COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE DAVIS)
B e f o r e :
(The Lord Woolf of Barnes)
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
| THE QUEEN on the application of VELI TUM
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
A N D B E T W E E N:
|THE QUEEN on the application of MEHMET DARI
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
190 Fleet Street, London EC4A 2HD
Telephone 020 7421 4040
Official Shorthand Writers to the Court)
MISS NICOLA ROGERS (instructed by Bindman & Partners, London WC1Z) appeared on behalf of THE FIRST RESPONDENT/CLAIMANT
MRS J ROTHWELL (instructed by Messrs Kuddus & Co, London E1) appeared on behalf of THE SECOND RESPONDENT/CLAIMANT
Crown Copyright ©
THE LORD CHIEF JUSTICE:
"56. In his written observations before the Court, Mr Savas argued essentially that Article 41(1) of the Additional Protocol is capable of conferring upon him a right of establishment and a corresponding right of residence in the Member State whose territory he has been authorised to enter, even though he has remained there and carried on business activities as a self-employed person in breach of that Member State's immigration laws.
57. At the hearing, Mr Savas explained that he was no longer claiming to derive rights of establishment and residence in a Member State directly from Article 41(1) of the Additional Protocol; he does claim, however, that the direct effect of that provision means that the Turkish national concerned may ask a national court to determine whether the national rules, on the basis of which it was decided to deport him, are stricter in relation to freedom of establishment and the right of residence than those which applied at the date on which the Additional Protocol entered into force in the Member State in question, and were thus adopted in breach of the 'standstill' clause enacted by the provision."
".... this Court has consistently held that, as Community law stands at present, the provisions concerning the EEC-Turkey Association do not encroach upon the competence retained by the Member States to regulate both the entry into their territories of Turkish nationals and the conditions under which they may take up their first employment, but merely regulate the situation of Turkish workers [my emphasis] already lawfully integrated into the labour force of Member States...."
In that paragraph the Court confined its remarks to workers because that was the situation with which Mr Savas' written argument had dealt.
"Next, the Court has repeatedly 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 State whose territory they have lawfully entered and where they have been in legal employment for a specific period."
Again it is necessary to emphasise that that is dealing with Turkish workers. Paragraph 60 reads:
"Finally, it is true that the employment rights thus conferred on Turkish workers necessarily imply the existence of a corresponding right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be rendered entirely ineffective ..... such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there.... However, according to the same case-law, the legality of a Turkish national's employment in the host Member State presupposes a stable and secure situation as a member of the labour force of that Member State and, by virtue thereof, entails an undisputed right of residence....
61. In this context, the Court has held that periods in which a Turkish national is employed under a residence permit which was issued to him only as a result of fraudulent conduct which has led to a conviction are not based on a stable situation and such employment cannot be regarded as having been secure in view of the fact that, during the periods in question, the person concerned was not legally entitled to a resident permit ....
64. It follows, as the Commission has rightly pointed out, that the 'standstill' clause in Article 41(1) of the Additional Protocol is not in itself capable of conferring upon a Turkish national the benefit of the right of establishment and the right of residence which is its corollary.
65. So, a Turkish national's first admission to the territory of a Member State is governed exclusively by that 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, co-relatively, in relation to residence, only in so far as his position in the Member State concerned is regular [my emphasis].
67. In those circumstances, the fact that Mr Savas did not leave the United Kingdom after the 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."
The judgment then goes on to deal with the second line of argument:
"68. .... 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 the 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.
71. In the light of all the considerations set forth above, the answer to the first three questions must be as follows...."
The Court then sets out the answers to those questions which it is not necessary to read out.
".... 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 of seeker by fraudulent means.
"It means, for example, that a Turkish national gaining temporary leave to enter as a visitor -- perhaps, in the process, being somewhat economical as to the truth with the immigration authorities -- and who then unlawfully overstays is in a position to invoke Article 41(1), and so be potentially in a better position to obtain leave to remain to establish a business than a Turkish national who has dutifully made his application while in Turkey (or at a port). Hardly a satisfactory result."
That dicta of Davis J should not be understood as in any way conflicting with the clear principle that a would-be immigrant cannot improve his position by resorting to fraud. No doubt Davis J would have qualified what he said in that paragraph and the following paragraph if his attention had been drawn to the Kondova decision.