R (Parmak) v Secretary of State for the Home Department

Introduction

In this application for judicial review, the claimant challenges a decision of the defendant dated 23rd July 2005 refusing him leave to enter the United Kingdom in order to establish himself in business as a contract cleaner and stating that directions would be given for his removal to Turkey. The letter said that there was no right of appeal against the refusal of leave to enter. Removal directions were given on 3rd August. Section 3 of the claim form identified the date of the decision to be judicially reviewed as 3rd August and sought a quashing order in respect of the decision letter dated 23rd July and a mandatory order requiring the Secretary of State to accord the claimant a right of appeal to the Asylum and Immigration Tribunal.

The claim has not challenged the substance of the decision letter dated 23rd July 2005 and the issue raised in these proceedings is whether he is entitled to make an "in-country" appeal against the decision with the practical consequence that removal directions would have to be suspended pending the final determination of such an appeal.

The background facts

The parties are agreed that the background facts can be summarised as follows. The claimant is a Turkish national who was born in Kigi, Turkey on 27th June 1980. He arrived in the United Kingdom via Dover on 21st August 1999 and claimed asylum at the port on the grounds that he had a well-founded fear of persecution in Turkey because of his Kurdish ethnicity. On 14th October 2001, the Secretary of State refused his claim for asylum and the claimant appealed to an adjudicator. On 24th April 2003, the Adjudicator's determination, dismissing the claimant's appeal, was promulgated. The Adjudicator concluded that the claimant did not have a well-founded fear of persecution if he was to return to Turkey. The claimant sought permission to appeal against that decision and, by a determination dated 5th June 2003, the Immigration Appeal Tribunal refused permission to appeal on the grounds that there was no arguable error of law by the Adjudicator and no basis to challenge the Adjudicator's findings of fact.

On 12th July 2005, the claimant was detained in Campsfield House, Oxford, pending his removal to Turkey. Whilst he was in detention, his solicitors made a new application on his behalf. This was an application to enter the United Kingdom on the basis that the claimant wished to start a business as a contract cleaner. He sought to rely upon the provisions of the EC-Turkey Association Agreement and submitted what was described as a business proposal to the Secretary of State. The business proposal was prepared on his behalf by accountants. The application for leave to remain in the country on this basis was refused in the decision letter dated 23rd July 2005.

Community law

When the United Kingdom became a member of the European Community on 1st January 1973 it also became bound by the prior agreements which the Community had entered into with those third countries. One of those agreements was the agreement establishing an association between the European Economic Community and Turkey, which was signed at Ankara on 12th September 1963 ("the Agreement") and the additional Protocol thereto signed at Brussels on 23rd November 1970 ("the Protocol").

Article 2(1) of the Agreement states that the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the contracting parties, which includes, in relation to the work force, the progressive securing of freedom of movement for workers. Workers' rights are dealt with in Article 12 and Article 13 deals with the abolition of restrictions on freedom of establishment and Article 14 with the freedom to provide services, all with a view to improving the standard of living of the Turkish people and facilitating the accession of Turkey to the community at a later date (see the fourth recital in the preamble and Article 28).

Article 1 of the Protocol states that it lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Agreement. The Protocol includes Title II, headed "Movement of Persons and Services", Chapter I of which concerns "Workers" and Chapter II of which "Rights of establishment, services and transport". Article 36 of the Protocol, which is in Chapter I, states.

"Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement.

"The Council of Association [a joint EC-Turkey body] shall decide on the rules necessary to that end."

Article 41 of the Protocol is in Chapter II, which is headed "Rights of establishment, services and transport", and provides.

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

"2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services.

"The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade."

The Council of Association has not, as yet, adopted any measures under Article 41(2) of the Protocol. By contrast, in the field of workers (as opposed to those wishing to establish businesses), various formal decisions have been made by the Council to secure rights of freedom of movement for Turkish nationals within the Member States.

The Savas judgment

In C-37/98Savas [2000] ECR 1–2927 the European Court of Justice was concerned with the interpretation of Article 13 of the Agreement, which provides:

"The Contracting Parties agree to be guided by Articles 52 and 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them."

In paragraphs 41 to 45 the court considered whether Article 13 of the Agreement was of direct effect. The court said:

"41. It should be noted that the Court has already held that Article 12 of the Association Agreement essentially serves to set out a programme and that its provisions are not sufficiently precise and unconditional to constitute rules of Community law directly applicable in the internal legal order of the Member States…"

"42. It is clear that, like Article 12, which concerns freedom of movement for workers, Article 13 of the Association Agreement does no more than lay down in general terms, with reference to the corresponding provisions of the EC Treaty, the principle of eliminating restrictions on freedom of establishment between the contracting parties, and does not itself establish precise rules for the purposes of attaining that objective.

"43. Pursuant to Article 22(1) of the Association Agreement, which confers a decision-making power on the Council of Association in order to attain the objectives of the Agreement, Article 41(2) of the Additional Protocol empowers the Council of Association to determine, in accordance with the principle set out in Article 13 of the Association Agreement, the timetable and rules for the progressive abolition of restrictions on freedom of establishment between the contracting parties.

"44. However, the Council of Association has not adopted any measures under that latter provision for the concrete implementation of the general principle that obstacles to the right of establishment between the contracting parties are to be gradually abolished.

"45. In those circumstances, the conclusion must be that Article 13 of the Association Agreement is no more capable than is Article 41(2) of the Additional Protocol, also referred to by the national court, of directly governing the legal position of individuals and cannot therefore have direct effect.

The Court then considered the direct effect of Article 41(1) of the Additional Protocol, saying:

"46. As its very wording shows, this provision lays down, clearly, precisely and unconditionally, an unequivocal 'standstill' clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol."

"54. It follows from the considerations set forth above that Article 41(1) of the Additional Protocol lays down a precise and unconditional principle that is sufficiently operational to...