High Court upholds Home Secretary’s decision on EU “Posted Workers” Claims

10 Feb 2009

The High Court has given judgment in favour of the Home Secretary on an application for Judicial Review concerning the Posted Workers Directive (96/71/EC) and Article 49 EC (the freedom to provide services).

The case of R(Lee Ling Low, Rising Sun Catering, Hot Hot Grill and Bar Ltd and others) v Secretary of State for the Home Department [2009] EWHC 35 (Admin) was identified as the lead case for speedy determination, among 23 Judicial Review applications. A further 650 cases had been dealt with in the same manner by the Home Secretary.

The case involved an Irish company entering 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. It was also argued that the Home Secretary had no current published policy indicating in what circumstances her Department would grant “permission to work” to those persons who are subject to immigration control and who are granted temporary admission.

Article 2 of the Posted Workers Directive defines a “posted worker” as a “worker who, for a limited period, carries out his work in the territory of a member state other than the state in which he normally works”. All parties relied on 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.

The Court held that none of the Claimants have any entitlement to rely on Article 49 and the posted workers cases because the third party nationals were not resident in the member state of establishment, Ireland. As the third country nationals were not lawfully resident in Ireland, the Home Secretary’s decisions not to regularise their status and to detain and remove them were lawful and not in breach of EC law. The Court also found that the Claimants’ reliance on Article 49 was an abuse of EC law. Finally, the Court held that there is a transparent and publicly available policy relating to permission to work for those granted temporary admission; and the decisions were in accordance with this policy.

The judgment contains a comprehensive analysis of the case law on posted workers and the “abuse of EC law” doctrine.

The High Court refused the Claimants’ request to refer the case to the European Court of Justice, stating that it had no doubt that the Home Secretary’s submissions were correct in law.

Ian Rogers appeared for the Home Secretary, instructed by the Treasury Solicitor

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