Sonmez v Secretary of State for the Home Department

A Turkish national cannot invoke the standstill clause in article 41(1) of the Additional Protocol to secure consideration under the 1973 Immigration Rules where the claimed business was established by breaching conditions of leave. Such conduct may amount to an abuse of European Community law because it circumvents the national system of prior immigration control. The abuse principle applies to post-entry breaches as well as fraudulent entry.

However, the common-law principle ex turpi causa non oritur actio does not itself override the Immigration Rules. Where the European-law abuse bar does not apply, the Rules require an evaluative consideration of all relevant circumstances, including the degree and context of any breach.

Four Turkish nationals lawfully entered the United Kingdom as a visitor or students. Each later applied for leave to remain as a self-employed businessperson under the EEC--Turkey Association Agreement. Each had established or operated a business contrary to a condition of his or her leave.

The Asylum and Immigration Tribunal dismissed the appeals by applying ex turpi causa. In Filiz Sonmez’s case it had done so in FS (Breach of conditions: Ankara Agreement) Turkey [2008] UKAIT 00066. The Secretary of State accepted that this was an error, but contended that the other three applications necessarily failed because the breaches were an abuse of Community law which excluded reliance on article 41(1).

The central issue was whether establishing a business in breach of visa conditions automatically prevented a Turkish national from invoking the standstill clause and the 1973 Immigration Rules.

1. Appeal allowed in part. The court allowed Ms Sonmez’s appeal and remitted it to the Tribunal. By a majority of Dyson and Maurice Kay LJJ, it dismissed the appeals of Mr Tozge, Mr Argun and Mr Demir. Sedley LJ would have allowed all four appeals.

2. The court agreed that the Tribunal had erred by treating ex turpi causa as an overriding bar. The applicable immigration code was the 1973 Immigration Rules, including rule 4 of HC 510. That rule requires all relevant facts to be considered. It permits a calibrated assessment of a breach of leave conditions and does not equate a minor or isolated transgression with systematic wrongdoing. There was therefore no need to apply a blunt default rule of public policy.

3. Dyson LJ, with whom Maurice Kay LJ agreed, held that Community law cannot be relied on for abusive or fraudulent ends. The abuse principle includes the improper invocation of a Community-law right to evade a lawful national system of prior immigration control. The relevant inquiry is fact-sensitive and is made on objective evidence, but the established businesses in the three student cases had been created in plain breach of conditions prohibiting self-employment.

4. The majority held that the reasoning in Kondova v United Kingdom [2001] ECR I-6427 applied by analogy. A person who lawfully enters but then establishes a business contrary to leave conditions circumvents prior control no less materially than a person who gained entry by deception. Such a person is outside the protection of article 41(1) of the Additional Protocol and cannot require consideration under HC 510.

5. R (LF) v Secretary of State for the Home Department [2007] EWCA Civ 1441 was binding and correctly decided. Its use of the word “entitled” meant that the Secretary of State was entitled to find, on the facts, that the abuse threshold was met; it did not preserve a discretion to grant the benefit of the standstill clause once abuse was established.

6. Ms Sonmez’s appeal had to be remitted because the Secretary of State accepted that the Tribunal’s erroneous ex turpi causa reasoning left the relevant issue undecided. The Secretary of State had invoked the Community-law abuse principle in the other three cases, so no useful purpose would be served by remitting them.

• Court of Appeal (Civil Division): Ms Sonmez’s appeal was allowed and remitted; the other three appeals were dismissed.

• Asylum and Immigration Tribunal: Ms Sonmez’s appeal was dismissed on the basis of ex turpi causa in FS (Breach of conditions: Ankara Agreement) Turkey [2008] UKAIT 00066. The Tribunal also dismissed the other three appellants’ appeals after reconsideration, treating their breaches of leave conditions as barring reliance on the Agreement.