R (Tum) v Secretary of State for the Home Department (Case C-16/05)

APPEARANCES:

Monday 24 May 2004

This is an appeal from a decision of Davis J of 19 November 2003, which allowed claims by Mr Tum and Mr Dari, the first and second respondents, for judicial review. The case focuses on the question as to whether under European Union law asylum seekers with no other grounds for being in the United Kingdom, and who are returnable to Turkey or to another member of the European Union pursuant to the terms of the Dublin Convention 1990, when making a claim to enter the United Kingdom as a person seeking to establish a business, can rely on the "standstill" provision of Article 41(1) of the Additional Protocol of 1973 to the Ankara Agreement of 1963 between Turkey and the Contracting States.

In relation to conditions of entry for Turkish nationals, the "standstill" clause provides that contracting states should not introduce more restrictive measures than those in force at the time of the Additional Protocol to the Ankara Agreement (in other words, 1 January 1973) .

The case raises an issue of some importance, as the judge in the court below appreciated. The appellant, the Secretary of State for the Home Department, submits that this decision was wrong because in effect it opens up a wholly new method of obtaining entry for Turkish asylum seekers who have failed in every other attempt they have made.

The Secretary of State seeks either that the appeal should be allowed so that the order made in the court below on the application for judicial review be overturned and that application dismissed, or that the issues of Community law raised on this appeal should be referred to the European Court of Justice for that Court to give its decision on those issues.

The applicable law is partly based upon the Association Agreement made between the respective States and the Additional Protocol to that Agreement. The purpose of the Association Agreement was to enable Turkey to have an association with the States then members of the European Community which would enable Turkey to promote trade and economic relations with the members of the then Community which would facilitate in due course the membership of Turkey to what has now become the European Union. In other words, there was to be "a progressive abolition of restrictions on freedom of establishment".

The current Immigration Rules (Rules 200 to 204) set out the conditions that have to be met at the present time where a person wishes to establish themselves in business in the United Kingdom. The requirements are restrictive. They require prior entry clearance and the satisfaction of certain financial criteria, including having not less than £200,000 of the applicant's own money under his control and disposable in the United Kingdom.

At the time that this country became bound by the Ankara Agreement on 1 January 1973 the conditions were markedly less stringent and were contained in the Statement of Immigration Rules for Control on Entry (HC509) and in the Statement of Immigration Rules after Entry (HC510) . That this is the position is not in dispute on this appeal.

At the heart of the differences between the parties to this appeal is the decision of the European Court of Justice in Savas ( Case C-37/98 2000 ECR 1–2927) . In Savas the European Court of Justice examined the position of Mr Savas, a Turkish national, who in 1984 with his wife had obtained leave to enter the United Kingdom as a tourist for one month. Mr Savas overstayed in the United Kingdom for a modest eleven years, having set up a shirt factory in London in 1989, before making an application for leave to remain based on his establishment in the business. Following various legal challenges, Mr Savas sought to rely on the "standstill" provision contained in the Ankara Agreement and Article 41 of the Protocol, thereby asserting that the correct rules to be applied in consideration of his case were the 1973 Rules. That argument was rejected by the Secretary of State and the matter was ultimately referred to the European Court of Justice, who resolved the position. It will be necessary to come back and examine that decision with care in order to determine this appeal. However, it is necessary, first, shortly to set out the facts relating to both of the respondents before doing so. Nothing turns on the facts so far as this appeal is concerned.

The first respondent, Mr Tum, arrived in this country at Dover on 29 November 2001. He claimed asylum on arrival. He was granted temporary admission with a restriction on employment. On 25 April 2002, he was served with a notice of the decision of the Secretary of State refusing him leave to enter and giving removal directions to return to Germany on 3 May 2002. He was then briefly detained. Mr Tum argued that the decision to require him to be removed to Germany was in breach of his human rights. On 2 May 2002 that allegation was certified by the Secretary of State as ill-founded.

Mr Tum sought to have that decision judicially reviewed. He was unsuccessful in that application. On 19 December 2002, he applied for leave to enter this country in order to establish himself in business. He relied on the provisions of the Ankara Agreement and the Protocol. He asked that the application be considered with reference to the Immigration Rules that were applicable on 1 January 1973.

On 12 May 2003, the Secretary of State, having considered the matter on the current rules, refused Mr Tum leave to enter this country for the purposes of establishing himself in business, and indicated that arrangements would be made to return Mr Tum to Germany as soon as possible. Mr Tum obtained an injunction in respect of the removal directions. He subsequently made his claim for judicial review, which was determined in his favour by Davis J.

The second respondent, Mr Dari, is a Turkish national who arrived in this country on 1 October 1998. He arrived by ferry from France, where it appears he had previously claimed asylum. On 5 October 1998, Mr Dari was admitted temporarily to the United Kingdom. On 26 October 1998, his application was refused. France accepted responsibility to receive him under the Dublin Convention if he was removed. For a period between October 1998 and 24 September 1999, Mr Dari "went to ground", fearing removal to France. He instructed new solicitors and voluntarily reported to the Immigration Service on 24 September 1999. He was detained until he was subsequently granted bail. At about this time Mr Dari made an application for judicial review, challenging the instructions for his removal to France. In May 2002 that application was withdrawn.

While Mr Dari has been in this country he has set up his own pizza business in Herne Bay, Kent. He works full-time on a self- employed basis within the business.

On 30 September or possibly 1 October (the facts are not clear) 2002, Mr Dari made an application to the immigration authorities to remain in this country so that he could continue in his business. He made the application on a similar basis to Mr Tum. His application was refused by the Secretary of State, who relied on the current rules rather than those that were in force on 1 January 1973. He also made an application for judicial review which came before Davis J with that of Mr Tum.

In order to understand the arguments which have been advanced, it is important to appreciate that under section 11 of the Immigration Act 1971 a person can be admitted into this country while an application is being considered without being regarded from the legal point of view as having entered into this country. Davis J, not unreasonably in the court below, described this as an "Alice in Wonderland" situation. Although that description is appropriate, the provisions of section 11 are of value because it enables a person who makes a claim to enter this country not to be detained but to be released temporarily while his position is considered. His position is neither improved nor prejudiced as a result of his being admitted in this way.

To consider the argument on this appeal, which is the same as was considered by the court below, it is very important carefully to consider the decision of the European Court of Justice in Savas. Mr Savas had overstayed to a very substantial extent the period for which he was permitted to be in this country. His position was therefore irregular in the sense that he had no permission to stay for the time that he did so. However, there was no suggestion that he had acted fraudulently...