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

MR JUSTICE WILKIE: This is a claim for judicial review of a decision of the Secretary of State contained in an undated letter but received by the claimant, Ozman Taskale, on or about 9 August 2005, being a refusal of his claim to remain in the UK pursuant to the Turkey European Community Association Agreement, an application which had been made by Mr Taskale initially in February 2005 and subsequently supplemented in July 2005.

The main ground upon which this claim has been fought is on the substance of the decision of the Secretary of State and, in particular, whether, as the claimant suggests, it is Wednesbury unreasonable or otherwise irrational. There is in addition a pure point of law which arises which may affect the question of remedy.

The chronology of events can be shortly set out. The claimant was born on 1 December 1956. On 8 April 2003 he arrived in the United Kingdom. It is common ground that he arrived concealed in the back of a lorry and was discovered at the port of entry, which was Ramsgate. He was served with illegal entry papers on 8 April and on 9 April he claimed asylum, having been interviewed that day. The asylum claim was refused on 19 May 2003. He appealed against that refusal to an adjudicator who decided against him after a hearing on 5 September 2003, a decision being promulgated on 6 October 2003. The precise terms of the adjudicator's conclusion will become relevant in connection with the second matter. It is common ground that there is no documentation available to either the claimant or the defendant one way or the other as to whether this decision of the adjudicator was appealed. Furthermore, although there is reference in the adjudicator's decision to the letter of 19 May 2003 by which the asylum claim was refused, the letter is not in the bundle and so I am not aware of the precise basis upon which this claim for asylum was rejected by the Secretary of State. That much is background.

The next event is 20 April 2004 when it is said that the claimant established a takeaway fast food shop in Llanelli with a business partner, a Mr Coker.

On 8 February 2005 he instructed solicitors to make an application under the ECAA Scheme. That letter recorded that he was applying for leave to enter as self-employed under that agreement; that he was a restaurant manager in Turkey, having had ten years of fast food and restaurant experience; and for five years had managed a Turkish restaurant kebab house successfully. As a result, it is said that he purchased a business called Marmaris Kebab House with his business partner, Mr Coker, with a view to running the business jointly in the UK. Reference was made to its being promoted in local Turkish newspapers and business magazines and by leaflets. It was said that he had established customers, it being an ongoing business; that he had educational qualifications equivalent of A Level; that he speaks good English and has no criminal records either in the UK or in Turkey.

Annexed to that letter was a document which supported the claim. It was prepared by chartered certified accountants and was a business plan for the Marmaris Kebab House. That described a business which was said to be quite a sophisticated restaurant and bar with a takeaway element. It sets out sales projections - gross margins of approximately 60 per cent. It speaks in the present tense of company ownership, being a limited company owned in majority by Mr Taskale and Mr Coker and that the business employed two full-time and two part-time employees. It describes the services to be provided to be a unique environment for people to dine and meet, having a full Mediterranean feeling and a small bar for young adults and adults to enjoy drinks and music.

The target customer base was said to be young adults between 20 and 55, with income between £15,000 and £60,000 per annum. The sales forecast set out in the sales strategy identify the takeaway element to be something less than 25 per cent of the turnover. The balance of turnover is meals and drinks. It describes the personnel in terms of a manager, one full-time person and two part-time people, and it contained a highly specific cashflow forecast which included salary elements together with drawings of the owners from the net profit. Also annexed to the application letter was a form providing some basic information about family accommodation which was above the shop and a short statement from Mr Taskale confirming effectively what was contained in the letter and in the business plan.

There was also a licence agreement dated 20 April 2004, the parties being a Mr Coskun, Mr Coker and Mr Taskale. The licence was initially for a period of one year. The deposit was £6,000. The licence fee was £200 per week. The licensees agreed to use the premises only as a kebab takeaway. It provided for the licensees to pay all outgoings, electricity rates, telephone, and arrange for their own insurance. The document is signed by the licensor and the two licensees.

Following a change in government policy concerning this type of application, in July 2005 an opportunity was given to the claimant to fill out a much fuller questionnaire and to provide further documentation. This was by a letter dated 4 July from the Secretary of State. Pursuant to that, on 28 July, the claimant's solicitors wrote enclosing further documentation, including proof of purchase of a car for use in the business, a copy of council tax bills, a copy of a further business licence agreement and a single entry report in respect of the claimant's personal bank account. It refers to answers in the questionnaire concerning proof of funds where a person, a Mr Sarikaya, was mentioned and it was explained in the letter that he was away on holiday and unable to provide substantiation in the form of documentation but that he would be happy to provide same. As far as the bank statements were concerned, the letter said this:

The additional documentation enclosed with this letter comprises a registration certificate in the claimant's name of an N-registered five-door hatchback purchased on 27 April 2004, a non-domestic rates and council tax demand addressed to Mr Coker and Mr Taskale at 21 Station Road, Llanelli, a further licence agreement in identical terms to the one already provided except that this one runs from April 2005 to April 2008, an entries report from a bank showing transactions between 23 May and 21 June 2005, one of which was a cash withdrawal and the second of which was a cash payment of £300 and a balance at the end of that period in credit of £400, that being an account in the name of the claimant.

Prior to the sending of the letter enclosing those documents was a letter of 18 July which enclosed the long ECAA application form and other documents, including a business advertisement leaflet, a copy of the insurance policy of property owner's liability, evidence that the claimant was a director of the company known as Express Café W1 Limited, proof of an application for a national insurance number and proof of an application for VAT registration. Reference was also made to the subsequent documentation which was provided.

The application form, on the face of it, seems to describe a business which is significantly smaller in scale and ambition to that which was described in the business plan. In particular, it describes the work as being that of a takeaway shop selling kebabs and pizzas, rather than a restaurant. The claimant identifies his financial support as coming through Mr Sarikaya; it describes the business as having 20 to 25 clients, though not providing any letters of confirmation. It refers to the previous business plan. It refers to the absence of a business bank account set up by Mr Taskale because he does not have access to his passport. It refers to the company car in respect of which subsequent documentation was provided. It refers to the fact that he is a director and has applied for a national insurance number, hence he was not on the payroll and could not submit his tax returns until he received a national insurance number. It confirms that the business had applied for VAT registration. In describing his income from April 2003 to April 2004, it describes him having received £150 from Mr Sarikaya and receiving £3,000 from him for start-up capital, although no further documentary proof of that was ever forthcoming. He described his expenditure requirements as against a number of categories identified in the form.

So far as the documentation he provided was concerned, one of them was a leaflet describing, effectively, the menu available and describing the takeaway delivery arrangements. There was an insurance cover confirmation note for a period expiring on 21 January 2005 in respect of the business premises, but in the name of the licensor, Mr Coskun. He provided a Companies House document, dated 27 November 2004, describing Mr Coker and his appointment as director of Express Café W1 Ltd, with effect from 27 November 2004. He also provided a letter, to whom it may concern, from the accountants dated 10 February 2005 in respect of him seeking a national insurance number and saying:

There is also a VAT return for the quarter 1 February to 30 April 2005 in the name of Express Café W1 Ltd of Marmaris Kebab House, 21 Station Road, Llanelli, in which the net sales for VAT purposes were said to be £13,691.17. There was also annexed a bundle of invoices from various catering suppliers, both in terms of foodstuffs and in terms of catering equipment, as well as a council tax demand addressed to Mr Taskale and Mr Coker. There was a document which appears to relate to servicing in respect of some fire extinguishing equipment on 10 April 2005 paid for by cash in the sum of £50, signed by Mr Taskale as the witness who had seen the work done. There were certain telecom documents showing the person registered as the receiver of telecom services as Mr Coker. There was a controlled waste transfer note from the local authority in the name of Marmaris Kebab House.

The Secretary of State, having received that documentation, then wrote the decision letter rejecting the application. In so doing he first of all said that he was not satisfied that Mr Taskale had entered the United Kingdom with a valid United Kingdom entry clearance as a person intending to establish themselves in business. He said:

The Secretary of State in his decision letter identified four matters about which he was not satisfied. They were first, that Mr Taskale was able to establish himself as a self-employed business person in the United Kingdom. He identified a long list of facts which he said supported that conclusion. They include his failure to supply substantive evidence in the form of original itemised bank statements for his bank accounts; realistic details to support the cost of setting up the business; and his not having produced evidence of sufficient funds available to support setting up the business in the way that was detailed in the business plan. It was said that he had provided figures to support his application that did not convincingly prove a reasonable profit would be forthcoming. He could not prove that he was in a satisfactory financial position to invest in the business as he had not produced evidence that he owns a UK bank account and had not produced any evidence of bank accounts held in countries elsewhere to support his financial viability. He had not provided any accounts to show the business's viability. He points out that the insurance documents supplied were only valid up to January 2005, whereas the licence was to the effect that Mr Taskale and his co-partner were responsible for insurance. He drew attention to the fact that no detail of an employer's liability insurance was supplied, notwithstanding the fact that it was said that he had four employees.

There were certain other matters as well, which were relied on which may not have been of such great weight. But, in essence, what he was saying was that the total absence of any documentation supporting any of the financial assertions being made as to Mr Taskale's personal financial circumstances or his ability to invest in or draw from the business was what satisfied the Secretary of State; that he had not been satisfied of Mr Taskale's ability to establish himself as a self-employed businessperson in the United Kingdom.

The second matter of which the Secretary of State was not satisfied was that he could show that his share of the profits of the business was sufficient to maintain and accommodate himself without recourse to public funds. Again a number of factors were said to support that contention. Reference was made once again to the absence of any itemised bank accounts; the absence of any utility bills; evidence to substantiate how much it cost him to live in terms of food, travel, clothing or any receipts in respect of those; the absence of proof that Mr Taskale was in a satisfactory financial position to invest in a business because there was no evidence that he owned a UK bank account, nor was there any evidence of bank accounts held in other countries.

The Secretary of State also expressed himself not satisfied that he could show that he was actively involved in trading or providing services in partnership or business in the United Kingdom. In support of that the Secretary of State relied on the following factors: no partnership or business agreement or articles of association had been provided; no accounts of the business were provided to prove its financial establishment; there was no statement detailing why there was a genuine need for Mr Taskale's investment and skills in the business or partnership; there was no evidence that, following Mr Taskale's financial input, the business would expand and provide any additional profit from which he was to be supported.

Finally, the Secretary of State said he was not satisfied that Mr Taskale could show that he could bear his share of the business liabilities. Once again, a factor relied on in support of that was that Mr Taskale had not provided substantive evidence in the form of original itemised bank statements for his personal and business bank accounts showing that he had funds in place to bear his share of any business liabilities the business may incur proportionate to his share in it.

It is said that the Secretary of State, in coming to those conclusions and relying on those factors, has acted irrationally or in a way that is Wednesbury unreasonable. It is said that there are certain adverse factors identified by the Secretary of State which, on the face of it, make no real sense as supporting his conclusions. One of them is the picking up of a difference within the business plan of the customer age group between 20 and 50 on the one hand and 21 and 55 later on. There is also reference to an absence of any evidence to show contingent arrangements to cater for seasonal variations in trade. Whilst it is right to say that the business plan does refer to there being a busy season in June, on the face of it it does not seem to be the case that a kebab takeaway shop in Llanelli is likely to suffer from significant seasonal fluctuations.

It is also pointed out that Mr Taskale had referred to in the solicitor's letter that he was unable to open a business bank account because he did not have access to his passport, that being held by the Home Office. Therefore, to the extent that that was the subject of criticism, the Home Office was responsible for raising the hurdle which it was then complaining Mr Taskale was unable to surmount.

In addition to that there are detailed contentions of the unreasonableness of the Secretary of State relying on particular and general terms on the absence of any financial information or of documentation beyond what is asserted without any documentary support in the application form and in the letters.

It is certainly true to say that some of the documentation provided does evidence the trappings of a business being operated jointly by Mr Coker and Mr Taskale from those premises. Some of the documentation to which I have referred is in their joint names. Some is in the name of the business. Some is in the name of the company, and there is undoubtedly evidence that, at any rate on 27 November 2004, they each became directors of that company.

The major problem, however, is that the focus of the Secretary of State's concerns was the absence of financial records both to show the way in which the existing business was operating and to show the levels of income and the levels of financial support that the claimant could provide from his own resources. In particular it undoubtedly is the case that he did have a personal bank account, but there was a complete paucity of evidence as to how that account was run, how much money was going through it, with what regularity and so on and so forth. There was also a complete lack of any documentation as to how the original investment was to be raised other than the assertion that it came from Mr Sarikaya. As far as the existing business was concerned, save for one VAT return which, for a quarter, shows a relatively modest turnover well short of that envisaged by the business plan, there is simply no evidence in the form of management accounts or draft accounts or anything of the sort. Even now there is none, although we are almost two years after the commencement of the business.

Furthermore, the business plan which was the main documentary thrust of the original application is manifestly of a business which is completely different in scale and ambition to any that actually has been running. It is not describing a small takeaway without any staff; rather, it is describing a sophisticated restaurant with two proprietors and four members of staff of which the takeaway business contributes but a small fraction of the turnover. In so far as that was the document put forward as the mainstay of the evidence upon which the Secretary of State was being invited to conclude that the requirements of paragraph 21 were met, it falls very far short of being satisfactory.

It is certainly the case that one can see that, with a degree of generosity and a very liberal approach to paragraph 21, the Secretary of State might reasonably have been satisfied upon the requirements of that paragraph and was not necessarily bound to be dissatisfied. In my judgment, however, this case on the evidence falls a very long way short of establishing that the Secretary of State, not being satisfied of the matters stated in the letter for the totality of the reasons upon which he relied, arguably was acting irrationally or in a way which could properly be described as Wednesbury unreasonable.

At the heart of the application there was an absence of hard financial evidence. This absence led the Secretary of State to a conclusion, to which in my judgment he was entitled to come, that the claimant had not satisfied him of the four matters which he identified in his letter. In my judgment this application for judicial review of that decision must fail on the substance.

There is, in addition, the following point of law. The operation of the standstill policy, in relation to those who make applications under the Turkey ECAA Scheme, means that those who are in this country as illegal entrants are entitled nonetheless to have their application under the scheme considered on the basis of the law as it was in January 1973. The Court of Appeal in Dari v Tum vSecretary of State for the Home Department [2004] EWCA Civ 788 made it clear, however, that this approach did not apply with regard to a person who achieved entry to this country by the use of fraud. In paragraph 23 of the judgment of the then Lord Chief Justice, Lord Woolf, he said this:

In Yilmaz v the Secretary of State for the HomeDepartment, decided on 26 May 2005 by Beatson J, a distinction was sought to be drawn by a claimant from the exception identified by Lord Woolf in paragraph 23 of Dari v Tum. The distinction sought to be drawn was between a successful immigration fraudster, who it was accepted was outside the sphere of protection afforded by the association agreement, and an unsuccessful immigration fraudster who was nevertheless given temporary admission. Beatson J roundly rejected that submission, and concluded in paragraph 29:

In the present case the Secretary of State did not in his decision letter, explicitly rely on fraud as precluding the operation of the agreement. He simply sets out a general position which the Secretary of State takes in all of these cases, effectively reserving his position pending the outcome of the House of Lords' consideration of the matter in the case of Dari v Tum.

In his summary grounds of resistance set out in the acknowledgment of service, reference is made to the question of fraud, but it is limited to what was said about the precise circumstances of his entry, namely, by deception in the back of a lorry. In the fuller grounds of resistance the full history of the matter, including the consideration of the application for asylum by the adjudicator, is referred to as part of the history, though it is right to say that once again it appears that the question of fraud is only adverted to by reference to the mode of entry in the back of the lorry.

It therefore seems to me that, were I only considering the decision letter, it would not be open to the Secretary of State to take the fraud point because that is not the basis upon which the application was dealt with. However, it is the case that, were I wrong about the substance of the matter and the decision letter could not stand, a question might arise as to whether any remedy should be granted to the claimant. The circumstances were not only that he sought entry clandestinely in the back of a lorry, but when he made an application for asylum he did so by giving an account of how and in what circumstances he had left Turkey. That account was the subject of examination by the adjudicator when hearing the appeal against a refusal of asylum. It is perfectly plain from the terms of the adjudicator's decision, in particular paragraphs 20 to 22 and 25 and 26 of his reasons, that the adjudicator concluded that the claimant had put forward a fraudulent and false account in order to support his claim for asylum. It describes the claim as obviously false. It describes the only inference that he could draw from various matters was that the appellant put forward a false story from the moment he arrived in the UK.

In my judgment and consistent with the approach taken by the Court of Appeal in Dari v Tum and having regard to the judgment of Beatson J in Yilmaz, the Secretary of State would be entitled to have regard to the findings of the adjudicator (apparently unappealed) of fraud on the part of the claimant, not so much in the way in which he gained entry by being hidden in the back of a lorry, but subsequently by giving a false and fraudulent account to immigration officers and thereafter to the adjudicator. In those circumstances it would be open to the Secretary of State to have rejected this application at the outset by saying that this claimant was not entitled to the benefit of the agreement scheme on account of his having attempted, albeit unsuccessfully, to gain entry by the use of fraud. Accordingly, if I were wrong about the matter of substance, I would have been minded to have refused the claimant permission in any event as, inevitably, the Secretary of State would, lawfully, have been entitled to decline to give him the benefit of the scheme had he been required to consider the matter afresh and so it is not arguable that the claimant would have obtained any remedy.

However, essentially on the matter of substance, this application for judicial review must be dismissed.

MR PALMER: My Lord, I am grateful. There is an application for the Secretary of State's costs in this matter. Does my Lord have a copy of the statement of costs?

MR JUSTICE WILKIE: Yes.

MR PALMER: My Lord, I make an application for the Secretary of State's costs to be summarily assessed.

MR JUSTICE WILKIE: Summary assessment in the sum at the bottom.

MR PALMER: My Lord, yes.

MR WAHEED: I am not in a position to resist, my Lord. (After a pause) My Lord, I am not in a position to resist the application for costs, but simply to leave assessment of those costs. That is the claimant's position.

MR JUSTICE WILKIE: You do not question the sums put forward?

MR WAHEED: My Lord, it is my understanding that those instructing me had been served with a copy of the assessment beforehand and there were no instructions coming from them then. But there may be a view taken by the instructing solicitor who has come with me to court today.

MR JUSTICE WILKIE: I will give you a couple of minutes just to cast your eye over that.

MR WAHEED: (After a pause) My Lord, it seems that the instructing solicitor accompanying me needs to liaise with the solicitor who had actual sight of this, my Lord.

MR JUSTICE WILKIE: The only eyebrow-raising item which I notice was what is done on documents. Help me on this, the bundle of documents, the trial bundle, is that the claimant's bundle?

MR WAHEED: That is the claimant's bundle.

MR JUSTICE WILKIE: So that was not prepared by the defence?

MR WAHEED: That was not prepared for the defence. My Lord, it is indexed to the claimant's trial bundle. I confirmed with my instructing solicitor it was in fact prepared by the claimant.

MR PALMER: My Lord, it was.

MR JUSTICE WILKIE: Mr Palmer, I am a little puzzled about the number of hours said to be what is on the documents when the claimants actually produced the bundle.

MR PALMER: My Lord, it does not relate to the production of any bundle. That relates to reading of the documents and preparing of acknowledgment of service and summary grounds, which in this case was not settled by counsel but settled by treasury solicitors. My Lord, I am instructed we can accept a reduction of 1 hour from that in any event because of the change of solicitor yesterday, (inaudible) which is duplication.

MR JUSTICE WILKIE: This is just a very rough-and-ready approach simply to save everyone satellite litigation about costs summary assessment. I will cut £1,000 off that item because it seems to me that that is somewhat less than half of that, which is probably about right. That would mean that summary assessment of costs would be £4,589 rather than £5,589. Mr Waheed, unless you can do better than that?

MR WAHEED: My Lord, my instructing solicitor who accompanies me today simply asks that he has the opportunity to speak to --

MR JUSTICE WILKIE: It is a summary assessment, and that is the point of it, as it has been less than a day.

As I have indicated, I am asked to make an order for costs in favour of the defendant. That is not resisted. I am asked to summarily assess the costs, and although the claimant says he would wish an opportunity to confer with those back at the office, I am perfectly satisfied that, having regard to the detailed schedule that has been sent out that, save for one item, the claim is entirely reasonable and one which I ought to allow. The only item I have indicated is work done on documents, at 11.6 hours' work claimed for a lawyer and 1.7 hours claimed for a senior lawyer. Doing the best I can, it seems to me that that is probably a larger claim than I should allow and I will cut that part of the claim by £1,000, which means that the summary assessment is £4,589. That is the summary assessment of the defendant's costs.

MR PALMER: My Lord, the only other matter -- I handed up a copy of the summary grounds from my solicitor's file. Given the work which went into producing them I wonder if I might ask for them back.

MR JUSTICE WILKIE: Yes.

MR PALMER: I am very grateful.

MR JUSTICE WILKIE: Thank you both for your assistance.