FS (Breach of conditions: Ankara agreement)
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton,Drabu |
| Judgment Date | 26 February 2008 |
| Neutral Citation | [2008] UKAIT 66 |
| Court | Asylum and Immigration Tribunal |
| Date | 26 February 2008 |
[2008] UKAIT 66
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Drabu
For the Appellant: Mr. P Morris, instructed by Birnberg Pierce and Partners
For the Respondent: Mr. S Ousley, Home Office Presenting Officer
FS (Breach of conditions: Ankara agreement) Turkey
The Ankara Agreement does not entitle Turkish nationals to breach conditions of their leave. A Turkish national is not therefore entitled to base a claimed entitlement to remain in the United Kingdom on acts amounting to such breaches.
The appellant, a citizen of Turkey, appealed to the Tribunal against the decision of the Secretary of State on 21 August 2007 refusing to vary her leave in order to allow her to remain in the United Kingdom as a self-employed business person. The Immigration Judge dismissed the appeal. The appellant sought and obtained an order for reconsideration. Thus the matter comes before us.
The appellant's claim is based on the terms of the EC-Turkey Association agreement of September 12 1963, usually known as the “Ankara Agreement”. The terms of the Agreement have been the subject of a number of recent decisions of the courts, including R (Tum and Dari) v SSHD, reference C-16/05 in the European Court of Justice and SS and others [2006] UKAIT 00074 in this Tribunal. For present purposes it is sufficient to say that the purpose of the Ankara Agreement was to promote a move towards the abolition of restrictions on freedom of establishment and freedom to provide services by those who wished to move between Turkey and the European community as it was at the date of the agreement. Article 41.1 of the Additional Protocol to the Agreement prohibits the introduction of new national restrictions less favourable than those in force at the relevant date. In the case of the United Kingdom, the relevant date is the date of the United Kingdom's accession to the European community, that is to say 1 January 1973. Thus, in a case to which the Ankara Agreement applies, an applicant is entitled to have his claim assessed on the basis of rules which are no more restrictive than those in effect on that date. The Immigration Rules in effect on that date were HC 509 for control on entry and HC 510 for control after entry, both of 197Those rules permit “switching”, that is to say securing an extension of leave for a purpose different from that for which leave to enter the United Kingdom was obtained, in a wider range of cases than under the present Rules, HC 395. In this respect the present Rules are more restrictive than the Rules enforced on 1 January 1973, and it is common ground between the parties that the appellant is entitled to rely on the earlier Rules.
On 13 January 2007 the appellant was admitted to the United Kingdom with leave until 10 July 2007. The present application was made under cover of a letter dated 11 June 2007, that is to say within the currency of her leave. It was an application for an extension of leave as a self-employed person, under the provisions of para 21 of HC 510, of which we set out the relevant parts below. The application was accompanied by documentation relating to the appellant's business as a cleaner. The application was refused because the Secretary of State was not satisfied that the appellant would really be self-employed, rather than working at the behest of others. The Secretary of State was also not satisfied that the appellant would genuinely be devoting assets of her own to the business and regarded other aspects of the application as lacking in credibility. Thus the application was refused.
Before the Immigration Judge the appellant attempted to prove that her business was one which entitled her to the benefits of para 21 of HC 510. We need to set out in some detail the evidence upon which she relied.
The most substantial document is a business plan prepared by accountants. It shows a cash flow forecast for the period of April 2007 to March 2008 and projected income of £10,671 for the same period. It is fair to say that it is calculated, no doubt with an eye to tax liability, after deduction of £100 per week for the “overhead expense” of the use of her home as an office. This is a projection, therefore, of a real income not far short of £300 per week. There are bills for advertising, dated April 2007, and a letter relating to the arrangements of a telephone line for the business, dated 12 February 2007. On 27 March 2007 HM Revenue and Customs wrote to the appellant indicating that from material available to them they believed that the appellant should be completing tax returns each year. There is a form submitted to HM Revenue and Customs indicating that the appellant started working for herself on 6 April 2007. On 17 April 2007 HM Revenue and Customs wrote to the appellant to thank her for telling them that she had begun self-employment. On 2 May 2007 the appellant took out business insurance under the name of her business. Advertising material issued in that name shows that there was a subscription to a number which perspective customers could call without charge. There was also a certain amount of financial information relating to the currency of the business, including a receipt for the purchase of cleaning materials on 20 April 2007, the total amount being £198.20. The appellant said in oral evidence that she had begun trading in June 2007 and indicated that her income was, by the date of the hearing, about £180 per week.
The Immigration Judge's conclusion was that the appellant had dressed up what was really employment as a cleaner to make it look as though it were a cleaning business. In reaching that conclusion he took into account the minimal level of the appellant's expenditure, and the fact that she had been somewhat disingenuous in claiming that her work came mostly from advertisements. He said:
“It is right to say that there is nothing in HC 510 which prevents a very small scale business from coming within the rule but applying the rule as best I can it seems to me that this kind of operation with its absence of assets and liabilities does not fall within the exemption granted for business people.”
He therefore dismissed the appeal.
The grounds for reconsideration argue that para 21 of HC 510 does not impose any restriction on the size of the business. The Immigration Judge had made certain findings to the effect that the appellant was self-employed; he ought to have followed those through and concluded that she was entitled to the benefits of para 21. The order for reconsideration was on the basis that “there is an issue as to whether the Immigration Judge was permitted to define the type of business covered by the agreement in such [a way] as to exclude the appellant's activities.”
Thus the matter stood when it came before us for reconsideration. At the beginning of the reconsideration hearing, having noted the history of the case and grounds for reconsideration, we pointed out to Mr. Morris that there was some doubt whether we ought to hear him. The reason for that question was that, as was evident, he proposed to demonstrate that, contrary to the Immigration Judge's view, the appellant was the proprietor of a real business. In other words, he proposed to rely on her business activities to date, in combination with her proposal, to show the nature of the enterprise in which she was engaged. The appellant had, however, been admitted on a visitors visa. That was the visa for which she had apparently applied; she had apparently accepted it in her passport and had entered the United Kingdom on the strength of it. The visa is endorsed “NO WORK OR RECOURSE TO PUBLIC FUNDS”. The appellant's case relies to a very great extent on a breach on that condition. On her own oral evidence she began work during the currency of her visitor's leave; documentary evidence deriving from the appellant shows that for some purposes at least her case is that she began earlier than June 2007 indeed, she was in contact with the tax authorities in the United Kingdom relating to her self-employment within a few weeks after her arrival as a visitor. To work in breach of her leave was an offence, and it followed that in seeking to overturn the Immigration Judge's decision Mr. Morris would be relying upon the appellant's criminal acts; and would be doing essentially the same in asserting that she could derive substantive rights under para 21 of HC 510 by working in breach of the conditions of her leave to enter.
To our great surprise, neither party appeared to have considered this aspect of the case before. That may be understandable in view of the fact that the appellant's application was, in terms, for the setting up a business in the future and the Secretary of State's response to it also looked to the future. As we have noted, however, the evidence supporting the application and the appeal was not evidence devoted to the period after the expiry on the appellant's leave as a visitor. Both parties accepted that the issue needed to be dealt with, and the reconsideration was adjourned to allow them time to do so.
The principal ex turpi causa non oritur actio is well known and was not the subject of any specific submission to us. A recent and helpful statement of it is to be found in the Polanski v Condé Nast Publications Ltd [2005] UKHL 10. The action was a defamation action, in which the claimant sought an order, which the court in its discretion could make, that he be allowed to give his evidence by video link from France. The intention behind that application was that by doing so he would avoid having to come to the United Kingdom, from where he would be extradited to the United States of America...
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