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

Article 41(1) of the Additional Protocol prevents new restrictions on Turkish nationals seeking establishment, including restrictions governing first admission. It does not, however, require the United Kingdom to recognise rights acquired through illegal entry, fraud, or business carried on in breach of immigration conditions. Temporary admission is not admission conferring substantive rights. A failed asylum claim does not itself establish fraud or abuse, but dishonesty in the claim, or unlawfully building the relevant business, may justify refusal of the benefit sought. The Secretary of State retains a discretion to grant permission, although an adverse exercise of that discretion will rarely be unlawful.

The claimant, a Turkish national, sought judicial review after the Secretary of State refused to recognise his business for the purposes of the Turkish ECAA Agreement and required him to leave the United Kingdom and apply for entry clearance. He had entered concealed in a lorry, claimed asylum, and was granted temporary admission while his claim was considered. His asylum account was found substantially lacking in credibility.

The claim followed the European Court of Justice decision in Dari and Tum, which addressed Article 41(1) of the Additional Protocol and first-admission restrictions. The central issue was whether that decision undermined the approach previously adopted in Temiz.

1. Claim dismissed. The decision in Dari and Tum did not undermine the approach in Temiz. Article 41(1) prohibits new restrictions, including procedural restrictions governing first admission, but requires the applicable law to be assessed by reference to the position in 1973.
2. Lawful presence is not a prerequisite to reliance on the standstill clause. Nevertheless, the United Kingdom may apply its immigration law governing first admission and may refuse to allow an illegal entrant to acquire rights in the United Kingdom. Temporary admission is equivalent to bail pending consideration of the individual’s claim. It does not amount to admission conferring rights.
3. The European Court’s reasoning in Dari and Tum was based on the absence of fraud in those cases. A failed asylum claim does not, without more, establish fraud or abuse. An honest account based on a subjective fear may fail objectively without being fraudulent. Dishonesty in an asylum application, coupled with a business established in breach of entry or temporary-admission conditions, may amount to abuse of immigration law and cannot found a successful claim under the standstill clause.
4. Even where there has been fraud or illegal entry, the Secretary of State retains a discretion to grant permission to enter or remain. If that discretion is exercised adversely, it will be very difficult to establish that the decision was unlawful.
5. The claimant’s business had been developed while he was unlawfully present. The Secretary of State was therefore entitled to refuse the claim and require the claimant to return to Turkey to apply for entry clearance under the law applicable in 1973. An entry-clearance system had to be established for that purpose. Costs were ordered to be subject to detailed assessment if not agreed.