R (on the application of Temiz) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Grubb |
| Judgment Date | 19 November 2015 |
| Neutral Citation | [2016] UKUT 26 (IAC) |
| Date | 19 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2016] UKUT 26 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
UPPER TRIBUNAL JUDGE Grubb
In the Matter of an Application for Judicial Review
For the Applicant: Mr J Walsh, instructed by Qualified Legal Solicitors
For the Respondent: Miss M Bayoumi, instructed by the Government Legal Department
R (on the application of Temiz) v Secretary of State for the Home Department IJR
The applicant is a citizen of Turkey who was born on 7 February 1977. In these proceedings he challenges the decision of the Secretary of State taken on 16 September 2014 refusing to grant him leave to remain in order to establish himself in a business under the Turkey-European Community Association Agreement (“the Ankara Agreement”) under paras 4 and 21 of Statement of Immigration Rules for Control after Entry (23 October 1972) (HC 510).
The applicant came to the United Kingdom on 22 October 2001 with leave as a student valid until 15 April 2002. His leave as a student was subsequently extended until 20 January 2005. His leave expired on that date although the applicant says that he was unaware of that until 2008 as he believed that his college was arranging for further leave.
On 22 September 2009, the applicant applied for further leave to remain on compassionate grounds. That application was refused on 5 April 2011 and on 29 May 2012 the applicant was served with a notice of removal. His appeal to the First-tier Tribunal was heard on 23 July 2012 but dismissed. His subsequent applications for permission to appeal were refused by the First-tier Tribunal and the Upper Tribunal on 24 August 2012 and 12 November 2012 respectively.
Removal directions were set for 12 December 2012 but prior to that the applicant submitted an application for leave, relying upon the Ankara Agreement, in order to establish a proposed business. A further application was made in February 2013. On 26 July 2013, the Secretary of State refused that application. The applicant sought reconsideration and his application was again refused on 28 November 2013. Permission to bring judicial review proceedings in relation to those decisions was refused by the Upper Tribunal on 9 April 2014.
On 28 April 2014, the applicant made a fresh application for leave to remain on the basis of his proposed business relying again on the Ankara Agreement.
On 16 September 2014, the respondent refused that application.
A pre-action protocol letter was sent by the applicant's representative on 29 October 2014 and the respondent replied on 25 November 2014. On 5 December 2014, these proceedings were filed challenging the decision of the respondent to refuse leave in order for the applicant to establish his business taken on 16 September 2014.
Permission having been refused on the papers on 12 February 2015, following an oral renewal of the application for permission, HHJ Curran QC granted the applicant permission by order dated 7 May 2015.
It was common ground between the parties that the applicant as a Turkish national seeking leave to establish himself in business fell within the so-called “standstill clause” in Art 41(1) of the Additional Protocol to the Ankara Agreement. As a consequence, it was also common ground that the applicant was entitled to have his application for leave decided under the Immigration Rules in force on 1 January 1973 the day on which the UK joined the European Economic Community. It was also common ground that the application for leave to remain had to be decided in accordance with paras 4 and 21 of HC 510 which were the relevant Immigration Rules in force on that date.
Those Rules provide as follows:
“ General considerations
4. The succeeding paragraphs set out the main categories of people who may be given limited leave to enter and who may seek variation of their leave, and the principles to be followed in dealing with their applications, or in initiating any variation of their leave. 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. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country.
….
Businessmen and self-employed person
21. People admitted as visitors may apply for the consent of the Secretary of State to establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on its merits. Permission will 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 proportion of any liabilities the business may incur; and that his share of its profits will be sufficient to support him and any dependants. 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. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant's stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of time of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially.”
Finally, it was common ground that these Rules set out a more “flexible” approach to the grant of leave to those wishing to establish themselves in business or self-employment than the current Rule in HC 395 (see R v SSHD ex parte Joseph [1977] Imm AR 70 and EK (Ankara Agreement – 1972 Rules – construction) Turkey [2010] UKUT 425 (IAC)).
In her decision of 16 September 2014, refusing the applicant leave, the respondent applied both paras 4 and 21 of HC 510 in the following terms:
“You have applied for leave to remain in order to establish yourself in business under the Turkey-European Community Association Agreement (ECAA). This contains a ‘standstill clause’ which means that the United Kingdom may not impose conditions for business applicants less favourable than were in force when the agreement came into force for the UK in 1973. Your application has therefore been assessed in accordance with the after entry business provisions in force in 1973 (HC510).
However, your application is refused under paragraphs 4 and 21 of HC510.
You are referred to paragraph 4 of HC510, which states:
‘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. It will, for example, be relevant whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he represents a danger to national security; or whether, if allowed to remain for the period for which he wishes to stay, he might not be returnable to another country.’
Further to the highlighted section of paragraph 4 (and paragraph 21 below) your application is refused because you have breached immigration law in the following regard:
The Secretary of State is not satisfied that you have observed the time limit of your leave to remain in the United Kingdom.
It has previously been established that you have not held leave to remain since 30 January 2005 and your appeal contesting that fact was dismissed. You have now been an overstayer in the United Kingdom since that date and all your appeal rights were exhausted on 4 May 2011.
It has therefore been decided, taking all the circumstances of your case into account, that you should not be allowed to benefit from your breach of immigration law.
Your case has also been considered under paragraph 21 of HC510. Permission to establish in business is dependant upon a number of factors although satisfying the Secretary of State that these formal requirements are met is not conclusive in your favour in accordance with paragraph 4 of HC510 above. However, your application is refused under paragraph 21 of HC510 because, despite the fact that you have put together your current application to show your intention to operate a business as an importer and exporter of medical equipment, your documentary evidence has all been accumulated whilst you have remained in the United Kingdom as an overstayer with no legitimate right to remain here and so these documents are not acceptable for the purpose of consideration of your current application.
You made your application on 26 April 2014. However, your leave to remain expired on 30 January 2005. You therefore did not have leave to remain at the...
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Upper Tribunal (Immigration and asylum chamber), 2015-12-10, [2016] UKUT 26 (IAC) (R (on the application of Temiz) v Secretary of State for the Home Department (IJR))
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...exercise this is therefore a factor against him.” Ms Daykin placed reliance upon the Upper Tribunal’s decision in R (Temiz) v SSHD IJR [2016] UKUT 26 (IAC) (UTJ Grubb) where, in quashing a decision of the Secretary of State refusing the applicant leave to remain under the Ankara Agreement, ......