Soner Kotuk v Entry Clearance Officer, Warsaw
| Jurisdiction | England & Wales |
| Judge | Newey LJ,Lord Justice Leggatt |
| Judgment Date | 20 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2850 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2016/2767 |
| Date | 20 December 2018 |
[2018] EWCA Civ 2850
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MR JUSTICE GREEN, SITTING AS AN UPPER TRIBUNAL JUDGE
JR/15777/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Newey
and
Lord Justice Leggatt
Case No: C9/2016/2767
Mr John Walsh (instructed by Regnum Solicitors) for the Appellant
Ms Deok Joo Rhee QC and Mr David Mitchell (instructed by the Government Legal Department) for the Respondent
Hearing date: 11 December 2018
Approved Judgment
This appeal raises a question about the scope of the ‘standstill’ provision in article 41(1) of the Additional Protocol to the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 12 September 1963 (the “Ankara Agreement”).
The dispute
On 10 October 2014 the Entry Clearance Officer, Warsaw, who is the respondent to this appeal, granted the appellant Mr Soner Kotuk, who is a Turkish national, a visa which gave Mr Kotuk leave to enter and remain in the United Kingdom for just over nine years until 21 October 2023. In these proceedings Mr Kotuk has applied for judicial review of that decision. He claims that he should have been granted indefinite leave to remain in the UK in circumstances where his wife and sponsor, who is also a Turkish national, had been granted indefinite leave to remain on 22 April 2013. Mr Kotuk's wife had established a business in the UK and had previously been granted limited leave to remain as a businesswoman before she successfully applied for indefinite leave to remain.
On 15 June 2016 Green J, sitting as a judge of the Upper Tribunal (Immigration and Asylum Chamber), dismissed the claim. Mr Kotuk appeals against that decision, with permission granted by Sir Stephen Silber sitting as a judge of the Court of Appeal.
The Ankara Agreement
As its full name indicates, the Ankara Agreement established an “Association” between the European Economic Community and Turkey, with the aim (set out in article 2) of promoting the strengthening of trade and economic relations between the parties and, to that end, progressively establishing a customs union between Turkey and the Community. The Ankara Agreement includes “economic provisions” whereby the parties agreed to be guided by relevant articles of the Treaty establishing the Community for the purposes of progressively securing freedom of movement for workers between them (article 12), abolishing restrictions on freedom of establishment between them (article 13) and abolishing restrictions on freedom to provide services between them (article 14).
The Ankara Agreement also includes an Additional Protocol signed at Brussels on 23 November 1970. Article 41(1) of the Additional Protocol states:
“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
This provision has been described as a ‘standstill’ clause.
In R v Secretary of State for the Home Department, ex parte Savas (C-37/98) [2000] ECR I-2927; [2000] 3 CMLR 729 the Court of Justice of the European Union (CJEU) held that article 13 of the Ankara Agreement is not sufficiently precise to establish any rule which has direct effect in the internal legal order of member states. However, article 41(1) of the Additional Protocol does have such direct effect. The CJEU further held that article 41(1) is not in itself capable of conferring upon a Turkish national a right of establishment and, as a corollary, a right of residence in a member state. However, article 41(1) precludes a member state from adopting any new measure having the object or effect of making the establishment and, as a corollary, the residence of the Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the member state concerned.
The 1973 Immigration Rules
The Additional Protocol entered into force with regard to the UK when the UK became a member of the European Economic Community on 1 January 1973. The conditions relating to residence which on that date applied to Turkish nationals (along with other foreign nationals) who wished to establish or had established a business in the UK were contained in the Immigration Rules for Control on Entry (HC 509) and for Control after Entry (HC 510) laid before Parliament on 23 October 1972. In these proceedings Mr Kotuk relies on rule 35 of HC 509, which states:
“The wife and children under 18 … of a person admitted to the United Kingdom to take or seek employment or as a businessman, a person of independent means or a self-employed person, should be given leave to enter for the period of his authorised stay. Their freedom to take employment should not be restricted …”
It is common ground that, as indicated in the current guidance published by the Home Office on the “business provisions” of the 1973 Immigration Rules, the term “wife” in this rule is to be treated as including a person's husband, civil partner or unmarried or same sex partner.
Mr Kotuk's case
Mr Kotuk's case in this action, shortly stated, is that:
(1) By reason of article 41(1) of the Additional Protocol, his right to reside in the UK as the spouse of a person who has a right of establishment and hence a right of residence in the UK is governed by rule 35 of HC 509;
(2) His wife has been granted indefinite leave to remain and thus authorised to reside indefinitely in the UK; and
(3) Applying rule 35, Mr Kotuk was entitled to be given leave to enter the UK with a right to remain for the same period as his wife – i.e. indefinitely.
The decision of the Upper Tribunal
In the Upper Tribunal Green J rejected Mr Kotuk's case and dismissed the claim. In summary, the reasons given by the judge were that:
(1) Rule 35 of HC 509, properly interpreted, does not apply where the person who has already been admitted to the UK has been granted indefinite leave to remain in the UK;
(2) Equally, once that person has been granted indefinite leave to remain, the Ankara Agreement is no longer applicable, as any economic rights which he or she is exercising derive from the status of settlement and not from the Ankara Agreement; and
(3) Family members of Turkish nationals cannot in any case benefit from the standstill provision in article 41(1).
The issues on this appeal
On this appeal Mr Kotuk challenges these reasons for dismissing the claim. The respondent seeks to defend at the least the first two of the judge's reasons but also, by a respondent's notice, seeks to uphold the decision of the Upper Tribunal on two alternative or additional grounds. The first of these grounds is that the settlement of Turkish nationals and their family members is said to be outside the scope of article 41(1). The second ground is that granting Mr Kotuk indefinite leave to remain would be inconsistent with article 59 of the Additional Protocol, which provides:
“In the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community.”
In 1973 a citizen of a member state had no permanent right of residence in another member state. Such a right has since been introduced by Directive 2004/38 (the “ Citizens' Directive”). But under the Citizens' Directive a person must be resident in the host member state for at least five years before a permanent right of residence may be acquired. The respondent argues that it would be contrary to article 59 to treat a family member of a Turkish national as entitled to indefinite leave to remain by reason of the Ankara Agreement in circumstances where a family member of an EU national would not have such a right.
The court's approach
Showing appropriate realism, Mr Kotuk's counsel, Mr Walsh, did not object to the respondent's application to rely on these additional grounds. Mr Walsh further suggested that the court might wish to consider as the first issue the first additional ground, being the respondent's argument that the settlement of Turkish nationals and their family members is outside the scope of article 41(1) of the Additional Protocol. Although this issue was not raised in the Upper Tribunal, it is a point of law which, if correct, provides a complete answer not only to this claim but also, potentially, to any claim which relies on the Ankara Agreement to assert a right of settlement in the UK.
The court agreed that it is appropriate to deal with this point first. In the light of our decision, announced at the hearing and explained below, that the respondent's argument is correct, we did not hear oral argument on the other issues.
The respondent's case on the scope of article 41(1)
The respondent's short point, as advanced by Ms Rhee QC, is this. Article 41(1) is concerned with the freedom of establishment (and the freedom to provide services) of Turkish nationals in what is now the European Union. It does not refer to residence and does not expressly or directly prohibit member states from introducing new restrictions on residence. Article 41(1) applies to residence only by implication, in so far as restrictions on residence prevent or impede the exercise of the right to establish a business (or to provide services) in a host member state. In order to exercise the right of establishment, it is not necessary for the person who wishes to establish or who has established a business to be granted a permanent right of residence, or settlement, in the member state concerned; it is only necessary that this person should be entitled to reside in the member state so long as...
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...R(Aydogdu) which led the Home Office to reformulate the policy. It might be noted that in R(Kotuk) v Entry Clearance Officer, Warsaw [2018] EWCA Civ 2850; [2019] 4 WLR 10 the Court of Appeal also held that restrictions on the settlement in the UK of Turkish business people or their depend......