England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 October 2007

1. MR JUSTICE COLLINS: This claim for judicial review concerns the Turkish ECAA Agreement. The claimant asserts that he has set up a business here, has produced material sent to the Secretary of State which he says establishes that he meets the necessary requirements, and therefore he should be allowed to remain in this country. The reason why it has been brought is because the European Court of Justice has reached its decision in relation to the case of Dari and Tum, on the question in which was referred to it by the House of Lords. The decision of this court in Temiz [2006] EWHC 2450 (Admin), a decision of mine, coupled with the decision of the Court of Appeal in Dari and Tum, had made it clear that these claims were unlikely to succeed, and indeed the growth industry which had developed in claims such as that made by this claimant was brought to an end.
2. What is now submitted is that the decision of the court in Dari and Tum makes a difference, and that the approach which I considered to be correct in Temiz is no longer to be so regarded. It is I think important to note what the court was asked to deal with in Dari and Tum, and the ruling at the end of the judgment makes that clear. It is in these terms:

"Article 41(1) of the Additional Protocol, which was signed on 23 November 1970 at Brussels and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972, is to be interpreted as prohibiting the introduction, as from the entry into force of that protocol with regard to the Member State concerned, of any new restrictions on the exercise of freedom of establishment, including those relating to the substantive and/or procedural conditions governing the first admission into the territory of that State, of Turkish nationals intending to establish themselves in business there on their own account."

3. That is material inasmuch as the main change imposed by the present regulations contained in HC395 and those which were in force in 1973 is that now an entry clearance is required, and that of course would be an important change in the procedural conditions governing the first admission into this country. The court in Dari and Tum, in reaching its conclusion, does seem to have considered other matters. I regret to say that in certain respects it is not easy to follow precisely what the court's reasoning was intended to cover.
4. If one looks at the facts of this case, one finds that this claimant arrived in the United Kingdom in the back of a lorry in May 2001. He was clearly then an illegal entrant and he was served with notice to that effect. He then claimed asylum, and pending consideration of that claim, was granted temporary admission. In August of that year his asylum application was refused. He appealed against that refusal. He received rejection from the first adjudicator, but that decision was not upheld on appeal. The matter was remitted, and there was a further decision which was against him. That was a decision reached in February 2003. What the adjudicator decided was that his account that he had given was, as she put it, only credible in part. There was a discrepancy at the heart of the case about whether, when he was released, the claimant was asked to spy for the military authorities. She took the view that his account of his detention and release on that condition lacked credibility. She found that he was not a member of HADEP, but was sympathetic to their cause, but that he would not have had access to any information which would interest the authorities. In those circumstances, she did not accept that he was entitled to asylum.
5. There was also a matter raised about military service, but although it may well be that he was not telling any lies in relation to his concerns about military service, that would not justify asylum. That decision was hardly surprising in light of the decision of the House of Lords in Sepet and Bulbul. So we do have here a situation where there was undoubtedly an account given which was not accurate and which was designed on the findings of the adjudicator to establish a claim for asylum which was not, in truth, a valid claim. In those circumstances, as it seems to me, that clearly was fraud within the meaning applied by the Court of Appeal in Dari and Tum.
6. It is to be noted that the European Court of Justice was very much influenced by the decision of the Court of Appeal in that case that there had been no fraud. There is no question but that the ECJ does not accept that fraud is something which is irrelevant so far as the standstill clause is concerned, that it upholds the conclusion that, if there were fraud, it would enable the first admission of the Turkish national to be covered by the law then existing that fraud would not justify entry and accordingly fraud would not justify any rights which depended upon there being an establishment of business in this country. If business were established when entry had been obtained by fraud, that cannot and could not justify a successful application under the standstill clause.
7. I should emphasise, of course, that even if there was fraud, even if there was illegal entry, the Secretary of State is not ipso facto precluded from granting the necessary permission to remain or to enter, whichever may be appropriate. She has a discretion, but if she exercises that discretion against the individual applicant, it will be well nigh impossible for the court to be persuaded that the exercise of discretion was wrong in law.
8. Ms Baruah on behalf of the claimant has drawn my attention to certain of the paragraphs in the decision of the court which she submits show that the decision of this court in Temiz can no longer be regarded as good law. At paragraph 58 the court says this:

"58. However, that 'standstill' clause does not call into question the competence, as a matter of principle, of the Member States to conduct their national immigration policy. The mere fact that, as from its entry into force, such a clause imposes on those States a duty not to act which has the effect of limiting, to some extent, their room for manoeuvre on such matters does not mean that the very substance of their sovereign competence in respect of aliens should be regarded as having been undermined (see, by analogy, Case C-372/04 Watts [2006] ECR I-4325, paragraph 121).

59. The Court cannot accept the interpretation of the United Kingdom Government to the effect that it is apparent from Savas that a Turkish national can rely on the 'standstill' clause only if he has entered a Member State lawfully as it is irrelevant whether or not he is legally resident in the host Member State at the time of his application to establish himself, while, conversely, that clause does not apply to the conditions governing a Turkish national's first admission to the territory of a Member State."

9. The reasoning in that paragraph is perhaps not as clear as it might be, but, as it seems to me, what the court is saying is that lawful presence is not a prerequisite of the ability to rely on the standstill clause, but the member state (in this case the United Kingdom) is entitled to apply the law governing the conditions appropriate to first admission into this country. The appropriate law has to look back to 1973, the date of the standstill clause, because it is not possible to impose restrictions which are more substantial than those which then existed. But there is no question but that, at that time, and indeed since the Act of 1971, the United Kingdom has been entitled to refuse to allow illegal entrants to achieve any rights here. Temporary admission is not an admission into this country which provides any rights to the individual; it is merely equivalent to a grant of bail to prevent the need for detention while the individual claim is being considered.
10. Furthermore, there is clear jurisprudence from the European Court which establishes that a member state in applying its immigration policy is entitled to take the view that it will not encourage in any way an application based on the acquisition of the wherewithal to make that application -- in this case the existence of a business -- which was achieved whilst the individual was here unlawfully or while the business was carried on in breach of Immigration Rules. As I have said, there is clear jurisprudence, which I referred to in the case of Temiz, which is not in any way doubted in the decision in Dari and Tum, particularly when one has regard to the precise question with which the court was dealing in that case.
11. I take the view that there is nothing in the decision of the ECJ which throws doubt upon the correctness of my decision in Temiz. Ms Baruah particularly relies upon paragraph 64, where this is said:

"64. 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 (Case C-255/02 Halifax and Others [2006] ECR I-1609, paragraph 68) 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 (see inter alia Case C-212/97 Centros [1999] ECR I-1459, paragraph 25).

65. However, in the cases in the main proceedings, it is apparent from the documents sent to the Court by the national court that the courts which gave rulings on the substance of the cases currently pending before the House of Lords expressly stated that Mr Tum and Mr Dari could not be accused of any fraud and that the protection of a legitimate national interest, such as public policy, public security or public health, was not at issue either..."

12. The argument of the United Kingdom Government that a failed asylum seeker ipso facto should be regarded as having abused the system or been fraudulent is clearly and was clearly wrong. A perfectly honest and genuine account of an individual who had a subjective fear of persecution may turn out not to be justified objectively, and thus the claim for asylum would fail, as would, in an appropriate case, the claim for subsidiary or, as we have interpreted it, humanitarian protection. But there is no question of an abuse or fraud in such a situation. Accordingly, it would be surprising if the argument of the United Kingdom Government, so expressed, did prevail. But if there is fraud, if there is dishonesty in the application, and furthermore if the business in question had been built up in breach of a condition of entry or, if not of entry, of temporary admission, then again that is an abuse of the immigration laws of this country and, as I have said, on the basis of consistent ECJ jurisprudence, should not be allowed to benefit a particular claimant. As I read it, there is nothing in what the court says which goes against that. It was relying on the findings of the Court of Appeal in Dari and Tum that there was no fraud and no abuse, as it believed, in those cases. Whether or not that was a proper conclusion by the Court of Appeal is beside the point. It was the conclusion on which the European Court relied and clearly was entitled to rely.
13. In those circumstances, in my view the decision of the court, when properly analysed, does not affect the correctness of the approach which I considered to be correct in Temiz. I have had my attention drawn to a decision of the Court of Appeal reached last week in a case called R(Tengiz) v Secretary of State. The only reference I have is that it is an extempore judgment, which has been noted in what is the Lawtel daily update for the following day. Mr Palmer appeared in that case, and although the report is short and does not cover the matter in detail, he informs me that the court effectively decided as I have decided, namely that the decision in Dari and Tum did not affect the approach which I have considered to be correct in Temiz. Indeed, the report that I have seen is entirely consistent with that. However, I have formed, as is clear, my own view independently which confirms that that is the situation.
14. In those circumstances, having regard to the facts of this case, the Secretary of State was entitled in law to decide that he would not accept this claim, that the claimant must go back to Turkey and make an application for an entry clearance which will be considered on the basis of the law that was applicable in 1973.
15. Ms Baruah complains that there is at present no system set up for such an entry clearance to be obtained. The simple answer to that is, in the light of Dari and Tum, such a system must be set up immediately. Mr Palmer assures me that the Secretary of State has recognised the need for that to occur and she will no doubt have informed the Foreign Secretary of her obligation to ensure that entry clearance officers are available to deal with the matter on the correct basis. As it is, this claim fails.
16. MR PALMER: My Lord, there are two small matters of detail arising from my Lord's judgment. The decision of the Court of Appeal last week was cited in that report as LF, but in fact its proper citation is Tengiz. There was no order for anonymity because it was not an asylum claim.
17. The second point, my Lord suggested that the temporary admission may have been on the basis of section 11 of the Immigration Act. Section 11, I believe, is the deeming provision which is that someone who enters the United Kingdom --
18. MR JUSTICE COLLINS: I got the wrong --
19. MR PALMER: -- has not actually entered. This was an illegal entrant who was released under paragraph 21 of Schedule 2 of the Immigration Act.
20. MR JUSTICE COLLINS: I will delete any reference to section 11 in due course.
21. MR PALMER: I am grateful for that. I am sure nothing turns on it.
22. MR JUSTICE COLLINS: It does not make any difference in principle.
23. MR PALMER: My Lord, the only other application is that I have an application for the Secretary of State's costs. I do not have a schedule to present to my Lord.
24. MR JUSTICE COLLINS: Are you legally aided, Ms Baruah?
25. MS BARUAH: I am not, my Lord, no.
26. MR JUSTICE COLLINS: I do not think you can resist costs in principle?
27. MS BARUAH: No, my Lord, not in principle.
28. MR JUSTICE COLLINS: Well, yes, costs to be the subject of detailed assessment if not agreed.
29. MR PALMER: My Lord, I am grateful.