Veli Tum, R (on the application of) v Secretary of State for the Home Department

This is an appeal from a decision of Davis J of 19 November 2003, which allowed claims by Mr Tum and Mr Dari, the first and second respondents, for judicial review. The case focuses on the question as to whether under European Union law asylum seekers with no other grounds for being in the United Kingdom, and who are returnable to Turkey or to another member of the European Union pursuant to the terms of the Dublin Convention 1990, when making a claim to enter the United Kingdom as a person seeking to establish a business, can rely on the “standstill” provision of Article 41(1) of the Additional Protocol of 1973 to the Ankara Agreement of 1963 between Turkey and the Contracting States.

In relation to conditions of entry for Turkish nationals, the “standstill” clause provides that contracting states should not introduce more restrictive measures than those in force at the time of the Additional Protocol to the Ankara Agreement (in other words, 1 January 1973).

The case raises an issue of some importance, as the judge in the court below appreciated. The appellant, the Secretary of State for the Home Department, submits that this decision was wrong because in effect it opens up a wholly new method of obtaining entry for Turkish asylum seekers who have failed in every other attempt they have made.

The Secretary of State seeks either that the appeal should be allowed so that the order made in the court below on the application for judicial review be overturned and that application dismissed, or that the issues of Community law raised on this appeal should be referred to the European Court of Justice for that Court to give its decision on those issues.

The applicable law is partly based upon the Association Agreement made between the respective States and the Additional Protocol to that Agreement. The purpose of the Association Agreement was to enable Turkey to have an association with the States then members of the European Community which would enable Turkey to promote trade and economic relations with the members of the then Community which would facilitate in due course the membership of Turkey to what has now become the European Union. In other words, there was to be “a progressive abolition of restrictions on freedom of establishment”.

The current Immigration Rules (Rules 200 to 204) set out the conditions that have to be met at the present time where a person wishes to establish themselves in business in the United Kingdom. The requirements are restrictive. They require prior entry clearance and the satisfaction of certain financial criteria, including having not less than £200,000 of the applicant's own money under his control and disposable in the United Kingdom.

At the time that this country became bound by the Ankara Agreement on 1 January 1973 the conditions were markedly less stringent and were contained in the Statement of Immigration Rules for Control on Entry (HC509) and in the Statement of Immigration Rules after Entry (HC510). That this is the position is not in dispute on this appeal.

At the heart of the differences between the parties to this appeal is the decision of the European Court of Justice in Savas (Case C-37/98 2000 ECR 1-2927). In Savas the European Court of Justice examined the position of Mr Savas, a Turkish national, who in 1984 with his wife had obtained leave to enter the United Kingdom as a tourist for one month. Mr Savas overstayed in the United Kingdom for a modest eleven years, having set up a shirt factory in London in 1989, before making an application for leave to remain based on his establishment in the business. Following various legal challenges, Mr Savas sought to rely on the “standstill” provision contained in the Ankara Agreement and Article 41 of the Protocol, thereby asserting that the correct rules to be applied in consideration of his case were the 1973 Rules. That argument was rejected by the Secretary of State and the matter was ultimately referred to the European Court of Justice, who resolved the position. It will be necessary to come back and examine that decision with care in order to determine this appeal. However, it is necessary, first, shortly to set out the facts relating to both of the respondents before doing so. Nothing turns on the facts so far as this appeal is concerned.

The first respondent, Mr Tum, arrived in this country at Dover on 29 November 2001. He claimed asylum on arrival. He was granted temporary admission with a restriction on employment. On 25 April 2002, he was served with a notice of the decision of the Secretary of State refusing him leave to enter and giving removal directions to return to Germany on 3 May 2002. He was then briefly detained. Mr Tum argued that the decision to require him to be removed to Germany was in breach of his human rights. On 2 May 2002 that allegation was certified by the Secretary of State as ill-founded.

Mr Tum sought to have that decision judicially reviewed. He was unsuccessful in that application. On 19 December 2002, he applied for leave to enter this country in order to establish himself in business. He relied on the provisions of the Ankara Agreement and the Protocol. He asked that the application be considered with reference to the Immigration Rules that were applicable on 1 January 1973.

On 12 May 2003, the Secretary of State, having considered the matter on the current rules, refused Mr Tum leave to enter this country for the purposes of establishing himself in business, and indicated that arrangements would be made to return Mr Tum to Germany as soon as possible. Mr Tum obtained an injunction in respect of the removal directions. He subsequently made his claim for judicial review, which was determined in his favour by Davis J.

The second respondent, Mr Dari, is a Turkish national who arrived in this country on 1 October 1998. He arrived by ferry from France, where it appears he had previously claimed asylum. On 5 October 1998, Mr Dari was admitted temporarily to the United Kingdom. On 26 October 1998, his application was refused. France accepted responsibility to receive him under the Dublin Convention if he was removed. For a period between October 1998 and 24 September 1999, Mr Dari “went to ground”, fearing removal to France. He instructed new solicitors and voluntarily reported to the Immigration Service on 24 September 1999. He was detained until he was subsequently granted bail. At about this time Mr Dari made an application for judicial review, challenging the instructions for his removal to France. In May 2002 that application was withdrawn.

While Mr Dari has been in this country he has set up his own pizza business in Herne Bay, Kent. He works full-time on a self- employed basis within the business.

On 30 September or possibly 1 October (the facts are not clear) 2002, Mr Dari made an application to the immigration authorities to remain in this country so that he could continue in his business. He made the application on a similar basis to Mr Tum. His application was refused by the Secretary of State, who relied on the current rules rather than those that were in force on 1 January 1973. He also made an application for judicial review which came before Davis J with that of Mr Tum.

In order to understand the arguments which have been advanced, it is important to appreciate that under section 11 of the Immigration Act 1971 a person can be admitted into this country while an application is being considered without being regarded from the legal point of view as having entered into this country. Davis J, not unreasonably in the court below, described this as an “Alice in Wonderland” situation. Although that description is appropriate, the provisions of section 11 are of value because it enables a person who makes a claim to enter this country not to be detained but to be released temporarily while his position is considered. His position is neither improved nor prejudiced as a result of his being admitted in this way.

To consider the argument on this appeal, which is the same as was considered by the court below, it is very important carefully to consider the decision of the European Court of Justice in Savas. Mr Savas had overstayed to a very substantial extent the period for which he was permitted to be in this country. His position was therefore irregular in the sense that he had no permission to stay for the time that he did so. However, there was no suggestion that he had acted fraudulently in the sense of obtaining access to this country by fraud. The two respondents here are in exactly the same position. Although their claims for asylum have not been successful, so far as I understand the facts there is no suggestion that they had acted in any way fraudulently. Claims for asylum may be bona fide claims, albeit they are unsuccessful. In Savas it is important to note that the case that had been put forward originally in writing on his behalf changed prior to the hearing. This matter is dealt with in paragraphs 56 and 57 of the judgment as follows:

“56.

In his written observations before the Court, Mr Savas argued essentially that Article 41(1) of the Additional Protocol is capable of conferring upon him a right of establishment and a corresponding right of residence in the Member State whose territory he has been authorised to enter, even though he has remained there and carried on business activities as a self-employed person in breach of that Member State's immigration laws.

57.

At the hearing, Mr Savas explained that he was no longer claiming to derive rights of establishment and residence in a Member State directly from Article 41(1) of the Additional Protocol; he does claim, however, that the direct effect of that provision means that the Turkish national concerned may ask a national court to determine whether the national rules, on the basis of which it was decided to deport him, are stricter in relation to freedom of establishment and the right of residence than those which applied at the date on which the Additional Protocol entered into force in the Member State in question, and were thus adopted in breach of the 'standstill' clause enacted by the provision.”

Although that was the approach adopted by Mr Savas, in its judgment the European Court went on to deal with both the first line of argument (which was abandoned at the hearing) and the second line of argument which he maintained. The relevant paragraphs are 58 to 68, which deal with the first line of argument, and paragraphs 68 to the conclusion of the judgment, which deal with the second line of argument. That that was the approach of the European Court of Justice in its judgment is self-evident.

Paragraph 58 starts off as regards the first argument put forward by Mr Savas in his written observations. The second part of the judgment starting at paragraph 68 deals with the second line of argument taken by Mr Savas at the hearing before the court. The European Court thus clearly distinguished between the two positions. Paragraph 58, having recited the fact that it was dealing with the first argument, goes on to say:

“.... this Court has consistently held that, as Community law stands at present, the provisions concerning the EEC-Turkey Association do not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulate the situation of Turkish workers [my emphasis] already lawfully integrated into the labour force of Member States....”

In that paragraph the Court confined its remarks to workers because that was the situation with which Mr Savas' written argument had dealt.

Paragraph 59 reads:

“Next, the Court has repeatedly held that, unlike nationals of Member States, Turkish workers are not entitled to move freely within the Community but benefit only from certain rights in the host Member State whose territory they have lawfully entered and where they have been in legal employment for a specific period.”

Again it is necessary to emphasise that that is dealing with Turkish workers. Paragraph 60 reads:

“Finally, it is true that the employment rights thus conferred on Turkish workers 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 rendered entirely ineffective ..... such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there.... However, according to the same case-law, the legality of a Turkish national's employment in the host Member State presupposes a stable and secure situation as a member of the labour force of that Member State and, by virtue thereof, entails an undisputed right of residence....

61.

In this context, the Court has held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to a conviction are not based on a stable situation and such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a resident permit ....

....

64.

It follows, as the Commission has rightly pointed out, that the 'standstill' clause in Article 41(1) of the Additional Protocol is not in itself capable of conferring upon a Turkish national the benefit of the right of establishment and the right of residence which is its corollary.

65.

So, a Turkish national's first admission to the territory of a Member State is governed exclusively by that State's own domestic law, and the person concerned may claim certain rights under Community law in relation to holding employment or exercising self-employed activity, and, co-relatively, in relation to residence, only in so far as his position in the Member State concerned is regular [my emphasis].

....

67.

In those circumstances, the fact that Mr Savas did not leave the United Kingdom after the expiry of his visa and did engage in business as a self-employed person in that Member State, without authorisation, cannot confer upon him either a right of establishment or a right of residence derived directly from Community provisions.”

The judgment then goes on to deal with the second line of argument:

“68.

.... it is important to remember, first, that the direct effect to be attributed to Article 41(1) of the Additional Protocol implies that that provision confers on individuals individual rights which the national courts must safeguard.

69.

It should also be noted that the 'standstill' clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment, and as a corollary, the residence of a 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.

70.

It is therefore for the national court, which alone has jurisdiction to interpret its own domestic law, to determine whether the domestic rules applied to Mr Savas by the competent authorities have the effect of worsening his position in comparison with the rules which were applicable in the United Kingdom on the date on which the Additional Protocol entered into force in relation to that Member State.

71.

In the light of all the considerations set forth above, the answer to the first three questions must be as follows....”

The Court then sets out the answers to those questions which it is not necessary to read out.

Having regard to that judgment the respondents, both before us and in the court below, have accepted that the “standstill” provisions do not give any right of establishment or any right of entry into the United Kingdom, other than those which are conferred by domestic law (the law of the United Kingdom). However, they say that in relation to the content of the domestic law the “standstill” provisions have the effect of making that law the law which was applicable on 1 January 1973 and not the current law. Putting it shortly, it is because the Secretary of State did not apply the law as it stood in 1973 that his decision was defective.

On the other hand, the Secretary of State contends that if a person has lawfully entered this country, and, having done so, seeks to establish himself here and to operate a business, he can rely on the law as it was in 1973, and argues that only applies to those who have so entered. If, as in this case, because of section 11 of the Immigration Act 1971, persons are treated for legal purposes as having not entered this country, the position is that they are governed by the current domestic law. Mr Saini, in his very persuasive argument, asked us to look at the language of the first part of the judgment of the European Court of Justice in Savas. When that language is examined, it is submitted that it is clear that a person who is not lawfully in this country is to be treated as not entitled to any of the benefits of Article 41(1) of the Additional Protocol. He submits that, were the situation otherwise, it would have been clearly stated by the European Court of Justice that that was the case and their failure to do so indicates that the Secretary of State was perfectly entitled to disregard Article 41(1) of the Additional Protocol and apply the current law in reaching his decision. Mr Saini submits that the second half of the judgment deals with persons either in the position of Mr Savas, who had entered this country lawfully but whose position had become irregular, or alternatively, someone who applied to change the basis upon which he was in this country while he was still regularly here. In particular it is submitted by Mr Saini that those who have attempted to obtain admission to this country as asylum seekers but who have had their asylum claim rejected cannot rely upon the provisions of Article 41(1) of the Additional Protocol.

Davis J rejected that argument, and so do I. There is nothing in Article 41(1) of the Additional Protocol itself to support that argument. Furthermore, when the judgment in Savas is properly understood as falling into two clear parts, then it seems to me that the judgment strongly supports the contention of the respondents. The fact that the “standstill” provisions are to apply to a person whatever his status so far as his right to remain in this country or his right to enter this country are concerned, is covered by the “standstill” provisions.

The one exception that I would make to that clear position is with regard to a person who achieves entry to this country by the use of fraud. It has long been the situation that those who enter by fraud cannot benefit from the point of view of immigration status by so doing. The case of Kondova (Case C-235/99, 27 September 2001), which was not referred to in the court below, confirms that that is the position. The provisions which were being considered by the Court in that case are not the same as here, but for present purposes paragraph 80 can be applied. It says:

“.... a Bulgarian national who intends to take up an activity in a Member State as an employed or self-employed person but who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places him outside the sphere of protection afforded to him under the Association Agreement.”

The sentiments expressed in that paragraph would be equally applicable to a situation where a person otherwise in the position of the respondents sought to gain access to this country as an asylum of seeker by fraudulent means.

In the course of his judgment Davis J illustrated his reasoning in relation to the argument advanced by Mr Saini at paragraph 43, where he said:

“It means, for example, that a Turkish national gaining temporary leave to enter as a visitor -- perhaps, in the process, being somewhat economical as to the truth with the immigration authorities -- and who then unlawfully overstays is in a position to invoke Article 41(1), and so be potentially in a better position to obtain leave to remain to establish a business than a Turkish national who has dutifully made his application while in Turkey (or at a port). Hardly a satisfactory result.”

That dicta of Davis J should not be understood as in any way conflicting with the clear principle that a would-be immigrant cannot improve his position by resorting to fraud. No doubt Davis J would have qualified what he said in that paragraph and the following paragraph if his attention had been drawn to the Kondova decision.

The “standstill” provisions contained in the Protocol have subsequently been the subject of a further decision of the European Court in Abatay and Others (C-317/01, 21 October 2003), to which we were referred. Mr Saini suggests that that case supports the arguments that he has advanced. However, again when that case is examined with care, one finds that the statements upon which Mr Saini would seek to rely, as in Savas, do not deal with the situation upon which the respondents base their argument in this case. It is a case in which two different situations had to be considered by the European Court and insofar as that decision throws any further light on the subject, in my view it confirms the contentions of the respondents and does not support the arguments advanced by the Secretary of State.

In my view the position is clear. The European law is confined to creating a “standstill” provision in respect of domestic law. It does not in itself create any rights in a person who wishes to enter into this country. There is no need for this court to seek any clarification from the European Court of Justice as to the state of the law on the issues which are relevant before us. Accordingly it follows that the Secretary of State applied the wrong rules -- the rules that are now current rather than the rules of 1973 -- in coming to his decision. It follows also from that that the decision of Davis J was correct and the orders that he made were appropriate.

I would therefore dismiss this appeal. Although it was not necessary for the purposes of this judgment to consider the earlier decision of this court in the case of A, to which both Sedley LJ and I were a party, it is right to note, as Mr Saini submitted, that the form of report which appears in [2003] CMLR 14, page 353 at 364, may not be accurate insofar as it suggests that this court made any form of declaration as to the legal position.

LORD JUSTICE BROOKE: I agree.

LORD JUSTICE SEDLEY: I also agree. I would stress, if I may, as my Lord has stressed, that we are not deciding a fraud case. It is sufficient that what was said about fraud in the judgment below was not necessary to that decision.

ORDER:Appeal dismissed with costs; leave to appeal refused; detailed assessment of the respondents' costs.