R(Alliance of Turkish Businesspeople Ltd) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 18 March 2019 |
| Neutral Citation | [2019] EWHC 603 (Admin) |
| Docket Number | Case No: CO/3649/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2019 |
[2019] EWHC 603 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dingemans
Case No: CO/3649/2018
Sarah Ford QC and Emma Daykin (instructed by Redstone Solicitors) for the Claimant
Sir James Eadie QC and David Mitchell (instructed by Government Legal Department) for the Defendant
Hearing date: 7 March 2019
Approved Judgment
Introduction
This is a claim for judicial review which raises issues about a substantive legitimate expectation. The claim arises as a result of a change of policy made by the Secretary of State for the Home Department on 16 March 2018 affecting the right of Turkish business people and their dependants to obtain indefinite leave to remain (“ILR”).
The Alliance of Turkish Businesspeople Limited (“the Alliance”) claim that the Secretary of State has acted in breach of a substantive legitimate expectation derived from the published guidance, the relevant Immigration Rules applying in 1973 and individual letters, by imposing the change of policy on 16 March 2018 on all those who had not yet applied for ILR. The change of policy imposed additional requirements to obtain ILR. These were: an additional year of residence, being 5 years as opposed to 4 years; the payment of application fees; and success in an English language test. The Alliance contends that these changes have caused real hardship to Turkish business people and their dependants. The Alliance contends that this change of policy for those who had applied under the old scheme, was so unfair as to amount to an abuse of power.
The Secretary of State contends that there was no clear and unambiguous representation on which it was reasonable for the Turkish business people to rely because the only representation made had been that the policy at the time was as set out in the guidance, rules and letters, and that the Turkish business people must be taken to know that the policy might change. In any event any representations which were made were about the legal effect of the European Community Association Agreement (“ECAA”) with Turkey, known as the “Ankara Agreement”, to which the United Kingdom had become a party on 1 January 1973, and the Turkish business people must be taken to know that if there was a change in the understanding of the legal effect of the Ankara Agreement, the policy would change. Finally, even if there had been a clear and unambiguous representation on which it was reasonable for the Turkish business people to rely, the changes made to the policy were pursuing a legitimate aim and had been carefully calculated to ensure that there was not such unfairness as to amount to an abuse of power. All those who had applied before 16 March 2018 would be considered under the old policy, and the changes were limited and proportionate.
Issues
I am very grateful to Ms Sarah Ford QC and Sir James Eadie QC and their respective legal teams for their helpful written and oral submissions. There was some dispute about the relevant legal principles to be applied, but by the conclusion of the hearing those disputes were very minor, and I will address the applicable law below.
The following matters are in issue: (1) whether there was a clear and unambiguous representation on which it was reasonable for the Turkish business people to rely; (2) if so, whether the immediate change of policy on 16 March 2018 amounted to such unfairness as to be an abuse of power in the sense that frustrating the substantive legitimate expectation could not be objectively justified as a proportionate response having regard to a legitimate aim pursued by the Secretary of State in the public interest.
The claim
In the judicial review claim form the Alliance challenged the change of policy asserting that it was unlawful on two grounds: (1) that the change of policy was contrary to the standstill clause (“the standstill clause”) contained within article 41(1) of the Additional Protocol of the Ankara Agreement; (2) that the change of policy infringed the legitimate expectations of Turkish business persons who had come to the United Kingdom under the old policy.
Permission to apply was given earlier in the proceedings in respect of the legitimate expectation ground of challenge only. The Alliance has renewed the application for permission to apply to the Court of Appeal in respect of the standstill clause challenge so that issue is not before me, and I have not addressed it.
The evidence
There were witness statements on behalf of the Alliance by: Ipek Candan; Gokce Berkkan; Cansu Akbulut; Beyza Nur Ataci; Hatice Aydogu; Cigdem Tulga; Taner Oter; Nesime Olcay; Yakup Elgun; Cagdas Karakoc; and Serdar Coskun which were made on 10 or 11 September 2018. There was a witness statement from Laura Brasnett, a senior policy official at the Home Office, dated 24 January 2019 on behalf of the Secretary of State.
The evidence showed that Turkish business people, some of whom had lived in the UK before applying for the scheme, had applied under the ECAA Business person scheme in the expectation of being able to apply for ILR after 4 years. Some of them had taken a business risk in setting up a business which complied with the scheme and some said that they might have applied to other countries or stayed in Turkey if they had known that the scheme would change. Some had become eligible to apply for ILR before 16 March 2018 but had not submitted the applications before 16 March 2018 because they had not expected an overnight change of policy and were granted only leave to remain for a further 3 years rather than ILR. Some had lost business, business and personal finance and expansion opportunities because parties were not willing to contract with someone whose leave to remain was limited and because of the changes. Some would have come to the UK earlier than they did. Some had lost the right to apply for loans from the Student Loan Company for university fees. Some had delayed plans for a family because of the delay in obtaining ILR. The fees required to apply for ILR were very high because some had a number of dependants. This evidence was relied on to illustrate some of the real and practical difficulties caused by the change of policy.
The evidence on behalf of the Secretary of State showed that the understanding of the effect of the standstill clause in the Ankara Agreement was changed as a result of judgments in two cases. The implications of the judgments were considered and there was delay in the processing of applications for ILR by Turkish business people and their dependants between March and July 2017. Applications then continued to be processed as the new policy was formulated. The evidence showed that various options were considered, together with potential discrimination to other non-EU nationals who were subject to standardised requirements. The evidence showed that the new policy sought to balance the need to manage migration whilst not disadvantaging Turkish nationals who had anticipated being able to settle in the UK under the old policy, and to align more closely the policy for Turkish business people with equivalent routes under the Points Based system.
Figures provided at the hearing, which had not been checked and which it was agreed should be used in this judgment for illustrative purposes only, suggest that there have been about 1,500 to 2,300 applications per annum by Turkish business people under the old policy in the 3 years up to March 2018. This suggests that there are about 6,000 Turkish business people, and their dependants, who were on the path to ILR or had qualified for ILR under the old policy before it was changed on 16 March 2018.
The Ankara Agreement and its interpretation
The Ankara Agreement was made on 12 September 1963 with the general aim of promoting economic relations between Turkey and the European Community and the eventual accession of Turkey to the EEC.
The Ankara Agreement includes an Additional Protocol signed at Brussels on 23 November 1970. Article 41(1) of the Additional Protocol provides: “The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services”. This is the “standstill clause”.
The UK became a contracting party to the Ankara Agreement when it joined the European Economic Community in 1973. This explains the significance of the Immigration Rules which were in force on 1 January 1973. This is because the UK was not entitled to introduce “new restrictions on the freedom of establishment and the freedom to provide services”.
The interpretation of the standstill clause was addressed by the Court of Justice of the European Communities in R v Secretary of State for the Home ex parte Savas (Case C-37/98) [2000] 1 WLR 2000. The Court held that the standstill clause was sufficiently precise to have had direct effect in domestic law. It held that the effect of the standstill clause was to preclude “a member state from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residence of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the member state”. To understand later developments, it is important to note the difference between “residence” and “settlement”.
It is apparent that the standstill clause was understood by the Home Office to mean that Turkish business people and their dependants had to have the same rights to obtain settlement by ILR as those business persons did under the...
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