QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF MEHMET PARMAK||(CLAIMANT)|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR PUSHPINDER SAINI (instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
The background facts
"Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement.
"The Council of Association [a joint EC-Turkey body] shall decide on the rules necessary to that end."
"1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.
"2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, 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.
"The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade."
The Savas judgment
"The Contracting Parties agree to be guided by Articles 52 and 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them."
In paragraphs 41 to 45 the court considered whether Article 13 of the Agreement was of direct effect. The court said:
"41. It should be noted that the Court has already held that Article 12 of the Association Agreement essentially serves to set out a programme and that its provisions are not sufficiently precise and unconditional to constitute rules of Community law directly applicable in the internal legal order of the Member States..."
"42. It is clear that, like Article 12, which concerns freedom of movement for workers, Article 13 of the Association Agreement does no more than lay down in general terms, with reference to the corresponding provisions of the EC Treaty, the principle of eliminating restrictions on freedom of establishment between the contracting parties, and does not itself establish precise rules for the purposes of attaining that objective.
"43. Pursuant to Article 22(1) of the Association Agreement, which confers a decision-making power on the Council of Association in order to attain the objectives of the Agreement, Article 41(2) of the Additional Protocol empowers the Council of Association to determine, in accordance with the principle set out in Article 13 of the Association Agreement, the timetable and rules for the progressive abolition of restrictions on freedom of establishment between the contracting parties.
"44. However, the Council of Association has not adopted any measures under that latter provision for the concrete implementation of the general principle that obstacles to the right of establishment between the contracting parties are to be gradually abolished.
"45. In those circumstances, the conclusion must be that Article 13 of the Association Agreement is no more capable than is Article 41(2) of the Additional Protocol, also referred to by the national court, of directly governing the legal position of individuals and cannot therefore have direct effect.
The Court then considered the direct effect of Article 41(1) of the Additional Protocol, saying:
"46. As its very wording shows, this provision lays down, clearly, 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."
"54. It follows from the considerations set forth above that Article 41(1) of the Additional Protocol lays down a precise and unconditional principle that is sufficiently operational to be applied by a national court and therefore capable of governing the legal position of individuals. The direct effect which must therefore be accorded to that provision implies that the individuals to which it applies have the right to rely on it before the courts of Member States."
"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 residences 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.
"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."
"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."
The Tum and Dari decision
"Having regard to that judgment the respondents, both before us and in the court below, have accepted that the 'standstill' provisions do not give any right of establishment or any right of entry into the United Kingdom, other than those which are conferred by domestic law (the law of the United Kingdom). However, they say that in relation to the content of the domestic law the 'standstill' provisions have the effect of making that law the law which was applicable on 1 January 1973 and not the current law. Putting it shortly, it is because the Secretary of State did not apply the law as it stood in 1973 that his decision was defective.
"On the other hand, the Secretary of State contends that if a person has lawfully entered this country, and, having done so, seeks to establish himself here and to operate a business, he can rely on the law as it was in 1973, and argues that only applies to those who have so entered..."
"In particular, it is submitted by Mr Saini that those who have attempted to obtain admission to this country as asylum seekers but who have had their asylum claim rejected cannot rely upon the provisions of Art.41(1) of the Additional Protocol.
"22. Davis J rejected that argument, and so do I. There is nothing in Art.41(1) of the Additional Protocol itself to support that argument. Furthermore, when the judgment in Savas is properly understood as falling into two clear parts, then it seems to me that the judgment strongly supports the contention of the respondents. 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 position in 1973
"... a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit."
The claimant's submissions
"1. The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services..."
"1. This Directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health.
"2. Such grounds shall not be invoked to service economic ends."
Article 8 provides:
"The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration."
"In light of the foregoing considerations, the answer to the first question must be that Article 9(1) of Directive 64/221 is to be interpreted as precluding legislation of a Member State under which appeals brought against a decision to expel a national of another Member State from the territory of that first Member State have no suspensory effect and, at the time of examination of such appeal, the decision to expel can be the subject only of an assessment as to its legality, inasmuch as no competent authority within the meaning of that provision has been established."
"... whether the procedural guarantees provided by Articles 8 and 9 of Directive 64/221 apply to Turkish nationals whose legal status is defined by Article 6 or Article 7 of Decision No 1/80."
Decision 1/80 was a decision of the Council of Association made pursuant to the Council's power to make rules confirmed by Article 36 of the Protocol. Article 6(1) of Decision 1/80 is in these terms:
"Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:
" - shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available;
" - shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that Member State, for the same occupation;
" - shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment."
In paragraphs 61 and 62 the court said:
"61. It should be reiterated that, in terms of Article 12 of the Association Agreement, 'the Contracting Parties agree to be guided by Articles 48, 49, and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them'. Article 36 of the Additional Protocol specifies the stages by which free movement of workers between the Member States of the Community and the Republic of Turkey is progressively to be secured and provides that 'the Council of Association shall decide on the rules necessary to that end'. Decision No 1/80 seeks, according to the third recital in the preamble thereto, to improve, in the social field, the treatment accorded to workers and members of their family.
"62. The Court has inferred from the wording of those provisions that the principles laid down in the context of Article 48 of the Treaty must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80..."
In paragraphs 65 to 68 Court said:
"65. The same considerations require that the principles enshrined in Articles 8 and 9 of Directive 64/221 be regarded as capable of extension to Turkish workers who enjoy the rights recognised by Decision No 1/80.
"66. Such an interpretation is justified by the objective of progressively securing freedom of movement for Turkish workers, as set out in Article 12 of the Association Agreement. The social provisions of Decision No 1/80 constitute a further stage in securing that freedom ... It is established case-law that Article 6(1) of Decision No 1/80, which has been recognised as having direct effect, creates an individual right as regards employment and a correlated right of residence..."
"67. In order for those individual rights to be effective, Turkish workers must be able to rely on them before national courts. To ensure the effectiveness of that judicial protection, it is essential to grant those workers the same procedural guarantees as those granted by Community law to nationals of Member States and, therefore, to permit those workers to take advantage of the guarantees laid down in Articles 8 and 9 of Directive 64/221. As the Advocate General states in point 59 of his Opinion, such guarantees are inseparable from the rights to which they relate.
"68. That interpretation is valid not only for Turkish nationals whose legal status is defined in Article 6 of Decision No 1/80, but also for members of their family whose status is governed by Article 7 of that decision. Nothing can justify the granting to those nationals residing lawfully in the territory of a Member State, as regards the rights granted to them by Decision No 1/80, of a separate level of protection lower than that laid down in Articles 8 and 9 of Directive 64/221. If Article 14(1) of Decision No 1/80 did not impose on the competent national authorities procedural limits analogous to those which apply to a decision to expel a national of a Member State, as the Court has already held in Cetinkaya, cited above, the Member States would have complete freedom to render impossible the exercise of the rights to which Turkish nationals enjoying a right granted by Decision No 1/80 are entitled."
The respondent's submissions and my conclusions
"In the fields covered by this Protocol..."
"the arrangements applied by the Community in respect of Turkey shall not give rise to any discrimination between Turkish nationals or Turkish companies or firms."
However, during the course of his submissions he accepted that this provision was concerned to prevent discrimination between legal entities and natural persons. It does not therefore advance the claimant's case.
"I turn to the first issue: (1) does the [agreement] operate to prevent change in the procedural processes employed in connection with applications for rights to establishment or to provide services? Ms Fielden [for the claimant] relied on a number of passages in the first instance decision in R (Tum and Dari) v Secretary of State for the Home Department  EWCH 2745 (Admin) as indicating that the rules effective in 1973 should apply in full to such applications, whether those rules are procedural or substantive. She also submits that any restriction on in-country appeal will restrict freedom of establishment. I do not agree. The appeal procedures, available either in 1973 or now, do not place any restriction directly on the right to establishment. They merely establish the forum on which that right may be assessed. Any changes in the appeal procedures do not necessarily mean that any stricter conditions apply in determining whether or not to grant rights to establishment. For these reasons, I do not consider that the standstill requirement under the [agreement] operates to require a standstill of procedural rules."
For the purposes of the present case, it is unnecessary to resolve that issue. If the claimant was not entitled to an in-country right of appeal, then the defendant was entitled to issue the removal directions under challenge in these proceedings whether or not the claimant was entitled to an out-of-country appeal. I readily accept Mr Saini's submission that the effect of the standstill clause is not that any procedures must remain precisely the same. The question is whether the rules now applied to the claimant "are less favourable..."
"... does not mean that the United Kingdom has made establishment harder. It is just the forum for challenge which has changed."
That submission ignores the very real distinction (often urged upon this court by counsel on behalf of the Secretary of State) between an appeal on the merits and judicial review. In 1973 an adjudicator's powers on appeal were contained in Section 19 of the Immigration Act 1971, which was in these terms:
"19(1) Subject to sections 13(4) and 16(4) above [which are not in issue in this case], and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -
"(a) shall allow the appeal if he considers -
(i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or
(ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and
"(b) in any other case, shall dismiss the appeal."
"29. Businessmen admitted to the United Kingdom as visitors are free to transact business during their visit.
"30. Passengers who have obtained entry clearances for the purpose of establishing themselves in the United Kingdom in business, whether a new or existing business, should be admitted for a period not exceeding 12 months with a condition restricting their freedom to take employment. Passengers who are unable to present such a clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next 2 paragraphs should be admitted for a period of not more than 2 months, with a prohibition on employment, and advised to present their case to the Home Office."
The next two paragraphs set out the various requirements, for example if an applicant is joining an established business; that he be bringing money of his own; that he be able to bear his share of liabilities et cetera; that an applicant wishing to establish a business on his own account will need to show that he will be bringing sufficient funds to establish the business and that the business can realistically be expected to support him and any dependants without recourse to employment, for which a work permit is required.