SS and Others (Ankara Agreement – no in-country right of appeal)

This notice deals with the cases of four appellants, all nationals of Turkey. Despite being failed asylum seekers, all claim that by virtue of engaging in business or being self-employed in the United Kingdom they are entitled to rely on the “standstill” provisions in the EC-Turkey Association Agreement (September 12, 1963) and the Additional Protocol (November 23, 1970). This is variously described in the submissions as the “EC Turkish Association Agreement” “the Turkish Association Agreement”, the Turkish ECAA”, but is referred to hereafter simply as “the Ankara Agreement”.

The appeals raise an important point of general application to appeals in cases concerned with provisions of the Ankara Agreement relating to persons engaged in business or who are self-employed, in particular whether any appeal may be brought in-country.

There were originally three other appellants. Their appeals had been listed together with the four which now concern us at Taylor House on 29 March 2006 before two members of the current panel. The appeals of these three other appellants no longer concern us as in each case the Secretary of State had sent a letter to the Tribunal stating that the decision under appeal had been withdrawn and the Tribunal then served notice under rule 17(3) of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (SI 2005/230) (hereafter “the 2005 Procedure Rules”) recording the appeal as having been withdrawn.

The initial hearing at Taylor House before two members of the current panel was devoted to hearing argument on the issue of whether the seven appellants had an in-country right of appeal. It was accepted that only if we found they did have an in-country right of appeal could their appeals be considered substantively. Both the Presenting Officer appearing on that occasion (Ms Pal) and the appellants' representative, Mr Chatwin, argued that there was an in-country right of appeal, but both accepted that this was a matter of law properly to be determined by the Tribunal. Shortly after that hearing the parties were notified that there would be a further hearing of a selection of the seven cases. They were also told that the panel's decision on the preliminary issue was that there is an in-country right of appeal in each of the seven cases. However, that decision, being on a preliminary issue, remains subject to determination by the present panel of the cases concerned, which in any event are now reduced to four.

Shortly after the Taylor House hearing, the Tribunal's attention was drawn to a recent Administrative Court judgment by Sullivan J: R( Mehmet Parmak) [2006] EWHC 244 (Admin) dated 13 February 2006 deciding that there was no “in-country” right of appeal in respect of a national of Turkey who had arrived in the UK via Dover in August 1999 and whose application for asylum and subsequent appeals had been rejected but who had then made an application for leave to enter in July 2005 on the basis of the Ankara Agreement. As this had not been cited before the panel (despite Mr Chatwin being Counsel in Mehmet Parmak), the panel wrote inviting the parties to make submissions as to its relevance. The panel received relatively brief replies, which we have taken into account in our subsequent analysis.

At the outset of the first day of hearing before us, we heard further submissions on whether there could be an in-country right of appeal in these cases and we specifically asked the parties to address us on one particular matter troubling us in light of the fact that each of the appeals before us had been lodged after 4 April 2005, when the new Asylum and Immigration Tribunal came into being. In the event we have changed our view on the issue of whether there is an in-country right of appeal in cases like those before us.

Still on the procedural history of these appeals, we should also mention that following a further memorandum sent to the parties on 16 May 2006 one further case was added to the list of those we were to hear, but that, by the time of our second day of hearing on 28 June 2006, the decision in respect of that person's case had been withdrawn and so his case too was the subject of a notice from the Tribunal recording the decision as having been withdrawn.

All four appellants arrived in the UK on various dates between February 2000 and 2003 and claimed asylum at port. All were either granted temporary admission or detained and subsequently released on bail or temporary release. All were refused asylum. All lost their subsequent appeals which they had brought or argued on asylum and human rights grounds. Some time — in all four cases, some considerable time — after exhausting their appeal rights, all made an application for leave to enter or remain on the basis that they were either businessmen or self-employed persons who stood to benefit from the Ankara Agreement.

Through his officials, the Secretary of State refused their applications by letters (respectively dated 14 November 2005, 19 September 2005, 13 February 2006 and 13 January 2006). None of the letters setting out the terms of the refusal describe the latter as an appealable decision. One indeed specified that there could be no in-country right of appeal by virtue of the fact that s.92 of the Nationality, Immigration and Asylum Act 2002 (hereafter the “2002 Act”) “did not apply”. However, in the case of the first appellant a “Notice of Decision” dated 14 November 2005 and refusing him leave to enter was issued and signed “on behalf of the Secretary of State”. It indicated that any appeal must be brought out of country. (What appears to be an identical notice dated 21 March 2006 was also subsequently served on him.) Subsequently, in respect of the second, third and fourth appellants the Secretary of State set directions on 9 March 2006, 8 March 2006 and 3 March 2006 respectively for their removal to Turkey as illegal entrants/immigration offenders. (It is not clear to us why they were treated as illegal entrants/immigration offenders since all were refused leave to enter at port; however, this is not a matter of importance to the outcome of these appeals.)

In each case those acting for the appellants lodged a notice of appeal with the Tribunal against the decision to refuse the application under the Ankara Agreement. There were initially issues as to the timeliness of the notices of appeal to the Tribunal, but these were resolved by an Immigration Judge in the appellants' favour and do not concern us here. The grounds raised in those notices all relied on provisions of the Ankara Agreement. In all but the first appellant's case they also relied on human rights (Article 8 and Article 1 Protocol 1 of the European Convention on Human Rights).

In the second appellant's case the relevant parts of the letter sent with the grounds stated as follows:

“In accordance with s.84, the appellant seeks to rely on the following grounds:

• – that removal would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with his Convention rights;

• – that the decision is not in accordance with the immigration rules (HC509);

• – that the decision is not otherwise in accordance with the law (Community law, as given effect under the terms of the Turkish ECAA).

Briefly, the reasons for those grounds …are:

• – the appellant has established a private life (Article 8 ECHR) in the United Kingdom by virtue of his business interests, and has property the enjoyment of which would be interfered with (Article 1, Protocol 1);

• – the terms of HC509 paragraphs 30 to 32 are met in his case;

• – the appellant has a right to an effective remedy against refusal, under Community law because this is an application the entitlement to which arises by virtue of the EC Association Agreement.”

There was a letter drafted in very similar terms in the third and fourth appellants' cases.

The Ankara Agreement has been the subject of a recent reported decision of the Tribunal: OY (Ankara Agreement; standstill clause; worker's...