Derya Kartal Karagul v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 27 November 2019 |
| Neutral Citation | [2019] EWHC 3208 (Admin) |
| Date | 27 November 2019 |
| Docket Number | Case No: CO/3351/16 AND CO/3079/17 AND CO/1035/2016 AND CO/4208/2018 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen (on the application of
[2019] EWHC 3208 (Admin)
Mr Justice Saini
Case No: CO/3351/16 AND CO/3079/17 AND CO/1035/2016 AND CO/4208/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gordon Lee and Emma Daykin (instructed by Stuart & Co.) for the Claimants
Deok Joo Rhee QC and David Mitchell (instructed by Government Legal Department) for the Defendant
Hearing dates: 19 and 20 November 2019
Approved Judgment
This judgment is in 12 main parts with an Annexe as follows:
I. Overview: paras [1–6]
II. Outline Facts and Grounds of Review: paras [7–30]
III. The EU Legal Framework: paras [31–36]
IV. The Domestic Legal Framework: paras [37–43]
V. Administrative Review: paras [44–61]
VI. The Secretary of State's Guidance: paras [62–69]
VII. The Akturk Case: paras [70–74]
VIII. The EU Law Effectiveness Challenge: paras [75–94]
IX. Procedural Fairness: Legal Principles: paras [95–103]
X. Procedural Fairness: General Conclusions as regards ECAA Applications: paras [104–111]
XI. Procedural Fairness: Application to the Facts: paras [112–124]
XII. Conclusion and Relief: paras [125–133] ANNEXE: Specific Individual Complaints
I. Overview
These are four consolidated claims for judicial review brought by Turkish nationals, Mrs Karagul, Mr Ayten, Mr Yildiz and Mr Izci (“the Claimants”). The Claimants challenge decisions of the Secretary of State for the Home Department to refuse them leave to remain (LTR) in the United Kingdom as businesspersons.
The decisions under challenge were made in relation to rights to apply for such LTR which the Claimants enjoy via the medium of the “Agreement establishing an Association between the European Economic Community and Turkey” signed at Ankara on 12 September 1963 (“the Ankara Agreement”) and its Additional Protocol signed in Brussels on 23 November 1970 (“the Additional Protocol”) (together, “the ECAA”). The United Kingdom became a signatory to the ECAA upon becoming a member of the European Economic Community on 1 January 1973.
The Additional Protocol was itself signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972 (OJ 1973 C113, p.17).
Although each Claimant pursues distinct conventional public law and case-specific challenges to the refusal of their applications under the ECAA, there are certain common issues of EU law and domestic law pleaded by the Claimants.
Those issues are, in outline:
(i) First, whether the current remedial regime for challenging such refusals (which regime consists of an internal Administrative Review — referred to below as “AR”-supplemented by judicial review) violates the EU law principle of “effectiveness”; and
(ii) Second, whether the way in which the decisions were made by the Secretary of State was in breach of common law fairness standards. The particular focus in relation to this second ground is the Secretary of State's conclusion (expressed in the case of each Claimant) that the Claimants had not satisfied her that they had a “genuine intention” or “genuine wish” to set up in the businesses as they claimed in their applications (with the associated implication that they were in fact seeking leave to remain in the UK for a different undisclosed and impermissible purpose). The question which arises concerns the procedures which the Secretary of State is obliged to adopt (in accordance with common law fairness standards) before expressing such conclusions.
I will address the specific decisions as regards each Claimant in the Annexe, but I will first summarise the material factual background to each claim, the decisions and the more specific grounds of review relied upon.
II. Outline Facts and Grounds of Review (a) Karagul
On 13 July 2015, the Karagul family were granted limited leave to enter the UK as visitors. This leave was valid until 13 January 2016. They entered the UK on 11 August 2015.
Within the period of this original limited leave, on 1 December 2015, Mrs Karagul applied for LTR under the ECAA in order to establish herself in business, working as a mobile beauty therapist and trading as “Ocean Unisex Professional Eyebrow & Beauty”. Her application included her spouse and her daughter as dependants. As in the case of each applicant, Mrs Karagul signed the application form warranting that its content was true and accurate and that she therefore had a genuine intention to pursue the business set out in her application.
By letters dated 21 January 2016 and 14 March 2016 the Secretary of State requested further documentation and evidence from Mrs Karagul regarding her application. By decisions dated 30 March 2016 the family's applications were refused under paragraph 21 HC 510. Mrs Karagul applied for AR of the refusal decision. By a further decision dated 10 May 2016, the application for AR was also refused.
Given its centrality to the arguments before me, I should set out in exact terms what was said in the refusal decision of 30 March 2016 by way of conclusions:
(a) “The Secretary of State is not satisfied that you genuinely wish to establish in business as proposed” (my emphasis); and
(b) “Overall, you have failed to demonstrate that you have a genuine intention to establish in business and that you have conducted a significant amount of research in order for your business to be a success” (my emphasis).
The 10 May 2019 AR decision recorded (in rejecting the appeal):
(a) “You claim in your application for Administrative Review that your business plan did not lack significant detail. You believe that you didn't need an intricate business plan because you do not propose to employ anyone and your overheads will be low. However even though your business model is relatively straightforward we still require a detailed business plan in order to assess the genuineness of your intentions to set up in business.” (my emphasis).
(b) “118. Your failure to provide detailed information about customer service undermines the credibility of your intention to set up in business.” (my emphasis).
By an application for judicial review issued on 1 July 2016, the Karagul Claimants sought to challenge the Secretary of State's decisions dated 30 March 2016 and 10 May 2016. They rely on two grounds: (a) Ground 1: Whether the decision reached was procedurally unfair; and (ii) Ground 2: Whether the current remedial regime of AR (followed by judicial review) as applied to Turkish ECAA cases is an effective one according to the principle of effectiveness in EU law.
(b) Ayten
On 17 October 2011, Mr Ayten was granted limited leave to enter the UK as a visitor until 17 April 2012. On 11 September 2012 he was granted LTR in order to establish himself in business under the ECAA. On 18 March 2014 he was refused further leave to remain under the ECAA. On 2 April 2014 Mr Ayten exercised his right to a statutory appeal against the refusal (since replaced by AR). The appeal was heard by the First-tier Tribunal (Immigration and Asylum Chamber) on 2 December 2014 and dismissed in a Decision and Reasons promulgated on 15 December 2014.
Whilst at the point of his application Mr Ayten stated that he was a 50% shareholder in a business called Formbay Limited, the FtT found that he “was never involved in any significant way in Formbay, and this was merely a ruse to obtain a residence permit”. At the date of the appeal hearing Mr Ayten claimed to be a 50% shareholder in his father's business, Devrim Limited, trading as an off-licence. The FtT found that Devrim Limited was “not even trading” and further rejected his appeal on this basis.
By 2 January 2015, Mr Ayten had exhausted his appeal rights. Subsequently, by a further application dated 3 July 2015, acting through his current solicitors, Mr Ayten applied for leave to remain to continue operating in business under the ECAA. According to his application form he had been engaged in operating Devrim Limited since 18 March 2015.
By a decision dated 8 December 2015 his application was refused under paragraphs 4 and 21 of HC510. Mr Ayten applied for AR and the refusal decision was upheld in an AR decision dated 15 January 2016.
As in the case of the First Claimant, the refusal decision of 8 December 2015 said by way of conclusions:
(a) “The Secretary of State is not satisfied that you have genuinely established a business”; and
(b) “The evidence you have supplied casts serious doubts in respect of your claim to have genuinely engaged in business”.
(my emphasis)
The AR decision was to the same effect but highlighted a concern about the authenticity of a bank statement that Mr Ayten had submitted.
By his application for judicial review issued on 25 February 2016, Mr Ayten challenged the Secretary of State's refusal and AR decisions. His amended pleaded grounds of challenge are: (i) Ground 1: the decision-making process and administrative review is procedurally unfair; (ii) Ground 2: Failure to consider applying discretion and apply policy and principles of Ascioglu [2012] EWCA Civ 1183; and (iii) Ground 3: Unlawful assessment contrary to the standstill clause and irrational conclusions.
(c) Yildiz
Mr Yildiz was granted leave to enter the UK on a six-month visitor's visa valid from 30 April 2016. It is not known when he entered the country under that visa but by an application dated 26 August 2016 he applied for LTR in order to establish himself in business. Whilst his application identified his intended business as being a “Gardening...
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