R (LF (Turkey)) v Secretary of State for the Home Department

In these proceedings the applicant seeks judicial review of a decision by the Secretary of State to refuse his application for leave to enter the United Kingdom as a self-employed businessman. The applicant had relied on article 41(1) of the Additional Protocol to the Association Agreement between the European Economic Community and Turkey. I will explain the significance of that article in due course. Lloyd-Jones J refused judicial review permission on 23 February 2007. However, judicial review permission was granted on consideration of the papers by Sir Henry Brooke on 9 March 2007. Sir Henry directed that the substantive judicial review be retained in this court.

It is convenient, before I explain the particular provision relied on, to give a brief account of the facts. The applicant is a Turkish national. He arrived in the United Kingdom on 1 December 2000 and claimed asylum the same day. On 2 December 2000 while that claim was under consideration, he was granted temporary admission to the United Kingdom subject to a requirement that he should not enter employment paid or unpaid or engage in any business or profession. His asylum claim was refused on 7 November 2001. His appeal against that refusal was dismissed by an adjudicator in a determination promulgated on 2 June 2003. The adjudicator accepted that parts of the history given by the applicant were credible but rejected the core of his asylum claim as false.

The applicant appealed with permission to the Immigration Appeal Tribunal. That appeal was dismissed on 25 February 2004. His appeal rights under the then statutory arrangements were finally exhausted on 11 June 2004 by which time he should have made arrangements to return to Turkey. The applicant's temporary admission, originally granted as I have said on 2 December 2000, was from that date onwards extended from time to time by the service of successive forms IS96 while the decision on his asylum application and the appeal process ran its course. At every renewal up to October 2006 the prohibition on employment and engaging in any business or profession was expressly continued. That prohibition therefore was current on 27 June 2004 when on the applicant's own account he entered into business running a café restaurant. Renewals in October 2006 and thereafter did not on their face repeat the restriction against working, though it is right to say there was no notice to the applicant that the restriction was lifted, despite the fact that every form IS96 which granted temporary admission subject to restrictions stated in terms that if existing restrictions were to be changed an immigration officer would write to the applicant. I will consider the significance of the absence of the working restrictions from October 2006 a little later in this judgment.

On 19 January 2005 the applicant applied for leave to enter the United Kingdom as a self-employed businessman. He relied on the Turkish EC Association Agreement of 1963. It is known as the Ankara Agreement and I will refer to it as such. In particular he relied on article 41(1) of the Additional Protocol of 1973. This is known as the standstill clause. It provides:

“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”

The applicant's purpose in relying on the standstill clause was to secure that his case was dealt with pursuant to the immigration rules in force in 1973, namely those contained in House of Commons Paper 509, as opposed to the then current rules contained in House of Commons Paper 395 as amended. The latter rules were more restrictive. Paragraph 205 of HC 395 states that entry to the United Kingdom by a person seeking to establish himself in business is to be refused if the applicant does not produce a valid entry clearance for entry in that capacity to the immigration officer on arrival. Paragraphs 30 to 32 of HC 305 by contrast allow that a claim may be entertained without any entry clearance but provide (I summarise) that entry is to be refused if the Secretary of State is not satisfied that the applicant is able to establish himself in business in the United Kingdom or that he could maintain and accommodate himself out of the profits of the business.

The applicant's application of January 2005 was refused by letter dated 17 October 2005. The Secretary of State says that in accordance with stated policy the application was considered both under HC 395 and HC 509 and the applicant failed to pass muster on both. I need not go further into the details since this is not itself a decision now under challenge. It was in fact sought to be challenged by way of judicial review and at length on 20 July 2006 a consent order was sealed, whose effect was that the judicial review claim would be withdrawn and the Secretary of State would reconsider the applicant's application within 28 days and pay the applicant's costs. However, the application was not reconsidered within that time limit. A witness summons from a Mr Emmanuel Iduh made on 11 October 2007 for the purposes of this appeal shows that it was in fact reconsidered by the appropriate unit in Sheffield in late September 200A fresh decision was taken internally to refuse the application, though that was not then communicated to the applicant. On 29 September 2006 (Mr Iduh, paragraph 12) removal directions were set for 13 October 200Still the applicant had not been served with or notified of any fresh decision. On 11 October 2006 the applicant, who was subject to reporting conditions, duly reported at the appropriate place and was then and there detained and the removal directions were served.

Mr Iduh says this at paragraph 13:

“On 12 October 2006 the removal directions were cancelled as the ECAA [I interpolate —that is a reference to the Ankara Agreement] decision had not been served on the Claimant. Although the removal directions had been cancelled, the Claimant was not released at this point because it was still believed that the removal directions could be re-served with the ECAA decision.”

The applicant was at length released on 26 October 2006 (so had been detained for 15 days). He asserts that this was in the circumstances a wrongful imprisonment for which he is entitled to damages. During the course of argument this morning, with the concurrence of both counsel, we gave a direction under CPR part 54(20) that this part of the case (if I may so put it) should proceed as a separate claim, not by way of judicial review, but henceforth in the Queen's Bench Division. It is therefore not necessary in these proceedings to say any more about it. I return to the narrative.

A decision further refusing the applicant's application was at length served on 23 November 2006. Under HC 395 (like the earlier decision of 17 October 2005) the application was refused for want of an entry clearance and under HC 509 (the 1973 rules) it was refused because at that stage the Secretary of State was still not satisfied that the applicant had shown he was actively involved in trading or providing services in business in the United Kingdom. The current application for judicial review was lodged in the Administrative Court on 27 November 2006. Permission was initially refused on the papers by Silber J on 12 January 2007. The permission application was however restored in court on 24 January 2007. Mitting J adjourned it and ordered that the Secretary of State provide an explanation of the procedures in place for dealing with applications made in Turkey under the Ankara Agreement pursuant to the 1973 rules. On 30 January 2007 Dobbs J adjourned the matter again and ordered that the applicant serve all the documents relied on by him in support of his application for leave to enter. With respect, I am not sure that that was an appropriate order. The Administrative Court's task was not of course to judge the factual merits of the claim to enter the United Kingdom. At all events, Dobbs J's direction prompted the service on 6 February 2007 of a further 185 pages of material by the applicant.

In these circumstances the Secretary of State produced a fresh decision letter dated 19 February 2007. This was the substantial target of the challenge before Lloyd-Jones J on 23 February 2007 and now before us. Again, consideration was given in this decision letter to House of Commons paper 509 and 395. So much appears on the face of the letter. The letter also addressed a claim based on Article 8 of the European Convention on Human Rights. That had been raised in the judicial review application. There was also reference to Article 1 of the First Protocol. Claims under those heads relating to the ECHR were rejected and it was also decided that the representations made on behalf of the applicant did not amount to a fresh claim under paragraph 353 of HC 395 as amended. Now, it is important to notice the specific reasoning of the Secretary of State in this decision letter of 19 February 2007 in relation to the requirements of paragraphs...