Arslan v Secretary of State for the Home Department

On judicial review, the court does not substitute its own assessment for the Secretary of State’s judgment under the applicable Immigration Rules. Where the Rules require satisfaction that a self-employed business can support the applicant and that invested funds are under his control, the Secretary of State may require reliable evidence of profitability, funding and financial arrangements.

A Turkish national may rely on the standstill provision in Article 41(1) of the Additional Protocol regardless of immigration status, subject to the fraud exception. Clear and unequivocal findings that an asylum claim involved fraud may justify reliance on that exception. An alternative out-of-country appeal does not automatically bar judicial review; late reliance on that remedy, together with disruption to an established business, may amount to exceptional circumstances.

The claimant, a Turkish national, sought leave to remain as a self-employed businessman under the Ankara Agreement and Article 41(1) of the Additional Protocol. The Secretary of State applied the Immigration Rules in force in 1973 and refused the application, principally because the evidence did not establish sufficient profits, reliable business finances or control of the borrowed funds used to acquire the business.

The claimant sought judicial review on grounds of perversity, alleged that the Secretary of State could not rely on the fraud exception, challenged the proposed use of an out-of-country appeal as an alternative remedy, and challenged the refusal to suspend removal directions. The central questions concerned the lawfulness of the substantive refusal, the scope of the fraud exception, and whether judicial review should nevertheless be refused.

1. Substantive refusal. The perversity challenge failed. Although HC 509 was expressed less prescriptively than later Immigration Rules, Rules 30–32 imposed substantive requirements and entrusted the relevant judgments to the Secretary of State. The court was not entitled to reconsider those judgments on their merits.
2. The Secretary of State was entitled to remain unsatisfied that the business generated sufficient profits. The absence of the seller’s accounts and first-year accounts, the modest second-year profit, and the claimant’s continuing reliance on rent-free accommodation provided a rational basis for refusal. The Secretary of State was also entitled to require adequate evidence that borrowed funds were under the claimant’s control, including evidence of the terms and repayment of the loans.
3. Fraud exception. The claimant could in principle invoke Article 41(1) without having previously obtained leave to enter. However, following Tum v Secretary of State for the Home Department; Dari v Secretary of State for the Home Department, the fraud exception remained available where a person had sought to obtain an immigration advantage through fraud. The claimant’s adjudicator had made forthright and unambiguous findings that elements of his asylum account had been fabricated. The Secretary of State was therefore entitled to rely on the exception, although the court decided the application principally on the failure of the perversity challenge.
4. Alternative remedy. The court would not have refused relief solely because the claimant could appeal from abroad. An alternative statutory appeal does not deprive the court of jurisdiction, but judicial review ordinarily requires exceptional circumstances. The late raising of the point, the claimant’s continued operation of an established business during the proceedings, and the disruption caused by removal crossed that threshold.
5. Removal directions and costs. The rapid proposed removal, after months of silence and without explanation, placed wholly unreasonable pressure on the claimant’s lawyers and the court. A separate declaration was unnecessary, but the Secretary of State was ordered to bear the costs of issuing the proceedings and applying for an injunction. Other orders, including further costs, were left for agreement or determination.