Yilmaz v Secretary of State for the Home Department

Fraud may bar reliance on rights arising under the Association Agreement with Turkey even where the applicant’s attempt to obtain entry by deception was unsuccessful. The relevant consideration is the applicant’s deceptive intention in relation to immigration controls, not merely whether the deception secured admission.

A person granted temporary admission is in an intermediate position and is not lawfully present. Breach of an express condition of temporary admission may make that person an illegal entrant, unless the Secretary of State decides to continue the admission and treat the breach as immaterial. An application under the Association Agreement may accordingly be refused on the basis of fraud or, where relied upon, illegal residence resulting from breach of an entry condition.

The claimant, a Turkish national operating a café in partnership, sought judicial review of the refusal of his application for leave to enter the United Kingdom as a self-employed person under the European Community Association Agreement with Turkey and the 1970 Additional Protocol.

The Secretary of State relied on the absence of entry clearance and on the claimant’s attempt in 1999 to obtain entry using fraudulent passport endorsements. The parties agreed that the case turned on the fraud ground. The claimant had been granted temporary admission subject to a requirement to report back, but failed to do so and was treated as an absconder.

The central issue was the scope of the fraud exception recognised in R (Dari and Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788, and whether it applied where the attempted deception had not secured entry.

1. The application was dismissed. The Secretary of State was entitled to refuse the application under the Association Agreement on the ground of the claimant’s fraudulent attempt to gain entry.
2. The fraud exception identified in Dari and Tum [2004] EWCA Civ 788 was not confined to a person who successfully obtained entry by deception. The Court of Appeal’s references to a person seeking to gain access by fraudulent means, and to the principle that a would-be immigrant cannot improve his position by fraud, were inconsistent with that narrow distinction.
3. The reasoning in Kondova v Secretary of State for the Home Department [2001] ECR I-6427 supported this conclusion. The effectiveness of prior immigration controls depends substantially on the truthfulness of representations made to immigration authorities. The applicant’s deceptive intention was therefore material, whether or not the deception succeeded.
4. Alternatively, the claimant became an illegal entrant when he failed to report back as required by the conditions of his temporary admission. Under section 11(1) of the Immigration Act 1971, a person granted temporary admission is treated as not having entered for immigration purposes. The authorities establish that breach of an express condition removes that statutory position and results in illegal-entry status.
5. The Secretary of State could have refused the application on the basis of illegal residence resulting from breach of the entry condition, as recognised in Panayotova and others v Minister voor Vreemdelingenzaken en Integratie. However, that ground had not been relied on in the decision under challenge. It nevertheless provided an alternative basis for the conclusion if the scope of the fraud bar had been misunderstood.
6. The claimant could not rely on Ogunniyi because the Secretary of State had not treated his breach as trivial or continued his temporary admission. The case notes instead showed a decision to proceed with absconder action.

First-instance judicial review proceedings. The judgment records that R (Dari and Tum) v Secretary of State for the Home Department had been decided by the Court of Appeal and was under appeal to the House of Lords, which had referred a question to the ECJ. No prior decision in the present litigation is stated.