Tum & Anor, R (on the application of) v Secretary of State for the Home Department

Article 41(1) of the Additional Protocol to the Association Agreement with Turkey has direct effect. It prohibits new restrictions on Turkish nationals’ freedom of establishment and its corollary right of residence, including restrictions governing initial entry for the purpose of establishing a business. The provision does not itself confer a right of establishment or residence, and domestic law continues to govern entry. However, the domestic rules applied must be no less favourable than those in force when the Protocol entered into force for the United Kingdom on 1 January 1973. A Turkish national genuinely seeking to establish a business may therefore invoke the standstill provision, whether already present in the United Kingdom or seeking entry.

Two Turkish nationals sought judicial review of decisions refusing to consider their applications to establish businesses by reference to the immigration rules in force on 1 January 1973. Both had been temporarily admitted to the United Kingdom while subject to immigration control and had claimed asylum. The Secretary of State treated the current, more restrictive rules as applicable, contending that Article 41(1) protected only persons who had previously obtained leave to enter.

The common issue was whether the standstill provision applied to Turkish nationals seeking leave to enter for the purpose of establishing a business, notwithstanding that they had not obtained ordinary leave to enter and were already physically present under temporary admission.

1. Claims allowed. The decision letters concerning both claimants were quashed. The Secretary of State was required to consider their applications by reference to the immigration rules in force on 1 January 1973. The court expressed no view on the eventual merits of either application.
2. Article 41(1) of the Additional Protocol has direct effect. It does not itself confer a right of establishment or a corollary right of residence. Nevertheless, it prevents the introduction of new national measures making establishment, and the associated residence, subject to stricter conditions than those applicable when the Protocol entered into force.
3. The reasoning and ruling in R v Secretary of State for the Home Department ex parte Savas (Case C-37/98; [2000] ECRT – 2927), read as a whole, were not confined to persons who had initially entered lawfully. The general wording of Article 41(1), together with the Court’s treatment of the standstill clause, extended to persons seeking initial entry and to persons who had entered unlawfully.
4. R v Secretary of State for the Home Department, ex parte A 2002 EWCA Civ 1008; 2002 Eu LR 580 was not binding on the precise initial-entry question because the Court of Appeal had left that limb of the reference undecided. It nevertheless supported the understanding that freedom of establishment entails ancillary rights of entry and residence.
5. The applicable domestic law continued to govern entry, but, by operation of Article 41(1), the relevant law was the law in force on 1 January 1973. The Secretary of State’s contrary distinction between persons previously granted leave and persons never granted leave was rejected.
6. A further reference to the European Court of Justice was declined. The court considered that any reference, if required, should be made by a higher court.