The Secretary of State for the Home Department v CA (Turkey)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Irwin |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] EWCA Civ 2875 |
| Date | 21 December 2018 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2017/1135 |
[2018] EWCA Civ 2875
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Holman
Royal Courts of Justice
Strand, London, WC2A 2LL
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Irwin
and
Lord Justice Newey
Case No: C9/2017/1135
Miss Deok Joo Rhee QC (instructed by the Government Legal Department) for the Appellant
Miss Nathalie Lieven QC and Miss Emma Daykin (instructed by Stuart & Co) for the Respondent
Hearing date: 5 December 2018
Judgment Approved
In 2014, Parliament legislated to remove the right to appeal to the First-tier Tribunal that someone in the position of the respondent, CA, would previously have enjoyed. According to the Secretary of State, what is now available to such a person is administrative review pursuant to appendix AR to the Immigration Rules. As can be seen from paragraph AR2.1 of the appendix, “administrative review” involves “the review of an eligible decision to decide whether the decision is wrong due to a case working error”. The outcome of an administrative review is, the Secretary of State argues, potentially susceptible to judicial review, but cannot be challenged by way of appeal.
The question raised by the present appeal is whether the removal of the right of appeal that the respondent would have had but for the passing of the Immigration Act 2014 (which, by section 14, replaced section 82 of the Nationality, Immigration and Asylum Act 2002) was consistent with EU law. The respondent contends, and Holman J accepted, that it was precluded by article 41 of the Additional Protocol concluded on 23 November 1970 (“the Additional Protocol”) to the Agreement establishing an Association between the European Economic Community and Turkey which was signed at Ankara on 12 September 1963 (“the Ankara Agreement”) and, hence, that it was ineffective. The Secretary of State disputes that.
The issue is of wider importance. We were told that more than 120 cases have been stayed pending the outcome of this appeal.
The framework
The Ankara Agreement envisaged the progressive establishment of a customs union between the European Economic Community and Turkey. Articles 12–14 deal respectively with freedom of movement for workers, freedom of establishment and freedom to provide services. They are in these terms:
“ Article 12
The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them.
Article 13
The Contracting Parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them.
Article 14
The Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom to provide services between them.”
Title II of the Additional Protocol contains further provisions relating to the movement of persons and services. Articles 36–40, comprising chapter I of the title, are concerned with “workers”, articles 41 and 42, making up chapter II, with “right of establishment, services and transport”. Article 41, which is central to what we have to decide, states as follows:
“1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the [Ankara Agreement], determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services.
The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade.”
Article 59 of the Additional Protocol also featured in the argument before us. This reads:
“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.”
Article 41(1) of the Additional Protocol has been held by the Court of Justice of the European Union (“the CJEU”) to have direct effect: see Case C-37/98 R v Secretary of State for the Home Department ex p Savas [2000] 1 WLR 1828, where the Court observed (in paragraph 46 of the judgment) that the provision “lays down, clearly, precisely and unconditionally, an unequivocal ‘standstill’ clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol”. In this respect, article 41(1) differs from both article 41(2) of the Additional Protocol and article 13 of the Ankara Agreement. In Savas, the Court concluded (at paragraph 45 of the judgment) that “article 13 of the [Ankara] Agreement is no more capable than is article 41(2) of the Additional Protocol … of directly governing the legal position of individuals and cannot therefore have direct effect”.
It is common ground that, when the United Kingdom joined the European Economic Community in 1973, it became bound by the Ankara Agreement and, in particular, the standstill provision found in article 41 of the Additional Protocol. As a result, it has continued to apply the criteria set out in the “Statement of Immigration Rules for Control after Entry” (“HC510”) that were in force in 1973 when determining an application by a Turkish national for leave to remain in the United Kingdom as a business person under the Ankara Agreement.
As yet, no further steps have been taken pursuant to article 41(2) of the Additional Protocol (under which the timetable and rules for the progressive abolition of restrictions on freedom of establishment and freedom to provide services are to be determined). More progress has, however, been made in relation to workers and their families. Thus, Decision 1/80 of the Council of Association provides, for example, for a “Turkish worker duly registered as belonging to the labour force of a Member State” and members of his family to have certain rights as regards employment (see articles 6 and 7). The same section of Decision 1/80 also contains these provisions:
“ 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.
Article 14
1. The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health.
2. They shall not prejudice the rights and obligations arising from national legislation or bilateral agreements between Turkey and the Member States of the Community where such legislation or agreements provide for more favourable treatment for their nationals.”
Article 6(1) of Decision 1/80 has been recognised as having direct effect. For instance, in Case C-188/00 Kurz v Land Baden-Württemberg [2002] ECR I-10691, the CJEU said this:
“26 The first point to be noted … is that, since the judgment in Case C-192/89 Sevince [1990] ECR I-3461, at paragraph 26, the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, in particular, Case C-1/97 Birden [1998] ECR I-7747, paragraph 19).
27 Second, it is also settled case-law that the rights which that provision confers on Turkish workers in regard to employment necessarily imply the existence of a corresponding right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect (see, inter alia, Birden, paragraph 20).”
The present case
The respondent, a Turkish citizen who was born in 1996, entered the United Kingdom as a visitor in December 2014. On 28 April 2015, shortly before his existing leave to remain would expire, he applied to extend his stay pursuant to the Ankara Agreement in order to establish a business providing window-cleaning services. On 27 October 2015, the respondent was informed that his application had been refused, but also that he could apply for administrative review of the decision, and he did so. He was not, however, successful. On 23 November 2015, he was told that the original decision had been maintained.
The respondent sought judicial review, and his claim was upheld by Holman J. In a judgment dated 8 February 2017, Holman J concluded that the decisions of 27 October 2015 and 23 November 2015 should both be quashed and that the Secretary of State must reconsider the respondent's application for leave to establish himself in business in the United Kingdom. With regard to the earlier of the decisions, the judge said (in paragraph 25 of his judgment):
“the reasoning of the decision letter and the approach of the decision-maker was, in my view, so defective or unfair on a range of points that the...
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