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

It is unfortunate that my decision in this case has been delayed. After the original hearing, the claimant put forward additional material which seemed to me to necessitate further argument. Counsel agreed that this was so. It proved impossible to arrange a hearing until after the end of term and so it came before me again when I was sitting in the vacation. The point at issue is of some general importance and is likely to affect other cases so that it was necessary for me to reserve judgment. Since I was not sitting until term began in October it has been impossible to deliver judgment until today.

The claimant is a Turkish national. He arrived in this country on 19 March 2000. He had hidden with others in the back of a van but had been discovered while on the ferry crossing the Channel. He claimed asylum on arrival. He says in a statement in these proceedings that he had left Turkey in December 1999 and travelled to Italy, where he claimed asylum. He was detained for a month but, on his release from detention, decided to come to this country with the assistance of an agent. This was, he says, because he was told that he was likely to be returned to Turkey by the Italian authorities.

The defendant’s case is that he did not tell the truth when originally interviewed on his arrival since he claimed that he had left Turkey on 10 March 2000 and failed to mention that he had claimed asylum in Italy. The notes of interview confirm this. His answer to a question asking why he had not claimed asylum since he had left Turkey is recorded thus:-

“We didn’t stop long enough. Just for food and drinks.”

He now says that he does not recall telling the Immigration Service that he had left Turkey on 10 March 2000 but “cannot say for certain that I did not say this”. But he asserts that he did say that he had been detained in Italy for one month. If he had claimed asylum in Italy, the Dublin Convention would apply so that the overwhelming probability was that he would be returned there. That is indeed the position and Italy has accepted that it is responsible under the Convention.

It is apparent that the authorities discovered that he had claimed asylum in Italy within a relatively short time. There is correspondence from the Italian Ministry of the Interior. On 2 September 2000, the Dublin Third Country Unit of the Home Office was informed by the Italian Ministry that the claimant ‘was issued a Dublin permit of stay expiring on 2 March 2000’. A further letter of 28 September 2000 confirmed that Italy accepted ‘transfer of the above-named for determination of his asylum claim’.

It is by no means clear how or when the Home Office obtained the information that he had indeed claimed asylum in Italy. In a narrative opposing the grant of bail which was prepared after 26 July 2005, it is stated, under the heading ‘Full Immigration History and Chronology’:-

“19.03.2000.

The applicant was encountered at Dover, having arrived on a P&O Ferry from Calais, concealed in a van. He held no passport or other document with which to establish his nationality and identity. He subsequently claimed asylum. During interview he stated that he had passed through Italy and had been detained there for a month. The case was taken over by Third Country Unit who made initial enquiries with Germany and Italy as to whether they had any knowledge of the applicant. On 02.09.2000 confirmation was received from the Italian authorities that the applicant has been issued a permit of stay there.”

It is apparent that I have not been provided with full information. I have some extracts from the original Dublin Screening Interview, which is designed to see whether the asylum seeker has claimed in another EU state. The interviewer has noted:-

“PAX has DM 200. Very smartly dressed. Suspected he lived in Europe, Germany.”

It is only possible to make sense of the apparently conflicting material on the basis that the claimant initially sought to conceal the fact that he had claimed asylum in Italy but, following the obvious scepticism of the interviewers, admitted that he had. This would explain his otherwise incomprehensible acceptance that he might have said he left Turkey on 10 March 2000 and the record of the screening interview which I have already cited together with the bail document. Since he had used the services of an agent to leave Italy, it is likely that he was aware of the probability that, if he did admit to having claimed asylum in Italy, he would be returned there. Thus there was every incentive to assert that he had come straight from Turkey. In the circumstances, I have no doubt that the defendant was entitled to approach his decision in this case on the basis that the claimant had not told the truth to the immigration officer who first interviewed him.

On 7 December 2000 the claimant was notified of the refusal of his application to enter the United Kingdom. His representative indicated that he would make a Human Rights claim. This he did. It was rejected on 16 November 2001 and certified as manifestly unfounded. The claimant failed to attend an interview on 7 January 2002 when arrangements were to be made for his removal. He was treated as an absconder, which he clearly was. He says he commenced a business on 6 April 2004, at an off-licence cum grocery store in east London. He bought it from a Mr B, who came from the same village as him in Turkey. On 13 June 2005 he came to the attention of the Home Office and was detained pending removal. There were than further representations based on the alleged establishment in business on 20 June 2006. On 15 July 2005 these were rejected.

The application he made was based on the Association Agreement between the various EU Member States and Turkey. The original agreement was signed at Ankara on 12 September 1963. There was an additional protocol signed at Brussels on 23 November 1972. Each of these was confirmed by a subsequent Council resolution. The United Kingdom is bound by the terms of the Agreement and the Protocol. The most important provision for the purposes of this case is Article 41 of the Protocol, which provides, as far as material:-

“1.

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

This is known as the ‘standstill clause’, its effect being to prohibit the United Kingdom from introducing more restrictive measures than those in force on 1 January 1973. That means in the context of U.K. domestic law that the conditions applicable to Turkish nationals seeking to establish themselves in business in the United Kingdom are those laid down in the Immigration Rules in force on 1 January 1973. Those conditions were markedly less stringent than those now in force.

The purpose of the Association Agreement was to enable Turkey to promote trade and economic relations with EU members so that its membership of the EU could be facilitated. Thus it was intended that there should be a progressive abolition of restrictions on freedom of establishment, so as to improve the living conditions of the Turkish people. There is therefore an imbalance in the obligations by EU members towards Turkey so that Turkish nationals do not have to meet the requirements which now exist and which require a prior entry clearance and having at least £200,000 of their own money available for disposal in the United Kingdom.

The defendant has sought to argue that the ability to rely on the Rules applicable in 1973 (namely HC 509 to enter and HC 510 to remain) depends upon lawful presence so that illegal entrants such as the claimant (and, indeed, most failed asylum seekers and all who entered or sought to enter by clandestine means) cannot benefit from them. That argument has been rejected by the Court of Appeal in R(Dari & Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788; 2004 CMCR 1131, a decision which I shall have to consider in some detail in the course of this judgment. Accordingly, the defendant considered the application under the old Rules. Following the refusal on 15 July 2005, removal directions to Italy were made on 5 October 2005. This claim was lodged on 11 October. The Treasury Solicitor sought the agreement of the claimant’s solicitors to withdraw the claim on the defendant’s undertaking to reconsider the application. This was not forthcoming and on 22 December 2005 Sullivan J granted permission for the claim to proceed, although he commended the suggestion that there should be withdrawal and reconsideration. The defendant did reconsider the claim, taking fresh material produced by the claimant into account, but by a letter of 2 January 2006 maintained the refusal.

The defendant has petitioned the House of Lords for leave to appeal in Dari & Tum. That application has not been determined pending a reference by the House to the ECJ of what I am told is this question:-

“Is Article 41(1) of the Additional Protocol … to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry with its territory for a Turkish national seeking to establish himself in business in that Member State?”

Decisions of the ECJ which are material in considering the issue dealt with in Dari & Tum and the question put to the ECJ are R v Secretary of State for the Home Department ex p Savas [2000] ECR 1-2927 and Abatay & Sahin Bundesanstalt Fϋr Arbeit (Cases C-317/01 and C-369/01). I am conscious that the ECJ will shortly produce a judgment (I am told by the end of the year) and the decision of the Court of Appeal may yet be considered by the House of Lords. Nonetheless, I do not think any further delay in dealing with this claim can be justified and I am aware that there are a large number of claims which have come before the court by failed Turkish asylum seekers who assert that they have established a business here and so are entitled to remain in the United Kingdom in accordance with the Ankara Agreement. It is the experience of the court that most of these claims lack merit and are an attempt to avoid or at least delay an otherwise inevitable removal. But the correct principles must be applied and one must not lose sight of the possibility that some claims may have merit.

Both parties accept that I am bound by the decision in Dari & Tum. It is therefore necessary to identify what the ratio is. Mr Dari was discovered on board a ferry in October 1998. A partly destroyed document in his possession showed that he had claimed asylum in France and so his asylum application was refused and it was decided to return him to France which accepted it was responsible under the Dublin Convention. Mr Dari absconded. He reappeared in September 1999, when he lodged a claim for judicial review. Eventually, this claim failed and, following this, he again absconded. But he had by now set up a Pizza business in Herne Bay and he based a claim under the Ankara agreement on that. It was refused. Mr Tum arrived here on 29 November 2001 and claimed asylum. He was granted temporary admission, but on 25 April 2002 he was served with a notice of a decision refusing him leave to enter and removal directions to Germany whence it had been discovered, he had come. His claim for judicial review was eventually abandoned following the decision of the House of Lords in Yogathas [2002] 3 W.L.R. 1276. He then claimed that he wished to set up in business on his own account and submitted a business plan and so asserted that he was entitled to the benefit of the Ankara Agreement. That was rejected and so the claim for judicial review followed. It will be seen that the circumstances of Mr Dari’s case bear a considerable resemblance to those in the instant case.

In Dari & Tum the defendant had applied the Rules in force at the time the applications were made, namely HC 395. Since those required that an applicant be in possession of an Entry Clearance, and since neither Mr Dari nor Mr Tum had such a clearance, each application inevitably failed. Counsel on behalf of the Secretary of State argued that a Turkish national could only rely on the standstill clause and so the law as it was in 1973 if he had lawfully entered this country. That argument was rejected. Accordingly, the Secretary of State had not applied the correct Rules and so the judicial review claims succeeded. The decision went no further than to establish that the standstill clause applied to all Turkish nationals who sought to set up business here. But this means no more than that the domestic law in force on 1 January 1973 applied. It would be for the domestic court to decide whether that law could lead to refusal in the case of an illegal entrant or an overstayer. Accordingly, as it seems to me, Dari & Tum does not mean that one who has established a business or created the opportunity to make a claim under the relevant provisions of HC 509 or HC 510 while here unlawfully must nonetheless succeed, provided of course, that he meets the requirements of the Rules. And, as will I hope become clear, it would not be consistent with the jurisprudence of the ECJ if this was the effect of the decision.

The argument in Dari & Tum centred on the decision of the ECJ in Savas. Mr Savas had originally obtained leave to enter as a visitor but had overstayed, as Lord Woolf, CJ put it, ‘for a modest eleven years’. He had set up a shirt factory during the time he was overstaying. The court considered first whether the Association Agreement was capable of conferring a right of establishment and a corresponding right of residence. Mr Savas had not in the end contended that it could, but the court considered that it was important to deal with the point. It took into account a number of decisions which had been concerned with employment rights and which had made it clear that in order to provide a right of residence any employment must presuppose ‘a stable and secure situation as a member of the labour force of that Member State’. Accordingly, employment under a permit obtained by fraud could not give rise to any rights of residence: see Kol v Land Berlin [1997] ECR 1-3069.

Thus, as the Court said in Paragraph 64, it followed that the standstill clause was not in itself capable of conferring upon a Turkish national the benefit of the right of establishment and the right of residence which was its corollary. The Court continued:-

“65.

So, a Turkish national’s first admission to the territory of a Member State is governed exclusively by the 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 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 than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned.

70.

It is therefore for the national court, which alone has jurisdiction to interpret its own domestic law, to determine whether 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.”

It will be apparent that the Court did not decide anything more than that the standstill clause meant that the domestic law applicable was that in force at 1 January 1973. It did not mean that Mr Savas’ claim had to succeed. In paragraph 20 of Dari & Tum, Lord Woolf CJ records the submissions which succeeded in these words:-

“… in relation to the content of domestic law the standstill provisions have the effect of making that law the law which was applicable on 1 January 1973 and not the current law. Putting it shortly, it is because the Secretary of State did not apply the law as it stood in 1973 that his decision was defective.”

That seems to me, with respect, to be a correct reflection of the decision in Savas.

Although it is true that there were two issues dealt with in Savas, there was clearly an overlap in the sense that, as the Court made clear in Paragraph 63, the approach in relation to employment applied by analogy to establishment. Thus the right of the Member State to regulate entry in accordance with the principles referred to in Paragraphs 58 and 59 can apply to establishment. However, the fact that an applicant has been in the country unlawfully, whether as an illegal entrant or an overstayer, does not ipso facto mean that his application must fail. It is a matter to be considered by the Secretary of State when exercising the discretion that he undoubtedly has. That discretion must be exercised as permitted by the law in force in 1973.

I recognise that what Lord Woolf, CJ said in Paragraph 23 of his judgment in Dari & Tum could be construed as meaning that illegal presence short of entry by fraud cannot defeat a claim under the Association Agreement. Paragraph 23 reads:-

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

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

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

In my view, the decision in Savas covers the point if it is recognised that the principles referred to are common to employment and establishment, and it was unnecessary to rely on Kondova. After all, that decision concerned employment and relied on the principles referred to in paragraphs 58 to 62 of Savas. But the explicit reference to the fraud exception is explicable on the basis that fraud, if established, will mean that the applicant cannot expect to rely on the Association Agreement while he remains in this country. It simply indicates the courts’ view that the Secretary of State would be justified in refusing to exercise discretion in favour of such an applicant without the need to consider any other factors.

That unlawful presence, whether as an illegal entrant or an overstayer, can justify a refusal to permit an in country application under the Association Agreement is in my view supported by the jurisprudence of the ECJ. Furthermore, if the opportunity to engage in business has been created by working in breach of the terms of any temporary admission or when overstaying and so the unlawfulness of the applicant’s conduct goes beyond mere unlawful presence, there is a further justification for refusing the application. The applicant must return to Turkey and make an application from there. That application will be considered in accordance with the standstill clause and so under the Rules applicable on 1 January 1973. I can see no justification for the approach which I am told is being taken by the Home Office that those who have attempted unsuccessfully to rely on the Association Agreement following the failure of their asylum claims will have to apply under the current Rules. That would be a clear breach of Article 41(1). Incidentally, a requirement to return and to apply from outside the United Kingdom has an analogy with the marriage cases in which the court has indicated that it will not permit queue jumping and only in exceptional cases would it be proper to overturn the exercise by the Secretary of State of his power to remove: see for example R(Mahmood) v Secretary of State for the Home Department [2001] 1 W.L.R. 840.

I bear in mind the warning of the ECJ that a mere similarity in the wording of a provision of one of the Treaties establishing the European Union and of an international agreement between the Union and a non member country is not sufficient to give the wording of that agreement the same meaning as it has in the Treaties. The appropriate meaning will depend upon, inter alia, the aims pursued by each provision in its own particular context: see Metalsa [1993] ECR 1-3751 Paragraphs 11 to 20 and Gloszczuk Case C-63/99 Paragraphs 48 and 49. But it is pertinent to bear in mind that, as the ECJ pointed out in Savas at Paragraph 48, the wording of Article 41(1) is almost identical to that of Article 53 (now Article 43) of the Treaty. This assisted the Court to decide that Article 41(1) had direct effect.

In Gloszczuk the ECJ considered an application by a Polish couple, who had obtained leave to enter as visitors by falsely stating the purpose behind their request to enter the United Kingdom and had then overstayed. There had been a condition prohibiting them from entering employment or engaging in any business or profession in a self-employed capacity. They sought a right of establishment under the Association Agreement with Poland, having established a business by working in breach of the prohibition. The Court considered in Paragraphs 66 to 77 whether a host Member State could refuse leave to remain on the sole ground that his presence within the territory of that State was unlawful. It decided that it could, stating in Paragraph 77:-

“Consequently, it is compatible with Article 58(1) of the Association Agreement for the competent authorities of the host Member State to reject an application … on the ground that, when that application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State.”

Article 58(1) entitled Member States to apply their Immigration laws provided that in so doing they did not apply them in a manner as to nullify or impair the benefit accruing to any Party under the terms of a specific provision of the Association Agreement.

One of the reasons relied on to support the Courts’ conclusion is set out in Paragraphs 72 and 73. These are of considerable importance. The Court was making the point that a system of prior control on entry to ensure that the applicant was genuinely able to pursue a viable activity is not incompatible with the Association Agreement. The effectiveness of such a system rests in very large measure on the correctness of the declarations made by the persons concerned at the time when they apply for a visa or when they arrive in the Member State. Then it said this:-

“72.

in those circumstances, as the Advocate General indicates in Point 75 of his opinion, if Polish nationals were allowed at anytime to apply for establishment in the host Member State notwithstanding a previous breach of the conditions relating to the authorised duration of their initial stay as tourists in that State, 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 the immigration legislation had been satisfied.

73.

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 to the national authorities 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.”

The Court went on to consider whether to require a fresh application from abroad would strike at the very substance of the rights bestowed by the Agreement and decided that it would not. I should set out its reasoning in Paragraphs 82 to 85.

“82.

The making of false representations breaches the obligation to declare one’s intentions honestly. As indicated in paragraph 71 above, that obligation is incumbent on any person applying to become established in the host Member State and compliance with it is necessary to enable the competent national authorities to check that the activity in which the Polish national intends to engage in that State in a self-employed capacity will be exclusive and viable. In view of the seriousness of its breach, the requirement that a new application to become established be submitted by that national in due and proper form in his State of origin, or, as the case may be, in another country, which may be laid down by the immigration legislation of the host Member State, cannot be regarded as being unjustified.

83.

On the same grounds as those indicated in paragraphs 68 to 77 above, the interpretation of the Association Agreement advocated by Mr and Mrs Gloszczuk, which would allow any illegalities to be regularised by the immigration legislation of the host Member State would then be satisfied, would compromise the effectiveness and reliability of the national system of prior control.

84.

However, even in a situation such as that prevailing in the present case, due regard for the condition set out at the end of the first sentence of Article 58(1) of the Association Agreement must mean that the actions of the competent authorities of the host Member State should have neither the purpose nor the effect of striking at the very substance of the rights of entry, residence and establishment which the Association Agreement grants to Polish nationals.

85.

It follows that the decision by the competent authorities of the host Member State to reject an application for establishment submitted by a Polish national on the basis of Article 44(3) of the Association Agreement, because of false representations made to them for the purpose of obtaining initial leave to enter or the failure to comply with a condition attaching to the granting of that leave to enter or leave to stay, and the requirement that he submit, in due and proper form, a new application for establishment on the basis of that Agreement by applying for an entry visa to the competent authorities in his State of origin or, as the case may be, in another country, can never have the effect of preventing that national from having his situation reviewed at a later time when he submits that new application. Moreover, such measures must be adopted without prejudice to the obligation to respect that national’s fundamental rights, such as the right to respect for his family life and the right to respect for his property, which follow, for the Member State concerned, from the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1850 or from other international instruments to which that State may have acceded.”

In Kondova [2001] ECR 1-06427, which concerned a Bulgarian who had obtained an Entry Clearance by deception and who subsequently sought leave to remain on the basis of the right to establishment conferred by the relevant Association Agreement, the Court referred to the system of prior control and stated in Paragraphs 77 to 80:-

“77.

In those circumstances, as the Advocate General states in point 84 of his Opinion, 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 had 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 to the national authorities 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.

80.

Consequently, a Bulgarian national who intends to take up an activity in a Member State as an employed or self-employed person but who gets around the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement (see, by analogy, in relation to circumvention of national law to Community nationals improperly or fraudulently invoking Community law, Case C-212/97 Centros [1999] ECR I-1459, paragraph 24 and the case law cited there).”

This reasoning seems to me to apply with equal force to cases such as the present. If Turkish nationals can remain illegally in breach of the U.K’s immigration laws and use that illegal stay to establish the basis for an application which meets the requirement of the Rules, there will be encouragement to do just that. That is precisely what is happening since there are a large number of these applications being made by failed Turkish asylum seekers. Many will properly be rejected for failure to meet the requirements of the Rules, but they could also be rejected on the basis of illegal presence.

In Abatay (supra), which concerned the Ankara Agreement, the court considered employment rights. It referred to Savas in considering the scope of Article 41(1), which was added to by Article 13 of Decision No 1/80. This read:-

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

In Paragraphs 64 and 65 the Court said this:-

“64.

In paragraph 59 of Savas, the Court 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 States whose territory they have lawfully entered and where they have been in legal employment for a specific period.

65.

Accordingly, a Turkish national’s first admission to the territory of a Member State is, as a rule, governed exclusively by that State’s own domestic law, and the person concerned may claim certain rights under Community law in relation to holding paid employment or exercising self-employed activity, and, correlatively, in relation to residence, only insofar as his position in the Member State concerned is regular (see Savas, paragraph 65).”

It seems to me that the reference to the exercise of self-employed activity helps to confirm that the Court would apply the same approach to establishment as to workers in that presence must be regular. In particular, the first entry is governed by the immigration law applicable. The Court was aware of section 11 of the Immigration Act 1971 which has the effect of allowing temporary admission to be granted which does not amount to leave to enter. As the Court of Appeal points out in Dari & Tum, the provisions of section 11 are of value because they enable a person who makes a claim to enter the United Kingdom not to be detained but to be released temporarily while his position is considered. In Barkoci & Malik Case C-257/99, the ECJ in Paragraph 77 said this:-

“It should be borne in mind … that Mr Barkoci and Mr Malik were deemed, in accordance with section 11(1) of the Immigration Act, not to have entered the U.K. and that their applications for leave to remain were for that reason treated as applications for initial leave to enter. It must be noted in this regard that, contrary to what Mr Barkoci and Mr Malik contend, in the context of a national system based on appropriate verification measures prior to a Czech national’s departure to the host Member State, temporary physical admission of that person, where he does not have entry clearance for the territory of that State, is in no way equivalent to actual leave to enter that State.”

The point is that there must be leave to enter which, of course, must not have been obtained fraudulently. Presence in the United Kingdom cannot give rise to any post entry rights applicable under the Rules in force at the material time unless such presence was pursuant to a properly obtained leave to enter.

It is a principle of Community law that persons should not be permitted under cover of rights created by the Treaty improperly to circumvent national legislation. This principle applies to nationals of Member States. It surely applies a fortiori to non-nationals.

The Secretary of State has a discretion to consider an application notwithstanding that the applicant is in the United Kingdom unlawfully, whether as an illegal entrant or an overstayer. That discretion must not be fettered, but the Secretary of State is entitled to regard any unlawful activities as weighing against the exercise of discretion in favour of an applicant. Thus, for example, absconding or failing to comply with any conditions of admission would clearly weigh against an applicant. If the delay in dealing with a particular case was not the fault of the applicant and he did nothing which was contrary to any conditions of his admission, it might be that discretion could be exercised in his favour. It seems possible that Mr Tum may have had a good case in this context. But in my view, while fraud will almost inevitably mean that an applicant must fail, illegal entry or overstaying even without fraud produces the same result.

I should identify the relevant domestic law in force at 1 January 1973. Since this case concerns an application for leave to enter, the relevant Rule was contained in HC 509 of October 1972. Paragraphs 30 to 32 provided:-

“30.

Passengers who have obtained entry clearance for the purpose of establishing themselves in the United Kingdom in business, whether new or existing business should be admitted for a period not exceeding 12 months with a condition restricting their freedom to take employment. Passengers who are unable to present such a clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next 2 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.

31.

For an applicant to obtain an entry clearance for this purpose he will need to show, if joining an established business, that he will be bringing money of his own to put into the business; that he will be able to bear his share of the liabilities; that his share of the profits will be sufficient to support him and his dependants; that he will be actively concerned in the running of the business; and that there is a genuine need for his services and investment. The audited accounts of the business for previous years will require to be produced, in order to establish the precise financial position. An entry clearance will not be issued where it appears that the proposed partnership or directorship amount to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment for which a work permit is required.

32.

If the applicant wishes to establish a business in the United Kingdom 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 dependents without recourse to employment for which a work permit is required”.

As is apparent, possession of an entry clearance was not essential. Thus there was no unqualified requirement for prior verification, although it was anticipated that that would be the normal practice. A foreign national seeking entry as a businessman would need to have substantial evidence available to show an immigration officer to discharge the burden on him to establish on the balance of probabilities that he seemed likely to be able to satisfy the relevant requirements. But that does not mean that the approach indicated by the ECJ is not applicable.

In particular, it is clear that the U.K. immigration law should be applied. Section 33(1) defines ‘illegal entrant’ as meaning:-

“a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws and includes a person who has so entered.”

The immigration laws prohibited a non-patrial such as a Turkish national from entering the United Kingdom unless given leave to do so in accordance with the Act: 1971 Act s.3(1)(a). An overstayer is not an illegal entrant since, although he remains in the U.K. in breach of the immigration laws, he has not entered or sought to enter in breach of those laws. The Immigration Rules, which are provided for by s.3(2) of the 1971 Act, apply to regulate the entry into and stay in the U.K. of persons required to have leave to enter. They do not apply to illegal entrants. Thus illegal entrants cannot benefit from the Immigration Rules but would have to rely upon the exercise in their favour of the discretion which the Secretary of State retains. Unless the Secretary of State acts in breach of a published policy (for example, in cases of long residence), it is impossible to see how the Court could be justified in interfering with the adverse exercise of that discretion. Since the jurisprudence of the ECJ confirms that in relation to first entry the Member State is entitled to apply its immigration laws, in my view an illegal entrant cannot expect a favourable decision and certainly would be unable to satisfy this Court that a decision to refuse him leave to enter was wrong in law.

The claimant was discovered in a van on the ferry. He was clearly attempting to enter the U.K. clandestinely and to avoid the proper controls. That attempt was foiled. But he was seeking to enter the U.K. in breach of the immigration laws and so was, quite apart from any fraud, an illegal entrant. Thus, once it was decided that he had no right to stay because any asylum claim was invalid, whether because of the Dublin Convention or because it failed substantively and any appeal rights (if any) were exhausted, he could and normally would be refused leave to enter. In my judgment, the decision of the Court of Appeal in Dari & Tum does not prevent that result because, subject to discretion, refusal would clearly be in accordance with domestic law which the ECJ makes clear is applicable. Thus I do not believe that it is necessary to establish fraud in order to refuse leave to illegal entrants. The fact that they are illegal entrants is sufficient and Dari & Tum if properly understood does not decide as a matter of binding decision that fraud is needed. I should add that it seems to me that the same applies to overstayers who would have been deported, but they would have had a right of appeal exercisable within this country. An illegal entrant had no such right of appeal.

After the hearing on 15 May 2006, the claimant produced a statement from a Mr Lummis who had been an immigration officer between 1968 and 1987. He said that the concept of entry by deception was not developed in the early 1970s and it was believed that illegal entrants were only those who had entered clandestinely. In Khawaja v Secretary of State for the Home Department [1984] A.C. 74, which confirmed that deception to achieve entry rendered an individual an illegal entrant, counsel for the appellant (Louis Blom-Cooper, Q.C.) argued that the term was limited to clandestine entry. Whatever may have been the approach of immigration officers in 1973, once it was established that deception resulted in illegal entry, that was reckoned to have always been the law. And the fact (if it be the case and I have no reason to doubt Mr Lummis’ evidence) that immigration officers were generous in granting leave and were not overmuch concerned as to the means whereby the individual had obtained or had sought to obtain entry, cannot now preclude the Secretary of State from applying the law and, where material, the Rules according to their terms. In any event, as I have already indicated, the claimant in this case was an illegal entrant having sought to enter clandestinely.

In the case of one seeking asylum, clandestine entry is not per se to be regarded as fraudulent in the sense identified in Dari & Tum. But if lies are told to an immigration officer in order to persuade him to grant leave, fraud is established. Thus if a dishonest story is given to try to establish an asylum or human rights claim, there is fraud and the fact that on appeal an applicant has been disbelieved suffices to establish that fraud. Equally, a deliberate failure to disclose that an applicant has claimed asylum in another country, particularly if that country is a Member State of the EU, is enough to establish fraud. I have already indicated that the Secretary of State was entitled to decide that the claimant had deliberately concealed that he had claimed asylum in Italy. Unless the claimant can show that that decision by the Secretary of State was wrong in law, which would mean in the context of this case irrational, he cannot succeed in persuading me that it should be set aside. Thus, even if Dari & Tum does have the broad effect for which the claimant contends, the fraud exception applies to defeat the claim.

I should add that I entirely agree with the further points made in Yilmaz [2005] 1 W.L.R. 3944 at paragraph 18 that a person who fails to comply with a condition attached to his admission becomes an illegal entrant and so cannot rely on the Association Agreement. That is entirely consistent with what I have indicated I believe to be the position in law.

I should, notwithstanding my opinion that this claim fails for the reasons already given, consider the refusal based on the Secretary of State’s view that the claimant failed to meet all the requirements of the Rules. The claimant’s case is that he bought the business from Mr B for £4000. This money was brought to him from his relatives in Turkey by a named intermediary. The premises are leased in Mr B’s name, but the rent is paid to Mr B in cash and, although there is a written agreement to this effect between the claimant and Mr B, it has not been possible to assign the lease because the claimant has no passport or evidence of his status in the U.K. For this reason too, he has been unable to open any bank account so that all payments by way of rent or otherwise have been in cash and are largely unrecorded. The claimant has registered the business for VAT in his name and has dealt with the Inland Revenue as the proprietor of the business. On the other hand, the employer’s liability policy covering the business is in Mr B’s name, he being described as ‘trading as Halodan Off Licence’. If in reality he was not the proprietor, there must be some doubt whether the policy was valid.

In dealing with applications under the Ankara Agreement, it is, as I understand it, the policy of the Home Office to consider whether the requirements of the Rules have been met. This is dealt with by a different department from that which considers whether there has been fraud or other grounds to refuse independently of the Rules. If the decision is that the Rules have not been complied with so that the application fails on its merits, it may or may not be referred to the other department. There follows a lengthy repetitive letter setting out the reasons for refusal. I am bound to say that the framework for these letters adopted by the department of the Home Office concerned in Sheffield is unsatisfactory and the letters are far from models of clarity. They set out the shortcomings in the application and then repeat those which are said to justify a failure to comply with the various specific requirements of Rules 31 or 32. Thus the same alleged shortcoming may be repeated a number of times. As Ms Rogers points out, for example the absence of a bank account is mentioned on no less than seven separate occasions but the letter fails to engage with the reason given for the absence of such an account and, indeed, for the failure to assign the lease, namely the lack of any status in this country. It also relies on matters such as lack of advertising which is said with some force to be a bad point in the light of the evidence of a business plan that, due to the siting of the shop, advertising is unnecessary.

It is a key requirement of the Rules that an applicant can show that he is bringing money of his own to put into the business which will support him and his dependents. The £4000 which he says was used to purchase the business from Mr B was not his own – it came from his family – and he has failed to produce any evidence to support its existence, other than that of Mr B. That is surprising in the light of the reasons for refusal given as long ago as July 2005. He says he draws £150 a week. There is no evidence to support that or to show that it is and will be sufficient to support him and his dependents. There is no indication from Mr B how he supports himself having apparently given up the business.

While I accept that criticism can properly be levelled at some of the matters relied on in the refusal letter, overall it seems to me that it was justified. The onus lies on the claimant to establish that he meets the requirements of the Rules. The Secretary of State was entitled to conclude that the alleged arrangement with Mr B was suspect and in particular that the claimant had not proved that he has brought money of his own to put into the business. That by itself would suffice to reject the application. Accordingly, I am not persuaded that the decision to refuse under the Rules was perverse or otherwise wrong in law.

As will be apparent, I believe that it will only be in exceptional circumstances that a claim by a failed Turkish asylum seeker who has not been given leave to enter or remain and who accordingly is either an illegal entrant or an overstayer could succeed. He cannot obtain the benefit of the Association Agreement if he has created the ability to meet the requirements of the Rules by working or establishing a business in breach of conditions of his admission or while here unlawfully. It is not necessary to establish fraud, but if fraud is shown, there can be no doubt that refusal is proper. All that Dari & Tum decides, in my view correctly, is that the 1973 law applies because of the standstill clause. But the 1973 domestic immigration law fully justifies refusal of leave to enter without any need to consider the Rules, unless, in a given set of circumstances, the Secretary of State decides exceptionally that he can exercise discretion in the claimant’s favour. I doubt that he will do that very often and, if he does not, it is difficult to imagine that his refusal would be wrong in law.

Having said that, I recognise that I may be thought not to have followed the generally held view of the effect of Dari & Tum. I hope that I have shown that that generally held view is erroneous.

Since drafting this judgment, I have seen a copy of the opinion of Advocate General Geelhoed in Dari & Tum which was delivered on 12 September 2006. He goes further than I am able to do so, being bound by Dari & Tum, since his opinion is that the argument of the United Kingdom Government that it is entitled to apply the stricter Immigration Rules contained in HC 395 is correct. But in Paragraph 72, he says, if that opinion is not accepted:-

“Even if they do comply with the criteria laid down in the 1973 Immigration Rules, it should not be overlooked that they were only in a position to do so as a result of activities undertaken during the period in which they had not yet been formally admitted to the territory of the United Kingdom and their legal status was irregular. A factual situation created in such circumstances of unlawful residence cannot, in my view, constitute an adequate basis for creating economic rights of establishment or for a right to have claims to access to the national markets assessed under more beneficial national provisions which since have been replaced.”

As I have said, I cannot decide that the present Rules rather than those in force in 1973 apply since the Court of Appeal’s decision in Dari & Tum prevents me from so doing. But the Advocate General’s opinion is, I am pleased to say, wholly consistent with my approach.

This claim accordingly fails for all the reasons I have given.