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

The background facts

There are no suggestions that Mr Tum breached the conditions of his temporary admission. On the 19^th December 2002 his solicitors (who had acted in the judicial review proceedings) wrote a detailed letter to the Immigration Service Ports Directorate in Dover applying on behalf of Mr Tum for “leave to enter” the UK on the basis of his prospective self-employment, in reliance on the Association Agreement. They enclosed various documents with that application including his business plan for his proposed business (which was to be the provision of cleaning services to local businesses in North London); offers of contracts from prospective customers; and letters of support from certain relatives. The letter went on in considerable detail to explain the application and also asserted that Mr Tum’s position was to be assessed by reference to the immigration rules applicable as at 1^st January 1973. It is not clear what, if any, response was given to that application. At all events on the 23^rd April 2003 his solicitors wrote again requesting the consideration of the application made on 19^th December 2002. On the 12^th May 2003 the Home Office responded by faxed letter asserting that Mr Tum was unable to rely on the provisions of the Association Agreement; that under current domestic law Mr Tum would require an entry clearance before seeking to establish a business; and that (since he had no such entry clearance) he was not entitled to enter to establish a business and thus arrangements would be made to return him to Germany as soon as possible.

In the face of that letter, Mr Tum’s solicitors made an urgent application for an injunction staying the removal directions which had been set for the 13^th May 2003 and obtained such an injunction on the 12^th May 2003.

The Claim Form was issued on the 13^th May 2003. It sought to quash the decision communicated by the letter of 12^th May 2003. The application for permission was, by order made on 23^rd June 2003, adjourned for oral hearing at the same time as the hearing in the Dari matter – since the issue raised was common to both claims.

In the circumstances, it was plainly appropriate to grant permission in the case of Mr Tum and, at the outset of the hearing and with the consent of all concerned, I granted permission. The hearing thus was directed at the substantive applications for judicial review of each of Mr Tum and Mr Dari. Mr Tum was represented by Ms Nicola Rogers; Mr Dari by Ms Joanne Rothwell; and the Secretary of State by Mr Pushpinder Saini.

The Association Agreement signed at Ankara on 12^th September 1963 was made between the then Member States and the Council of the EEC and the President of the Republic of Turkey. The recitals record, among other things, that it had been determined to “establish ever closer bonds between the Turkish people and the peoples brought together in the European Economic Community”; and that it had been resolved to ensure a continuous improvement in living conditions in Turkey and in the Community through “accelerated economic progress and the harmonious expansion of trade and to reduce the disparity between the Turkish economy and the economies of the Member States of the Community”. The recitals also made reference to the objective of facilitating the accession of Turkey to the Community at a later date.

The structure of the Association Agreement was to provide for a preparatory stage leading to a transitional stage and then to a final stage, in terms of implementation. Article 7 of the Association Agreement provided that the contracting parties should take all protective measures, whether general or particular, to ensure the fulfilment of the obligations arising under the Agreement and should refrain from any measure liable to jeopardize the attainment of the objectives of the Agreement. Article 13 providedthat the contracting parties agreed to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community [see now Article 43 to 46 and 48 of the consolidated version of the Treaty] for the purposes of abolishing restrictions on freedom of establishment between them; Article 14 contained the corresponding provision with regard to abolition of restrictions on freedom to provide services. Article 30 provided that the protocols annexed to the Agreement should form an integral part of it.

The Additional Protocol signed in Brussels on 23^rd November 1970 provided that its provisions should be treated as annexed to the Association Agreement. The crucial provision of that Protocol, for present purposes, is Article 41(1) (contained in chapter II of Title II of the Additional Protocol). That provides as follows:

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

The objectives behind the Association Agreement and Additional Protocol are thus made evident by their recitals and their provisions.

As at 1^st January 1973 (when the UK bound itself to the Association Agreement, including the Additional Protocol) the relevant UK immigration rules, for the purposes of establishment of business and provision of services, were contained in the Statement of Immigration Rules for Control on Entry (HC509) and in the Statement of Immigration Rules for Control after Entry (HC 510). These had been laid before Parliament on the 23^rd October 1972.

Thus in HC 509 it is provided, among other things, by paragraph 30 (under the heading “Businessmen”) that passengers who are unable to present an entry clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next two paragraphs should be admitted for a period of not more than 2 months, with a prohibition on employment, and advised to present their case to the Home Office. Paragraph 31 refers to the need for the applicant to have sufficient funds to put into a business, if already established, and to bear his share of its losses; provides that he must be able to support himself and his dependants; that he must be actively concerned in the running of the business; and various other such matters. Paragraph 32 provides that if the applicant wishes to establish a business on his own account he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required. As for HC 510 that contains provisions extending to those who have obtained leave to enter for a limited period. Specific provisions relating to businessmen and self-employed persons (not being EEC nationals) are set out in paragraph 21.

Since that time the UK has progressively introduced immigration rules significantly more onerous with regard to those seeking to enter (or remain) with a view to establishing business or providing services. Thus under the current relevant immigration rules relating to persons seeking to enter the UK or remain in the UK as a self employed person or businessman (HC 395, as amended) it is provided, with regard to a person seeking leave to enter to establish himself in business, that he must be able to produce on arrival a valid UK entry clearance for entry in this capacity (see para 204): with a stipulation that leave to enter is to be refused if a valid entry clearance for entry in that capacity is not produced (para 205). Paragraph 201 provides that (among the detailed requirements there set out) a person seeking leave to enter the UK to establish himself in business needs to show that he has not less than £200,000 under his control in the UK and which he will be investing in the business in the UK. It is unnecessary to go into any greater detail. Mr Saini on behalf of the Secretary of State concedes – in my view, plainly correctly – that the relevant UK immigration rules currently applicable to those seeking to enter to establish a business are less favourable to these applicants than those subsisting as at 1^st January 1973.

The position adopted by counsel on behalf of Mr Tum and Mr Dari is straightforward. Their case, in essence, is this. Article 41 of the Additional Protocol prohibits the Contracting Parties from introducing, as between themselves, any new restrictions on the freedom of establishment. The current immigration rules applicable in the UK (HC395, as amended) do contain new restrictions on the freedom of establishment as compared to those subsisting on the 1^st January 1973; the Secretary of State is accordingly obliged to assess the applications of Mr Tum and Mr Dari (both being Turkish nationals) by reference to the immigration rules prevailing on the 1^st January 1973 (and which rules, among other things, did not make it mandatory that a person seeking to enter to establish a business must first produce a valid entry clearance for that purpose); and accordingly the respective decision letters were flawed and erroneous in law and should be quashed.

The position adopted by counsel on behalf of the Secretary of State, however, in essence comes to this. It is accepted that Article 41 of the Additional Protocol has the effect of preventing the Secretary of State from introducing restrictions in this context (in so far as applicable to Turkish nationals) which are less favourable to applicants than those subsisting on the 1^st January 1973; but that prohibition only applies with regard to those who have already obtained leave to enter and has no application to those who have not already obtained leave to enter; accordingly the current immigration rules can properly be applied to Mr Tum and Mr Dari; and the decision letters were justified.

At the outset of Ms Rogers’ address to me (Ms Rogers making the first submissions, and her submissions being adopted, as well as amplified, by Ms Rothwell) I suggested that one could perhaps identify four categories of person seeking leave to establish a business in the UK:

At that stage I had been presuming that Mr Tum and Mr Dari would not fall within the fourth category. After all, whatever the circumstances of their protracted (and unsuccessful) asylum applications in the UK, each had been given temporary admission to enter the country, each had in fact physically entered the country and each was present (and for a number of years now has been present) in the country. Thus in substance they were seeking to remain in, not enter, the country; a view reinforced by the fact that Mr Dari’s application of 30^th September 2002 had been for leave to remain; and Mr Tum’s solicitors, although the letter of 19^th December 2002 was designated as an application for leave to enter, had sought to invoke the relevant immigration rules not as HC 509 but HC 510 – that is, the immigration rules subsisting at 1^st January 1973 for control after entry.

However, all three counsel appearing before me were agreed that that was not so. They agreed that each of Mr Tum and Mr Dari were to be taken as persons seeking leave to enter to establish a business, notwithstanding they were already present in the UK (Ms Rothwell explaining that Mr Dari’s application, in so far as it sought leave to remain or an extension of stay, should be treated as a slip). The reason why counsel were agreed that was so derives from s.11 of the Immigration and Asylum Act 1971. That, in the relevant respects provides as follows:

“A person arriving in the United Kingdom by ship or aircraft shall for the purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for the purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act [or by part III of the Immigration and Asylum Act 1999]”.

In the light of that deeming provision relating to those who (like Mr Tum and Mr Dari) have been temporarily admitted, I can see the basis for that agreed approach. All the same, I have some reservations in the present context. For example, this approach as urged by Mr Saini (and with whom Ms Rogers and Ms Rothwell agreed) gave rise in argument to a somewhat Alice in Wonderland style of debate as to what extent (if at all) the Secretary of State, in considering such applications, could have regard to the conduct (including business conduct) of an individual applicant who had been actually present in the UK for many months (like Mr Tum and Mr Dari) but who are deemed in law not to have entered at all. Other potential implications in this context might also, it has occurred to me, possibly arise where initial leave to enter has been obtained by actual deception or where there has been breach of a condition attached to leave to enter: see s.24A of the 1971 Act (cf s.10 of the 1999 Act) - provisions not, I add, in force as at 1^st January 1973 – although this was not really explored in argument before me. Nevertheless, and notwithstanding my reservations, I think, given the terms of s.11(1) of the 1971 Act, that I should proceed on the basis agreed as correct by all counsel before me: that is, that Mr Tum and Mr Dari are to be treated as applicants for leave to enter with a view to establishing a business.

Two legal authorities have loomed large in the argument before me. The first is the decision of the European Court of Justice (6^th Chamber) in R v Secretary of State for the Home Department ex parte Savas (Case C-37/98; [2000] ECRT – 2927). The second is the Court of Appeal decision in R v Secretary of State for the Home Department, ex parte A 2002 EWCA Civ 1008; 2002 Eu LR 580.

In Savas, Mr Savas (a Turkish national) and his wife had in 1984 obtained leave to enter the UK as tourists for one month. They were prohibited, as a condition of entry, from obtaining employment or engaging in any business. In the event, they remained in the UK after the expiry of their visas, thereby contravening the applicable immigration law. In 1989 Mr Savas set up a shirt factory in London, on a self employed basis. In 1991 he and his wife sought to regularise their position, seeking leave to remain. After much delay, the application was refused and a deportation order was served on them. Various legal challenges to that were made. In 1992 Mr Savas established a fast food business in Kent. In 1995 (after the challenges to the deportation order had failed) Mr and Mrs Savas for the first time sought to remain in the UK placing reliance on the Association Agreement and Article 41 of the Additional Protocol and asserting HC510 as the applicable rules. This new argument was rejected and once more Mr Savas resorted to the courts. The argument of the Secretary of State was to the effect that the Association Agreement could not be relied upon by a person not lawfully present. In the event, six questions were referred by the High Court to the European Court of Justice for a preliminary ruling. Those six questions are set out in paragraph 36 of the judgment of the Court. The first question, as originally formulated by the High Court (McCullough J) for reference in Savas, was in the following terms:

“Is the agreement establishing an association between the European Economic Community and Turkey signed at Ankara on 12^th September 1963 (“The Agreement”) together with the additional protocol to the agreement signed at Brussels on 23^rd November 1970 (“The Additional Protocol”) to be interpreted as conferring benefits on a Turkish National who has (a) entered or (b) remained in the territory of a member state in breach of the immigration law of that member state.”

The Court concluded that Article 13 of the Association Agreement did not have direct effect in member states. The Court then turned to a consideration of Article 41(1) of the Additional Protocol. The Court decided that Article 41(1) of the Additional Protocol did have direct effect. It stated, at paragraph 54, that the Article laid down a “precise and unconditional principle that is sufficiently operational to be applied by a national court and therefore capable of governing the legal position of individuals”; and therefore the individuals to whom it applied had the right to rely on it before the courts of member states.

In view of the arguments addressed to me, it is necessary to set out in extenso the parts of the judgment which went on to deal with the scope of Article 41(1) of the Additional Protocol:

“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 that provision.

58 As regards, first, the argument put forward by Mr Savas in his written observations, the first point to be made is that 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 already lawfully integrated into the labour force of Member States (see, in particular, Case C-171/95 Tetik v Land Berlin [1997] ECR 1-329, paragraph 21).

59 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 (see, in particular, Tetik, paragraph 29).

60 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 persons 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 (see, to that effect, Sevince, cited above, paragraph 29; Case C-237/91 Kus v Landeshauptstadt Wiesbaden [1992] ECR 1-6781, paragraph 29; Case C-434/93 Bozkurt v Staatssecretaris van Justitie [1995] ECR I-1475, para 28; Case C-340/97 Nazli v Stadt Nurnberg [2000] ECR 1-957, paragraph 28) and that such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there (see, in particular, Kus, paragraph 36; Case C-36/96 Gunaydin v Freistaat Bayern [1997] ECR 1-5143, paragraph 55; Case C-98/96 Ertanir v Land Hessen [1997] ECR I-5179, paragraph 62; Case C-1/97 Birden v Stadtgemeinde Bremen [1998] ECR 1-7747, paragraph 69). However, according to that 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 (Sevince, paragraph 30; Kus, paragraphs 12 and 22; Bozkurt, paragraph 26).

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 residence permit (Case C-285/95 Kol v Land Berlin [1997] ECR 1-3069, paragraph 27).

62 In paragraph 28 of its judgment in Kol, the Court held more particularly that employment held by a Turkish national under a residence permit obtained in fraudulent circumstances of that kind could not possibly give rise to any rights in his favour.

63 These principles, established in the context of the interpretation of the provisions of the EEC-Turkey Association Agreement for the progressive achievement of free movement of Turkish workers in the Community, must also apply, by analogy, in the context of the provisions of that Association Agreement concerning the right of establishment.

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 correlatively, in relation to residence, only in so far as his position in the Member State concerned is regular.

66 In the case before the national court, according to the order for reference, after expiry of his tourist visa, the validity of which was limited to one month, Mr Savas did not obtain any further authorisation to remain in the United Kingdom and thus continued to reside there in breach of domestic law. Moreover, his visa expressly forbade him from taking employment or engaging in any form of business activity whatsoever in that Member State.

67 In those circumstances, the fact that Mr Savas did not leave the United Kingdom after 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.

68 As regards, second, the line of argument taken by Mr Savas at the hearing before the Court, 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 then 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.”

The court then gave its answers to the first three questions referred as follows:

“71 In the light of all the considerations set forth above, the answer to the first three questions must be as follows:

It is to be noted that, in approaching the issues before it, the court specifically addressed the first argument raised by Mr Savas in his written submissions to the effect that Article 41(1) of the Additional Protocol was capable of conferring on him a right of establishment and a corresponding right of residence in the member state whose territory he had been authorised to enter, even though he had remained there and carried on business activities on a self-employed basis in breach of that member state’s law (see paragraph 56). The Court addressed that argument even though it appears that Mr Savas did not pursue it in his oral submissions; and dealt with it in paragraphs 58 to 67 inclusive of the judgment. The Court then turned to the second argument of Mr Savas which he had pursued at the hearing (summarised at paragraph 57 of the Judgment) to the effect that it was for the national court to determine whether national rules by reference to which the decision to deport was based were stricter in relation to the 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 so breached Article 41(1). The Court dealt with the second argument at paragraphs 68 to 70 inclusive of the judgment.

At first sight the concluding answer in paragraph 71 of the judgment of the Court to the first three questions referred seems inconsistent with Mr Saini’s present submissions. The answer there given to the first three questions referred is framed both in general and in unequivocal terms. But Mr Saini submits that that answer has to be read in the context of the preceding parts of the judgment. And he submits that those are substantively dealing with those individuals (such as Mr Savas) who have already lawfully entered the territory of the member state in question, and then remained and set up in business there, and who are to be the subject of deportation or removal; they are not dealing (he submits) with questions of initial entry. He stresses, in particular, paragraphs 58 and 59 and 64 and 65 of the judgment, to the effect that Article 41(1) does not in itself confer a right of establishment (or corollary right of residence); to the effect that a Turkish national’s first admission to the territory of a member state is governed exclusively by that state’s own domestic law; and to the effect that the Association Agreement does not encroach upon the competence retained by member states to regulate the entry into the territory of that member state by Turkish nationals. The right of a member state to regulate first entry thus, he says, is “sacrosanct” (in Mr Saini’s word).

If one simply stops at those parts of the judgment dealing with the first argument raised in Savas I can see the greatest force in what Mr Saini submits. But it seems to me that the answer to the first argument is qualified by the Court’s observations with regard to the second argument as set out in paragraphs 68 to 70: and, as I see it, those observations, taken together with previous observations, inform and explain the width of the answer provided at the conclusion of the judgment at paragraph 71. Given the way those paragraphs are phrased it is difficult to accept Mr Saini’s submission that paragraphs 68 to 70 only relate to those who have previously been given leave to enter.

In the case of A, Mrs A came to the United Kingdom from Turkey in 1992 with six months leave (later extended by a further period and with permission to work granted) to enter as a student. In 1994 she set up in business. From May 1995 she became an overstayer, without leave to remain. In 1997 she applied for leave to remain as a business person, contending that she had a right of establishment (and corollary right of residence) under the Association Agreement. Her factual position thus, as Mr Saini pointed out, was similar to that of Mr Savas: in that each had initially lawfully entered the UK but thereafter only applied to remain (by reference to the Association Agreement) after they had become unlawful overstayers. That factual position is thus different to that of Mr Tum or Mr Dari.

At first instance (9^th November 2001; 2001 EWHC Admin 996) Scott Baker J was persuaded that the case raised issues requiring the determination of the European Court of Justice. He noted that the first question originally formulated for reference by the High Court of Justice in Savas had not been answered specifically by the European Court of Justice but had been reformulated. Scott Baker J took the view that the question whether any Turkish national, regardless of whether his presence in the UK was lawful under domestic law, was entitled to the benefit of the “standstill” provision in Article 41(1) of the Additional Protocol was an important one which appeared to have been left open to doubt by paragraphs 56 to 70 of the judgment in Savas. He also noted, at the conclusion of his judgment, that the claim before him had been amended, raising an additional question to be posed for the European Court of Justice “with regard to persons entering the UK, as opposed to those who are already here”. Scott Baker J considered an answer to that question also to be necessary in the overall disposal of the matter. The question referred to the European Court of Justice thus contained two limbs, reflecting the points raised before Scott Baker J. The question was framed by Scott Baker J in these terms:

“1.

Is Article 41(1) of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 18 December 1972, to be interpreted as prohibiting a Member State from introducing new national restrictions on the freedom of establishment of Turkish nationals as from the date on which that Protocol entered into force in the Member State concerned in the cases of:

(a)

a Turkish national who is present in the Member State concerned in breach of its domestic immigration law;

(b)

a Turkish national who seeks admission to the territory of the Member State concerned in order to exercise her claimed rights of freedom of establishment by seeking to establish herself in business in the Member State?”

Mrs A appealed. On the 16^th July 2002 the Court of Appeal (Lord Woolf CJ, Waller LJ and Sedley LJ), in what I am told was a reserved judgment, allowed the appeal. It held that the first limb of the question posed had already been answered by the Savas decision, in so far as it affected the appellant’s case. The second limb of the question raised a contingent question which had not arisen and did not by itself justify a reference.

It is the second limb of the question posed in A (which, in the event, did not fall for decision by the Court of Appeal) which is directly in point in the present case, on the footing that Mr Tum and Mr Dari are to be treated as persons applying to enter the UK to establish a business. At all events that is the way in which the arguments of all counsel addressing me (reflecting what I have noted earlier in this judgment) have proceeded. It may be observed however (and this perhaps reflects my own reservations as to the basis agreed by counsel) that the first limb of the question posed by Scott Baker J relates to the cases of Turkish nationals who are “present” in the member state concerned in breach of its domestic immigration law. That would appear to be the position of Mr Tum and Mr Dari. Mr Saini, however, (who appeared as counsel in the A case on behalf of the Secretary of State) said that the drafting of the first questions referred to in A , and his argument in that case as summarised in paragraph 10 of the judgment of Sedley LJ, had not in fact been designed to deal with the present position: which had, he said, been intended to be embraced in the second limb of the question framed by Scott Baker J.

Sedley LJ delivered the first judgment. He explained the structure of the judgment in Savas. In the course of his judgment he held (paragraphs 7 and 8) that the ruling of the European Court of Justice in Savas was acte claire: it had decided that the effect of Article 41(1) of the Additional Protocol was that in determining the status of Turkish nationals in the member state concerned the criteria to be used must not be more restrictive of their freedom of establishment and of the corollary right of residence than as at 1^st January 1973. That being so, the first limb of the question posed by Scott Baker J had already been decided, and there was no conflict of reasoning between paragraphs 56-65 and paragraphs 66-70 of the judgment in Savas. As Sedley LJ put it (at para 12 of his judgment):

“It amounts simply to this: that Art. 41(1) does not make lawful the otherwise unlawful presence of a Turkish national in a member state: but that in deciding whether such presence was lawful the principles to be applied must be no less favourable than they were, in regard to establishment, on 1^st January 1973”.

Waller LJ reached the same conclusion. He indicated that Savas had not left anything unclear. He emphasised (paragraph 23 of the judgment) that the right of Turkish nationals under Article 41(1) of the Additional Protocol was not a right of establishment but “simply a right to be treated under the rules prevailing as at 1^st January 1973”. At paragraph 24 of his judgment, dealing with the second argument which had been raised by Mr Savas, Waller LJ stated:

“...............the finding of the court is limited to holding that as regards deportation or removal Savas was still entitled to rely on Article 41(1) and argue before the national court that the rules are now more harsh than they would have been in 1973 and, if that argument succeeds, the 1973 Rules must apply.”

Lord Woolf CJ expressed agreement with the judgments of Sedley LJ and Waller LJ.

Mr Saini’s position, as I have indicated, fundamentally depends on a distinction being drawn between those who have initially lawfully entered the territory of a member state (even if they thereafter stay on unlawfully) on the one hand; and those who have never been given leave to enter at all and who are seeking (or are deemed to be seeking) leave to enter, on the other hand. When pressed with the reality of such a differentiation in the case of a person given leave to enter for, say, just for a short while (and who then overstays, before applying to establish a business) as compared to one who never obtained leave to enter at all, his riposte was that the grant of leave to enter – irrespective of how short or how circumscribed the leave is – is an important administrative decision. It was thus an essential part of Mr Saini’s argument that of the four categories identified in paragraph 24 of this judgment, the first two were within the reach of the “standstill” provision contained in Article 41 (1) (as Savas and A confirmed): which thus could properly be invoked by Turkish nationals coming within those categories. But Turkish nationals within the third and fourth categories could not: just because, in those cases, no leave to enter had been given. While I can see the basis for such a distinction between the first two categories and the last two categories, it potentially does have quite striking consequences. 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 port). Hardly a satisfactory result.

Be that as it may, I do not consider that Mr Saini’s reasoning fits with the approach, and the specific ruling in answer to the first three questions referred, of the Court in Savas. I accept that, at paragraph 38, the Court had reformulated the questions as being in relation to a Turkish national who has “remained” in the member state concerned. But the Court had expressly stated that the first three questions referred should be examined together: and the first of the referred questions expressly included (as question 1(a)) those who had entered the territory of a Member State unlawfully. The ruling given by the Court at paragraph 71 in its answer to the first three questions can thus, I think, be taken to extend to those who have entered unlawfully as well as to those who have remained unlawfully. But those who have entered unlawfully fall within category (3) identified above: and it is a necessary part of Mr Saini’s argument that persons within such category are not within the reach of Article 41(1). This suggests that Mr Saini’s reasoning is wrong.

Moreover at paragraph 46 in Savas the Court had said this concerning Article 41(1):

“As its very wording shows, this provision lays down, clearly and 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”.

That is unqualified language, purporting to be of general application; and it is also consistent with the generality of the observations of paragraph 69 of the judgment and of the answer given to the first 3 questions referred in paragraph 71 of the judgment.

There are further aspects of Savas (and A) which, in my view, also indicate that Mr Saini’s present submissions are wrong. In Savas, the Court had repeatedly referred not only to the right of establishment but also to the “corollary” right of residence. As put by Waller LJ in A, in referring to “freedom of establishment” at paragraph 18 of his judgment:

“It entails ancillary rights without which the right of establishment is nugatory, including the right to enter the territory and to reside ”(emphasis added).

Mr Saini cited no other authority to me in support of his present proposition, whether of the European Court of Justice or of England or of any national court of another member state (I suspect Ms Rogers and Ms Rothwell would say that is just because the position has generally been taken as decided by Savas). He submitted, however, that Savas was only authority binding on me for what it decided and A also was only authority binding on me for what it decided.

I accept that as a matter of judicial precedent I am not bound by any decision or reasoning in A to conclude these present cases against the Secretary of State. That is because the Court of Appeal was only deciding the issue on the first limb of the question posed by Scott Baker J; it made clear that it was not deciding the second limb of that question as posed by Scott Baker J, which is the issue now before me. It may also be noted that Sedley LJ, in paragraph 12, went on to refer to Mr Saini’s complaint that the European Court of Justice in Savas had not addressed itself specifically to question 1 (b) referred by McCullough J; as to which Sedley LJ stated that “Question 1 (b) is encapsulated and dealt with in the reasoning and ruling of the ECJ”. That further suggests that the debate in A was not focusing on question 1(a) referred to by McCullough J. Mr Saini emphasised that, in leaving that point open, Sedley LJ (at para 13) and Waller LJ (at para 29) phrased themselves in ways that suggested they regarded the answer to the second limb of the question, posed by Scott Baker J, as to a degree independent from, and not necessarily the same as, the answer to the first limb of the question. I should perhaps also add that Mr Saini told me that, to his recollection, there was in the event no real argument before the Court of Appeal in A concerning the second limb of the question posed by Scott Baker J.

Even so, the very width of the wording in Article 41(1), and the reasoning and approach of the Court in Savas in interpreting it, seems, to me at least, to lead to the conclusion that a Turkish national seeking leave to enter the UK to establish a business is entitled to invoke the stand-still provision of Article 41 (1). Of course as Sedley LJ pointed out at paragraph 14 of his judgment in A, there may in any given case be issues affecting a Turkish national’s immigration status independent of his or her freedom of establishment. But that is, I think, a rather different consideration to what I am currently being asked to decide in these proceedings before me.

At the conclusion of the hearing on 16^th October 2003, I reserved my judgment. On the 28^th October 2003 (and after I had prepared a preliminary draft of my judgment) Mr Saini very properly wrote to the Court, informing it of the decision of the European Court of Justice in the case of Abatay and Sahin (case C-317/01; case C-369/01) handed down on the 21^st October 2003. In consequence, I invited the further written submissions of counsel as to that case.

Abatay and Sahin in essentials concerned the legality (viz-a-viz Turkish nationals) of the requirement under German law of a work permit requirement for those otherwise complying with the conditions laid down by German law for entry into German territory. Of particular relevance for the decision in that case were the provisions of Article 13 of Decision 1/80 of 19^th September 1980, adopted by the Association Council. That provided:

“The Member States of the Community and Turkey may not introduce restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.”

However, Article 41(1) of the Additional Protocol was also relied on in Abatay. In the course of its judgment, the Court reaffirmed the relevant principles propounded in the Savas case. Mr Saini drew attention to paragraphs 62 to 65 of the Abatay judgment as confirming what had been said in Savas; including the principle that the first admission to the territory of a member is governed exclusively by that state’s own domestic law. But in my view it is of some note that paragraph 66 of the Judgment in Abatay then goes on to say this:

“However, it is clear from paragraph 69 of Savas 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.”

Overall, I do not think the observations of the Court in Abatay advance Mr Saini’s argument – at most that decision enables him to reiterate the points he has already made by reference to the decision in Savas. But equally if (as is my view) the decision in Savas is to be read in a way contrary to that advanced by Mr Saini then the decision in Abatay can be taken as affirming that reading. Thus, as I see it, the applicable domestic law of the member state does indeed apply as to first entry. But (by virtue of Article 41(1) of the Additional Protocol, which these applicants have the right to invoke) that applicable domestic law is the law in place on 1^st January 1973: since that is more favourable to these applicants (being Turkish nationals) then that currently in place.

For these reasons, I reject the contentions advanced before me on behalf of the Secretary of State by Mr Saini.

I add that if (contrary to the agreed position of counsel) Mr Tum and Mr Dari are to be treated as persons seeking leave to remain (rather than leave to enter) then my conclusion can be, and is, no different; indeed, the position would be a fortiori. At all events, on the view I take of Article 41(1) I conclude that any Turkish national genuinely seeking to establish a business within the UK as a self-employed person and falling within any of the four categories which I have identified above would in principle be entitled to invoke the “stand-still” provision of Article 41(1) of the Additional Protocol. Accordingly I would answer the question posed at the outset of this judgment in the affirmative.

That being so, and in the light of the concession made by Mr Saini, it follows that, by reason of the operation of Article 41(1) of the Additional Protocol, Mr Tum and Mr Dari are entitled to require their applications to be considered by reference to the applicable immigration rules in place as at 1^st January 1973.

It further follows that each of the decision letters in the case of Mr Tum and Mr Dari was made on an erroneous basis and must be quashed. In the case of the decision letter relating to Mr Dari, indeed, that went so far as to assert that the provisions relating to the freedom to establish oneself in business under the Association Agreement are not directly effective rights upon which an individual is permitted to rely. That, on any view, is quite obviously wrong, as Mr Saini accepted. However, Ms Rothwell pragmatically did not base herself simply on that ground; she made common cause with Ms Rogers in attacking the validity of the approach of the Secretary of State in limiting the potential applicability of the Association Agreement and Additional Protocol to those who have initially lawfully entered the territory of a member state.

Perhaps needless to say, I express no opinion whatsoever as to the ultimate outcome of the applications of Mr Tum and Mr Dari for leave to enter to establish a business.

In the course of argument, I was shown extracts of the current printed policy guidance notes of the Home Office with regard to Turkish nationals seeking to establish a business in the UK. That policy, in its current form, is not entirely consistent with the position advocated by Mr Saini before me. Mr Saini suggested that the current policy reflects a degree of benevolence, as a matter of discretion, on the part of the Home Office in departing from the effect of the current immigration rules and of Article 41(1) (as he has submitted such effect to be). Ms Rogers, less charitably, suggested that the policy simply showed that the Home Office was in a complete muddle, after the decisions in Savas and A, as to just what the position really should be. Since it is not suggested that either Mr Tum or Mr Dari has relied upon those policy guidance notes to his detriment and since I was told that the policy guidance notes will in any event be reconsidered in the light of the eventual outcome of this case, I propose to say nothing more about them.

Mr Saini also submitted that if I were against him on his submissions – as I am – then I should exercise my powers to direct a reference to the European Court of Justice: referring me to the observations of Sir Thomas Bingham MR in the case of R v International Stock Exchange ex parte Else 1993 QB 534 at p545. I have a discretion in this regard (as is made clear by Part 68 of the Civil Procedure Rules). I decline, in the particular circumstances of this case, to direct a reference. I have an uneasy feeling that some of the arguments addressed to me mirrored, at least to some extent, some of the arguments advanced at first instance (if not on appeal also) in the case of A. I am not, for myself, prepared to direct a reference in circumstances which, although not the same, are at least similar to those existing in A: when in that case it was held by the Court of Appeal that a reference to the European Court of Justice was inappropriate. If a reference is to be directed in the present case, then in my view that should be by virtue of a decision of a higher court than this one.

The immigration and asylum climate has changed enormously in the last thirty years. The pressures on member states in coping with the ever-increasing numbers of those seeking immigrant or asylum status is well known. The rationale for successive Secretaries of State imposing increasingly stringent rules and procedures is clear. But, in the present context, the UK bound itself on the 1^st January 1973 to this Association Agreement and Additional Protocol. In doing so, it bound itself with regard to Turkish nationals to take all appropriate measures to ensure fulfilment of the obligations arising from the Association Agreement (and Additional Protocol) and bound itself to refrain from any measures liable to jeopardise the attainment of their objectives. That Association Agreement (and Additional Protocol) has not been renegotiated. That being so, it is the function of the national court, applying Community law, to give effect to the provisions of the Association Agreement and Additional Protocol, as interpreted and explained by the European Court of Justice.

In the result, and seeking to do that, I conclude that each of these claims for judicial review succeeds.

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MR JUSTICE DAVIS: Judgment will be in accordance with the judgment as handed down in both cases.

MR SAINI: My Lord, I rise first because, apart from one matter, the draft order which I e-mailed to my Lord's clerk yesterday has been agreed. I hope my Lord has a copy there. Some minor amendments have been made while we have been waiting here just on some matters of detail. The only issue is the question of permission to appeal. Before I turn to that, does my Lord have any observations?

MR JUSTICE DAVIS: Is it customary to order the Secretary of State to reconsider --

MR SAINI: It would happen in any event. I merely put that in there because in Ms Rogers' claim form she sought a directory order. It is strictly not necessary --

MR JUSTICE DAVIS: I think I am minded to delete that.

MR SAINI: I am content with that, my Lord. I should say that Mr Jorro appears in Ms Rogers' place this morning.

MR JUSTICE DAVIS: Yes.

MR SAINI: My Lord, the only other change was that I believe the claimant in the case of Dari is not legally aided, therefore there is only a Community Legal Service assessment of Mr Tum's costs, which is the further manuscript amendment.

MR JUSTICE DAVIS: According to Mr Dari, he was earning £15,000 a year, and I bore that in mind.

MR SAINI: If I may then turn to permission of appeal.

MR JUSTICE DAVIS: It is all right having a consolidated order, is it, in both?

MR SAINI: Unless the associate has some difficulty with that.

MR JUSTICE DAVIS: You better sort it out in due course. Otherwise, subject to the question of permission to appeal, that seems all right.

MR SAINI: As my Lord is aware, there are two basic criteria for granting permission to appeal. One is realistic prospect of success and the other is some other compelling reason for the appeal to be heard. If I may focus on the second in this case, because I do not seek to persuade my Lord, given the forthright terms in which my Lord expressed myself --

MR JUSTICE DAVIS: The fact that I am forthright, I might be clearly wrong.

MR SAINI: To deal with the question of whether or not there is any compelling reason, one of the subcriteria within that is whether or not the issue is of public importance. As my Lord has recorded in paragraph 1 of the judgment, it is an issue of public importance. In my submission that is enough of a reason.

MR JUSTICE DAVIS: Would your focus be on the substantive points or appealing with a view to getting a reference?

MR SAINI: We would try and run both points.

MR JUSTICE DAVIS: You will have noted the way I phrased myself on the reference point.

MR SAINI: At the moment, subject to instructions, I think we would try and run both arguments that we ought to succeed, or if there is any doubt the Court of Appeal ought to direct a reference.

MR JUSTICE DAVIS: If this went to the Court of Appeal the Court of Appeal may, as it were, take a pre-emptive view. You really focus more on the compelling reason ground rather than the realistic prospect of success ground.

MR SAINI: Yes, my Lord.

MR JORRO: My Lord, coming new to the case, I have read your judgment this morning. It is an entirely convincing judgment. There is no real prospect of success --

MR JUSTICE DAVIS: Well, that is not Mr Saini's --

MR JORRO: I accept that, my Lord, but my submission would be that the inevitable result of this, whether in the Court of Appeal or in the ECJ, would be the point made in Savas applies to the same position, ie --

MR JUSTICE DAVIS: One trouble is that Savas, on one view, did not directly answer the question which had originally been certified by McCulloch J. You have seen what I have had to say about that. It may be said that it is striking that in Abatay sufficient doubt on Article 41 still seems to have been in play to cause the German court to refer a related question under Article 41 back to the ECJ who, as Mr Saini would say, ducked it again.

MR JORRO: Yes, but nonetheless my submission would be that the inevitable result is going to be that they will say --

MR JUSTICE DAVIS: You mean, the ECJ have made it clear --

MR JORRO: It is the position as at 1st January 1973 in terms of the immigration case, whatever that case may be.

MR JUSTICE DAVIS: You mean I am obviously right?

MR JORRO: Yes, clearly right on the basis of the judgment in A.

MR JUSTICE DAVIS: That is very flattering. I understand, thank you.

MRS ROTHWELL: My Lord, I have really nothing to add, save to say that it has been very clear from the case law that was cited by Mr Dari and Mr Tum right from the very beginning, from the spirit of the agreement right the way through, that the 1973 Rules really are those that are applicable. In my submission, the matter is partly dealt with by A and dealt with fully by Savas and Abatay, and I would say that really it is very clear and there is really no point of public importance that cannot be dealt with by the judgments that are already in the public domain.

Unless I can assist you further, I would ask you not to grant permission to appeal.

MR JUSTICE DAVIS: I take the view that what has arisen here does raise a question of general importance and I take the view that there are compelling reasons for granting permission to appeal in this case so that the Court of Appeal may consider both the substantive issues and/or alternatively the question of whether or not there should be a reference of the points specifically arising to the European Courts of Justice. So rather on the second limb of the rule than the first limb I do grant permission to appeal.

MR SAINI: I am obliged, my Lord. I think that deals with all outstanding matters.

MR JUSTICE DAVIS: I have initialled this order.