Ascioglu v Secretary of State for the Home Department

The Ankara Agreement standstill clause does not disappear merely because an applicant has breached a condition of leave. The application remains governed by the preserved rules, although fraud, abuse of rights and breach may be relevant to the national discretion. A breach is not automatically fraud or abuse. The decision-maker must distinguish an application viable only through the breach from an incidental breach.

On a statutory immigration appeal under the Nationality, Immigration and Asylum Act 2002, the immigration judge must exercise the discretion afresh while giving proper weight to public-interest considerations. A later refusal based solely on a breach must fairly account for the policy operating when the application was made.

The appellant, a Turkish national, entered the United Kingdom as a visitor and applied on 20 September 2007 for leave to remain as a self-employed barber under the Ankara Agreement standstill clause. He began working in October 2007 and stopped in February 2008 on legal advice. The Secretary of State first refused the application by treating the breach as tantamount to fraud, and then refused it as an abuse of rights while also considering paragraphs 4 and 21 of HC 510.

An earlier appeal had succeeded before Immigration Judge Scobbie. Immigration Judge Wood dismissed the appellant’s second appeal on 16 June 2009, treating the Secretary of State’s discretion as determinative. Senior Immigration Judge King later dismissed the appeal on reconsideration, but the parties agreed that determination could not stand. The central issues were whether Immigration Judge Wood had failed to exercise the statutory discretion himself and whether the later refusal was unfair in light of the contemporaneous administrative practice.

Disposition and statutory appeal

1. The appeal was allowed. The court considered the determination of Immigration Judge Wood because the parties agreed that the reconsideration determination of Senior Immigration Judge King was itself infected by error of law.
2. Under sections 84(1) and 86(3) of the Nationality, Immigration and Asylum Act 2002, an immigration judge must decide for himself whether the decision was lawful and whether a discretion under the Immigration Rules should have been exercised differently. The appeal is not confined to judicial review of the Secretary of State’s discretion. The judge must, however, give proper weight to the Secretary of State’s assessment of public-interest considerations. Immigration Judge Wood had merely accepted what the Secretary of State was entitled to do and had not exercised the original statutory discretion himself. The approach in R v Peterkin (Adjudicator) ex parte Soni [1972] Imm AR 253, Nadeem Tahir v Immigration Appeal Tribunal [1989] Imm AR 98 (CA) and N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 supported that conclusion.
3. Following Oguz v Secretary of State for the Home Department Case C-186/10, the standstill clause remained applicable. Fraud, abuse of rights and breach of conditions were matters for assessment under the applicable national rules; they did not automatically remove an applicant from the standstill clause. LF (Turkey) v Secretary of State [2007] EWCA Civ 1441 and Sonmez v Secretary of State [2009] EWCA Civ 582 were legally superseded insofar as they treated breach of condition as equivalent to fraud or abuse. The cases of Yilmaz, Temiz and Aldogan involved materially different circumstances, including fraud, unlawful presence or abuse of rights.
4. The contemporaneous pragmatic practice agreed with the Immigration Law Practitioners’ Association was that working in breach would not, at that time, form the sole basis of refusal. Applying the later approach to the appellant without fairly considering the policy operating when he applied was conspicuously unfair and unlawful. His short period of work, undertaken on appropriate legal advice and not to improve his application, was an incidental breach rather than abuse of rights.
5. Remittal was unnecessary. There was no evidence of abuse, and the statutory discretion could operate only in the appellant’s favour. The Secretary of State was directed to grant leave to remain under the standstill clause for the standard initial period of 12 months. The court gave only cautious guidance, stressing that each case turns on its own facts and context. It left open whether aspects of the 2009 guidance were compatible with the standstill clause.

• Court of Appeal (Civil Division): [2012] EWCA Civ 1183 allowed the appeal and directed the Secretary of State to grant 12 months’ leave to remain.
• Asylum and Immigration Tribunal: Immigration Judge Wood dismissed the appeal on 16 June 2009. Senior Immigration Judge King dismissed the appeal on reconsideration on 14 October 2009, but the parties agreed that determination could not stand.
• Earlier appeal: Immigration Judge Scobbie allowed the appellant’s first appeal on 8 January 2009 and remitted the application for a fresh decision.