Ka (Turkey) (Appellant/Claimant) v Secretary of State for the Home Department (Respondent/Defendant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix,Lord Justice Tomlinson,Lord Justice McFarlane |
| Judgment Date | 12 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1183 |
| Date | 12 September 2012 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2010/0485 |
[2012] EWCA Civ 1183
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE KING
IA/11576/2009
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rix
Lord Justice Tomlinson
and
Lord Justice McFarlane
Case No: C5/2010/0485
Mr John Walsh and Mr Saad Saeed (Solicitor Advocate) (instructed by Messrs Aman) for the Appellant
Mr Robert Palmer (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Wednesday 30 th May 2012
Thursday 31 st May 2012
Kadir Ascioglu is a Turkish national who came to this country as a visitor with leave to enter or remain for six months from 22 March to 22 September 2007. On 20 September 2007 he applied, through Kuddus Solicitors, for leave to remain as a self-employed business person under the EC-Turkey Association Agreement (the "Ankara Agreement"). His case has been in the toils of the legal process commenced by his application ever since. Meanwhile, he has lawfully remained in this country under the provisions which extend his leave until the end of the appeal process.
The standstill clause and the relevant rules
By article 41(1) of the Ankara Agreement, the so-called "standstill clause", the United Kingdom is prevented, as from its accession to the EC on 1 January 1973, from introducing more restrictive conditions on freedom of establishment for Turkish nationals. Thus Turkish nationals who seek leave to enter or remain as self-employed business persons have their applications determined under the then existent rules (made in 1972) rather than under more modern and restrictive rules. I shall call the then existent rules the "1972 rules", but sometimes they are referred to in relevant literature as the 1973 rules.
Those rules are paragraphs 4 and 21 of HC 510. They provided as follows:
"4. The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. In deciding these matters account is to be taken of all the relevant facts; the fact that the applicant satisfies the formal requirements of these rules for stay, or further stay, in the proposed capacity is not conclusive in his favour. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country…
Businessmen and self-employed person
21. People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on its merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it; that he will be able to bear his proportion of any liabilities the business may incur; and that his share of its profits will be sufficient to support him and any dependants. The applicant's part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of time of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially."
The basic facts
Mr Ascioglu was born on 1 January 1984. It is common ground that there is no need to anonymise his name, although that has occurred hitherto. His application was to remain as a self-employed barber. His application included a copy of his shorthold assured tenancy, his Turkish barber licence setting out his qualifications as a barber, banking documents from HSBC, his business plan and service agreements for renting a chair in a number of Glasgow barber shops. His application was made on a special Home Office Border & Immigration Agency form. In it he ticked the box headed "Switching" (ie "if you are a Turkish national and you entered the UK in a capacity other than as a self employed business person, and you wish to switch into this category"). One of the questions asked by the form was: "4.4 On what date did you start your self employment?" Mr Ascioglu wrote: "Will commence 1/10/07." This was admittedly an all-purpose form, which was also designed for those who were seeking to extend an initial twelve month grant of leave under the Ankara Agreement.
In law Mr Ascioglu was not permitted to start his self employment until he received a favourable response to his application. In practice, however, at that time the Home Office was prepared to deal with such applications on a pragmatic basis which reflected a concern that delays in the processing of such applications were unacceptably long, so that applicants, who had to show that their business plan made economic sense and that they could support themselves without becoming a burden on the state, were finding that their store of capital, which they needed to start in business, became eaten up by the wait for approval of their application. The litigation in this case has occurred because Mr Ascioglu's application bridged a period when this pragmatic response changed into what essentially became a robust refusal to approve any application where the applicant had started working in breach of the condition of his leave. The history of that change is complex and convoluted and will need to be set out in further detail below, but that is the essence of the problem.
On 28 January 2008, still reflecting the pragmatic approach just referred to, the Home Office wrote to Kuddus Solicitors concerning its need for "further documents/information requested below" so that it could consider the case. The listed documents included "Personal and business account statements (original) since the business commenced trading or for the past three months", "Evidence of work undertaken so far in the UK (contracts, invoices, letters from clients etc.) if they are currently on conditions which allow them to work", "Proof that he has advertised his services in the UK", and "Proof that he has notified the Inland Revenue that he is self-employed". The theme of the letter was to the effect that the applicant was asked to prove the genuineness of his business: but within the wording quoted an observant reader will have noted that there is a reference to "conditions which allow them to work". The requested details were provided by letter dated 14 February 2008. The letter enclosed—
"1. Evidence of work undertaken so far in the UK by our client includes service agreements, invoices, and the letters from clients.
2. Proof of advertising his business in the UK.
3. Proof of notification that Inland Revenue is aware of his self-employment as well as his business.
4. A written confirmation that he will not be seeking employment in the United Kingdom other than work for his business; and also on the same letter our client confirms that he will not claim public funds.
5. A letter from his landlord with a attached tenancy agreement.
6. Our client is not holding a bank account in the UK. However, he has a worldwide HSBC account and a bank card which he can use throughout the world. Also our client has 3250.00 GBP in his account."
Mr Ascioglu was later to give unchallenged evidence to the Asylum and Immigration Tribunal (AIT, Immigration Judge Wood TD) that, having started work in October 2007 he had last worked on 29 February 2008. It appears that he did both, ie commenced work and ceased work, on the advice of his solicitors. IJ Wood stated that "I have no reason to doubt that the Appellant relied upon the legal advice that was made available to him" (at para 20). On that basis he expressed some sympathy for Mr Ascioglu "who has taken appropriate legal advice throughout the process" (at para 24). The significance of stopping work at the end of February 2008 was that it was from around that time (evidence in another case from the respondent secretary of state put it as "around March 2008") that refusal notices began to be issued refusing applicants solely on the ground of breach of conditions of leave.
The two Home Office refusals
The Home Office refusal in Mr Ascioglu's case came on 31 July 2008. It stated:
"You established your business on 6 October 2007 in breach of the conditions of your previous leave to remain as a visitor which prohibited economic activity.
It is our position that establishing a business in breach of the conditions of your...
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