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

Judicial review is a discretionary remedy. A claimant must give the court full and frank disclosure and must be truthful. Material lack of candour may alone justify refusing relief, even after permission has been granted.

The fraud exception to the Turkish Association Agreement is not confined to cases where an applicant successfully deceived immigration authorities or where an asylum claim was objectively unfounded. False representations used to secure entry may prevent reliance on the agreement. Where an applicant has an out-of-country right of appeal, judicial review should bypass that statutory scheme only in exceptional circumstances. Ordinary disruption to an existing business is insufficient.

The claimant challenged the refusal of his application for leave to enter the United Kingdom under the European Community Association Agreement with Turkey. The Secretary of State relied on the fraud exception, alleging that the claimant had concealed an earlier asylum claim in Germany and had made false representations on entry.

The claimant disputed the allegation and challenged the refusal under the applicable immigration rules and policy guidance. The central issues were whether the fraud exception applied, whether the claimant had an in-country right of appeal, whether exceptional circumstances justified judicial review despite an out-of-country appeal, and whether the decision was unlawful on ordinary Wednesbury grounds.

1. The claim was dismissed. The claimant had made a false statement to his solicitors, intended for use in the proceedings, when he asserted that he had told immigration officials on entry about his German asylum claim. The court rejected his explanations of the screening interview and found that he had deliberately lied.
2. Judicial review is discretionary. Under the duty of full and frank disclosure reflected in paragraph 54.6.2 of the White Book, a claimant must be truthful in making the application. Material lack of candour may itself justify refusing permission or, where discovered after permission, refusing substantive relief.
3. The Secretary of State was entitled to rely on the fraud exception. The court treated the principle identified in R (Veli Tum) v Secretary of State for the Home Department and developed in Yilmaz as extending to false representations used to obtain entry. The exception was not limited to a person whose asylum claim was merely unsuccessful. The claimant's false account was a device to obtain entry and fell within the principle.
4. Even if the fraud exception did not apply, the standstill provisions gave the claimant no in-country right of appeal. Judicial review should bypass the statutory appeal scheme only in exceptional circumstances, applying R v Secretary of State for the Home Department, ex parte Swati. The disruption that departure might cause to an existing business was an ordinary consequence and was not exceptional. The conclusion in Parmak was not distinguishable.
5. The clarified decision was one to which the Secretary of State was reasonably entitled to come. The court applied ordinary Wednesbury review: the decision-maker had to consider relevant matters and disregard irrelevant ones. The subsequent clarification of the reasons satisfied that test despite any defects in the original decision. The defendant was ordered to pay the claimant's costs, summarily assessed at £3,196.