EB (Turkey) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson,Lord Justice Rix,Lord Justice Rimer |
| Judgment Date | 17 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1595 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 December 2008 |
| Docket Number | Case No: C5/2008/1393 [AIT No. IA/14733/2007] |
[2008] EWCA Civ 1595
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Toulson and
Lord Justice Rimer
Case No: C5/2008/1393
C5/2008/1393(A)
[AIT No. IA/14733/2007]
Ms K Olley (instructed by Treasury Solicitors) appeared on behalf of the Appellant.
Mr I Mauka (instructed by Messrs Traymans) appeared on behalf of the Respondent.
Lord Justice Toulson:
This is an application by the Home Secretary for permission to appeal out of time against the decision of a Senior Immigration Judge, allowing an appeal by EB against the Home Secretary's refusal of his application to be allowed to remain in the UK as a self-employed business person under HC 510, by virtue of the terms of the Turkish EC Association Agreement, otherwise known as the Ankara Agreement. I will come back to the question of leave at the end of this judgment. The history of the case is unusual and might be summed up as a comedy of errors, although there is in truth no comedy. EB is a Turkish national. On 22 March 2006 he was given leave to remain in the UK as a student until 28 February 2007. The terms of his student leave included an express prohibition on him engaging in business or self-employment. In September 2006, in breach of that condition, he took over a business called Yummies Kebab Shop in Upper Brynamman, Ammanford, Dyfed. It became operational in his hands in December 2006. On 7 February 2007 EB applied through solicitors for leave to remain in the UK on the basis of the Ankara Agreement and HC 510.
On 24 August 2007 the Home Secretary rejected his application on the grounds that she was not satisfied that he was genuinely the owner of the business by virtue of a tangible and substantial investment or that he had produced evidence to show his ability to establish himself in the business. EB appealed. His appeal came before an Immigration Judge who allowed the appeal, holding that there was ample evidence that EB was running the business. That appeal was heard on 8 October 2007. The Immigration Judge's determination was prepared on 12 October and promulgated on 26 October. The Home Secretary applied for reconsideration on the ground that the Immigration Judge had not taken into account all the requirements of HC 510, in particular the requirement in paragraph 21 that, in the case of an applicant joining an established business, audited accounts should be produced to show its financial position. On 8 November 2007 a Senior Immigration Judge ordered reconsideration on the ground that it was arguable that the Immigration Judge had not taken proper account of all the requirements of paragraph 21 of HC 510. The matter came on for reconsideration before a different Senior Immigration Judge on 15 February 2008 and it is his determination which is the subject of the present appeal.
At the outset the Home Secretary's Presenting Officer raised a fresh point of law. This was based on the decision of this court in LF (Turkey) v SSHD [2007] EWCA Civ 1441. That was also a case in which the applicant relied on the Ankara Agreement and upon a business which had been established by him in breach of the conditions which attached to his entry admission. After a review of the relevant domestic and European jurisprudence, Laws LJ, with the concurrence of the other members of the court, held that LF did not have a right to remain in the UK based on a business which he had begun in breach of his conditions of entry. To hold otherwise would be to allow the applicant to benefit from his own wrong-doing and would fall foul of a principle of community law referred to by Laws LJ as “the abuse of rights principle”. It is apparent from the report in LFthat the point on which the decision went in the Home Secretary's favour had been taken by her in a decision letter dated 19 February 2007 giving reasons for refusing LF's application. That was six months before the Home Secretary's decision letter in the present case, in which she did not take the point. The decision in LF was given on 18 October 2007 —that is after the Immigration Judge in the present case had heard argument and prepared his decision but before it was promulgated.
The decision in LF was not a radical departure from previous authority. On the contrary, it followed an earlier decision of Collins J dated 13 October 2006 in the case of Kanan Temiz v SSHD [2006] EWHC 2450 (Admin), which was itself based on jurisprudence going back to the decision of the European Court of Justice in Kondova [2001] ECR 1–06427. When Mr Mauka, who appeared for EB before the Senior Immigration Judge as he has appeared in this court, found himself confronted with this point on the morning of the hearing, he applied for the matter to be adjourned so that he could properly consider the point. The Senior Immigration Judge refused his request but granted him 30 minutes. In his determination, promulgated on 22 February 2008, the Senior Immigration Judge held that the reason that LF had failed must apply equally in the case of EB. He went on to consider the original ground on which reconsideration had been ordered and found that there was nothing in it. Rather surprisingly, in the light of his earlier ruling that the principle in LF must apply equally to EB, the Senior Immigration Judge concluded his determination with the sentence:
“On the basis of the evidence before me, I consider that the appellant currently meets the requirements of para 21 of HC 510 and that accordingly his appeal against the decision to refuse his vary leave [sic] to remain should be allowed.”
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Aaq For Judicial Review Of A Decision Of The Secretary Of State For The Home Department Dated 30 April 2010
...EWCA Civ 1040 (at paragraph 54 and 55); 22. NAK v SSHD [2009] CSOH 162; 23. The Queen on the application of TR (Sri Lanka) v SSHD [2008] EWCA Civ 1595; 24. The Queen on the application of MN (Tanzania) v SSHD [2011] EWCA Civ 193 (at paragraphs 1, 13, 14 and 16); 25. KD Petitioner v SSHD [20......