Rulings by the European Court of Justice in the case of T. Sahin (issued on 17 September 2009, C-242/06) and the Commission v the Netherlands (issued on 29 April 2010, C-92/07) have taken up the question of whether charging fees to Turkish citizens is in accordance with the Association Agreement, the Additional Protocol or Decision 1/80.

The decisions should be interpreted to mean that Turkish citizens applying for a residence permit, an extension of a residence permit or for a permanent residence permit in connection with work, or who wish to appeal a decision or request that a case be reopened in connection with a work stay, cannot be required to pay the fee.

When evaluating whether a Turkish citizen is an employee, the immigration authorities will base their decision on the interpretation of the term 'employee', as defined by the European Court of Justice.

A decision about whether an individual can be considered an employee, as defined by the ECJ, will be made on a case-by-case basis. The decisive factor will be whether the individual's employment relationship is real and genuine. In determining whether an employment relationship is real and genuine, the decisive factor will be whether the individual receives payment for services rendered for another party, and on the instruction of another party. Employment that is apparently a marginal supplement cannot be considered, as the regulations governing the free movement of labour were created solely to ensure the free movement of individuals engaging in economic activity. If an individual only works a minimal number of hours, it would be a sign that the employment relationship is a marginal supplement. Normally, it is a requirement that the individual works a minimum of 10 to 12 hours per week. This requirement is based on ECJ practice, jf. the judgements Kempf (C-139/85) and Megner and Scheffel (C-444/93). In the Genc (C-14/09) judgement, the ECJ ruled that criteria such as the entitlement to paid leave, remuneration during illness, the duration of the employment and whether the individual was covered by a collective agreement should be considered in the overall evaluation of whether an employment relationship was real and genuine.

It is not possible to set a lower limit for how long the employment must have lasted in order to qualify. The ECJ, in the Franca Ninni-Orasche (C-413/01) decision, established that a 10-week temporary contract was sufficient to qualify as an employee, according to the court's definition. The case involved educational stipends, and based on the decision guidelines were given to local authorities for determining when an individual should be considered an employee. The guidelines deal with short-term employment relationships, and set a lower limit of 10 weeks. However, it must be underscored that all decisions will be made on a case-by-case basis. A temporarily employed individual who quits after less than 10 weeks may still qualify as an employee, according to the ECJ definition, just as an individual who has worked for more than 10 weeks may not qualify, e.g. if the number of hours worked was so limited that the employment appears to be a marginal supplement.

If you want further information about the possibilities for exemption, please contact the Immigration Service