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Caselaw

High Court ruling on Ankara Agreements

Posted by Gunes Saybak on March 28, 2017

High Court ruling on Ankara Agreements

Akturk, R (On the Application Of) v Secretary of State for the Home Department [2016] EWHC 297 (Admin)

Brief Facts and Chronology

The Claimant is a Turkish national who was granted entry clearance as a visitor for 6 months between 31/10/14 and 30/04/15. He entered the UK on 21/12/14. Two days before the expiry of his visitor visa, the Claimant applied for further leave to remain under the terms of the 1963 European Community Association Agreement with Turkey (“the ECAA” or “Ankara Agreement”), which came into force in the UK in 1973.

In support of his application, the Claimant supplied various documents including a business plan which detailed the viability of the business, his target market and his services. His intention was to establish in business in the UK as a self-employed window cleaner.

In a letter dated 20/08/15 the Secretary of State for the Home Department (“SSHD”) requested further documents as follows:

  1. i) Personal UK bank account statements covering the 6 months preceding the application in the Claimant’s name demonstrating that the he had funds available to him
  1. ii) A letter from the Claimants father in Turkey (who had sent the Claimant 4,000 EUR for the purposes of investing in his business) confirming that he would not be recalling this funds back

Through his representatives, the Claimant responded to the request on 01/09/15, and explained that  he had been unable to open a UK bank account as a result of his visit visa status, and that the funds he held had been transferred to him by Western Union held, in cash, at home. Evidence of the transfer of money was enclosed along with a note from the Claimant’s father confirming that transferred funds were a gift.

The Claimant’s application was refused by the SSHD in a decision dated 27/10/15. He subsequently applied for Administrative Review of the refusal decision as an appeal to the First-tier Tribunal (IAC) (FtT) in respect in respect of such cases had been abolished. This was also refused.

Judicial Review proceedings were commenced in the High Court in which the Claimant raised the following grounds:

Ground 1: Both refusal decisions of 27/10/15 and 23/11/15 were wrong on the facts of the case

Ground 2:  The SSHD’S published “Guidance” which the officials applied in reaching their decisions, was unlawful because (i) it amounted to a breach of the ECAA provisions; and/or (ii) amounted to introducing an immigration rule which has not been laid before Parliament.

Ground 3: The abolition of the statutory right of appeal to the FtT and its replacement by Administrative Review was incompatible with the ECAA. The Claimant asserted that an appeal was a less restricted remedy than Judicial Review; that he had good prospects of success on appeal; and that he should not have been forced to apply for Judicial Review.

Decision of the High Court

Ground 1:  The decision letters of 27/10/15 and 23/11/15

The SSHD’S main reasons for refusing the Claimant’s application were as follows:

1) The Claimant had not provided evidence demonstrating that he held a bank account with sufficient funds to establish in business and meet his everyday living expenses. The SSHD therefore alleged that she was not satisfied that the Claimant had any spare capital to meet any liabilities that his business may incur. The SSHD took the view that as a result the Claimant did not have a genuine intention to start in business providing window-cleaning services

The court found this reasoning defective and unfair.

The court held that the decision-maker was required to exercise a broad overall discretion taking into consideration all factors. It found, however that the SSHD had failed to do so and had not considered the explanation that had expressly been provided in the representative’s response of 01/09/15 as to why no UK bank accounts had been provided.

2) The Claimant had stated on his entry clearance application form that he wished to visit the UK for 14 days but had remained beyond period and submitted an application under ECAA provisions two days before the expiry of the visa. The SSHD therefore took the view that this was an attempt to secure leave rather than a genuine intention to establish in business

The court found this adverse credibility finding wholly unjustifiable.

The SSHD had failed to raise these concerns during the Claimant’s application process and had not, through interview or otherwise, requested the Claimant’s comments or an explanation in respect of the matters.

With respect to the timing of the application, the court concluded that the Claimant’s actions had been inconsistent with a person whose actions were simply designed to frustrate removal from the UK. The Claimant had not been in the UK for years but merely four months and was not facing enforcement action. The SSHD’s decision had been fatally undermined as a result.

3) The Claimant had not provided any qualification or evidence of his proficiency in the English language. The SSHD was therefore not satisfied that the Claimant’s level of English was sufficient to allow him to run his business with a realistic chance of success.

The court found that the SSHD had further failed to follow her ‘Guidance’ which noted that: “in cases where the applicant does not provide sufficient evidence of proficiency in English and this is relevant to the application, you must ask the applicant to provide further written evidence of their fluency”.

The SSHD’s ‘Guidance’ provided that where English proficiency was relevant or where “the credibility of the application is in doubt”, “you must consider if it is necessary to interview the applicant in person”.

There was no evidence to suggest that the Claimant had been considered for an interview or that the SSHD had sought to obtain evidence of the Claimant’s level of English language or to assess credibility.

Ground 2: The lawfulness of the ‘Guidance’

The SSHD relied on the ‘Guidance’ which set out that the absence of a UK bank account impacted the genuineness of any business plan.

The court did not decide on the lawfulness of the entire ‘Guidance’  but held that it did not amount to a new restriction in breach of the ECAA provisions and did not amount to the introduction a new immigration rule without Parliamentary approval failure to satisfy the UK bank account would not have resulted in mandatory refusal.

Ground 3. Is the abolition of the right of appeal incompatible with the ECAA?

The court held that the abolition of the right of appeal was incompatible with the ECAA.

The ECAA provisions contained a ‘stand-still’ clause which prevented  the introduction of any substantive or procedural restrictions over and above those in place at the time it came into force in the UK in 1973. The court stated “… it is clear that the position of the claimant, or of someone in his position, since the abolition of the right of appeal and its replacement by administrative review, is markedly less favourable than it was before.”

Conclusion

The Claimant’s Judicial Review application was successful.