Ankara agreement - no entitlement to breach conditions of leave to enter

In FS (Turkey) [2008] UKIAT 00066 the Asylum and Immigration Tribunal found that the principle of ex turpis causa non oritur actio – or “no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act” enabled it to dismiss the Appellant’s appeal against the Secretary of State’s refusal to vary her leave to remain from that of a visitor to that of a self-employed person. 

FS’s application was made under the terms of the agreement made between the European Community and Turkey in September of 1963, which is known as the Ankara Agreement   The agreement was intended to promote a move towards the abolition of the restrictions placed by people who wished to move between the community and Turkey to provide services.  By its terms Member States of the European Union are prohibited from introducing new restrictions to those already in place at the time of each Member States accession to the European Community.  In the case of the UK this was 1-1-1973. 

Accordingly when considering applications from Turkish nationals for leave to enter in order to establish themselves in business in the UK the United Kingdom Border Agency has to apply not the current immigration rules, but instead those from 1973.  The 1973 rules are much less stringent in their requirements than the current rules.   In effect they simply require applicants to demonstrate that their business is (or rather will be) viable and will provide adequate remuneration for the applicant and any dependants he or she may have.  

The facts of FS’s case are straightforward.  In January of 2007 she entered the United Kingdom with leave to enter as a visitor which was valid until 10-7-2007.  On 11-6-2007 – i.e. long before the expiry of her leave to enter - she applied to vary her leave to enter to that of a self-employed person.  Her application was supported by a business plan and other documents indicating that the Appellant had established herself in a cleaning business.  That application was refused on 21-8-2007, because the Secretary of State did not accept that FS was really going to be self employed “rather than working at the behest of others”. 

In her appeal to an Immigration Judge FS relied on her business plan and on a cash flow forecast for April 2007 to March of 2008.  The Immigration Judge dismissed her appeal on the basis that the Appellant:

“had dressed up what was really employment as a cleaner to make it look as though it were a cleaning business”

The Appellant was granted an order for reconsideration so that the Tribunal could decide whether the Immigration Judge had been entitled to use a narrow definition of what constituted a business, and one which excluded the Appellant’s work. 

People who are unfamiliar with proceedings before the Asylum and Immigration Tribunal may be surprised to learn that when the reconsideration hearing began the Tribunal itself drew the parties’ attention to an entirely new point which (if it was valid) was effectively fatal to FS’s case and had never before relied upon by the Secretary of State.   In its determination the Tribunal is careful to say however that its point wasn’t really one in favour of either side – but instead was concerned with the question of whether the Tribunal should even listen to the argument which FS’s counsel wanted to make.

The Tribunal’s point was that FS had been granted leave to enter as a visitor.  The visa in her passport was endorsed with the words:  “NO WORK OR RECOURSE TO PUBLIC FUNDS”.   So until the expiry of her leave to remain FS had not been allowed to work.  But she clearly had worked earlier than June of 2007, which was a breach of the conditions of her leave and a criminal offence under section 24 (1) (b) of the Immigration Act 1971.     

The Tribunal suggested that FS was seeking to rely on her own illegal act to indicate that she had set up a business which would satisfy the requirements of the 1973 immigration rules.  By the principle of ex turpis causa non oritur actio they could not allow her counsel to rely on her breach of the no work condition of her leave to enter in support of her case. 

The case was adjourned to enable both sides to deal with the Tribunal’s point.   According to the determination at the adjourned hearing counsel for FS relied on the following submissions:

•    in terms of the 1973 rules, the prohibition on work had been unlawful and therefore ineffective.  Rule 16 of those rules enabled the imposition of a condition prohibiting “employment”- obviously FS had not sought employment.

•    secondly the Secretary of State’s application form which was to be completed by people making applications like FS’s allowed applicants to indicate that they had already been working.  Moreover the regime governing the consideration of such applications, which was contained in the Immigration Directorate’s Instructions, made no provision against people who had allegedly breached the terms of their leave to enter.

•    thirdly in the European Court of Justice (the “ECJ”)’s decision in Savas [2000] ECR 1-2927 no issue had been taken with the fact that the Appellant in that case had overstayed his leave, and was therefore (at least on the face of it)  also guilty of an offence under the 1971 Act.

•    what the Tribunal was effectively doing it its invocation of FS’s apparent breach of the terms of her leave to enter was relying upon the “fraud exception” – which as the ECJ had noted in its ruling in response to the House of Lords’ reference, had a very limited scope. 

Rejecting these points the Tribunal said that:

•    it saw no basis for saying that the broad “no work” prohibition wasn’t permitted in 1973, but in any event FS had not applied for a visit visa under the 1973 rules. Instead the relevant rules in respect of the terms of her leave were those of the current rules. 

•    It was true that the application form provided spaces for people to provide information about their business which would have come into being during the currency of a limited leave to enter.  But this could not be read as condoning people seeking work apparently in breach of their conditions of leave.   It was also true that the relevant Immigration Directorate Instructions did not refer to breaches of leave – instead they focussed almost entirely upon the fraud exception which had been identified in the 2004 case of Dari and Tum.  But rule 4 of the 1973 rules (“general considerations”) did require decision makers to take account of all relevant matters in consideration applications, and these included the question of whether the applicant had complied with conditions of leave to enter

•    The absence of any reliance upon the Appellant in Savas’s having overstayed was not relevant.  Although it was an offence – overstaying was not failing to comply with the conditions of leave to remain.

•    The Claimants in Tum and Dari had, it was true, not entered the UK formally.  (They had been unsuccessful asylum seekers).  But the fact that they had been found not to fall victim to the fraud exception was not relevant to FS’s case, which was one in which the Appellant was seeking to rely on her own breach of the terms of her leave to enter.  The Tribunal was not trying to suggest that in doing so she was guilty of fraud.

It must be said that any Appellant has a tough battle trying to persuade a Tribunal which has itself introduced a new point that its reasoning is incorrect. It may be that FS will seek permission to appeal to the Court of Appeal against this decision. 

Gherson has assisted many successful applicants for leave to enter or for extensions of stay as a person established in business under the Ankara Agreement.