Advocate General's Opinion Given in Tum and Dari
The European Court of Justice (ECJ) judgment in the case of Tum and Dari is still awaited one year after a hearing in the case on 18 May 2006. The case raises significant questions concerning Turkish nationals’ rights under the Association Agreement between the European Union and Turkey (the ‘Ankara Agreement’). When judgment is given, it will have a wide-ranging impact on Turkish men and women who want to run businesses in the UK.
The applicants Mr. Tum and Mr. Dari are Turkish nationals who applied for leave to enter the UK to set up businesses in the UK. At the time of their applications they were already living in the UK but had not been given permission to enter. They were both people who had formerly sought asylum and were on ‘temporary admission’ in the UK. Mr. Dari had already established a business in the UK; Mr. Tum intended to start a UK business. The applicants argued that they should be considered under the UK immigration rules which applied on 1 January 1973, in accordance with the Association Agreement between the EU and Turkey, and not the more onerous immigration rules in force since that date.
Although the ECJ decision is still pending, the opinion of the Advocate General was delivered on the 12 September 2006. The Advocate-General’s job is to an analyse the law and express an independent opinion. This opinion is not binding on the European Court of Justice, which may take a different view of the law when it decides the case. The opinion may provide an indication of the likely ECJ decision.
The Advocate General’s opinion includes consideration of those applicants without regular immigration status. In his opinion, where the applicant was only in a position to meet the criteria for an application based on the Association Agreement as a result of activities carried out while unlawfully resident this would not constitute an adequate basis to fulfill the requirements.
The Advocate General’s opinion on this point was cited in the recent UK domestic case of R (on the application of Temiz) v Secretary of State for the Home Department [2006] EWHC 2450 (Collins J). The UK court ruled that the Home Office is entitled to refuse an application under the Ankara Agreement if the applicant is an illegal entrant or an overstayer. The Home Office may exercise discretion and allow an application even if the applicant is an illegal entrant or an overstayer but it is also permitted to take a person’s immigration status into account and refuse on that basis also.
The ECJ is not bound by these recent UK developments and may reach a different conclusion.
If you require advice and representation on this or any other UK immigration matter, please contact us.
