R Celal Akturk v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Holman |
| Judgment Date | 08 February 2017 |
| Neutral Citation | [2017] EWHC 297 (Admin) |
| Docket Number | CO/576/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 08 February 2017 |
[2017] EWHC 297 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Holman
CO/576/2016
Miss Nathalie Lieven QC and Miss Emma Daykin (instructed by Stuart & Co) appeared on behalf of the Claimant
Miss Deok Joo Rhee (instructed by the Government Legal Department) appeared on behalf of the Defendant
(Hearing Dates: 31 January and 1 February 2017)
The issues
The claimant is a Turkish national who was granted leave to remain in the United Kingdom for 6 months as a visitor. While here, he applied to the Secretary of State for the Home Department ("the SSHD") to vary his leave to remain in order to establish himself in business here as a window cleaner, relying upon the 1963 European Community Association Agreement with Turkey ("the ECAA") or, as it is often referred to, the Ankara Agreement. The application was refused in October 2015 by an official on behalf of the SSHD. Until April 2015, the claimant would have had a statutory right of appeal to an immigration tribunal from that refusal, but the right of appeal had been abolished with effect from April 2015. The SSHD substituted for the abolished right of appeal a process of administrative review. The claimant applied for administrative review, but that application was also refused by another official.
By his claim to this court for judicial review, the claimant raises the following claims and issues. They are analytically separate and discrete, although there is some overlap between them. Although this is not the order in which they were argued, I propose to deal with them in the following order:
(1) A claim for judicial review of both refusal decisions on the grounds that they are wrong on the facts of the case on conventional judicial review grounds (issue (1));
(2) A claim that the published "guidance" of the Home Office in cases such as this, which the officials applied in reaching their decisions, is unlawful because (i) its effects breach the ECAA, by which the United Kingdom is bound; and/or (ii) it amounts to introducing an immigration rule which has not been laid before Parliament. If that is correct, then it must also afford an additional ground for judicial review of the actual decisions in this case in that the officials avowedly applied the guidance which, on that hypothesis, is unlawful (issue (2));
(3) A claim that the abolition of the statutory right of a judicial appeal and its replacement by administrative review is incompatible with the ECAA. The claimant asserts that an appeal is a less restricted remedy than judicial review; that he had good prospects of success on an appeal; and that he should not have been forced to apply for judicial review (issue (3)).
When Green J granted on paper permission to apply for judicial review, he observed:
"The claim raises an issue which is common to a growing number of similar cases. It is sensible for one case (ie the present) to be determined and others to be stayed pending resolution of this case."
The observations were not further elaborated, but it has been assumed that the "issue" referred to is issue (3) above with regard to the abolition of the right of judicial appeal, although it may be that issue (2) with regard to the guidance is also common to other similar cases. Issue (1) and the challenge to the actual decisions in this case is essentially fact specific, although buttressed (if necessary) by issue (2) and the guidance point.
The facts in more detail
The claimant was born in November 1996. He is a citizen of Turkey and, as I understand it, was brought up there. In 2014 he was granted entry clearance to visit the UK between 31 October 2014 and 30 April 2015 (6 months) on condition of "no work or recourse to public funds". He actually entered the UK on 21 December 2014 when he was aged just 18. He is now aged 20.
On 28 April 2015, two days before his existing leave to remain expired, the claimant applied to the Home Office to vary his leave to remain so as to permit him to establish a business as a self-employed window cleaner. His application was expressly made in reliance upon the ECAA and was accompanied by the prescribed form ECAA2 for such applications. The application was supported by various documents, including a "business plan", which described in some detail the proposed business and its proposed viability. Essentially, the applicant proposed, if leave was granted, to work as a self-employed window cleaner in the Blackpool area in which he lives. The target market was both residential and small business premises, such as cafes, restaurants and shops. The target, although not exclusive, customers appear to have been the Turkish community whose language he speaks.
The business plan stated that the business would be solely owned and run by the applicant. The plan stated that he does not currently have a driving licence but "commits" to obtaining one by the end of the third year of training, and "aims to purchase a vehicle for our [sic] business." In the meantime, he would use taxis or public transport and some provision for the cost thereof was made in the "financial plan" section of the business plan.
By a letter dated 20 August 2015, the SSHD asked for further documents/information, namely:
"• Personal bank account statements in your name from a bank account in the UK (the statements should cover the previous 6 months showing that you have the funds to set up your business).
• A letter from your sponsor [viz his father in Turkey] confirming that you do not have to repay the funds they [sic] have given you to establish in self-employed business."
The claimant's father had already sent him €4,000 with which to set up the business, and a note from the father was now supplied saying that he would not reclaim it. With regard to a UK bank account, the representatives then acting for the claimant (not his present solicitors) wrote on 1 September 2015:
"… our client could not open a bank account in the United Kingdom as he had visitor visa. The sponsor transferred the funds by Western Union and our client keeps the money with himself. He keeps these funds with himself and he will open a bank account once he is granted relevant visa and will put in his bank account."
Further evidence of the transfer of money (actually £2,785 at the then exchange rate) via Western Union was enclosed.
The SSHD did not reply to that letter or ask any further or follow up questions or seek any further information. By a decision letter dated 27 October 2015, the SSHD refused the application and notified the claimant that he could apply for administrative review of the decision "if you think there has been a case working error." The claimant did apply for administrative review in the prescribed form.
By a further letter dated 23 November 2015, an official in the "admin review team 1" informed the claimant that his application for administrative review had been unsuccessful and that he should now leave the United Kingdom or he would be liable to be detained and removed. To all intents and purposes, the decision letter on administrative review merely repeated in abbreviated form what the first decision letter had said.
Issue (1) and judicial review of the actual decisions of 27 October and 23 November 2015
(i) The 1973 rules, HC510
On this part of the case, it is common ground that the effect of the "standstill" provisions of the ECAA or Ankara Agreement, to which I will refer more fully below, is that the claimant's application fell to be considered by reference to the 1973 "Statement of Immigration Rules for Control after Entry" HC510, and in particular paragraphs 4 and 21. Both decision letters purported to do so. There is no doubt that both paragraphs import a wide discretion in the Secretary of State. Paragraph 4 of HC510 includes the following:
"… 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 …"
Paragraph 21 of HC510 deals specifically with applications by "people admitted as visitors … for consent to their establishing themselves here for the purpose of setting up in business", which was the capacity of this claimant and the application which he had made. The paragraph continues in part as follows:
"Any such application is to be considered on merits. Permission may 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 share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him … 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 …."
The case of R v Immigration Tribunal, ex parte Joseph [1997] Imm AR 70 concerned the scope and application of paragraphs 4 and 21. Robert Goff J, with whom the other members of the Divisional Court agreed, said:
"These rules, which are intended to provide guidance as to the practice to be followed, are not … to be construed too rigidly … the paragraph [21] is not … specifying prerequisites for the grant of permission. It is...
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