The Queen (on the Application of Alliance of Turkish Business People Ltd) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rose,Lord Justice Flaux,Lord Justice Newey |
| Judgment Date | 28 April 2020 |
| Neutral Citation | [2020] EWCA Civ 553 |
| Date | 28 April 2020 |
| Docket Number | Case No: C9/2019/0993 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 553
Lord Justice Flaux
Lord Justice Newey
and
Lady Justice Rose
Case No: C9/2019/0993
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE DINGEMANS
[2019] EWHC 3649 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Ford QC and Emma Daykin (instructed by Redstone Solicitors) for the Appellant
Sir James Eadie QC and David Mitchell (instructed by Government Legal Department) for the Respondent
Hearing date: 26 March 2020
Approved Judgment
Introduction
This appeal and cross appeal, with the permission of Underhill LJ and Singh LJ respectively, concern the appellant's challenge to changes made by the respondent from 6 July 2018 to the Immigration Rules and guidance affecting the right of Turkish self-employed businesspeople and their dependants to obtain indefinite leave to remain (“ILR”) in the United Kingdom.
Relevant Factual background
On accession to the European Economic Community on 1 January 1973, the United Kingdom became bound by the Agreement establishing an Association between the European Economic Community and Turkey signed at Ankara on 1 September 1963 (the “ECAA” or “Ankara Agreement”). Article 41(1) of the Additional Protocol to the Ankara Agreement (the so-called “standstill clause”) provides that:
“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services”
As confirmed by the Court of Justice of the European Union in R v Secretary of State for the Home Department ex parte Savas [2000] ECR 1–2927, the standstill clause precludes any 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.
As a consequence, Turkish nationals exercising their rights under the Ankara Agreement for the purposes of setting up a business in the United Kingdom were considered by reference to the Immigration Rules which were in force in 1973. Specifically, the requirements for settlement of Turkish businesspeople were those set out in the Statement of Immigration Rules for Control after Entry dated 23 October 1972 (HC510), paragraph 28 of which, so far as material, provided: “A person who is admitted in the first instance and who has remained here for 4 years in approved employment or as a businessman or a self-employed person or a person of independent means, may have the time limit on his stay removed unless there are grounds for maintaining it”. The rules extended the same benefits for dependants by paragraph 41.
The Home Office issued Guidance from time to time in relation to applications under the Ankara Agreement, most recently before the changes which are the subject of the claim, on 15 October 2015. The judge summarised the relevant sections of this at [21]–[22] of the judgment:
“21… [This] stated on the front page “this guidance is based on the business provisions in force in 1973”. On page 2 of 117 it stated “Turkish nationals who have completed at least four years lawfully in the UK as a businessperson are entitled to apply for indefinite leave to remain to settle in the UK.” On page 3 of 117 next to the question “How long is leave to remain normally granted for?”, the statement was made “applicants may be granted indefinite leave to remain on completion of 4 years in the category …”. Next to the question “Are dependants allowed?” the answer was “Yes …”. At the bottom of the page going onto page 4 of 117 the question was “Does this category lead to settlement (indefinite leave to remain)” and the answer given was “yes”. On page 6 of 117 it was stated “Turkish nationals intending to come to the UK to establish in business generally have the right to have their application considered against the businessperson requirements in force in 1973. This date reflects when the UK became a signatory of the agreement with Turkey. Since then, Turkish ECAA applications have to be assessed against the Immigration Rules in force at that date. This ‘standstill clause’ means applications for entry in this category are judged against HC509, while applications for leave to remain are decided by HC510 …”.
22. Page 13 of 117 dealt with eligibility for leave to remain. This set out the 4 year scheme. Page 60 of 117 set out how paragraph 28 of the 1972 Control after Entry Rules was to be applied. Page 63 of 117 set out how to consider applications from dependant family members. There was an explanation of the background to the Ankara Agreement on page 114 of 117. Having rehearsed the background and the terms of the standstill clause it was stated “in respect of Turkish nationals seeking to enter or reside in the UK to establish themselves in business or provide a service, the UK must apply the domestic business provisions as they were within the Immigration Rules in force in 1973. These are HC509 (on entry rules) and HC510 (after entry rules). The Immigration Rules as they were in 1973 are far less stringent than the corresponding requirements in the current rules and must be applied in the context of the objectives of the ECAA”.”
There are examples in the material before the Court of letters sent by the Home Office to Turkish businesspeople who had entered the UK and applied for leave to remain under this scheme. The terms of the letters were essentially identical:
“you have applied for leave to remain in the United Kingdom (UK) as a business person under HC510, the Immigration Rules in force in 1973, by virtue of the terms of the European Community Turkey Association Agreement. I am writing to confirm that you have been granted 3 years leave to remain in the UK as a self-employed person under these provisions. One month before the expiry of your existing leave on 5 th June 2018, you will be eligible to apply for indefinite leave to remain. You will need to complete an application form. To use this, go to the Home Office website … On the website you will find further information about the Turkish European Community Association Agreement …”
It is clear from the Guidance and letters that the Home Office understood the standstill clause to mean that Turkish businesspeople who had applied for leave to remain and their dependants would have the same rights to obtain settlement by ILR as those businesspeople did under the Immigration Rules in force as at 1 January 1973. However, that understanding was demonstrated to be incorrect by two cases decided in 2017. On 21 February 2017, in BA (Turkey) v Advocate General for Scotland [2017] CSOH 27; [2017] SLT 1061, Lord Armstrong in the Outer House of the Court of Session concluded at [50] in relation to the standstill clause:
“I am persuaded that settlement is not a corollary of the freedom of establishment, but that, rather, the nature of the residence which is a corollary of that freedom is that necessary to render the freedom effective in the sense of allowing the setting up of a business and thereafter the maintaining of it. I do not accept that longer-term residence, of the nature of settlement or indefinite leave to remain, is necessary for that purpose. All that is necessary is residence of a character which subsists so long as the freedom of establishment is exercised, and is sufficient to allow the pursuit of that economic goal.”
Only weeks later, on 8 March 2017, the decision of McCloskey J, President of the Upper Tribunal (Immigration and Asylum Chamber), was promulgated in R (Aydogdu) v Secretary of State for the Home Department [2017] UKUT 167 (IAC). At [34], he held that a refusal to grant ILR to the spouse of a Turkish businessperson did not extinguish or frustrate his ability to exercise his freedom to establish a business in the UK:
“The grant of limited leave to enter and remain to the family members of a Turkish national exercising rights will, in all cases bar the most exceptional, suffice to ensure the efficacious exercise and enjoyment of the economic right in play. The higher, optimum status of settlement is not necessary for this purpose. In the language of the governing jurisprudence, the grant of settlement status is neither a prerequisite to nor a corollary of the exercise of the primary rights engaged. There is no evidence warranting the assessment that only settlement will suffice to ensure that the rights in question can be efficaciously exercised. Nor is there any basis upon which judicial notice of this detriment is justifiable.”
The reasoning in both those cases was influenced by the earlier decision of this Court in R (Buer) v Secretary of State for Home Department [2014] EWCA Civ 1109, which concerned an equivalent provision to the Article 41(1) standstill clause, in Article 13 of Association Council Decision 1/80, although that decision had not led to any reconsideration by the respondent of whether the 1973 Immigration Rules still applied in relation to ILR for Turkish businesspeople within the scheme. However, following the decisions in BA (Turkey) and Aydogdu, the respondent paused the processing of ECAA applications for ILR between March and July 2017 before resuming the processing and grant of...
To continue reading
Request your trial
-
The King (on the application of K) v Secretary of State for Work and Pensions
...636, per Lord Fraser of Tullybelton”. 157 In R (Alliance of Turkish Business People Ltd) v Secretary of State for the Home Department [2020] EWCA Civ 553, [2020] 1 WLR 2436, Flaux LJ (with whom Newey and Rose LJJ agreed), stated at [49]: “Equally, I do not consider that there is any force......
-
The Queen (on the application of Peter Goodland) v Chief Constable of Staffordshire Police
...by Flaux LJ at paragraph 30 of his judgment in R (Alliance of Turkish Business People Ltd) v Secretary of State for the Home Department [2020] 1 WLR 2436: “30 It was common ground that, before a statement or representation can be relied upon as giving rise to a legitimate expectation, it m......
-
Scottish Fishermen's Organisation Limited And Another For Judicial Review Of A Decision Of The Scottish Ministers
...v AG of Trinidad and 12 Tobago [2016] UKPC 17, [2016] 1 WLR 3383 (see also Alliance of Turkish Businesspeople Ltd v Home Secretary [2020] 1 WLR 2436). The Concordat has no legal force. It is addressed to other administrations, not the petitioners. The changeability of conditions is inherent......
-
The King on the application of Glint Pay Services Ltd v The Commissioners for HM Revenue & Customs
...to resile from it. If the MOU is wrong as to aspects of the law, that does not assist HMRC: R (Alliance of Turkish Businesspeople) [2020] EWCA Civ 553, [49]. Moreover, the MOU cannot be said to be mere guidance of the sort considered by Rose LJ in Aozora [2019] EWCA Civ 1643: it is delibe......