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

Article 41(1) of the Additional Protocol to the EC-Turkey Association Agreement has direct effect as a standstill clause. It does not itself confer a right of establishment, entry or residence. It requires comparison between the applicant’s present position and the rules applicable in the United Kingdom on 1 January 1973. Procedural guarantees may be necessary where directly effective Community provisions confer individual substantive rights. Article 13 of the Agreement, however, confers no such right without implementing measures. The assessment of whether the applicant’s position has worsened must focus on practical effect. Procedural and substantive rules cannot necessarily be separated in immigration cases. The claim nevertheless failed because, under the law applicable in 1973, a person in the claimant’s position had no in-country appeal against refusal of leave to enter.

The claimant, a Turkish national, had entered the United Kingdom to claim asylum and had been granted temporary admission. After his asylum claim and appeal failed, he applied for leave to enter to establish himself in business under the EC-Turkey Association Agreement. The Secretary of State refused the application and issued removal directions, stating that there was no right of appeal.

The claimant sought judicial review and an order requiring an in-country appeal. The central issue was whether Article 41(1) of the Additional Protocol required the Secretary of State to provide that procedural right by reference to the immigration law applicable in 1973.

1. The application was refused. The claimant was not entitled to an in-country appeal against refusal of leave to enter, and the removal directions were lawful.
2. Article 41(1) of the Additional Protocol is directly effective. As explained in Savas [2000] ECR I-2927, it prevents the introduction of new restrictions on freedom of establishment and the related right of residence. It does not itself confer a right of establishment or residence. The relevant comparison is with the rules applicable in the United Kingdom on 1 January 1973.
3. The reasoning in Tum and Dari 2004 EWCA Civ 788 applied. The standstill provisions did not give a person a right of entry or establishment beyond domestic law, but required the domestic law applied to be assessed by reference to its 1973 content. The exception for entry obtained by fraud was irrelevant on the facts.
4. Dörr and Ünal was distinguishable. Procedural safeguards may be inseparable from directly effective individual rights. Turkish workers had such rights through Article 12 of the Agreement together with Decision No 1/80. Article 13 alone conferred no comparable individual right because no measures had been adopted under Article 41(2).
5. Under the Immigration Act 1971 as it stood in 1973, a person refused leave to enter while in the United Kingdom could not appeal in-country unless the statutory conditions concerning current entry clearance or a work permit were satisfied. The claimant satisfied neither condition. He therefore had, at most, an out-of-country appeal.
6. The court left open the wider question whether the present procedural arrangements were less favourable in practical terms than those in 1973. Procedural and substantive rules may be inseparable, and the comparison should focus on practical realities rather than procedural labels. That issue was unnecessary to decide because the claimant had no in-country appeal under the 1973 law.
7. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment if not agreed.

First-instance judicial review proceedings. The judgment describes earlier asylum and immigration appeal proceedings but does not identify a judgment of a lower court in this claim.