A, R (on the application of) v Secretary of State for the Home Department

Article 41(1) of the Additional Protocol to the EEC-Turkey Association Agreement does not itself create a right of establishment or residence. It does, however, prevent the United Kingdom from imposing newer and more restrictive conditions on Turkish nationals seeking establishment than those applicable on 1 January 1973. That standstill protection may be invoked even where the person has remained in the United Kingdom in breach of immigration law. The national court must determine the application by comparing the current rules with the rules then in force. A reference to the European Court of Justice is unnecessary where its existing ruling gives a sufficiently clear answer.

The appellant, a Turkish national, entered the United Kingdom as a student, later established a business, and remained after her leave expired. Her application for leave to remain as a self-employed person was refused because she lacked businessperson entry clearance, a requirement under the later Immigration Rules but not under the rules in force on 1 January 1973.

Mr Justice Scott Baker referred questions concerning the effect of article 41(1) to the European Court of Justice, considering that R v Secretary of State for the Home Department, ex parte Savas [2000] 3 CMLR 729 left uncertainty. The issue was whether that decision had already answered the question and whether a further reference was required.

The Court of Appeal unanimously allowed the appeal and set aside the reference.

1. Meaning of Article 41(1) of the Additional Protocol. The ruling in R v Secretary of State for the Home Department, ex parte Savas [2000] 3 CMLR 729 was sufficiently clear. Article 41(1) does not itself confer a right of establishment or residence, and cannot make an otherwise unlawful presence lawful.
2. The provision nevertheless has direct effect as a standstill clause. A Turkish national may require the national court to determine whether the rules applied are more restrictive than those applicable when the Protocol entered into force in the United Kingdom, on 1 January 1973. The relevant comparison concerns the domestic rules governing establishment and its corollary right of residence.
3. The standstill protection was not limited, for the purposes of the appellant’s claim, to persons whose presence complied continuously with domestic immigration law. The appellant therefore did not require businessperson entry clearance under the later rules merely because she had remained in breach of immigration law.
4. The questions referred by Mr Justice Scott Baker had either already been answered by Savas or did not arise on the facts. Any remaining issue concerning the appellant’s immigration status, including the significance of the period when she had lawfully established her business, was for the national court.

The order referring the questions was set aside. The court declared that a Turkish national seeking leave to remain as a businessperson or self-employed person did not require entry clearance notwithstanding a breach of immigration law, quashed the Secretary of State’s refusal, directed reconsideration according to law, and awarded the appellant her costs.

• Court of Appeal (Civil Division): appeal allowed; the reference made by Mr Justice Scott Baker was set aside, and the refusal decision was quashed.
• Queen’s Bench Division, Administrative Court: Mr Justice Scott Baker referred questions concerning article 41(1) to the European Court of Justice by order dated 7 January 2002.