OT v The Secretary of State for the Home Department

A Turkish national admitted as a student cannot rely on the Ankara Agreement standstill provisions to obtain leave as a businessman unless the immigration rules applicable in 1973 provided that route. HC 510 permitted a visitor, but not a student, to switch to business. Occupation in business was in principle inconsistent with student status.

R (Payir and others) v SSHD did not assist a person claiming leave as a businessman. Its reasoning concerned persons lawfully employed as workers. A person running his own business, rather than providing services under another’s direction for remuneration, was not a worker for that purpose.

The appellant, a Turkish national, entered the United Kingdom as a student and later applied for leave to remain as a self-employed businessperson under the Ankara Agreement. The Secretary of State refused the application. Immigration Judge Hart dismissed the ensuing appeal after finding that the appellant had established and run the business while subject to a condition prohibiting self-employment.

Reconsideration was initially refused, but was granted on renewal to the High Court. The reconsideration continued before the Upper Tribunal following the transfer of functions from the Asylum and Immigration Tribunal. The issues included whether the appellant had engaged in business, whether the 1973 rules permitted a student to switch to business, and whether R (Payir and others) v SSHD assisted his claim.

1. Appeal dismissed. The Immigration Judge was entitled on the evidence to find that the appellant had engaged in, and run, the business from October 2007. He was therefore in breach of the conditions of his student leave. The later admission that a VAT declaration had been false reinforced the conclusion that his account could not be relied on.

2. Any procedural unfairness in the Immigration Judge raising whether the appellant remained a genuine student was immaterial. The decisive factual issue was whether he was engaging in business, and that finding rested on the business evidence rather than on any conclusion about his studies.

3. The standstill clause required consideration under immigration terms no less favourable than those in force in 1973. But HC 510 contained no provision enabling a person admitted as a student to obtain leave, or further leave, as a businessman. Paragraph 21 allowed visitors to seek consent to establish themselves in business. It did not create an equivalent route for students. The rules also treated employment as generally inconsistent with student status.

4. R (Payir and others) v SSHD was inapplicable. The persons considered there had been lawfully employed and claimed worker status under Article 6(1) of Decision No 1/80. The appellant had not worked for or under the direction of another person. His claim was to remain as a businessman, and the distinction in paragraph 21 between business activity and disguised employment confirmed that he could not rely on worker status.

5. Article 8 had not been raised before the Immigration Judge, who was under no obligation to decide an argument not put to him. In any event, the application was supported by untrue documents or assertions and could not found an entitlement to leave.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal, holding that any errors by the Immigration Judge were immaterial.
• Asylum and Immigration Tribunal: Immigration Judge Hart dismissed the appeal against the refusal to vary leave.
• High Court: granted reconsideration on renewal after reconsideration had initially been refused by the Tribunal. The matter continued before the Upper Tribunal under the transfer arrangements.