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

An Ankara Agreement application has no merit where an immigration judge has rejected material parts of the claimant’s account and that finding remains undisturbed on appeal. The claimant is then in the country as a result of fraud, irrespective of whether the claim might otherwise satisfy the 1973 Rules. The Secretary of State may reject an asserted business investment where the evidence reasonably indicates disguised employment or an arrangement designed to secure residence. Applicants and their solicitors must place relevant adjudicator decisions before the court. Failure to do so may breach the duty of good faith and justify consideration of a wasted costs order.

The claimant, a Turkish national, sought judicial review of the Secretary of State’s refusal of permission to remain after buying into a business under the Ankara Agreement. Her earlier asylum appeal had been dismissed by an adjudicator, who rejected material parts of her account. The Secretary of State concluded that the business arrangement was disguised employment or an attempt by family members to enable her to remain in the United Kingdom. The renewed judicial review application also failed to disclose the adjudicator’s decision until acknowledgement of service.

1. Application refused. The claimant’s asylum account had been rejected in two material respects, and that finding had not been overturned. Under the approach in The Queen (on the application of Dari and Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788, entry resulting from fraud made the Ankara Agreement claim hopeless, regardless of possible qualification under the 1973 Rules.
2. The Secretary of State was entitled, on the material before him, to conclude that the claimant had not genuinely bought into a business. The arrangement could properly be characterised as disguised employment or as an attempt by family members to secure her residence.
3. Those bringing judicial review proceedings must obtain and disclose relevant adjudicator decisions. Failure to produce a decision showing that the claimant’s account had not been believed breached the obligation of good faith in presenting material to the court. The court would consider wasted costs orders in such cases.
4. A temporary stay of removal may properly be ordered by a duty judge where the merits cannot yet be assessed, but the claim should be considered by the Administrative Court at the earliest opportunity. The claimant was ordered to pay the costs of the acknowledgement of service and renewed application. Baker and Company were ordered to show cause within fourteen days why a wasted costs order should not be made.

The judgment does not state that this was an appeal. It records that Davis J had previously regarded the claim as baseless and that a duty judge had granted a temporary stay of removal.