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

MR JUSTICE MCCOMBE: I have before me an oral application for permission to apply for judicial review on the part of Mr Oktay Catal in respect of a decision of the Secretary of State, delivered at the beginning of this year, refusing the claimant his business application under the European Community Association Agreement with Turkey in relation to a business said by Mr Catal to be carried on by him by way of a cafe/restaurant under the well-known trade name of "Wimpy Bar".

The claimant's immigration history is a lengthy one. He is a citizen of Turkey. It is said that he entered the United Kingdom illegally, concealed in the back of a lorry on 22 March 1999. He claimed asylum on 31 March 1999. His asylum claim was refused on 10 September 2001 and refused on reconsideration on 12 July 2002. He appealed against that refusal and the appeal was dismissed by an immigration judge on 20 April 2001. Following the dismissal of that asylum claim, he initially sought to justify the right to remain here on the basis of family connections, and then finally made the application in respect of the establishment of the business which I have mentioned.

The documents submitted to the Secretary of State essentially turn upon an agreement made between the claimant and his brother in respect of the transfer to the claimant of the business and/or the premises on which the business is conducted at High Street in Northwood, South East London. That document, appearing at page 118 of the prime bundle, indicates that, for a period of 12 months, in effect Mr Catal (the claimant) was to take over the business and the premises from that date. The Secretary of State, in the principal part of his objections to the applications, says with some force that these arrangements could never have any effect vis-a-vis the Wimpy franchising organisation because they were never approved by them and there is no evidence that they would recognise the transfer of the business or the franchise to Mr Catal. In the circumstances that I have recited, there must be a strong suspicion that those arrangements were set out to facilitate the ability of Mr Catal to remain in this country. That being said, that is not the basis on which the claim was dealt with.

The Secretary of State, in a letter which is undated and delivered to the claimant in January of this year, set out a series of objections to the viability and otherwise of the business, and recited to some extent the problems that the claimant would have in asserting his right to the franchise vis-a-vis Wimpy. In that history, there must be some doubt as to whether this business that was conducted prior to the date of the agreement that I have mentioned, namely February 2004, is indeed this claimant's business at all.

The problem that arose when the matter came before Ouseley J was that the original decision letter adopted what might be called a "blunderbuss" approach in dealing with points good, bad and not so good in refusing the claim for recognition of Mr Catal as the owner of the business. That gave rise to some criticism on the part of the learned judge, who heard the matter on the first occasion, and in a later letter of 3 July of this year, the defendant (the Secretary of State) says as follows:

A later letter, now only four days old, sought to make good those defects some five months after they were originally generated. In her final submissions on behalf of the claimant, Ms Vidal submits that, even in this letter, the Home Secretary has failed to focus upon what was the true consideration for the obtaining of the franchise in the first place, according to the agreement which is produced in the bundle, namely some £2,500, by reference to a website which indicates that such franchises may or may not cost some £140,000 to acquire, and therefore doubts the credibility of the assignment price.

Assuming that this matter did fall to be dealt with under the Ankara Agreement, it seems to me that the criticisms of the original decision identified by the learned judge, and those which have been emphasised in the later letter by Ms Vidal, have some force. I am not saying that it is any more than arguable that the Secretary of State's decision did not focus sufficiently rationally upon the material matters that fell for his decision. The question, however, arises whether, notwithstanding the possible irrationality or possible criticisms that can be levelled at the decision-making process, this case is taken out of the Ankara Agreement in any event because Mr Catal employed fraudulent devices to circumvent the immigration requirements in this country, including giving a misleading description to the adjudicator of the nature of the alleged persecution in his own country, and secondly when it came to making the application under the Ankara Agreement, by reason of the matters I have just said.

I think that those points are eminently arguable both ways. This is a permission application and not a final hearing. I think that the Secretary of State has probably good grounds for thinking that he may well establish that when it comes to a final hearing. However, fraud is a serious matter, and if that ground is to be relied upon as exempting this case from the Ankara Agreement, I think that the matter requires a full and proper argument on the basis of that point before Mr Catal should be branded with having made a fraudulent application.

As Ms Vidal submits, and Ms Busch for the Secretary of State accepts, the credibility findings, although in some senses adverse to the claimant, are far and away short of the trenchant criticisms one sometimes sees in cases of this sort.

Accordingly, with some hesitation and far from being assured that the claimant will succeed in the end, I would let this case go forward with permission to apply.

It may be helpful if a transcript of what I have said could be reproduced so that any judge hereafter may know the basis on which I granted permission.

MS VIDAL: I am grateful, my Lord. There is just the matter of costs.

MR JUSTICE MCCOMBE: That can be costs in the application.

MS VIDAL: Thank you, my Lord.

MR JUSTICE MCCOMBE: Thank you both for your submissions. You have been very helpful.