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

Article 41(1) of the Additional Protocol to the Ankara Agreement prevents the United Kingdom from subjecting a Turkish national’s proposed establishment to conditions stricter than those applying when the Protocol entered into force. The provision creates no independent right of entry, establishment or residence. It nevertheless governs the domestic rules applicable to an application for entry, irrespective of whether the applicant is already lawfully within the country.

A person who obtains entry by fraud falls outside that protection. An unsuccessful but bona fide asylum claim does not amount to fraud.

The Secretary of State appealed from Davis J’s decision of 19 November 2003 allowing the judicial review claims of two Turkish nationals. Both had unsuccessfully claimed asylum and were liable to removal under the Dublin Convention 1990. They subsequently sought permission to establish businesses in the United Kingdom.

The Secretary of State assessed their applications under the current Immigration Rules rather than the less stringent rules applying on 1 January 1973. The respondents contended that Article 41(1) of the Additional Protocol to the Ankara Agreement required application of the earlier rules.

The central issue was whether the standstill clause applied to persons who, by operation of section 11 of the Immigration Act 1971, were legally treated as not having entered the United Kingdom.

1. Appeal dismissed unanimously. The standstill clause in Article 41(1) of the Additional Protocol to the Ankara Agreement applied to the respondents’ applications. The Secretary of State had therefore erred by applying the current Immigration Rules instead of the rules in force on 1 January 1973. Davis J’s orders were correct and appropriate.

2. Article 41(1) does not itself confer a right to enter, establish a business or reside in the United Kingdom. Those rights remain governed by domestic law. Its direct effect is to prevent a member state from introducing measures which subject establishment, and its associated residence, to stricter conditions than those applying when the Protocol entered into force.

3. Savas, Case C-37/98, 2000 ECR 1-2927, had to be read as addressing two separate arguments. Its discussion of the absence of directly conferred rights did not restrict the standstill clause to persons lawfully admitted to the United Kingdom. The later part of that judgment established that individuals could invoke the clause and that the national court must compare the applicable domestic rules with those previously in force.

4. The standstill obligation applied irrespective of the respondents’ lack of an existing right to enter or remain. Section 11 of the Immigration Act 1971, under which temporary admission did not constitute legal entry, did not deprive them of the clause’s protection. Their unsuccessful asylum claims involved no allegation of fraud.

5. Entry obtained by fraud was treated differently. Kondova, Case C-235/99, supported the principle that a person who evades national controls by a false representation falls outside the relevant association agreement’s protection. That issue did not determine these appeals, and Sedley LJ stressed that the court was not deciding a fraud case.

6. The applicable European Union law was clear. A reference to the European Court of Justice was unnecessary. The appeal was dismissed with costs, permission to appeal was refused, and the respondents’ costs were ordered to be assessed in detail.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed unanimously. The court upheld Davis J’s conclusion that the applications had to be considered under the domestic rules in force on 1 January 1973.
2. High Court, Administrative Court: Davis J allowed both claims for judicial review on 19 November 2003. No neutral or report citation is stated.