Leave to remain - Appeal - Appellant being Turkish national

KA (Turkey) v Secretary of State for the Home Department: Court of Appeal, Civil Division (Lord Justices Rix, Tomlinson and McFarlane): 12 September 2012

The appellant, KA, was a Turkish national. In March 2007, he came to the UK as a visitor with leave to enter or remain for six months. Shortly before his leave to enter or remain as a visitor was to expire, KA applied through his then solicitors for leave to remain as a self-employed business person, namely, a barber, under the EC-Turkey Association Agreement (the Ankara agreement).

KA had made his application on a special Home Office Border & Immigration Agency form. On one of the questions asking when KA started self-employment, he responded with 'will commence on 1/10/07'. At the time of KA's application, the secretary of state had adopted a 'pragmatic approach' to such applications, the secretary of state had informed the Immigration Law Practitioners' Association (ILPA) that, inter alia, the then current delays in applications had been operating unfairly in relation to the financial position of applicants and that 'working in breach will not form the sole basis of refusal of that application'.

KA had begun his business as a barber in October 2007, on the advice of this then solicitors. In January 2008, following receipt of KA's application, the secretary of state requested further documents in support of his application. In February, KA, through his then solicitors, provided the further information. Later that same month, KA ceased working as a barber, on the advice of his then solicitors. In July, KA's application was refused with the secretary of state stating, inter alia, that KA had established his business in breach of the conditions of his previous leave to remain as a visitor and that had been tantamount to fraudulent activity.

The refusal letter further stated, inter alia, that KA had failed to bring himself within the current rules. The refusal letter had given no consideration to rules within the Ankara Agreement, in particular, article 41(1) of the Ankara Agreement (the standstill clause) which prevented the UK, as from its accession to the European Community on 1 January 1973, from introducing more restrictive conditions on freedom of establishment for Turkish nationals, which meant in the instant proceedings that Turkish nationals who sought leave to enter or remain as self-employed business persons had their applications determined under the then existent rules, made in 1972 (the 1972 rules) rather than under more modern ans restrictive rules.

KA successfully appealed that decision, with the determination stating, inter alia, that the secretary of state had not followed guidance in the form of Immigration Directorates' Instructions (IDIs) and had not considered the merits of KA's application under the 1972 rules. KA's case was subsequently referred back to the secretary of state for a new decision on his application.

In April 2009, the secretary of state again refused KA's application, stating, inter alia, that he had begun his business in breach of the conditions of his leave to enter, that that breach had been an abuse of rights, and that the secretary of state was not prepared to overlook the breach. KA appealed again. The immigration judge refused the appeal and determined, inter alia, that there had been no basis on which he was entitled to interfere with the secretary of state's exercise of her discretion under the rules. KA appealed against that decision.

KA contended that: (i) the immigration judge had erred in approaching his decision as though it had been a matter of judicial review and that the discretion on appeal had had to be exercised ultimately by the immigration judge; and (ii) in light of, inter alia, the policy of practice of the pragmatic approach operated in the relevant period of KA's application in September 2007, it had been unfair of the secretary of state to hold against KA the mere fact that, in reliance on appropriate legal advice, he had first commenced trading and then, a short time later, had ceased trading and, as a matter of common law fairness, KA's case should have been treated in the same manner as others of that period. Consideration had been given to Karaaslan v Secretary of State (C5/2009/0886) (Karaaslan), and to the 2005 and 2009 IDIs.

The appeal would be allowed.

(1) The test on an immigration decision appeal was not a judicial review test, but required the exercise of an originating statutory discretion in the immigration judge. Each case should turn on its own facts and be determined in its own context. Between February 2006 and about March/July 2008, the secretary of state had agreed a pragmatic approach whereby working in breach of condition would not form the sole basis of a refusal. In practice that meant that until March/July 2008 the secretary of state did not take a point about working in breach of condition.

The 2005 IDI had not dealt with breach of condition outside what could properly have been viewed as fraudulent activity or abuse of rights. The 2009 IDI had adopted a more nuanced attitude to breach of condition in a proper attempt in a proper attempt to distinguish cases of fraud/abuse and other cases. In the instant case, the determination was flawed, and the immigration judge had erred in law in not considering for himself the original statutory discretion which had been his. The test on an immigration decision appeal was not a judicial review test. If the immigration judge had allowed his sympathetic understanding of KA's acting on appropriate legal advice to inform his own discretion, he might have determined otherwise than he had (see [88], [97] of the judgment). R v Peterkin, ex p Soni [1972] Imm AR 253 considered; Tahir v Immigration Appeal Tribunal [1989] Imm AR 98 considered; R (on the application of N) v Secretary for State for the Home Department [2004] All ER (D) 32 (Aug) considered.

(2) It was a matter of common law fairness that KA's case should be treated in the same manner as others of that period, pursuant to a policy or practice agreed with ILPA. It had not been shown that KA had taken advantage of commencing trading in order to leverage his position. He had not brought himself within the standstill clause by virtue of his breach and his breach had been an incidental breach. Plainly, cases of fraud or abuse, or applications from persons who were not even lawfully in the UK were very different from the situation of incidental breach of condition.

The secretary of state's first refusal letter had been quite wrong to state that KA had acted in a manner tantamount to fraud. The second refusal letter maintained that assertion, but on that occasion calling the breach of condition an abuse of rights. That refusal letter had been wholly inconsistent with the pragmatic approach agreed with ILPA where it had agreed that 'at the present time working in breach will not form the sole basis of refusal'.

However, the short period of working in breach had been used as the sole basis of refusal. No other reason had been given. The secretary of state had, of course, been entitled to change her policy or practice, at any rate on due notice. However, KA's case should have been weighed in the context of the policy or practice contemporaneous to his application and breach. That process had been conspicuously unfair to KA. (see [92], [93], [97] of the judgment).

The appeal would be allowed and the secretary of state directed to grant leave to remain under the standstill clause of the standard initial period of 12 months (see [95] of the judgment).

John Walsh and Saad Saeed (instructed by Messrs Aman) for KA; Robert Palmer (instructed by the Treasury Solicitor) for the secretary of state.