Upper Tribunal (Immigration and asylum chamber), 2018-11-06, JR/07460/2016
| Jurisdiction | UK Non-devolved |
| Date | 06 November 2018 |
| Published date | 06 November 2019 |
| Hearing Date | 03 October 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/07460/2016 |
UTIJR6
JR/7460/2016
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of Gulpasa Cicekli
Applicant
v
Secretary of State for the Home Department
Respondent
Upper Tribunal Judge Blum
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Mr G Lee, of Counsel, instructed by Gareth Coates Solicitors, on behalf of the Applicant and Mr R Adkinson, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 3 October 2018.
Decision: the application for judicial review is granted to the extent that the decision of 17 May 2016 is quashed
Summary of challenge
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The applicant challenges a decision by the respondent refusing to issue her Indefinite Leave to Remain (ILR) as the spouse of a Turkish national businessperson who was lawfully resident in the UK pursuant to the provisions of the Agreement establishing an Association between the European Economic Community and Turkey (the European Community Association Agreement [ECAA], or “Ankara Agreement”) and its Additional Protocol, and who was granted ILR on the same occasion. The respondent refused the ILR application on the basis that Article 41(1) of the Additional Protocol (the ‘standstill clause’), which prohibits the Contracting Parties to the Ankara Agreement from introducing between themselves 'any new restrictions on the freedom of establishment and the freedom to provide services', does not apply to family members of Turkish businesspersons, and that settlement applications from these family members were to be considered in accordance with the Turkish ECAA Guidance, described as a ‘concession’ outside the immigration rules.
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There are two separate prongs to the applicant’s challenge. She contends that the respondent was not entitled to rely on the Turkish ECAA Guidance, which stipulated that the applicant had to have resided in the UK with her spouse for at least two years. The two-year requirement was in the nature of a rule and, as such, should have been contained within the immigration rules. Reliance on the Guidance to refuse the application therefore offended the principles established in R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant) [2012] UKSC 33, and the respondent consequently took account of an irrelevant consideration.
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The second prong of the applicant’s challenge seeks to overturn R (on the application of Aydogdu) v Secretary of State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT 00167 (IAC) (Aygogdu), a decision of the former President of the Upper Tribunal. The applicant contends that the refusal to grant her ILR was unlawful as the issue of settlement falls within the scope of the Ankara Agreement, and that the contrary view reached in Aydogdu was wrong. The applicant argues that any restriction or requirement governing the granting of ILR, other than that contained in the 1973 immigration rules, constitutes an impermissible restriction on the spouse of a Turkish businessman and breaches Art 41(1) of the Additional Protocol.
Background
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This judicial review challenge has a somewhat turbulent history. The principle facts however are not in dispute.
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The applicant is a national of Turkey. On 14 July 2015 she was granted entry clearance to join her spouse, a Turkish national lawfully present in the UK as a businessperson under the Ankara Agreement. She entered the UK on 26 July 2015 with entry clearance valid until 21 October 2015, this being the date that her spouse’s extant Leave to Remain (LTR) was due to expire.
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On 15 October 2015 the respondent published guidance in relation to business applications under the Turkish ECAA. Under this guidance the spouse of a Turkish ECAA businessperson could only be granted ILR if they had been living in the UK with the ECAA businessperson for a period of at least 2 years. This guidance mirrored, for all material purposes, earlier guidance issued in April 2015.
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On 16 October 2015 the applicant’s spouse applied for ILR, and she applied as his dependent. On 15 February 2016 the applicant’s spouse was granted ILR. The applicant however was refused ILR as she had not been living in the UK with a Turkish ECAA businessperson for at least 2 years. This decision was maintained in an Administrative Review dated 13 April 2016 but, following the service of a Pre-Action-Protocol Letter, the respondent conceded that the decision dated 15 February 2016 did not incorporate the correct refusal paragraphs. The decision was remade on 17 May 2016. The respondent again refused the ILR application.
The decision of 17 May 2016
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The application was refused because the applicant failed to meet all the relevant conditions of the guidance, which was described as a “concession outside the Immigration Rules that applies to dependents of Turkish ECAA businesspersons wishing to be granted indefinite leave to remain.” The relevant condition required the applicant to have lived in the UK with her sponsor for a period of at least 2 years.
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The respondent explained,
You have applied for indefinite leave to remain under HC510 as the dependent of a Turkish ECAA business person on the basis that you are entitled to do so under the ‘standstill clause’. However, the standstill clause only concerns the conditions of establishment for those Turkish nationals who wish to set up a business in the UK. It is not applicable to family members of Turkish ECAA businesspersons who apply for settlement on that basis.
Rather, dependents of Turkish ECAA businesspersons are considered as a concession outside the Immigration Rules. The requirements of this concession are detailed at pages 65-66 of the Turkish ECAA modernise guidance, available to the general public at:
https://www.gov.uk/government/publications/turkish-ecaa-business-guidance
Amongst the requirements that are set out in the concession are that the spouse/partner of a Turkish ECAA business person must have resided with the sponsor in the UK for at least 2 years before becoming eligible for indefinite leave to remain.
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As the applicant had not resided in the UK as the spouse of an ECAA businessperson for a period of at least 2 years, the settlement application was refused.
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An Administrative Review dated 16 June 2016 maintained the refusal. The respondent concluded that the applicant failed to meet all the requirements of the ‘concession outside the immigration rules’. Although acknowledging that ILR was granted in another application, the respondent said he had considered the individual merits of the application and did not consider it appropriate to exercise discretion in the applicant’s favour, and that an assessment had been undertaken in accordance with the correct use of the guidance. The respondent reiterated that the standstill clause was not applicable to family members of ECAA businesspersons who applied for settlement on that basis.
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The applicant initiated judicial review proceedings on 6 July 2016. Thereafter confusion arose. It was believed that permission was granted by Upper Tribunal Judge Canavan on 9 September 2016. No such grant of permission is however on the Tribunal file. Judge Canavan was aware that the (then) President of the Upper Tribunal was due to hear a JR challenge (Aydogdu), which, according to the respondent, turned on the same point. Enquiries should have been made as to whether this was the case, as directed by Judge Canavan, but there was some muddle and it was believed that the current JR was stayed behind the decision in Aydogdu.
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Once Aydogdu was promulgated there was a flurry of activity, but it soon became apparent that permission to proceed with the JR challenge had never been granted. Upper Tribunal Judge King refused permission in a decision sealed on 6 February 2018. However, following a renewed oral application, Upper Tribunal Rimington granted permission to proceed with the judicial review challenge on 31 May 2018.
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I am additionally aware that, on 6 July 2018, a change to the immigration rules provided by HC 1154 came into force, introducing Appendix ECAA, and that fresh guidance came into force on the same date. In August 2018 the respondent proposed a stay of these proceedings to allow the applicant to make an application for leave to remain under Appendix ECAA, but the applicant declined the proposal. The new immigration rules and the new guidance are not relevant for the purposes of determining whether the decision under challenge was lawful.
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I heard oral submissions from Mr G Lee, on behalf of the applicant, and from Mr R...
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