QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of
(1) VELI TUM
(2) VELI TUM
|Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ms J. Rothwell (instructed by Kuddus & Co) for the Claimant Dari
Mr Pushpinder Saini (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Davis:
The background facts
"The Secretary of State would submit that the provisions relating to the freedom to establish oneself in business under the Association Agreement are not directly effective rights upon which an individual is permitted to rely. The Secretary of State, in pursuit of his legitimate aim to maintain an effective and credible immigration control to the United Kingdom, is entitled to govern admissibility to the UK by the domestic law of the state".
The letter went on to refer to s.11 of the 1999 Act and various other matters relating to the history of events so far as concerned Mr Dari; and concluded that the UK would not be in breach of its obligations under the European Convention on Human Rights in returning Mr Dari to France.
10. In the case of the claimant Veli Tum, he is a Turkish national, born on the 10th November 1970. He arrived (as it transpired, from Germany) in the UK on 29th November 2001 and claimed asylum on arrival. He was in due course granted temporary admission, with a restriction on employment. On the 25th April 2002 he was served with a notice of decision refusing him leave to enter and removal directions for return to Germany (pursuant to the Dublin Convention) were set for 3rd May 2002. Mr Tum then alleged that so to remove him would be in breach of his human rights. That allegation was certified by the Secretary of State as manifestly ill founded on 2nd May 2002. Mr Tum then challenged that certification by judicial review proceedings: in consequence of which the implementation of the removal directions was stayed. The judicial review claim itself was stayed pending the decision of the House of Lords in Yogathas and Thangarasa. That decision ( 3 WLR 1276; 2002 UKHL 36) was handed down on 17th October 2002. It did not assist Mr Tum's claim for judicial review, which was, it seems, abandoned.
The legal framework
"The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services."
Article 41(2) goes on to provide that the Council should, in accordance with the principles set out in Articles 13 and 14 of the Association Agreement, determine the timetable and rules for the "progressive abolition by the Contracting Parties between themselves of restrictions on freedom of establishment and on freedom to provide services."
(1) Those who have lawfully entered the UK and then, when lawfully present, apply to remain to establish a business.
(2) Those who initially enter the UK lawfully, with leave to enter, but then stay on unlawfully; and having so stayed on then apply to remain to establish a business.
(3) Those who enter the UK unlawfully and then, having entered unlawfully, apply to remain to establish a business.
(4) Those who apply (whether at port or from outside) to enter the UK to establish a business.
"A person arriving in the United Kingdom by ship or aircraft shall for the purposes of this Act be deemed not to enter the United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to enter the United Kingdom so long as he remains in such area (if any) at the port as may be approved for the purpose by an immigration officer; and a person who has not otherwise entered the United Kingdom shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to this Act [or by part III of the Immigration and Asylum Act 1999]".
"Is the agreement establishing an association between the European Economic Community and Turkey signed at Ankara on 12th September 1963 ("The Agreement") together with the additional protocol to the agreement signed at Brussels on 23rd November 1970 ("The Additional Protocol") to be interpreted as conferring benefits on a Turkish National who has (a) entered or (b) remained in the territory of a member state in breach of the immigration law of that member state."
However, for the purposes of the Court's judgment the questions were then reformulated. The Court stated (at paragraph 37) that "the first three questions should be examined together", and that the national court was essentially asking whether Article 13 of the Association Agreement and Article 41 of the Additional Protocol conferred rights of establishment and corresponding rights of residence on a Turkish national "in whose territory he has remained and carried on self-employed business activities in breach of the Member State's immigration laws."
"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 that provision.
58 As regards, first, the argument put forward by Mr Savas in his written observations, the first point to be made is that 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 already lawfully integrated into the labour force of Member States (see, in particular, Case C-171/95 Tetik v Land Berlin  ECR 1-329, paragraph 21).
59 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 (see, in particular, Tetik, paragraph 29).
60 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 persons 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 (see, to that effect, Sevince, cited above, paragraph 29; Case C-237/91 Kus v Landeshauptstadt Wiesbaden  ECR 1-6781, paragraph 29; Case C-434/93 Bozkurt v Staatssecretaris van Justitie  ECR I-1475, para 28; Case C-340/97 Nazli v Stadt Nurnberg  ECR 1-957, paragraph 28) and that such persons may therefore claim an extension of their residence in the Member State concerned in order to continue lawful employment there (see, in particular, Kus, paragraph 36; Case C-36/96 Gunaydin v Freistaat Bayern  ECR 1-5143, paragraph 55; Case C-98/96 Ertanir v Land Hessen  ECR I-5179, paragraph 62; Case C-1/97 Birden v Stadtgemeinde Bremen  ECR 1-7747, paragraph 69). However, according to that 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 (Sevince, paragraph 30; Kus, paragraphs 12 and 22; Bozkurt, paragraph 26).
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 residence permit (Case C-285/95 Kol v Land Berlin  ECR 1-3069, paragraph 27).
62 In paragraph 28 of its judgment in Kol, the Court held more particularly that employment held by a Turkish national under a residence permit obtained in fraudulent circumstances of that kind could not possibly give rise to any rights in his favour.
63 These principles, established in the context of the interpretation of the provisions of the EEC-Turkey Association Agreement for the progressive achievement of free movement of Turkish workers in the Community, must also apply, by analogy, in the context of the provisions of that Association Agreement concerning the right of establishment.
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 correlatively, in relation to residence, only in so far as his position in the Member State concerned 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 then 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:
- Article 13 of the Association Agreement and Article 41(2) of the Additional Protocol do not constitute rules of Community law that are directly applicable in the internal legal order of Member States.
- Article 41(1) of the Additional Protocol has direct effect in Member States.
- Article 41(1) of the Additional Protocol is not in itself capable of conferring upon a Turkish national a right of establishment and, as a corollary, a right of residence in the Member State in whose territory he has remained and carried on business activities as a self-employed person in breach of the domestic immigration law.
However, Article 41(1) of the Additional Protocol prohibits the introduction of new national restrictions on the freedom of establishment and right of residence of Turkish nationals as from the date on which that protocol entered into force in the host Member State. It is for the national court to interpret domestic law for the purposes of determining whether the rules applied to the applicant in the main proceedings are less favourable than those which were applicable at the time when the Additional Protocol entered into force."
"1. Is Article 41(1) of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 18 December 1972, to be interpreted as prohibiting a Member State from introducing new national restrictions on the freedom of establishment of Turkish nationals as from the date on which that Protocol entered into force in the Member State concerned in the cases of:
(a) a Turkish national who is present in the Member State concerned in breach of its domestic immigration law;
(b) a Turkish national who seeks admission to the territory of the Member State concerned in order to exercise her claimed rights of freedom of establishment by seeking to establish herself in business in the Member State?"
"It amounts simply to this: that Art. 41(1) does not make lawful the otherwise unlawful presence of a Turkish national in a member state: but that in deciding whether such presence was lawful the principles to be applied must be no less favourable than they were, in regard to establishment, on 1st January 1973".
"...............the finding of the court is limited to holding that as regards deportation or removal Savas was still entitled to rely on Article 41(1) and argue before the national court that the rules are now more harsh than they would have been in 1973 and, if that argument succeeds, the 1973 Rules must apply."
Mr Saini observes that in that paragraph Waller LJ only refers to deportation and removal, not to entry. That is true; albeit the point has a certain artificiality in the present case given that the backdrop is that the Secretary of State is actively trying to remove Mr Tum and Mr Dari who are present in this country; and that, pretty obviously, as the history of events indicates, it is that attempt to remove them which has prompted these applications to establish a business.
"As its very wording shows, this provision lays down, clearly and precisely and unconditionally, an unequivocal standstill clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol".
That is unqualified language, purporting to be of general application; and it is also consistent with the generality of the observations of paragraph 69 of the judgment and of the answer given to the first 3 questions referred in paragraph 71 of the judgment.
"It entails ancillary rights without which the right of establishment is nugatory, including the right to enter the territory and to reside "(emphasis added).
Those observations seem to me to be apposite here: and I do not think they cease to be apposite just because the right arising under Article 41 (1) of the Additional Protocol can be said to be derivative (per Sedley LJ at paragraph 4 of his judgment). If that were not so, the objectives set out in the recitals to the Association Agreement and such rights as arise under Article 41 (1) could in practice be frustrated or jeopardised, as Ms Rogers and Ms Rothwell submitted and as I accept. Counsel make clear that they do not claim, on behalf of their clients, any derived rights of establishment or entry or residence as such under the Association Agreement or Additional Protocol: their right, they submit, is to invoke the standstill provisions of Article 41(1): and that particular right cannot be frustrated by the imposition of provisions as to entry more restrictive than those subsisting on 1st January 1973, thereby making more restrictive the provisions as to establishment prevailing on 1st January 1973. Putting it another way, they do not dispute that the domestic law (as to entry) of the UK applies to Mr Tum and Mr Dari; but what they say is that (by operation of Article 41(1) of the Additional Protocol) the domestic law as to entry to be applied is that subsisting at 1st January 1973. In this context, they also cited to me certain observations in the judgment of the European Court of Justice in Royer case C-48/75;  ECR 497 (in particular at paragraph 50); Ramrath case C-106/91;  ECR I – 3351 (in particular at paragraph 17); and Barkoci & Malik case C-257/99;  ECR I-6657. The latter case involved the freedom of establishment of Czech nationals. The provisions of the relevant Association Agreement in that case were, it is true, different from the present. Nevertheless it is, I think, of some note that the Court at paragraph 44 of its judgment, said this:
"The right of a Czech national to take up and pursue economic activities not coming within the labour market presupposes that that person has the right to enter and remain in the host Member State. That being so, the scope of Article 45(3) of the Association Agreement falls to be determined."
"The Member States of the Community and Turkey may not introduce restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories."
What was in issue in that case, therefore, as all counsel submitted to me, does not provide direct assistance on the issue arising in the present case. Not only is the decision on the free movement of workers (not on the freedom of establishment) but also the wording of Article 13 of Decision 1/80 is (notably) different to that in Article 41(1) of the Additional Protocol.
"However, it is clear from paragraph 69 of Savas 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."
That, too, is consistent, as I read it, with Savas. Indeed – and accepting always that the judgment of the Court is not to be construed as though it were a statute – the use of the word "however", at the beginning of that paragraph, does seem to me to be some confirmation that paragraph 69 of the judgment in Savas is to be taken as a qualification of what had gone before in the judgment. Moreover, as I read them, the subsequent parts of the judgment in Abatay relating to Article 41(1) of the Additional Protocol at least are consistent with that view of the decision in Savas. It also may be noted that, as part of its concluding answers in paragraph 117 of the judgment, the Court in Abatay said this:
"Article 41(1) precludes the introduction into the national legislation of a Member State of a requirement of a work permit in order for an undertaking established in Turkey to provide services in the territory of that State, if such a permit was not already required at the time of the entry into force of the Additional Protocol."
Reference to the European Court of Justice
MR JUSTICE DAVIS: Judgment will be in accordance with the judgment as handed down in both cases.
MR SAINI: My Lord, I rise first because, apart from one matter, the draft order which I e-mailed to my Lord's clerk yesterday has been agreed. I hope my Lord has a copy there. Some minor amendments have been made while we have been waiting here just on some matters of detail. The only issue is the question of permission to appeal. Before I turn to that, does my Lord have any observations?
MR JUSTICE DAVIS: Is it customary to order the Secretary of State to reconsider --
MR SAINI: It would happen in any event. I merely put that in there because in Ms Rogers' claim form she sought a directory order. It is strictly not necessary --
MR JUSTICE DAVIS: I think I am minded to delete that.
MR SAINI: I am content with that, my Lord. I should say that Mr Jorro appears in Ms Rogers' place this morning.
MR JUSTICE DAVIS: Yes.
MR SAINI: My Lord, the only other change was that I believe the claimant in the case of Dari is not legally aided, therefore there is only a Community Legal Service assessment of Mr Tum's costs, which is the further manuscript amendment.
MR JUSTICE DAVIS: According to Mr Dari, he was earning £15,000 a year, and I bore that in mind.
MR SAINI: If I may then turn to permission of appeal.
MR JUSTICE DAVIS: It is all right having a consolidated order, is it, in both?
MR SAINI: Unless the associate has some difficulty with that.
MR JUSTICE DAVIS: You better sort it out in due course. Otherwise, subject to the question of permission to appeal, that seems all right.
MR SAINI: As my Lord is aware, there are two basic criteria for granting permission to appeal. One is realistic prospect of success and the other is some other compelling reason for the appeal to be heard. If I may focus on the second in this case, because I do not seek to persuade my Lord, given the forthright terms in which my Lord expressed myself --
MR JUSTICE DAVIS: The fact that I am forthright, I might be clearly wrong.
MR SAINI: To deal with the question of whether or not there is any compelling reason, one of the subcriteria within that is whether or not the issue is of public importance. As my Lord has recorded in paragraph 1 of the judgment, it is an issue of public importance. In my submission that is enough of a reason.
MR JUSTICE DAVIS: Would your focus be on the substantive points or appealing with a view to getting a reference?
MR SAINI: We would try and run both points.
MR JUSTICE DAVIS: You will have noted the way I phrased myself on the reference point.
MR SAINI: At the moment, subject to instructions, I think we would try and run both arguments that we ought to succeed, or if there is any doubt the Court of Appeal ought to direct a reference.
MR JUSTICE DAVIS: If this went to the Court of Appeal the Court of Appeal may, as it were, take a pre-emptive view. You really focus more on the compelling reason ground rather than the realistic prospect of success ground.
MR SAINI: Yes, my Lord.
MR JORRO: My Lord, coming new to the case, I have read your judgment this morning. It is an entirely convincing judgment. There is no real prospect of success --
MR JUSTICE DAVIS: Well, that is not Mr Saini's --
MR JORRO: I accept that, my Lord, but my submission would be that the inevitable result of this, whether in the Court of Appeal or in the ECJ, would be the point made in Savas applies to the same position, ie --
MR JUSTICE DAVIS: One trouble is that Savas, on one view, did not directly answer the question which had originally been certified by McCulloch J. You have seen what I have had to say about that. It may be said that it is striking that in Abatay sufficient doubt on Article 41 still seems to have been in play to cause the German court to refer a related question under Article 41 back to the ECJ who, as Mr Saini would say, ducked it again.
MR JORRO: Yes, but nonetheless my submission would be that the inevitable result is going to be that they will say --
MR JUSTICE DAVIS: You mean, the ECJ have made it clear --
MR JORRO: It is the position as at 1st January 1973 in terms of the immigration case, whatever that case may be.
MR JUSTICE DAVIS: You mean I am obviously right?
MR JORRO: Yes, clearly right on the basis of the judgment in A.
MR JUSTICE DAVIS: That is very flattering. I understand, thank you.
MRS ROTHWELL: My Lord, I have really nothing to add, save to say that it has been very clear from the case law that was cited by Mr Dari and Mr Tum right from the very beginning, from the spirit of the agreement right the way through, that the 1973 Rules really are those that are applicable. In my submission, the matter is partly dealt with by A and dealt with fully by Savas and Abatay, and I would say that really it is very clear and there is really no point of public importance that cannot be dealt with by the judgments that are already in the public domain.
Unless I can assist you further, I would ask you not to grant permission to appeal.
MR JUSTICE DAVIS: I take the view that what has arisen here does raise a question of general importance and I take the view that there are compelling reasons for granting permission to appeal in this case so that the Court of Appeal may consider both the substantive issues and/or alternatively the question of whether or not there should be a reference of the points specifically arising to the European Courts of Justice. So rather on the second limb of the rule than the first limb I do grant permission to appeal.
MR SAINI: I am obliged, my Lord. I think that deals with all outstanding matters.
MR JUSTICE DAVIS: I have initialled this order.