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

MR JUSTICE SULLIVAN: In this application for judicial review, the claimant challenges a decision of the defendant dated 23rd July 2005 refusing him leave to enter the United Kingdom in order to establish himself in business as a contract cleaner and stating that directions would be given for his removal to Turkey. The letter said that there was no right of appeal against the refusal of leave to enter. Removal directions were given on 3rd August. Section 3 of the claim form identified the date of the decision to be judicially reviewed as 3rd August and sought a quashing order in respect of the decision letter dated 23rd July and a mandatory order requiring the Secretary of State to accord the claimant a right of appeal to the Asylum and Immigration Tribunal.

The claim has not challenged the substance of the decision letter dated 23rd July 2005 and the issue raised in these proceedings is whether he is entitled to make an "in-country" appeal against the decision with the practical consequence that removal directions would have to be suspended pending the final determination of such an appeal.

The parties are agreed that the background facts can be summarised as follows. The claimant is a Turkish national who was born in Kigi, Turkey on 27th June 1980. He arrived in the United Kingdom via Dover on 21st August 1999 and claimed asylum at the port on the grounds that he had a well-founded fear of persecution in Turkey because of his Kurdish ethnicity. On 14th October 2001, the Secretary of State refused his claim for asylum and the claimant appealed to an adjudicator. On 24th April 2003, the Adjudicator's determination, dismissing the claimant's appeal, was promulgated. The Adjudicator concluded that the claimant did not have a well-founded fear of persecution if he was to return to Turkey. The claimant sought permission to appeal against that decision and, by a determination dated 5th June 2003, the Immigration Appeal Tribunal refused permission to appeal on the grounds that there was no arguable error of law by the Adjudicator and no basis to challenge the Adjudicator's findings of fact.

On 12th July 2005, the claimant was detained in Campsfield House, Oxford, pending his removal to Turkey. Whilst he was in detention, his solicitors made a new application on his behalf. This was an application to enter the United Kingdom on the basis that the claimant wished to start a business as a contract cleaner. He sought to rely upon the provisions of the EC-Turkey Association Agreement and submitted what was described as a business proposal to the Secretary of State. The business proposal was prepared on his behalf by accountants. The application for leave to remain in the country on this basis was refused in the decision letter dated 23rd July 2005.

When the United Kingdom became a member of the European Community on 1st January 1973 it also became bound by the prior agreements which the Community had entered into with those third countries. One of those agreements was the agreement establishing an association between the European Economic Community and Turkey, which was signed at Ankara on 12th September 1963 ("the Agreement") and the additional Protocol thereto signed at Brussels on 23rd November 1970 ("the Protocol").

Article 2(1) of the Agreement states that the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the contracting parties, which includes, in relation to the work force, the progressive securing of freedom of movement for workers. Workers' rights are dealt with in Article 12 and Article 13 deals with the abolition of restrictions on freedom of establishment and Article 14 with the freedom to provide services, all with a view to improving the standard of living of the Turkish people and facilitating the accession of Turkey to the community at a later date (see the fourth recital in the preamble and Article 28).

Article 1 of the Protocol states that it lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Agreement. The Protocol includes Title II, headed "Movement of Persons and Services", Chapter I of which concerns "Workers" and Chapter II of which "Rights of establishment, services and transport". Article 36 of the Protocol, which is in Chapter I, states.

Article 41 of the Protocol is in Chapter II, which is headed "Rights of establishment, services and transport", and provides.

The Council of Association has not, as yet, adopted any measures under Article 41(2) of the Protocol. By contrast, in the field of workers (as opposed to those wishing to establish businesses), various formal decisions have been made by the Council to secure rights of freedom of movement for Turkish nationals within the Member States.

In C-37/98 Savas [2000] ECR 1-2927 the European Court of Justice was concerned with the interpretation of Article 13 of the Agreement, which provides:

The Court concluded that Article 41(1) of the Additional Protocol has direct effect in Member States:

The implications of the ECJ's decision in Savas were considered by the Court of Appeal in R (on the applications of Tum and Dari) v Secretary of State for the Home Department [2004] CMLR 48, 1131 (2004 EWCA Civ 788). The claimants, who were Turkish nationals, had sought asylum and had been granted temporary admission. Mr Dari had started a business, Mr Tum intended to. Both applied for leave on enter under the Agreement. They did not comply with the current immigration rules (HC395) which require inter alia that an applicant, before applying for leave to enter under the Agreement, must have prior entry clearance. The claimants argued that their applications should have been considered by the Secretary of State under the less onerous requirements of the Immigration Rules (HC509) which were in force on 1st January 1973 and which did not inter alia require prior entry clearance in every case.

Having referred to the ECJ's judgment in Savas, Lord Woolf Chief Justice, with whom Brooke and Sedley LJJ agreed, said in paragraphs 20 to 23:

Fraud is not relied upon by the defendant in the present case. The Secretary of State petitioned the House of Lords for leave to appeal against the Court of Appeal's judgment and the House of Lords has referred various questions to the ECJ. Pending a ruling on those questions, the Secretary of State has considered applications from persons in the claimant's position under both the current Immigration Rules and the rules as they applied in 1973.

In the claimant's skeleton argument it was conceded that, under domestic legislation as it stood in 1973 (and setting aside any argument based on community law), while a claimant on temporary admission who was refused leave to enter would have had a right of appeal under Section 13(1) of the Immigration Act 1971 by virtue of subsection 13(3):

Thus, it is common ground that in 1973 the claimant, who did not have current entry clearance and was not a person named in a the current work permit, would have had an out-of-country right of appeal to an adjudicator against the refusal of leave to enter.

On behalf of the claimant, Mr Chatwin submitted that, by analogy with the ECJ's approach on the rights of workers under Article 12 of the Agreement (which is in similar terms to Article 13), procedural safeguards should be conferred upon the claimant. He submitted that a distinction should be drawn between substantive rights (which were those contained in HC509 rather than HC395) and procedural rights. In case C-136/03 Dörr and Ünal the ECJ had been prepared to apply the existence of procedural safeguards even though such safeguards had not been expressly conferred upon the applicants. The applicants in that case (a German national and a Turkish national working in Austria respectively) had challenged their expulsion from Austria. The court first considered the protection to which Mr Dörr was entitled as an EU national under Articles 8 and 9 of Directive 64/221.

Articles 1 and 2 describe the scope of that directive in these terms:

In paragraph 57 of its judgment, the court said:

The Court then considered the second question, which was:

I accept Mr Saini's principal submission that Dörr and Ünal is clearly distinguishable on the basis that Turkish workers, as opposed to Turkish citizens who wish to establish themselves in business within the EU, have been given individual rights in respect of employment and related rights of residence not by Article 12 alone but because Article 12 is carried a step further when considered in conjunction with Decision 1/80, which confers rights upon individuals and is of direct effect. In order to ensure that those individual right are effective, the ECJ has insisted upon appropriate procedural guarantees (the same as those enjoyed by EU nationals). Those procedural rights of appeal "piggy back" on the individual's substantive rights.

However, as Savas makes clear, Article 13 on its own does not (any more than would Article 12 on its own) confer any such rights (see paragraphs 41 to 45 of the ECJ's judgment, cited above). The only right conferred upon the claimant is that he is entitled to rely upon the standstill clause in Article 41(1). Thus, his position must be no worse than it would have been under the rules which were applicable on 1st January 1973; see paragraph 70 of the ECJ's judgment in Savas and paragraphs 20 to 22 of the Court of Appeal's judgment in Tum and Dari. If he would not have been entitled to an in-country right of appeal under the immigration legislation then in force, there is no reason why he should be entitled to such a right in 2006.

For the sake of the completeness I should mention that Mr Saini also submitted that Dörr and Ünal should be distinguished on a further ground, that Directive 64/221 was concerned with expulsion on the grounds of public policy, public security or public health, none of which are in issue in the present case. I would not have been inclined to accept that submission, since in my judgment the principle underlining the ECJ's decision -- that where community legislation does confer individual rights it is necessary to give them effective judicial protection through appropriate procedural guarantees through the domestic courts -- is not dependent on the precise subject matter of Directive 64/221. Mr Chatwin also referred to Article 58 of the Protocol, which provides inter alia that:

For these reasons, I am satisfied that the claimant is not entitled to an in-country right of appeal by virtue of the operation of the standstill agreement.

In his skeleton argument Mr Saini submitted that, although the claimant would have been entitled to an out-of-country right of appeal in 1973, Savas did not require the Secretary of State to grant the claimant the same procedural rights in a decision made in 2005. He relied upon on decision of Ms Clare Montgomery QC, sitting as a Deputy High Court judge refusing a renewed application for permission to apply for judicial review. The decision is dated 23rd November 2005 [2005] EWHC 3171 (Admin). Ms Montgomery said this in paragraph 5 of a short judgment:

Given the importance of procedural rules in the immigration field (as shown by Parliament's repeated amendments to the legislation over recent years) and the extent to which matters of procedure and matters of substance may well be inextricably interlinked in such cases, I would not be prepared to accept, in the absence of further and more detailed argument, that there is necessarily a clear-cut distinction to be drawn between procedural and substantive rules in this field.

As Dörr and Ünal shows, substantive rights may well be ineffective or less effective if they are not backed up by appropriate procedural guarantees in relation to matters such as rights of appeal. It will be recalled that in paragraph 67 of its judgment the ECJ agreed with the point made by the Advocate General that such procedural guarantees "are inseparable from the rights to which they relate". There is nothing in Savas or in Tum and Dari to suggest that making procedural rights less favourable for an applicant who relies on the standstill agreement is acceptable in terms of community law. Community law is concerned with practicality rather than procedural formality. Much, for example, may depend upon the extent to which it is necessary in practice for applicants to appeal in order to succeed in establishing their claims. For example, if there is a very high rate of initial refusals and, correspondingly, a high rate of success on appeal, then removing the right of appeal might well have the practical effect of worsening the position for applicants, even though the substantive rules, applied both at first instance and on appeal, remain unchanged.

In his skeleton argument, Mr Saini submitted that the fact that the claimant cannot appeal (out-of-country) to the Immigration Tribunal but must challenge the defendant's decision by way of judicial review:

Those provisions gave rise to a great deal of litigation over the years. Because this matter was not directly in issue in this case, the parties did not address the question of the extent to which, in practical terms, an appeal to an adjudicator in 1973 under section 19 of the 1971 Act would differ from an application for judicial review today; see, for example, the discussion and the authorities referred to in paragraph 18.50 of McDonald's Immigration Law and Practice, 6th edition. In the absence of detailed submissions and citation on this point, I would prefer to leave a decision on this point to a case where the claimant is seeking an out-of-country right of appeal and is not simply challenging removal directions. I do not consider, in any event, that such a question should be considered in the abstract simply by reference to the enactments. Whether an applicant's position has or has not been made worse should focus on the practical realities rather than procedural detail. For example, it is not clear whether, under the terms of HC509, businessmen seeking admission to the United Kingdom in order to establish their businesses would have been given leave to enter for two months or temporary clearance. The relevant paragraphs in HC509 are in these terms:

HC509 does not on its face always distinguish clearly between admission and leave to enter (see for example paragraphs 25 and 26, which refer to refusal to leave to enter if a passenger is coming to the United Kingdom to take employment but has no work permit), but simply to admission for the period specified in the permit, subject to conditions, if the applicant is the holder of a current work permit. Self-employed persons are dealt with in paragraph 34, which provides that they may be admitted if the immigration officer is satisfied they do not intend to do work for which a work permit is necessary and that they would be able to support themselves and any dependants without recourse to any public funds. Paragraph 35 provides that the wife and children under 18 of a person admitted to the United Kingdom to take or seek employment, or as a businessman, a person of independent means or a self-employed person, should be given leave to enter for the period of his authorised stay. If leave to enter was given, then in 1973 the beneficiary of such leave would have had an in-country right of appeal against a refusal, for example to extend the period of leave (see section 14(1) of the 1971 Act).

For the purposes of the present case, those questions are academic since it is common ground that the claimant did not seek to enter this country in order to set up a business. He entered plainly to be a refugee. He was granted temporary admission. When his refugee claim failed, and whilst he was still temporarily admitted to this country but had not been given leave to enter, he sought leave to enter upon the basis of the Agreement. In 1973 an applicant in such a position would have had an out-of-country right of appeal but not a right to an in-country appeal.

For these reasons, the application for judicial review must be refused.

MR SAINI: I am not sure if the claimant is legally aided but I do ask for my costs of the application.

MR CHATWIN: My Lord, the claimant is not legally aided. This is a privately funded matter.

I would only ask, my Lord, that the -- I appreciate that your Lordship has not heard full argument on the question of the appeal, only in comparison with the judicial review. But, in view of my Lord's approach to the question of whether there ought to be an appeal right at all or whether the Secretary of State's position appears correct on the face of things, regarding the appeal I would ask that that be taken into account; that perhaps we have not entirely lost on the question of whether there ought to be a right of appeal. The decision in this case was that there should be none at all and, while I appreciate that this application is refused, nonetheless I would hope that that would be something my Lord might take into consideration.

MR SAINI: What I say in response is that the relief that was sought was an in-country right of appeal and that was what the parties argued.

MR JUSTICE SULLIVAN: I think so far as costs are concerned, the fact that Mr Saini might have been tempted to argue a little too much does not gainsay the fact that essentially he succeeded is staving off the argument that there should be an in-country right of appeal. So it seems to me that the claimant should bear the defendant's costs, those costs to go for detailed assessment unless they are otherwise agreed.