IY (Ankara Agreement – fraud and abuse) Turkey  UKAIT 00081
Date of hearing: 7 October 2008
Date Determination notified: 28 October 2008
|ENTRY CLEARANCE OFFICER - ANKARA||RESPONDENT|
The benefits of the Ankara Agreement may if appropriate be denied to applicants who have made fraudulent asylum claims or established businesses unlawfully notwithstanding that the applicant has left the United Kingdom voluntarily to make an application from overseas under the standstill clause.
"The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and freedom to provide services."
The effect of the standstill clause is to require applications to be considered by reference to the rules in force when the United Kingdom acceded to the European Community in January 1973. These rules are paragraphs 29 to 32 of HC 509 for out of country applications and paragraph 21 of HC 510 for in country applications. However, the appellant's application was refused on 28 May 2004 and on 8 June 2004 the appellant was issued with a Form IS96 advising him that "you may not enter employment, paid or unpaid, or engage in any business or profession".
"You entered the United Kingdom on 10 January 1997 and on 24 January 1997 you made an application for asylum.
This asylum claim was refused on 28 April 2003. Your appeal against this decision was dismissed on 20 August 2003 and you became Appeal Rights Exhausted on 6 September 2003. At the point that your appeal rights were exhausted, you no longer had permission to work or set up a business.
On 14 October 2003 you make an application for leave to remain under the Turkish ECAA. This application was refused on 15 December 2003.
On 8 June 2004 you were issued with an IS96 which stated 'You must not enter employment, paid or unpaid, or engage in any business or profession'.
The businesses that provide the basis for your current application for entry clearance 15 November 2007 are '[P] Restaurant' which you have stated commenced trading in July 2005 and '[C] Grill' which you stated commenced trading on 30 August 2006.
It is clear that these businesses were started at a time when you did not have permission to engage in business.
In light of this it is considered that your immigration history amounts to abusive conduct.
Furthermore, it is clear from the facts found by the adjudicator that you put forward and relied upon an account which has been found to be manifestly untrue in its crucial respects in order to seek leave to enter the United Kingdom following your arrival in 1997 on the grounds of asylum/human rights by virtue of paragraphs 6, 7, 8, 10 and 11 of the adjudicator's determination, promulgated on 20 August 2003.
In light of this, it is considered your conduct amounts to fraudulent activity.
Therefore, it has been decided that you are not entitled to rely on the standstill clause due to your fraudulent activity and abusive conduct. Accordingly, you are not entitled to have your application considered under the Immigration Rules in force in 1973 (HC 509).
Consequently, in order to obtain leave to enter to establish in business you would need to meet the requirements of paragraphs 201 and 203 of HC 395, the current Immigration Rules. Your application would fail under these Rules because you have failed to provide evidence that you have 200,000 of your own money that is under your control and held in your name which you intend to invest in your businesses in the United Kingdom.
Accordingly your application has been refused."
"4. The respondent has erred in law by concluding that the appellant is not entitled to have his application for entry clearance considered under HC 509 and the standstill clause. This error is premised on misdirections in law, principally in misunderstanding the dicta of the authorities cited by the respondent in the notice of decision.
5. The appellant is entitled to bring an appeal under Section 13(2) of the Immigration Act 1971 the appeal provisions that were in force on 1 January 1973. The respondent's purported decision to exclude the appellant from appealing under these appeal provisions is unlawful.
6. The respondent's decision amounts to a permanent exclusion of the appellant for the purpose of HC 509 and is in consequence unlawful under HC 509, under EU law and disproportionate under the ECHR, in particular Article 8 and Protocol 1 of the ECHR.
7. The decision is unlawful under Section 84(1)(c)."
"4. To revert to the fraud exception, the Secretary of State made it plain in the summary grounds that he was not simply relying on the mode of entry of the claimant, which might well not distinguish him from the circumstances in Dari and Tum, but was further relying on the adjudicator's conclusions which I have summarised above. It seems to me that, unless Mr Slatter can persuade me that the decision of Beatson J in Yilmaz and Wilkie J in Taskale were wrong, this is one of those claims that falls within the fraud exception. Of course, much will turn on the particular facts of each case and the particular conclusions reached by the Immigration Judge. It does not follow that simply because a claim for asylum is rejected entry was sought to be obtained by means of a fraudulent story. There is no doubt on the facts of this case that that is precisely what was attempted and the short point that is made in Yilmaz and Taskale is that it cannot make a difference whether the applicant is someone whose false representations enabled him to gain leave of entry, or someone whose false representations were not believed, who was placed on temporary admission, and who then sought to gain entry by repeating those false assertions in front of an Immigration Judge who rejected them. Although those two authorities are merely persuasive and not binding upon me, I am not satisfied that they are wrong and therefore this case falls at that hurdle.
5. There is however a further problem for the claimant in this case. Although the letter of 11 January 2006 states that the claimant has no right of appeal, if he was not excepted from the standstill provisions by reason of the fraud exception, then at best he would have been entitled to an out of country right of appeal against the refusal of his application. That being so, there would be no reason for the defendant not to remove the claimant to Turkey from where he could pursue the out of country right of appeal conferred under the earlier rule.
6. This is not one of those cases where there appears to be any genuine desire to pursue an appeal out of country. The desire is to remain in this country and the challenge to the decision is, in truth, a challenge to the defendant's wish to remove the claimant. In these circumstances, it seems to me that the distinction between no right of appeal and an out of country right of appeal is simply academic and, for this reason also, the application must fail.
7. As I have mentioned, apart from the alleged distinction between HC 509 and HC 510, there is no substantive challenge to the decision on the merits in any event. So even if the fraud exception had not applied, and even if there had been a more extensive right of appeal, the claim would have had to be dismissed."
32. 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.
33. 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.
34. 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.
35. However, essentially on the matter of substance, this application for judicial review must be dismissed."
"19. 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 seen 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  1 WLR 840."
"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 UK'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."
"34. 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.
35. I should add that I entirely agree with the further points made in Yilmaz  1 WLR 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."
"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."
"14. The argument this morning has concentrated on the first of these questions. Indeed, we have not gone into the second. If the Secretary of State succeeds on the first then he needs no support from the second point. It is convenient at this stage briefly to review the learning which bears on this part of the appeal. The appropriate starting point is Kondova in the European Court of Justice. This decision preceded the material English cases. It concerned antidiscrimination provisions in the Association Agreement between the European Communities and Bulgaria. The European Court of Justice said:
'77. … 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 has 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 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 or infringements of national legislation on admission and residence of foreigners."
15. Kondova was referred to by Woolf LCJ, as he then was, in Dari v Tum  EWCA Civ 788 which was directly concerned with the standstill clause in the Additional Protocol to the Ankara Agreement. There the respondents had unlawfully remained in the United Kingdom after their asylum claims had been rejected although, as the Lord Chief Justice made clear, it was not shown that the claims had been fraudulent. On those facts it was submitted to the Secretary of State that the respondents were not entitled to the benefit of the standstill clause. Lord Woolf disagreed. He said:
'22. There is nothing in article 41(1) of the Additional Protocol itself to support that argument. Furthermore, when the judgment in Savas [I interpolate – that has been relied on] is properly understood as falling into two clear parts, then it seems to me that the judgment strongly supports the contention of the respondent. The fact that the "standstill" provisions are to apply to a person whatever his status so far as his right to remain in this country or his right to enter this country are concerned, is covered by the '"standstill" provisions.
23. 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 are 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 Sate 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.'
16. In the same case, Dari v Tum, their Lordships' House made a reference to the European Court of Justice. The European Court of Justice handed down its judgment as recently as 20 September 2007. At paragraph 64 of the judgment this is said:
'Lastly, as regards the alternative argument of the United Kingdom Government that failed asylum seekers such as the applicants in the main proceedings should not be allowed to rely on Article 41(1) of the Additional Protocol, since any other interpretation would be tantamount to endorsing fraud or abuse, it must be borne in mind that, according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends [authority then cited] and that the national courts may, case by case, take account on the basis of objective evidence of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely [and a further case is cited].'
17. This, if I may say so with great respect, is an application of the abuse of rights principle which is well established in the jurisprudence of the Court of Justice. There is plain affinity with the common law rule (if I may express it very broadly) that a man may not profit from his own wrong and the linked principle expressed in the Latin phrase ex turpi causa non oritur actio. There is in the present context no reasonable distinction, I think, between abuse of rights and fraud. Such a distinction if it were asserted could not in my judgment survive the reasoning of the Court of Justice in Kondova and Dari v Tum. This conclusion is, I apprehend, in line with first instance decisions in the Administrative Court, notably Yilmaz and Temiz to which I have made reference. I will not, with respect, cite those judgments.
18. What then is the position here? I have concluded that the Secretary of State was entitled to deny the applicant the benefit of paragraphs 30 to 32 of HC 509 because his reliance on those provisions was in truth only viable by virtue of his own wrongdoing – the establishment of a business in 2004 in plain contravention of a then extant prohibition against his doing so. It is true been [sic] the focus of the argument this morning has been the fact that from October 2005 onwards, successive forms IF96 did not repeat this restriction on their face. However, the applicant had made his application to enter as a businessman in January 2005 and he relied on the business he had established from June 2004 onwards. That essentially remained the case. The Secretary of State in paragraph 7 of the decision letter, which I have already set out, is plainly addressing his attention to the basis on which or the circumstances in which the business of the applicant had historically been established. Even if (which I am bound to say I doubt) in October 2006 the applicant was entitled to think that the restriction was not then being insisted on, the basis on which his application had been put forward on which indeed it depended remained the historic establishment of a business in violation of his conditions.
19. In these circumstances it seems to me that the Secretary of State's decision was lawfully arrived at, and for my part I do not find it necessary to decide whether the Secretary of State was also entitled to rely on the applicant's fraudulent asylum claim. It may be said that that claim was in effect what allowed the applicant to remain in the United Kingdom albeit on temporary admission from 2000 onwards while the appeal process took its course. But the circumstances relating to the fraudulent asylum claim may well be thought more remote from the claim to enter as a businessman than is his actual establishment of the business in question.
20. For these reasons I conclude that there is nothing in the first and principal ground of appeal. There is a suggestion that it is in some way enforced by a legitimate expectation. I perceive no such expectation. None, I think, is generated by the Secretary of State's guidance discussed by Lloyd Jones J and to which I have referred. As regards the point under the European Convention on Human Rights, Mr Zahed has this morning very candidly accepted that in truth the Article 8 claim falls away, as it is now to be understood that the applicant could launch a fresh claim to enter the United Kingdom from Turkey. It is not in those circumstances necessary to say any more about Article 8. Nor in truth can Article 1 of the First Protocol provide any self-standing justification for overturning the Secretary of State's decision. That being so, it is not necessary to go into the question whether the Article 8 claim might be thought to be a fresh claim theoretically generating fresh appeal rights."
"In the refusal letter the officer refers to fraud or abuse. I think that he is entirely wrong to take this into account when considering an out of country application for first admission."
"In those circumstances, the fact that Mr Tum and Mr Dari had, prior to their applications for clearance to enter the UK for the purpose of exercising freedom of establishment, made applications for asylum which had, however, been refused by the competent authorities of that member state, cannot be regarded, in itself, as constituting abuse or fraud."
"Of course much will turn on the particular facts of each case and the particular conclusions reached by the Immigration Judge. It does not follow that simply because a claim for asylum is rejected entry was sought to be obtained by means of a fraudulent story. But there is no doubt on the facts of this case that that is precisely what was attempted and the short point that is made in Yilmaz and Taskale is that it cannot make any difference whether the appellant is someone whose false representations enabled him to gain leave of entry, or someone whose false representations were not believed, who was based on temporary admission, and who then sought to gain entry by repeating those false assertions in front of an Immigration Judge who rejected them."
In our view there is a world of difference between the bona fide asylum applicant who tells a truthful story but whose case fails for reasons which do not reflect on his credibility and the circumstances of the present case. For example an appellant may fail because of positive developments in the objective situation. Defeat may not impinge on his integrity at all.
"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 therefore 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."
Signed Date 17 October 2008
Senior Immigration Judge