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

The standstill clause in Article 41(1) of the Additional Protocol requires an application for establishment by a Turkish national to be considered under the domestic law in force on 1 January 1973. It does not itself confer a right of establishment or residence, nor does it require an unlawful entrant or overstayer to succeed.

The Secretary of State retains a discretion to consider an in-country application, but unlawful presence, breach of admission conditions, absconding or fraud may justify refusal. An applicant cannot rely on business activity created during unlawful residence to satisfy the historic rules. A fresh application from Turkey may be required, provided the standstill protection is preserved.

The claimant, a Turkish national, entered the United Kingdom clandestinely in 2000 and claimed asylum. Italy accepted responsibility under the Dublin Convention. After his asylum and human-rights claims failed, he relied on the Ankara Agreement, asserting that he had established an off-licence business.

The Secretary of State considered the application under the Immigration Rules in force on 1 January 1973, but refused it on the grounds that the claimant was an illegal entrant and, alternatively, had failed to satisfy the financial and business requirements. The central issue was the effect of Article 41(1) and the scope of R(Dari & Tum) v Secretary of State for the Home Department.

1. The claim was dismissed. The claimant had entered clandestinely and was an illegal entrant. The Secretary of State was entitled to proceed on the basis that he had concealed his earlier asylum claim in Italy.
2. Article 41(1) prevented reliance on the stricter current Immigration Rules and required consideration of the domestic law applicable on 1 January 1973. That was the effect of R(Dari & Tum) v Secretary of State for the Home Department, [2004] EWCA Civ 788. The decision did not establish that every person who created a business while unlawfully present must succeed.
3. The Association Agreement did not itself confer a right of establishment or residence. Under the reasoning in Savas, [2000] ECR 1-2927, first admission remained governed by domestic immigration law, and post-entry rights depended on a regular position. The same approach applied to self-employed activity.
4. Unlawful presence, breach of admission conditions and fraud could justify refusal of an in-country application. Business assets, clientele or funds accumulated during unlawful residence could not provide the basis for a claim. The reasoning in Gloszczuk, Case C-63/99, and Kondova, Case C-235/99, supported requiring a fresh application from outside the United Kingdom, subject to fundamental rights and preservation of the standstill protection.
5. The claimant also failed under HC 509. He had not shown that the money invested in the business was his own, or that the business would support him and his dependants. The refusal was therefore not perverse or otherwise unlawful.

First-instance judicial review proceedings. Permission was granted by Sullivan J on 22 December 2005. The Secretary of State’s reconsidered refusal dated 2 January 2006 was upheld.