Oczelik, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 260 (29 January 2009)

Oczelik, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 260 (29 January 2009)

Time spent lawfully present and employed under section 3C of the Immigration Act 1971, pending a decision on variation of leave, does not count towards the one year of 'legal employment' required by Article 6(1) of Decision 1/80 of the EC-Turkey Association Agreement because such employment is not considered 'stable and secure' under EU law, lacking an undisputed right of residence.

Citation
[2009] EWCA Civ 260
Parties
Respondent/appellant: Ali Oczelik; Appellant/respondent: Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
29 January 2009
Procedural Posture
Judicial Review (immigration) / Appeal From Queen's Bench Division, Administrative Court to Court of Appeal
Outcome
Appeal allowed
Legal Topics
EC Turkey Association Agreement, Legal Employment Definition, Section 3 C Immigration Act 1971, Right of Residence, Leave to Remain
Immigration Law European Union Law EC Turkey Association Agreement Legal Employment Definition Section 3 C Immigration Act 1971 Right of Residence Leave to Remain

Case Brief

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Parties

Ali Oczelik

Respondent/appellant

Secretary of State for the Home Department

Appellant/respondent

Procedural Posture

Judicial Review (immigration) / Appeal From Queen's Bench Division, Administrative Court to Court of Appeal

Legal Issues

  1. 1 Does time spent lawfully present and employed under section 3C of the Immigration Act 1971 count towards the one year of 'legal employment' required by Article 6(1) of Decision 1/80 of the EC-Turkey Association Agreement?
  2. 2 Does section 3C confer the requisite 'stable and secure' status for legal employment under EU law?

Ratio Decidendi

Time spent lawfully present and employed under section 3C of the Immigration Act 1971, pending a decision on variation of leave, does not count towards the one year of 'legal employment' required by Article 6(1) of Decision 1/80 of the EC-Turkey Association Agreement because such employment is not considered 'stable and secure' under EU law, lacking an undisputed right of residence.

Court Disposition

Appeal allowed

Orders

  • The appeal by the Secretary of State for the Home Department is allowed.