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

The standstill clause in article 41(1) of the Additional Protocol to the Ankara Agreement cannot be relied upon for abusive or fraudulent ends. A person may be denied the benefit of the less restrictive immigration rules preserved by that clause where the qualifying circumstances exist only because of that person's own wrongdoing.

Accordingly, a Turkish national cannot rely upon a business established in breach of an express restriction on engaging in business to satisfy the preserved rules. A subsequent omission of that restriction from temporary-admission documents does not cure the unlawful historical establishment of the business on which the application depends.

A Turkish national sought judicial review of the Secretary of State's refusal to grant leave to enter as a self-employed businessman. He relied on article 41(1) of the Additional Protocol to the Ankara Agreement and the less restrictive immigration rules in HC 509. The Secretary of State accepted that his business satisfied the substantive requirements of those rules, but refused leave because the business had been established in breach of a condition of temporary admission.

Lloyd-Jones J refused permission. Sir Henry Brooke subsequently granted permission and directed that the substantive judicial review be retained in the Court of Appeal. The principal issue was whether the Secretary of State could disregard qualifying circumstances created by the applicant's own breach of his temporary-admission conditions.

1. The application for judicial review was refused unanimously. Lord Justice Laws gave the judgment, with which Lord Justice Gage and Lord Justice Rimer agreed.

2. Community law, including the standstill clause in article 41(1) of the Additional Protocol to the Ankara Agreement, cannot be relied upon for abusive or fraudulent ends. On objective evidence of abuse or fraud, a national authority may deny a person the benefit of the Community law provision invoked. The abuse-of-rights principle has a close affinity with the common law rule that a person may not profit from their own wrong. In this context there was no reasonable distinction between abuse of rights and fraud: Kondova, Dari v Tum [2004] EWCA Civ 788, Yilmaz [2005] 1 WLR 3944 and R (Kenen Temiz) v Secretary of State for the Home Department [2006] EWHC Admin 2450 considered.

3. The Secretary of State was entitled to deny the applicant the benefit of paragraphs 30 to 32 of HC 509. His application depended upon a business established while an express prohibition against employment or engagement in business remained in force. The qualifying facts were therefore the product of his own wrongdoing.

4. The omission of the working restriction from temporary-admission forms issued from October 2006 did not alter that conclusion. Even if the applicant could thereafter believe that the restriction was no longer insisted upon, his application continued to depend upon the historical establishment of the business in breach of the earlier restriction.

5. The court did not decide whether the alleged fraudulent asylum claim supplied an additional lawful reason for refusal. The Secretary of State's guidance promised consideration under HC 509, which had occurred; it created no legitimate expectation that the applicant would receive the substantive benefit of those rules. The article 8 claim fell away because a fresh application could be made from Turkey. Article 1 of the First Protocol supplied no independent ground for overturning the decision.

1. Court of Appeal (Civil Division): Sir Henry Brooke granted permission on the papers and directed that the substantive judicial review be retained in the Court of Appeal. The court unanimously refused the application for judicial review: [2007] EWCA Civ 1441.

2. High Court: Lloyd-Jones J refused permission for judicial review on 23 February 2007.

3. Administrative Court: Silber J initially refused permission on the papers. Mitting J and Dobbs J subsequently adjourned the restored permission application and made directions concerning the material before the Secretary of State.