities. The first is Savas. This confirms that the only Turkish workers who may benefit from the rules are those who satisfy the requirements laid down by decision 1/80 (i.e. those duly registered as belonging to the labour force of the host member state or being lawfully employed for a certain period). This case does not take the matter any further as to whether or not this appellant in fact satisfies the requirements. For the reasons we have given we are not satisfied that she does. As an au pair she cannot properly be regarded as belonging to the labour force. The submissions also refer to Nazli which is dealt with by the Adjudicator in paragraph 10 of her determination. The point in Nazli is that the individual concerned was recognised as a member of the labour force and was duly registered and had a work permit of unlimited duration. Janey is of limited if any relevance to the issues in the present appeal as it was limited to the issue of whether economic activity was wide enough to encapsulate ‘window prostitution’. However, the fact that one particular activity may be regarded as an economic activity does not cast much light on whether the appellant's admission to the United Kingdom as an au pair amounted to being admitted as a worker.

13. It is argued that as an au pair provides services, her activities should be regarded as falling within the term ‘economic activities’. But that does not deal with the point that under the Immigration Rules an au pair placement is an arrangement primarily for the purpose of learning English and living with an English speaking family.

14. The second issue is whether the United Kingdom is able to exercise a system of prior control to ensure that a potential applicant is entitled to rely on the provisions of the relevant Association Agreement. The Tribunal are satisfied that the United Kingdom government is permitted to take this course. The Tribunal need not deal with this issue at length but adopt the reasoning of the Tribunal in Mocko [2002] UKIAT 00563 which takes due account of the decision in the European Court in Glosczuk (C-63/99) the principle being further confirmed by the judgment of the Court in Kondova (C-235/99) relied on by Mr Scarcliffe.

15. Accordingly, for the reasons the Tribunal have attempted to set out, in our judgment the findings and conclusions of the Adjudicator are correct. It follows that this appeal must be dismissed.