The Queen (on the application of Buer) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice McCombe,Lord Justice Maurice Kay |
| Judgment Date | 31 July 2014 |
| Neutral Citation | [2014] EWCA Civ 1109 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2013/2144 |
| Date | 31 July 2014 |
[2014] EWCA Civ 1109
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Simon Picken QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Richards
and
Lord Justice McCombe
Case No: C4/2013/2144
David Jones and Declan O'Callaghan (instructed by Irving & Co) for the Appellant
Ben Lask (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 14 July 2014
This appeal concerns the scope and interpretation of the "standstill" clause in Article 13 of Decision No 1/80, adopted by the Association Council under the EEC-Turkey Association Agreement of 12 September 1963.
The appellant is a 34 year old Turkish national who has been lawfully present in the United Kingdom at all material times as an employed worker pursuant to the Association Agreement and Decision No 1/80. After four years' employment as a Turkish worker he applied for indefinite leave to remain ("ILR"). On 3 December 2011 the Secretary of State responded to the application by granting him three years' further leave to remain, with an entitlement to undertake any type of work for any employer. Asked why the appellant had not been granted ILR, the Secretary of State replied on 13 February 2012 that leave had been granted under Article 6(1) of Decision No 1/80 which contained no provision for settlement, and that an applicant who continued to meet the requirements of Article 6(1) would be granted three years' leave on each subsequent application.
The appellant sought permission to apply for judicial review of the refusal of ILR. Various grounds were advanced but the only one still live before us is the contention that he is entitled to ILR by virtue of the standstill clause in Article 13 of Decision No 1/80. Permission to apply was refused in the Administrative Court, first by Haddon-Cave J on the papers and then by Mr Simon Picken QC, siting as a deputy High Court Judge, on an oral renewal. Permission to appeal to this court against the deputy judge's decision on the Article 13 issue was granted by Gloster LJ.
Although the appeal relates strictly to whether the appellant has an arguable case for judicial review, we were invited by both counsel to approach the matter on a basis that would enable us to reach a substantive determination of the main legal issues between the parties. We were told that a number of cases in the Administrative Court have been stayed behind this one.
The deputy judge indicated that if he had taken a different view on the legal issues he would in any event have refused permission to apply for judicial review on the ground of delay. Mr Lask informed us at the outset of the hearing, however, that the Secretary of State no longer pursued the point on delay.
The Association Agreement and related instruments
The aim of the Association Agreement (which was published in English in OJ C113/1, 24 December 1973) is to promote the continuous and balanced strengthening of trade and economic relations between the contracting parties, including in the labour sector by progressively securing freedom of movement for workers (Article 12) and by abolishing restrictions on freedom of establishment (Article 13) and on freedom to provide services (Article 14), in order to improve the standard of living of the Turkish people and to facilitate the accession of Turkey to the European Community (as it then was) at a later date. To that end it provides for a preparatory stage, a transitional stage during which a customs union is progressively to be established and economic policies are to be aligned, and a final stage based on the customs union and entailing closer co-ordination of the economic policies of the contracting parties. It includes provision for the contracting parties to meet in a Council of Association which is to act within the powers conferred upon it by the Agreement.
The Association Agreement was supplemented on 23 November 1970 by an Additional Protocol which forms an integral part of the Agreement. The Additional Protocol lays down in Article 1 the conditions, arrangements and timetables for implementing the transitional phase. Title II, entitled "Movement of Persons and Services", includes provisions dealing with "Workers" (Chapter I) and with "Right of establishment, services and transport" (Chapter II). Article 41 of the Additional Protocol, which falls within Chapter II of Title II, contains the following standstill clause:
" Article 41
(1) The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services."
I should also mention Article 59 of the Additional Protocol, which provides that, in the fields covered by the Protocol, Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the EEC Treaty.
Decision No 1/80, adopted by the Association Council under the Agreement, came into force on 1 December 1980. Section 1 of Chapter II of the Decision, entitled "Questions relating to employment and the free movement of workers", contains two provisions at the heart of the present case, namely Article 6(1) and Article 13.
Article 6(1) provides:
" Article 6
(1) Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:
— shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available;
— shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation;
— shall enjoy free access in that Member State to paid employment of his choice, after four years of legal employment."
At the time of his application for ILR the appellant satisfied the third indent of Article 6(1), which was the basis on which the Secretary of State granted him three years' further leave to remain with an entitlement to undertake any type of work for any employer.
Article 13 is the directly relevant standstill clause. It provides:
" Article 13
The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories."
It is common ground that the article confers directly effective rights.
Relevant Immigration Rules and policies
It is not necessary to go into the detail of the relevant Immigration Rules and policies at different times, but it will be helpful to give a brief explanation of the background to the legal issues we have to consider.
The Immigration Rules in 1980 contained a section on "Settlement" which included, in paragraph 26, a provision that "[w]hen a person admitted in the first instance for a limited period has remained here for 4 years in approved employment or as a businessman or a self-employed person or a person of independent means, the time limit on his stay may be removed". It is submitted on behalf of the appellant that if that provision were applied to him he would qualify for ILR.
The regime in fact applied to the appellant is set out in current Home Office guidance on "ECAA Turkish employed applications". The material provision is that "[o]n completing four years legal employment (when the applicant has met the third indent of article 6(1) of decision 1/80) leave should not be granted for more than three years …". The Secretary of State's decision in relation to the appellant was in accordance with the guidance.
I should also note, because it featured in the submissions on behalf of the appellant, that the Secretary of State operates a different regime in relation to self-employed Turkish nationals. Under that regime (contained in Immigration Directorate Instructions, Chapter 6, Section 6: "Business applications under the Turkish-EC Association Agreement (ECAA)") an applicant may qualify for ILR if he has spent a continuous period of four years lawfully in the United Kingdom, of which the most recent period has been spent with leave as a Turkish ECAA businessperson, and certain other conditions are met.
The issues
The appellant's case is that, in relation to a Turkish worker such as the appellant who satisfies the third indent of Article 6(1) of Decision No 1/80, Article 13 obliges the Secretary of State to assess entitlement to ILR by reference to the Immigration Rules as they existed when Decision No 1/80 came into force on 1 December 1980. It is submitted that by applying the regime for Turkish workers described above instead of the 1980 rules on the grant of ILR, and/or by otherwise applying additional conditions on the grant of ILR, the Secretary of State has introduced "new restrictions on the conditions of access to employment", in breach of Article 13. The appellant points to the administrative and financial burdens associated with successive grants of three years' leave to remain, as compared with the position if ILR is granted. In addition to the need to...
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