R Buer v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Simon Picken |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] EWHC 2649 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 May 2013 |
| Docket Number | CO/5235/2012 |
[2013] EWHC 2649 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Simon Picken QC
(Sitting as a Deputy High Court Judge)
CO/5235/2012
CO/5049/2012
Mr D O'Callaghan (instructed by Irving & Co) appeared on behalf of the Claimants
Mr Ben Lask (instructed by Treasury Solicitor) appeared on behalf of the Defendant
(As Approved)
DEPUTY JUDGE: Dealing with the case of Eroglu, this is a case which has been listed with that of Buer. Both cases involve similar issues. It has been convenient therefore to hear argument on both at effectively the same time. Argument started in the case of Mr Buer, but it is convenient —and I will adopt this approach —first to deal with Mr Eroglu's case and then picking up the further issues that arise in relation to Mr Buer.
Dealing with Mr Eroglu, this matter comes to me, permission having been refused by Mr Justice Wilkie on 29 October 2012. This is a case where leave to remain as a worker under the EEA Ankara Agreement was applied for in 2007. In April 2011 the claimant applied for indefinite leave to remain and had fulfilled four years of employment in this country. In July 2012, three years leave to remain was granted but not an indefinite leave to remain. When I say "July 2012", I think I maybe mean 2011.
MR LASK: I think it is June 2012, paragraph 1 of our defence.
DEPUTY JUDGE: The claimant applied for indefinite leave to remain on 20 April 2011. He initially filed this application for judicial review on 8 May 2012 seeking to challenge the Secretary of State's failure to determine that application. In the event, the application was refused on 20 June 2012 because there was granted three years further leave to remain instead. (I think I have that right.)
I deal first with the claim for damages. I regard that claim as unarguable. The claimant does not enjoy a right in law to have his application for indefinite leave to remain determined within six months of the date of the application. It seems to me that the provisions on which the claimant relies have no application; nor do they arguably do so. The reasons I rely upon for that are essentially those set out in paragraphs 37 to 39 of the defendant's summary grounds of defence document. I do not propose to take up time elaborating upon them orally. Suffice it to say that I am satisfied that the provisions relied upon do not apply in the claimant's case. Furthermore, it seems to me that the claimant, in any event, would have no entitlement to damages even if there was an entitlement to have his case dealt with within a particular timescale. I am not satisfied that it is arguable that there has been manifest and grave disregard taking account of the limits on discretion and I am also clear that there is no direct cause or link between the breach (if there was one) and the damages because the claimant's existing leave to remain in the United Kingdom was extended and he was able to remain employed.
Therefore, I am not satisfied that there would be any damages, in any event, awardable.
I now need to deal with the alleged entitlement to indefinite leave to remain. Two essential grounds were relied upon in the written application for judicial review. First, it was said that the claimant is entitled to indefinite leave to remain pursuant to the third indent of Article 6.1 of Decision 1/80: he is "a Turkish worker duly registered as belonging to the labour force of a Member State" who has completed four years of legal employment and hence who enjoys "free access in that Member State to any paid employment of his choice". Secondly, the claimant argued that Article 13 of Decision 1/80 imposes a standstill clause preventing the introduction of "new restrictions on the conditions of access to employment applicable to workers".
In the event, in his oral submissions, Mr O'Callaghan, whilst not withdrawing reliance on Article 6.1, did not elaborate upon the written submissions to any great extent.
I deal, for completeness in any event, with Article 6.1, the ground relied upon, given that it was relied upon heavily in the documentation.
Article 6 provides, as relevant:
"6 Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:
•…..
•…..
• shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment."
The answer, as it seems to me, to the reliance placed on this provision is that Article 6.1 does not give any right to remain indefinitely. As Mr Justice Wilkie put it when refusing permission, the grant at appropriate times of successive periods of three years leave to remain sufficiently reflects the rights the claimant has pursuant to the third indent of Article 6.1, ie, having free access to any paid employment of his choice. The Secretary of State is not obliged to grant indefinite leave to remain simply because the claimant has worked in legal employment for four years. But if a Turkish worker remains in employment, then there is a right of residence. Hence, the right of the Secretary of State to review matters from time to time.
I need not, in the circumstances, take up time on other aspects of the arguments raised by the claimant on Article 6.1 since, unless he is right on this fundamental point, the arguments get him nowhere. I have in mind the points addressed in particular in the defendant's summary grounds of defence (paragraphs 9 to 16). However, of the points made in these paragraphs in particular, I consider that there is force in the points made at paragraphs 13.1 and 13.2, to which I refer.
I should briefly address the points made by the claimant in paragraphs 63 to 69 under the heading "Access to Public Funds". I do not consider the points made in relation to this issue are at all material to the claimant's suggestion that he is entitled to be granted indefinite leave to remain. Nor do I find of assistance the comparison made in paragraph 70 onwards under the heading "Parity with EU Nationals and Others". First, the comparison with EU Nationals is misconceived. They have a permanent right of residence under a different regime, and I do not think it is possible to extract equivalent rights from Article 6.1. As to foreign nationals who have secured entry for the purposes of employment under the immigration laws, it is open to Turkish nationals to apply for such leave after five years. Decision 1/80 is in addition to those rights, as I see it. And as to the particular reliance on the two other examples, Mr O'Callaghan plainly recognised the ability to rely on those comparisons was particular.
That brings me to the standstill clause on which, in the event, Mr O'Callaghan focussed his submissions before me. In writing, this was the second argument relied upon but orally it was really the main argument. The argument is that Article 13 of Decision 1/80 (the so-called standstill clause) prevents the introduction of new restrictions on the conditions of access to employment applicable to workers. It is important to emphasise, as I see it, however that Article 13 is confined, as the Secretary of State submits, to the "conditions of access to employment", and I emphasise the words "access to employment".
Although Mr O'Callaghan sought to submit that by reference to Sahin, to which I was referred, I should approach Article 13 as though it has a wider ambit in the same way, he would suggest, as Article 41 is applicable to self-employed people or business men, I am not satisfied —having reviewed Sahin and taking into account what was said later in Toffat (?), particularly in paragraph 45 relied upon by the Secretary of State in the summary grounds of defence and in oral submissions to me —that it is appropriate to regard Article 13 as extending beyond the realm of access to employment and into the question of settlement for indefinite leave to remain. It seems to me that that is a stretch too far. I do not regard it as arguable that it is appropriate to engage in such a stretch.
In addition, in circumstances where the claimant is already part of the United Kingdom's labour force and as such qualifies for residence under Article 6.1, and I have in mind here paragraph 45 of Toffat (?), it seems to me that again it cannot hope to succeed with the argument that Article 13 gives him a right to indefinite leave to remain. In short, the grant of indefinite leave to remain goes beyond access to employment (the words used in Article 13).
In those circumstances I regard the case based on the standstill clause —Article 13 —as unarguable. As I say, the reference to paragraph 45 is primarily concerned with the question of a worker already having secured access to employment, being part of the work force. It seems to me that, in those circumstances, that represents a complete answer to the reliance on Article 13. I am not satisfied that the references to a residence permit should be taken as stretching as far as the claimant would suggest. It is clear, I suggest, and I consider, that the reference to a residence permit is effectively ancillary to the question of employment which is the proper focus of the standstill clause.
I therefore reject the argument that the standstill clause is available to the claimant sufficiently to...
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The Queen (on the application of Buer) v Secretary of State for the Home Department
...Civ 1109 IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT Mr Simon Picken QC [2013] EWHC 2649 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Lord Justice Maurice Kay (Vice President of the Court of Appeal, Civil Division) Lord J......