Court of Appeal rejects extension to ECJ jurisprudence on Article 49 and the Vander Elst line of authority on posted workers

The Court of Appeal (Rix LJ, Lloyd LJ, Sir David Keene) dismissed an appeal against the decision of the Administrative Court refusing Judicial Review of various decisions of the Home Secretary concerning the application of Article 49 EC (the freedom to provide services).

The decision under appeal (R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] 2 C.M.L.R. 22 was the lead case among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The appeal concerned a scheme in which an Irish company entered into an agreement to supply catering services to a UK restaurant company. The services were to be provided by third country nationals who were illegally present in the UK and had no right to reside in Ireland. An application was made on behalf of the Irish company, UK company and the third country nationals in this and hundreds of other cases, seeking confirmation of the workers’ status as “posted workers” of the Irish company under Article 49 EC and the principle of derivative rights.

The Court of Appeal considered a series of decisions relating to posted workers and Article 49 in the European Court of Justice, the best known of which is Case C-43/93, Vander Elst, [1994] ECR I-3803, together with ECJ case law decided in other contexts. The Appellants argued that the logic of the existing case law should be extended to cover the facts of the present case, with the effect that the UK should grant temporary rights to reside in the UK to the third country nationals, in order to render the Irish company’s freedom to provide services in the UK effective. The Court of Appeal refused the Appellants’ request to make a reference to the ECJ. Reasons for the judgment will be given at a later date. If you wish to be notified when this judgment is available, please send an e-mail to one of the clerks.

Ian Rogers appeared for the Home Secretary

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