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

At the permission stage of a judicial review, permission should be granted where the claim is properly arguable, even though the claimant may ultimately be unlikely to succeed. A decision refusing an application under the Ankara Agreement may be arguably irrational where the decision-maker lists numerous alleged defects without explaining their significance or identifying which are fatal. Allegations of fraud are serious. Where fraud is relied upon to exclude a claimant from the Agreement’s protection, the issue requires full and proper argument before the claimant is branded fraudulent.

The claimant, a Turkish national, sought judicial review of the Secretary of State’s refusal of his application concerning the operation of a Wimpy café or restaurant under the European Community Association Agreement with Turkey. The application relied on an agreement with his brother transferring the business or premises to him. The Secretary of State questioned the business’s viability, the claimant’s entitlement to the franchise and the genuineness of the arrangements.

Ouseley J had criticised the original refusal letter as unclear and insufficiently reasoned. A later letter sought to address those defects. The issue was whether the claim was sufficiently arguable to proceed, notwithstanding possible fraud and the claimant’s adverse immigration history.

1. Permission granted. The application was not a final determination of the merits. The claimant was required only to show an arguable case.
2. Assuming that the application fell to be considered under the Ankara Agreement, there was force in the criticisms of the Secretary of State’s decision. The original refusal adopted a broad list of objections without explaining their relative significance or whether individual defects were minor or fatal. The later letter was issued only four days before the hearing and sought to repair those defects.
3. The claimant’s argument that the decision-maker had failed to focus rationally on the material consideration concerning the price paid for the franchise was also properly arguable, although the court expressed no concluded view on the merits.
4. The Secretary of State might establish at a final hearing that fraudulent devices had been used to circumvent immigration requirements, including in the claimant’s asylum history and business application. Fraud was, however, a serious allegation. If it was relied upon to take the case outside the Ankara Agreement, the issue required full and proper argument before the claimant was branded as having made a fraudulent application.
5. The adverse credibility findings were materially less trenchant than findings commonly made in comparable cases. Permission was therefore granted, with costs in the application.

The judgment records that Ouseley J had previously considered the matter and criticised the original refusal letter. The present court granted permission for the judicial review to proceed.