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

Judicial review of an immigration decision under the Turkey European Community Association Agreement concerns whether the Secretary of State’s conclusions were irrational on the evidence. A substantial absence of financial evidence may justify refusal where the governing policy requires proof of genuine self-employment, sufficient personal support, active participation and capacity to bear business liabilities. Unsupported assertions need not be accepted. Fraudulent conduct connected with entry or an application may exclude protection under the Association Agreement, although that issue must form part of the decision under challenge. Where the substantive refusal is lawful, the claim fails; alternatively, relief may be refused where the outcome would inevitably be the same.

The claimant sought judicial review of the Secretary of State’s refusal of his application to remain in the United Kingdom under the Turkey European Community Association Agreement. He relied on a kebab business and provided business plans, licences, company documents, VAT material and limited banking information.

The Secretary of State applied the relevant rules preserved by the standstill policy, including paragraph 21 of HC510, but was not satisfied about the claimant’s ability to establish himself as self-employed, support himself from business profits, participate actively in the business or bear its liabilities. The central issue was whether those conclusions were irrational or Wednesbury unreasonable. A further issue concerned the effect of fraud in the claimant’s entry and asylum account.

1. Claim dismissed. The Secretary of State was entitled to refuse the application under paragraph 21 of HC510. The claimant’s evidence showed some trappings of a jointly operated business, but there was a serious absence of hard financial evidence about the business, the claimant’s personal resources, the source of the original investment and profitability.

2. The Secretary of State was entitled to consider the absence of original itemised bank statements, business accounts, evidence of available investment funds, evidence of living costs and satisfactory evidence that the claimant could bear his proportionate share of liabilities. The business plan described a sophisticated restaurant with staff and substantial projected turnover, whereas the evidence showed a much smaller takeaway business.

3. Although a more generous approach to paragraph 21 might have produced a different result, the question on judicial review was whether the decision was irrational. The Secretary of State was entitled to conclude that the claimant had not established the relevant requirements.

4. The court further considered fraud. Dari v Tum v Secretary of State for the Home Department [2004] EWCA Civ 788 and Yilmaz v Secretary of State for the Home Department supported the conclusion that deceptive conduct connected with entry or an application under the Association Agreement may exclude protection, whether or not it successfully secured entry.

5. Fraud was not the stated basis of the decision letter. Had the substantive decision been quashed, however, the Secretary of State could lawfully have reconsidered the application on that basis, so the claimant would not have been entitled to relief.

6. The defendant’s costs were summarily assessed at £4,589.