European Court finds in favour of Turkish nationals in business in UK

Following a reference from the United Kingdom’s House of Lords the European Court of Justice (the “ECJ”) has decided that the applications of two failed Turkish asylum seekers for leave to enter the United Kingdom for the purpose of establishing themselves in business must be considered in accordance with immigration rules in force in 1973.  The ECJ’s judgment is dated 20 September 2007.

Mr Tum claimed asylum in the UK following his arrival in 2001 having travelled via Germany and Mr Dari claimed asylum in 1998, having arrived in the UK from France.  Each were refused asylum without any substantive consideration of their claims.  They faced removal to Germany and France.

They then applied for leave to enter the UK to establish themselves in business.  They stated that as Turkish nationals they were entitled to have these applications considered in accordance with an association agreement between Turkey and other member states of the European Economic Community (the “EEC”) made in Ankara, Turkey on 12 September 1963. (This became known as “the Ankara agreement”). 

The terms of the agreement are subject to its Additional Protocol, signed in Brussels on 23 November 1970.  Mr Tum and Mr Dari’s cases turned on the interpretation of Article 41(1) of this Additional Protocol, which provides:

"The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services."

The Protocol also established that an Association Council would decide rules for the operation of the Ankara Agreement.  In September 1980 the Council decided that:

“The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories.”

So Mr Tum and Mr Dari contended that due to this provision the UK government was barred from considering their applications under the immigration rules existing when they made them.  Instead Article 41(1) of the Additional Protocol operated as a “standstill clause” whereby their applications should instead by considered under the rules which operated when the Additional Protocol came into force – which was 1 January 1973. 

Unsurprisingly the 1973 immigration rules relating to people who wished to establish themselves in business in the UK were far less demanding than those which had been introduced progressively since 1980, and which had been increasingly difficult for applicants to satisfy.

The applications were however considered under the current immigration rules and refused.  In November of 2003 Mr Tum and Mr Dari successfully applied for judicial review of the decisions.  The Court of Appeal upon the Secretary of State’s appeal upheld the decision in their favour.  In its judgment the Court reiterated the important point that neither Mr Tum or Mr Dari could be accused of fraud and that the protection of a legitimate national interest, such as public policy, public security or public health, was not at issue either.  

The Secretary of State petitioned the House of Lords, which made a reference to the ECJ.  While the Secretary of State maintained that the UK was not obliged to apply the 1973 immigration rules to the applicants’ applications for leave to enter the UK he also relied upon the argument that Article 41 (1) applied only to those who had been lawfully admitted to the territory of a Member State.  Since neither Mr Tum nor Mr Dari had been lawfully admitted they could not, said the Secretary of State, rely on the provisions of the Article.  The Secretary of State derived some support for this argument from the decision of the ECJ in Savas  [2000] ECR 1-2927.  The issue for the ECJ to resolve was succinctly put in this question:

“Is Article 41 (1) of the Additional Protocol…to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry into its territory for a Turkish national seeking to establish himself in business in that Member State?”

The ECJ noted that in Savas it had not ruled on the question of whether those not lawfully admitted to the territory of a Member State could not avail themselves of the benefits of the standstill clause in Article 41 (1).  It further found that as - the applicants had argued - the purpose of Article 41.1 was to facilitate conditions for the establishment of business.  So its effect was wide enough to apply to the rules relating to the first admission of Turkish nationals to a Member State.   Therefore the Secretary of State’s argument as to the applicants not having been lawfully admitted to the UK failed. 

The ECJ also rejected the Secretary of State’s alternative argument to the effect that people who had been refused asylum shouldn’t be allowed to rely on Article 41 (1) since if they were this would be tantamount to endorsing fraud or abuse.  The ECJ pointed out that in Mr Tum and Mr Dari’s case the papers from the various proceedings prior to the hearing before the ECJ made it clear that there had been no fraud either attempted or perpetrated by the applicants.  The mere fact that they had applied for asylum and after those applications had been rejected had applied for leave to enter to establish a business could not be regarded as amounting to fraud.
 
For all these reasons the ECJ’s answer to the House of Lords’ question was “yes”.   The Secretary of State’s appeal to the House of Lords will now proceed in the light of the ECJ’s judgement.

(It is possible that the ECJ’s observations concerning fraud may have some impact upon the course of further litigation in cases involving failed asylum seekers from Turkey who seek leave to enter the UK under the Ankara agreement.  In the years between the Court of Appeal’s judgment and that of the ECJ, there have been at least three cases (R (Kenan Temiz) v Secretary of State for the Home Department [2006] EWHC 2450 (Admin) (13/10/2006); R (Aysel Aslan) -v- Secretary of State for the Home Department [2006] EWHC 1855 (Admin) and R (Gencay Yilmaz) v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) decided in the Administrative Court in which it has been held that “fraud” – sufficient to disqualify the applicant from the benefits of the standstill clause -  is established if the account given by an asylum seeker in support of his or her application has been disbelieved by the Secretary of State, whose view as to the applicant’s lack of credibility has been upheld by an Adjudicator or, nowadays, the Asylum and Immigration Tribunal.  The judgment which will eventually follow from the House of Lords may clarify the scope of “the fraud exception”).

It is clear that the ECJ’s judgment is a resounding victory for Turkish business applicants.  It will have consequences for the way in which the UK authorities deal with applications whether they are made after entry to the UK, at ports or at the British Embassy in Istanbul.   

Gherson has extensive experience of making applications for business people under Association agreements such as the Ankara agreement.