R Alliance of Turkish Businesspeople Ltd v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip |
| Judgment Date | 27 November 2018 |
| Neutral Citation | [2018] EWHC 3357 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/3649/2018 |
| Date | 27 November 2018 |
[2018] EWHC 3357 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mrs Justice Yip
CO/3649/2018
Ms S. Ford QC and Ms Daykin (instructed by Redstone Solicitors) appeared on behalf of the Claimant.
Mr Z. Malik (instructed by Government Legal Department) appeared on behalf of the Defendant.
The claimant is an incorporated body established in May 2018 to represent the interests of Turkish businesspeople affected by changes to the policy and Immigration Rules for settlement in the United Kingdom under the Turkish European Communities Association Agreement (“ECAA” or “Ankara Agreement”).
On 14 September 2018, the claimant issued a claim for judicial review, seeking to challenge a change in the defendant's policy for granting settlement to Turkish businesspeople under the ECAA and the application of the new Appendix ECAA of the Immigration Rules insofar as it relates to Turkish businesspeople and their dependants. The change in policy was published on 16 March 2018 and took effect immediately. The new appendix was inserted into the Immigration Rules with effect from 6 July 2018, having been laid before Parliament on 15 June 2018.
Under the policy in effect up to 16 March 2018, Turkish businesspeople admitted under the ECAA were entitled to apply for indefinite leave to remain after four years. The new policy requires people to have been present for five years and, in addition, there are new requirements in relation to the payment of a fee and passing language and cultural tests. I accept that for those with families seeking settlement, given that the fee must be paid for each person, there is potentially a substantial liability. It is clear, therefore, that the new policy is less favourable than the old one.
The claimant raises two grounds. Firstly, that the change in policy is contrary to the standstill clause in Article 41(1) of the ECAA, which prevents the imposition of new restrictions on the freedom of establishment. As such, it is unlawful as being incompatible with EU law. Secondly, that those who already had leave to remain under the ECAA prior to 16 March 2018 had a legitimate expectation that they would be eligible to apply for indefinite leave to remain after four years and that their applications would be dealt with as under the old policy. The defendant resists the claim, both on the grounds of delay and substantively.
On 31 October 2018, Murray J refused permission on the papers. In doing so, he concluded that the challenge to the guidance introduced on 16 March 2018 was out of time and that, in any event, the claim did not have a realistic prospect of success, as it was fully met by the decision of McCloskey J, then President of the Upper Tribunal Immigration and Asylum Chamber, in Aydogdu, R (on the application of) v Secretary of State for the Home Department [2017] UKUT 167 (IAC). The claimant renews its application on both grounds orally before me today.
Ground 1
(1) If this court follows the decision of McCloskey J in Aydogdu, the first ground cannot succeed. In that case, the Upper Tribunal was concerned with a claim on behalf of the dependants of a Turkish businessman. It was conceded in the course of the proceedings that the grounds for refusing the wife's application were incorrect and unsustainable, so that the impugned decision was quashed. The claim therefore succeeded and the claimant was awarded costs. However, notwithstanding that the challenge had become academic, the parties sought a ruling on the point of principle raised by the claim as recorded in the headnote to the decision, McCloskey J concluded that:
“The settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause” in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus, the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol.”
(2) I note that a similar approach was taken in the Scottish Court of Session in its decision of BA & Ors v Secretary of State for...
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