Mehmet Alper Temiz, R (on the application of) v The Secretary of State for the Home Department

The applicant is a citizen of Turkey who was born on 7 February 1977. In these proceedings he challenges the decision of the Secretary of State taken on 16 September 2014 refusing to grant him leave to remain in order to establish himself in a business under the Turkey-European Community Association Agreement (“the Ankara Agreement”) under paras 4 and 21 of Statement of Immigration Rules for Control after Entry (23 October 1972) (HC 510).

The applicant came to the United Kingdom on 22 October 2001 with leave as a student valid until 15 April 2002. His leave as a student was subsequently extended until 20 January 2005. His leave expired on that date although the applicant says that he was unaware of that until 2008 as he believed that his college was arranging for further leave.

On 22 September 2009, the applicant applied for further leave to remain on compassionate grounds. That application was refused on 5 April 2011 and on 29 May 2012 the applicant was served with a notice of removal. His appeal to the First-tier Tribunal was heard on 23 July 2012 but dismissed. His subsequent applications for permission to appeal were refused by the First-tier Tribunal and the Upper Tribunal on 24 August 2012 and 12 November 2012 respectively.

Removal directions were set for 12 December 2012 but prior to that the applicant submitted an application for leave, relying upon the Ankara Agreement, in order to establish a proposed business. A further application was made in February 2013. On 26 July 2013, the Secretary of State refused that application. The applicant sought reconsideration and his application was again refused on 28 November 2013. Permission to bring judicial review proceedings in relation to those decisions was refused by the Upper Tribunal on 9 April 2014.

On 28 April 2014, the applicant made a fresh application for leave to remain on the basis of his proposed business relying again on the Ankara Agreement.

On 16 September 2014, the respondent refused that application.

A pre-action protocol letter was sent by the applicant’s representative on 29 October 2014 and the respondent replied on 25 November 2014. On 5 December 2014, these proceedings were filed challenging the decision of the respondent to refuse leave in order for the applicant to establish his business taken on 16 September 2014.

Permission having been refused on the papers on 12 February 2015, following an oral renewal of the application for permission, HHJ Curran QC granted the applicant permission by order dated 7 May 2015.

It was common ground between the parties that the applicant as a Turkish national seeking leave to establish himself in business fell within the so-called “standstill clause” in Art 41(1) of the Additional Protocol to the Ankara Agreement. As a consequence, it was also common ground that the applicant was entitled to have his application for leave decided under the Immigration Rules in force on 1 January 1973 the day on which the UK joined the European Economic Community. It was also common ground that the application for leave to remain had to be decided in accordance with paras 4 and 21 of HC 510 which were the relevant Immigration Rules in force on that date.

Those Rules provide as follows:

Finally, it was common ground that these Rules set out a more “flexible” approach to the grant of leave to those wishing to establish themselves in business or self-employment than the current Rule in HC 395 (see R v SSHD ex parte Joseph [1977] Imm AR 70 and EK (Ankara Agreement – 1972 Rules – construction) Turkey [2010] UKUT 425 (IAC)).

In her decision of 16 September 2014, refusing the applicant leave, the respondent applied both paras 4 and 21 of HC 510 in the following terms:

The applicant’s challenge is set out in the grounds, in Mr Walsh’s skeleton argument and his oral submissions. In essence, he challenged the respondent’s decision of 16 September 2014 on two bases:

In refusing the applicant’s application in reliance upon the fact that he was an overstayer the Secretary of State has elevated the applicant’s breach of the time limit condition in his leave to a ‘trump’ card first by refusing to consider evidence accumulated in the UK whilst he was an overstayer under para 21 and, secondly in exercising discretion in accordance with para 4 against the applicant.

As a consequence of failing to consider the merits of the applicant’s claim under para 21, the respondent acted unlawfully in refusing leave by failing to consider all the applicant’s circumstances including the merits of his claim when exercising discretion under para 4.

Mr Walsh submitted that by relying upon the applicant’s status as an overstayer in refusing leave under HC 510 the respondent had, in effect, illegitimately moved arguments previously rejected by the Court of Justice concerning the application of the “standstill clause” to an application of the Rules. In particular, he relied upon the ECJ’s decision in R v SSHD ex parte Savas (C-37/198) [2000] INLR 398 which held that the “standstill clause” in Art 41(1) of the Additional Protocol applied even where the individual had remained and carried on business activities as a self-employed person in breach of the domestic immigration law.

Further Mr Walsh relied upon the decision in Oguz v SSHD (Case C-186/10) [2011] Imm AR 843 where the CJEU rejected the UK government’s argument that the “standstill clause” could not apply to an individual who had entered into self-employment business in breach of UK immigration law. In particular, at [40] the CJEU rejected the UK government’s argument (set out at [39]) that if the position was otherwise:

Mr Walsh submitted that the respondent’s decision was directly contrary to the approach in Oguz .

The respondent’s case is set out in the detailed grounds of defence and in Ms Bayoumi’s skeleton argument and her oral submissions.

She submitted that the Secretary of State was entitled to take into account that the applicant’s application was made, and based upon, evidence accumulated whilst in the UK as an overstayer. She submitted that that was not inconsistent with the CJEU’s decision in Oguz which merely decided that the application of the “standstill clause” was not excluded in the case of an overstayer. She submitted that it was clear from the case law that the application of paras 4 and 21 required the Secretary of State to consider “all the circumstances” including the individual’s immigration status.

Ms Bayoumi referred me to the respondent’s relevant policy guidance: Business applications under the EEC-Turkish Association Agreement (4 March 2014) at pages 190-193 of the bundle. That stated that the respondent must consider “all the relevant circumstances of an application” including whether an applicant has worked in breach of conditions of leave but that that must not result in an automatic refusal of a claim under para 4 of HC 510. Ms Bayoumi submitted that the respondent had taken into account all the circumstances under para 4 and she was entitled not to take into account under para 21 when considering the merits of the application evidence accumulated by the applicant whilst unlawfully in the UK. The respondent had cumulatively considered all the relevant factors under paras 4 and 21 and had lawfully made a decision within the ambit of her discretion which was not irrational or otherwise unlawful.

As I have already indicated, it was common ground between the parties that the applicant’s application fell to be decided under paras 4 and 21 of HC 510.

It was common ground that para 21 set out relevant factors (but no more than that) to be considered by the respondent in determining the substance of the applicant’s claim for leave as a Turkish national wishing to establish his business in the UK. In EK , the Upper Tribunal accepted that these Rules were an “open textured exercise in discretion in the round having regard to the general policy and particular factors identified” (at [23]). The factors in para 21 were not mandatory requirements which an applicant is required to fulfil seriatim (see Joseph at pp.73-4 per Robert Goff J).

Indeed, it is clear from the respondent’s own guidance that the exercise of discretion under HC 510, applying paras 4 and 21, involves a consideration of “all the circumstances”. Under the heading “assessing cases under paragraph 4” the guidance says this:

a breach of conditions

circumstances where it would be undesirable to permit them to remain in the UK because of their character, conduct or associations

circumstances where they represent a danger to national security.

has overstayed a previous period of leave

has entered or having sought to enter the UK illegally

has sought or obtained leave by deception such as making false representations or failing to disclose material facts in the application (fraudulent and abusive conduct)

has breached their conditions of leave to enter or remain (for example, where the applicant started trading before the initial grant of leave and this put the applicant in a position to meet the requirements of paragraph 21, in circumstances where they should not have been able to do so otherwise) if an applicant has breached their conditions of temporary admission or has absconded from temporary admission

In Oguz the CJEU acknowledged that even in cases of fraud or abuse of rights an individual was entitled to the application of the “standstill clause”. That overturned the previous view, certainly as espoused in our domestic law, that such cases took an individual outside the standstill clause altogether (see for example R (Tum and Dari) v SSHD (Case C-1605) [2008] 1 WLR 94 and LF (Turkey) v SSHD [2007] EWCA Civ 1441 and Somnez v SSHD [2009] EWCA Civ 582). That effect of Oguz was acknowledged by the Court of Appeal in KA (Turkey) v SSHD [2012] EWCA Civ 1183.

Nothing in Oguz , however, disentitles a Member State from considering all relevant factors, including an individual’s immigration status if that is relevant to the immigration laws and rules which the standstill clause require the authorities of a Member State to apply when dealing with a claim by a Turkish national for leave to establish a business. In the context of the UK, the focus, therefore, shifts to the 1973 Rules in HC 510.

As para 4 of HC 510 makes plain, in exercising discretion whether to grant leave under those Rules, including in respect of an individual who relies upon para 21, account must be taken of “all the relevant facts” and it will be, for example, relevant:

There was, therefore, nothing impermissible in the respondent taking into account, at least in principle and subject to what I say below, the fact that the applicant was an overstayer in exercising discretion under HC 510.

That position is not inconsistent with the CJEU decisions, in particular what is said in Oguz at [39]-[40] which simply recognises that the standstill clause applies and therefore the focus is on the relevant domestic rules. I do not, therefore, accept Mr Walsh’s submission that the respondent’s decision is unlawful because, in effect, it is contrary to the CJEU’s jurisprudence. There is, however, an underlying point in the applicant’s first ground which is, in my judgement, well-founded.

On any reading of the Rules and as set out by the respondent in her own guidance, an individual’s immigration status is only a relevant factor. Nothing in the Rules dictates that evidence accumulated whilst an individual is unlawfully in the UK should be ignored. Despite Ms Bayoumi’s submissions, it is clear to me that that is precisely what the respondent did in her decision letter when considering the application of para 21. In doing so, the respondent, in my judgement, deprived herself of the ability to consider “all the circumstances” of the applicant including the merit of his application when applying para 4. To that extent, I accept that the applicant’s second ground of challenge is made out.

However, in my view the respondent had failed properly to consider the applicant’s immigration status in any event. As her decision letter makes plain, she adopted an unnuanced approach, namely that he was an overstayer and had been so since 2005 and his application should therefore be refused.

I was not taken to the detailed application and supporting documents of the applicant’s claim, but that is helpfully summarised at para 8 of the applicant’s statement of facts and detailed grounds which I did not understand Ms Bayoumi to dispute. There it is said:

Mr Walsh submitted that the applicant was not relying upon evidence of a business or self-employment he had undertaken whilst he did not have leave in the UK. The applicant was simply relying upon documents he accumulated whilst in the UK without leave either by research undertaken in the UK or by receiving from Turkey supporting documents of his activities and financial position prior to coming to the UK. I did not understand Ms Bayoumi ultimately to dispute this. Indeed, the Secretary of State accepts in her decision that the applicant’s “documentary evidence has all been accumulated” whilst he remained in the UK.

In my judgement, this context was a relevant factor for the respondent to take into account in exercising discretion and taking into account the fact that the applicant was an overstayer.

In KA (Turkey) , the Court of Appeal acknowledged that there were a number of factual situations underpinning an individual’s “unlawful status” which were relevant. At [97] Rix LJ said:

In this case, it is not suggested by the respondent that the applicant has engaged in fraud or abuse. Equally, his situation is, as Ms Bayoumi submitted, unlike that of the individual in KA where that individual had worked in breach of a condition only for a short period of time but on legal advice and ceased to engage in self-employment when advised that he could not do so. Whilst Rix LJ linked an application by a person who was not lawfully in the country with fraud or abuse - to contrast it with “incidental breach of condition” - I do not understand him to have necessarily seen those categories as of equal dis-merit but simply to contrast them with a case of obvious merit, namely a “situation of incidental breach of condition”.

In this case, of course, there is also no suggestion that the applicant has actually engaged in self-employment contrary to a condition in his leave or whilst here unlawfully. All he has done is remain unlawfully in the UK and, during that time, accumulated documents and material (some relating to activity before he was even in the UK) to support his application that he has the intention and ability to establish himself in business. A common sense view would suggest that his unlawful presence is not necessarily on an equal footing with a person who is unlawfully present and unlawfully engages in self-employment in the UK and then relies on evidence of that self-employment to found his claim under HC 510.

In her decision, by simply asserting that the applicant had overstayed albeit for some length of time, the respondent failed to take into account this context relevant to the application as one of “all the circumstances” she was required to consider under para 4 and in accordance with her own policy guidance. The approach to her discretion had to accommodate a more nuanced approach than a simple assertion of unlawful presence. In that regard also, the respondent acted unlawfully and her decision to refuse the applicant leave is flawed.

In this case, the applicant has not had the merits of his application determined and, if the merits are established, the respondent has not considered the exercise of discretion having regard to “all the circumstances” including the full context of the applicant’s immigration status including the extent to which that has contributed to his ability to make the application. The applicant is entitled to have his application under paras 4 and 21 properly considered.

To that extent, I accept that the first ground relied upon by the applicant is made out and for those reasons also the respondent’s decision is unlawful.

The applicant’s claim succeeds. The respondent’s decision of 16 September 2014 is unlawful and is quashed.