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

The fraud exception to the Turkish EC Association Agreement standstill provisions may apply where an applicant used false representations in an attempt to secure entry, even if the representations were disbelieved and did not obtain leave of entry. Rejection of an asylum claim does not, by itself, establish fraudulent entry; the immigration judge’s factual findings must be examined. Where an applicant has only an out-of-country appeal and genuinely seeks to remain in the United Kingdom, the distinction between no appeal and an out-of-country appeal may be academic. A claim may also fail independently where the underlying refusal is not substantively challenged.

The claimant, a Turkish national, sought permission for judicial review of the refusal of his application for leave to remain under the Turkish EC Association Agreement. His asylum claim had previously been rejected after an Adjudicator found that he had invented accounts of detention. The Secretary of State relied on those findings in invoking the fraud exception and also refused the application under the earlier immigration rules. The central issues were whether the fraud exception applied, whether the claimant had an effective appeal right, and whether the refusal could succeed on its merits.

1. Application refused. The claimant’s false accounts of detention had been found to be invented. The case therefore fell within the fraud exception relied on by the Secretary of State.

2. The fact that an asylum claim is rejected does not automatically mean that entry was sought by fraud. The particular findings of the immigration judge must be considered. Here, however, the findings showed an attempt to obtain entry by repeating false representations, although those representations had not been believed.

3. The reasoning in Yilmaz and Taskale was persuasive. The court was not satisfied that it was wrong. The fraud exception could not sensibly depend on whether false representations had secured leave of entry or had been rejected before temporary admission and then repeated before an Immigration Judge.

4. Even if the fraud exception did not apply, the claimant would at most have had an out-of-country right of appeal under the earlier rules. Since his real objective was to remain in the United Kingdom and resist removal, the distinction between no right of appeal and an out-of-country right of appeal was academic.

5. There was no substantive challenge to the refusal on its merits. Accordingly, even without the fraud exception and even with a more extensive right of appeal, the claim would have failed.

The judgment records that the claimant’s asylum appeal had been dismissed by an Adjudicator in May 2003, and that an appeal to the AIT was rejected by early February 2004. The present matter was a renewed application for permission to apply for judicial review.