LF (Turkey), R (on the application of) v Secretary of State for the Home Department

In these proceedings the applicant seeks judicial review of a decision by the Secretary of State to refuse his application for leave to enter the United Kingdom as a self-employed businessman. The applicant had relied on article 41(1) of the Additional Protocol to the Association Agreement between the European Economic Community and Turkey. I will explain the significance of that article in due course. Lloyd-Jones J refused judicial review permission on 23 February 2007. However, judicial review permission was granted on consideration of the papers by Sir Henry Brooke on 9 March 2007. Sir Henry directed that the substantive judicial review be retained in this court.

It is convenient, before I explain the particular provision relied on, to give a brief account of the facts. The applicant is a Turkish national. He arrived in the United Kingdom on 1 December 2000 and claimed asylum the same day. On 2 December 2000 while that claim was under consideration, he was granted temporary admission to the United Kingdom subject to a requirement that he should not enter employment paid or unpaid or engage in any business or profession. His asylum claim was refused on 7 November 2001. His appeal against that refusal was dismissed by an adjudicator in a determination promulgated on 2 June 2003. The adjudicator accepted that parts of the history given by the applicant were credible but rejected the core of his asylum claim as false.

The applicant appealed with permission to the Immigration Appeal Tribunal. That appeal was dismissed on 25 February 2004. His appeal rights under the then statutory arrangements were finally exhausted on 11 June 2004 by which time he should have made arrangements to return to Turkey. The applicant’s temporary admission, originally granted as I have said on 2 December 2000, was from that date onwards extended from time to time by the service of successive forms IS96 while the decision on his asylum application and the appeal process ran its course. At every renewal up to October 2006 the prohibition on employment and engaging in any business or profession was expressly continued. That prohibition therefore was current on 27 June 2004 when on the applicant’s own account he entered into business running a café restaurant. Renewals in October 2006 and thereafter did not on their face repeat the restriction against working, though it is right to say there was no notice to the applicant that the restriction was lifted, despite the fact that every form IS96 which granted temporary admission subject to restrictions stated in terms that if existing restrictions were to be changed an immigration officer would write to the applicant. I will consider the significance of the absence of the working restrictions from October 2006 a little later in this judgment.

On 19 January 2005 the applicant applied for leave to enter the United Kingdom as a self-employed businessman. He relied on the Turkish EC Association Agreement of 1963. It is known as the Ankara Agreement and I will refer to it as such. In particular he relied on article 41(1) of the Additional Protocol of 1973. This is known as the standstill clause. It provides:

“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”

The applicant’s purpose in relying on the standstill clause was to secure that his case was dealt with pursuant to the immigration rules in force in 1973, namely those contained in House of Commons Paper 509, as opposed to the then current rules contained in House of Commons Paper 395 as amended. The latter rules were more restrictive. Paragraph 205 of HC 395 states that entry to the United Kingdom by a person seeking to establish himself in business is to be refused if the applicant does not produce a valid entry clearance for entry in that capacity to the immigration officer on arrival. Paragraphs 30 to 32 of HC 305 by contrast allow that a claim may be entertained without any entry clearance but provide (I summarise) that entry is to be refused if the Secretary of State is not satisfied that the applicant is able to establish himself in business in the United Kingdom or that he could maintain and accommodate himself out of the profits of the business.

The applicant’s application of January 2005 was refused by letter dated 17 October 2005. The Secretary of State says that in accordance with stated policy the application was considered both under HC 395 and HC 509 and the applicant failed to pass muster on both. I need not go further into the details since this is not itself a decision now under challenge. It was in fact sought to be challenged by way of judicial review and at length on 20 July 2006 a consent order was sealed, whose effect was that the judicial review claim would be withdrawn and the Secretary of State would reconsider the applicant’s application within 28 days and pay the applicant’s costs. However, the application was not reconsidered within that time limit. A witness summons from a Mr Emmanuel Iduh made on 11 October 2007 for the purposes of this appeal shows that it was in fact reconsidered by the appropriate unit in Sheffield in late September 2006. A fresh decision was taken internally to refuse the application, though that was not then communicated to the applicant. On 29 September 2006 (Mr Iduh, paragraph 12) removal directions were set for 13 October 2006. Still the applicant had not been served with or notified of any fresh decision. On 11 October 2006 the applicant, who was subject to reporting conditions, duly reported at the appropriate place and was then and there detained and the removal directions were served.

Mr Iduh says this at paragraph 13:

“On 12 October 2006 the removal directions were cancelled as the ECAA [I interpolate -- that is a reference to the Ankara Agreement] decision had not been served on the Claimant. Although the removal directions had been cancelled, the Claimant was not released at this point because it was still believed that the removal directions could be re-served with the ECAA decision.”

The applicant was at length released on 26 October 2006 (so had been detained for 15 days). He asserts that this was in the circumstances a wrongful imprisonment for which he is entitled to damages. During the course of argument this morning, with the concurrence of both counsel, we gave a direction under CPR part 54(20) that this part of the case (if I may so put it) should proceed as a separate claim, not by way of judicial review, but henceforth in the Queen’s Bench Division. It is therefore not necessary in these proceedings to say any more about it. I return to the narrative.

A decision further refusing the applicant’s application was at length served on 23 November 2006. Under HC 395 (like the earlier decision of 17 October 2005) the application was refused for want of an entry clearance and under HC 509 (the 1973 rules) it was refused because at that stage the Secretary of State was still not satisfied that the applicant had shown he was actively involved in trading or providing services in business in the United Kingdom. The current application for judicial review was lodged in the Administrative Court on 27 November 2006. Permission was initially refused on the papers by Silber J on 12 January 2007. The permission application was however restored in court on 24 January 2007. Mitting J adjourned it and ordered that the Secretary of State provide an explanation of the procedures in place for dealing with applications made in Turkey under the Ankara Agreement pursuant to the 1973 rules. On 30 January 2007 Dobbs J adjourned the matter again and ordered that the applicant serve all the documents relied on by him in support of his application for leave to enter. With respect, I am not sure that that was an appropriate order. The Administrative Court’s task was not of course to judge the factual merits of the claim to enter the United Kingdom. At all events, Dobbs J’s direction prompted the service on 6 February 2007 of a further 185 pages of material by the applicant.

In these circumstances the Secretary of State produced a fresh decision letter dated 19 February 2007. This was the substantial target of the challenge before Lloyd-Jones J on 23 February 2007 and now before us. Again, consideration was given in this decision letter to House of Commons paper 509 and 395. So much appears on the face of the letter. The letter also addressed a claim based on Article 8 of the European Convention on Human Rights. That had been raised in the judicial review application. There was also reference to Article 1 of the First Protocol. Claims under those heads relating to the ECHR were rejected and it was also decided that the representations made on behalf of the applicant did not amount to a fresh claim under paragraph 353 of HC 395 as amended. Now, it is important to notice the specific reasoning of the Secretary of State in this decision letter of 19 February 2007 in relation to the requirements of paragraphs 30 and 32 of HC 509 (the 1973 rules). Previously, the Secretary of State had not been satisfied that those requirements were met on the facts. So much appears from the earlier decision. But now he accepted that the applicant had indeed established such a business as is referred to in the rules; but said in the decision letter (paragraph 5):

“While I am satisfied that your client meets the requirements of paragraph 30 and 32 of HC509, he was able to do so by failing to depart the United Kingdom when required to do so by breaching the conditions of his temporary admission.”

The letter then referred to the decision of Collins J in R (Kenen Temiz) v Secretary of State for the Home Department [2006] EWHC Admin 2450 which applied in its turn the decision of the European Court of Justice in Kondova [2001] ECR 1-06427, and also cross-refers to a decision of Beatson J in Yilmaz [2005] 1 WLR 3944. The point being made by the Secretary of State was that the applicant was not entitled to the benefit of the standstill clause in the Ankara Agreement if he only met the requirements of the 1973 Rules by reason of his own wrongdoing in establishing a business in violation of the conditions of his temporary admission. Paragraph 7 of the decision letter is in these terms:

“All the circumstances of your client’s case have been carefully considered but, in view of the fact that any business your client established was established while working in breach of a condition attached to his temporary admission, I am not prepared to grant your client leave to enter under the 1973 immigration Rules.”

In relation to the standstill clause, the Secretary of State in the decision letter also relied on what was referred to as the fraud exception. That had been articulated in this court in Dari v Tum [2004] EWCA Civ 788 and subsequently applied in decisions of the Administrative Court. On this, the Secretary of State’s position was that the applicant had put forward a fraudulent claim for asylum. That was demonstrated by the determination of the adjudicator. The adjudicator had held (paragraph 40) that there were substantial grounds to believe that the applicant had made arrangements to leave Turkey for economic reasons and not, in truth, as a refugee. In those circumstances he was not entitled, so the Secretary of State held, to the benefit of the standstill clause. Before Lloyd-Jones J on 23 February 2007 two points were taken. The first was that the Secretary of State’s own guidance relating to applicants who sought to rely on the Ankara Agreement stated that:

“…a ‘negative’ history, including previous unlawful presence in the UK does not prevent the application of the standstill clause. This means that applications continue to be considered under HC 509.”

It was said that in his decision letter of 9 February 2007 the Secretary of State had departed from this guidance. The second point taken before the judge below was that the applicant had claims to remain based on Article 8 and Article 1 of the First Protocol to the ECHR which the court ought to uphold. These points were rejected by Lloyd-Jones J. The first of them, in a somewhat more developed form, is live again before us. Mr Y Zahed for the applicant has also submitted on paper (paragraph 20 and following of his skeleton argument) that his Article 8 claim amounted to a fresh claim so as to generate fresh statutory appeal rights to the Asylum and Immigration Tribunal. However, as I shall shortly show, the ECHR dimension to this case has essentially fallen away.

I turn then to the first and principal ground as it was put before Lloyd-Jones J: a failure to follow the Secretary of State’s own guidance. Put that way the ground seems to me to be misconceived. The guidance says that applications will continue to be considered under HC 509: but so this application was, as the text of the decision letter makes clear. The real complaint is that the applicant should have had the substantive benefit of HC 509 because he established that he was running a business which on the face of it satisfied the HC 509 requirements and of that he was deprived. He was deprived of the benefit of HC 509 for the two reasons given in the decision letter which I have described. Were the reasons good? Lloyd-Jones J placed emphasis on the fact that HC 509 in any event confers a discretion on the Secretary of State and in this case he did no more than exercise it, taking account of the applicant’s violation of the conditions of his temporary admission. But as it seems to me, with respect, the real question is perhaps a little deeper. First: was the Secretary of State entitled to disregard the facts (as it were, the qualifying facts) of the applicant’s establishment of his business on the ground that those facts were the fruit of the applicant’s breach of his conditions of temporary admission? Secondly: is the applicant to be deprived of the benefit of HC 509 because of his attempt to gain entry to the United Kingdom by means of a fraudulent asylum claim?

The argument this morning has concentrated on the first of these questions. Indeed, we have not gone into the second. If the Secretary of State succeeds on the first then he needs no support from the second point. It is convenient at this stage briefly to review the learning which bears on this part of the appeal. The appropriate starting point is Kondova in the European Court of Justice. This decision preceded the material English cases. It concerned anti-discrimination provisions in the Association Agreement between the European Communities and Bulgaria. The European Court of Justice said:

“77.

…if Bulgarian nationals were allowed at any time to apply for establishment in the host Member State, notwithstanding a previous infringement of its national immigration legislation, such nationals might be encouraged to remain illegally within the territory of that State and submit to the national system of control only once the substantive requirements set out in that legislation has been satisfied.

“78.

An applicant might then rely on the clientele and business assets which he may have built up during his unlawful stay in the host Member State, or on funds accrued there, perhaps through taking employment, and so present himself as a self-employed person now engaged in, or likely to be engaged in, a viable activity whose rights ought to be recognised pursuant to the Association Agreement.

“79.

Such an interpretation would risk depriving Article 59(1) of the Association Agreement of its effectiveness and opening the way to abuse through endorsement of infringements of national legislation on admission and residence of foreigners.”

Kondova was referred to by Woolf LCJ, as he then was, in Dari v Tum [2004] EWCA Civ 788 which was directly concerned with the standstill clause in the Additional Protocol to the Ankara Agreement. There the respondents had unlawfully remained in the United Kingdom after their asylum claims had been rejected although, as the Lord Chief Justice made clear, it was not shown that the claims had been fraudulent. On those facts it was submitted to the Secretary of State that the respondents were not entitled to the benefit of the standstill clause. Lord Woolf disagreed. He said:

“22.

There is nothing in article 41(1) of the Additional Protocol itself to support that argument. Furthermore, when the judgment in Savas [I interpolate -- that has been relied on] is properly understood as falling into two clear parts, then it seems to me that the judgment strongly supports the contention of the respondent. 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.

“23.

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 (Cas C-235/99, 27 September 2001), which was not referred to in the court below, confirms that that is the position. The provisions which are 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 seeker by fraudulent means.”

In the same case, Dari v Tum, their Lordships’ House made a reference to the European Court of Justice. The European Court of Justice handed down its judgment as recently as 20 September 2007. At paragraph 64 of the judgment this is said:

“Lastly, as regards the alternative argument of the United Kingdom Government that failed asylum seekers such as the applicants in the main proceedings should not be allowed to rely on Article 41(1) of the Additional Protocol, since any other interpretation would be tantamount to endorsing fraud or abuse, it must be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends [authority then cited] and that the national courts may, case by case, take account on the basis of objective evidence of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely [and a further case is cited].”

This, if I may say so with great respect, is an application of the abuse of rights principle which is well established in the jurisprudence of the Court of Justice. There is a plain affinity with the common law rule (if I may express it very broadly) that a man may not profit from his own wrong and the linked principle expressed in the Latin phrase ex turpi causa non oritur actio. There is in the present context no reasonable distinction, I think, between abuse of rights and fraud. Such a distinction if it were asserted could not in my judgment survive the reasoning of the Court of Justice in Kondova and Dari v Tum. This conclusion is, I apprehend, in line with first instance decisions in the Administrative Court, notably Yilmaz and Temiz to which I have made reference. I will not, with respect, cite those judgments.

What then is the position here? I have concluded that the Secretary of State was entitled to deny the applicant the benefit of paragraphs 30 to 32 of HC 509 because his reliance on those provisions was in truth only viable by virtue of his own wrongdoing -- the establishment of a business in 2004 in plain contravention of a then extant prohibition against his doing so. It is true been the focus of the argument this morning has been the fact that from October 2006 onwards, successive forms IF96 did not repeat this restriction on their face. However, the applicant had made his application to enter as a businessman in January 2005 and he relied on the business he had established from June 2004 onwards. That essentially remained the case. The Secretary of State in paragraph 7 of the decision letter, which I have already set out, is plainly addressing his attention to the basis on which or the circumstances in which the business of the applicant had historically been established. Even if (which I am bound to say I doubt) in October 2006 the applicant was entitled to think that the restriction was not then being insisted on, the basis on which his application had been put forward and on which indeed it depended remained the historic establishment of a business in violation of his conditions.

In these circumstances it seems to me that the Secretary of State’s decision was lawfully arrived at, and for my part I do not find it necessary to decide whether the Secretary of State was also entitled to rely on the applicant’s fraudulent asylum claim. It may be said that that claim was in effect what allowed the applicant to remain in the United Kingdom albeit on temporary admission from 2000 onwards while the appeal process took its course. But the circumstances relating to the fraudulent asylum claim may well be thought more remote from the claim to enter as a businessman than is his actual establishment of the business in question.

For these reasons I conclude that there is nothing in the first and principal ground of appeal. There is a suggestion that it is in some way enforced by a legitimate expectation. I perceive no such expectation. None, I think, is generated by the Secretary of State’s guidance discussed by Lloyd-Jones J and to which I have referred. As regards the point under the European Convention on Human Rights, Mr Zahed has this morning very candidly accepted that in truth the Article 8 claim falls away, as it is now to be understood that the applicant could launch a fresh claim to enter the United Kingdom from Turkey. It is not in those circumstances necessary to say any more about Article 8. Nor in truth can Article 1 of the First Protocol provide any self-standing justification for overturning the Secretary of State’s decision. That being so, it is not necessary to go into the question whether the Article 8 claim might be thought to be a fresh claim theoretically generating fresh appeal rights.

For the reasons I have given I would for my part refuse this application for judicial review.

I agree.

I also agree.