The Court of Appeal (Civil Division) handed down judgment in the case of R (Low and Others) v Secretary of State for the Home Department [2010] EWCA Civ 4 on 14th January 2010. The case concerned a claim for judicial review against a decision by the Secretary of State for the Home Department refusing to regularise the employment status of three employees (‘the employees’) of Irish Company Rising Sun Catering Services Company Limited (‘the Irish Company’).

The Irish Company employed the first, second and third appellants as restaurant workers, allegedly ‘posted’ to the United Kingdom to work for the fifth appellant Hot Hot Grill and Bar Limited. Neither of the employees were lawfully resident in Ireland or any other EU Member State. In reliance on article 49 of the EC Treaty (now article 56) which precludes “...a member state from prohibiting a person providing services established in another Member State from moving freely on its territory with all his staff and precludes that Member State from making the movement of staff in question subject to restrictions”, the appellants sought relief against the Secretary of State’s decision to detain and remove the employees.

Refusing the relief sought and upholding the decision of the High Court, the Court of Appeal held, applying Raymond Vander Elst v Office des Migrations Internationales C-43/93 that it was critical that the ‘situation of the workers’ must be lawful in the country of establishment in order for article 49 to apply. Following the case of Commission of the European Communities v Germany C-244/04 the host country was therefore entitled to monitor that that was so by proportionate means.

The court emphasised that article 49 does not give a unique right to employ workers who have no lawful right to work in the country of establishment or the host country; to do so would give the service provider an unprecedented advantage over the host state’s employers who could not employ non-lawful residents of the EU.