Ali Kemal Kop v The Secretary of State for the Home Department

A Turkish business applicant protected by the standstill clause in Article 41(1) must be assessed under the immigration conditions applicable in 1973. Later mandatory-refusal provisions cannot be imported where they impose a less favourable condition.

A standstill clause applies before the merits of an establishment application and before any assessment of abuse. It does not prevent national law from penalising immigration abuse, but the applicable historic immigration rules must contain the relevant ground of refusal. Under HC 510, general refusal provisions require account to be taken of all relevant facts and permit an assessment sensitive to the degree and circumstances of any breach.

The appellant, a Turkish national, sought an extension of leave as a businessperson under the EEC–Turkey Association Agreement. The Secretary of State refused the application by applying paragraph 322(1A) of the current Immigration Rules, because a visa stamp in the appellant’s passport was false.

The First-tier Tribunal dismissed the appeal. It held that paragraph 322(1A) required refusal whether or not the appellant knew that the document was false. The appellant had been acquitted after the Crown offered no evidence at his retrial, and the First-tier Tribunal found no personal dishonesty.

The issue before the Upper Tribunal was whether the Secretary of State could exclude the appellant from the standstill clause and determine his application under current rules rather than HC 510.

1. The appeal was allowed to a limited extent. The First-tier Tribunal’s decision involved an error of law and was set aside. The Secretary of State’s decision to exclude the appellant from the standstill clause and not to consider the application under HC 510 was not in accordance with the law.

2. Paragraph 322(1A) of the current Immigration Rules could, consistently with AA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 773, require mandatory refusal where dishonesty was that of another person rather than the applicant. That later rule could not, however, be applied to an application protected by Article 41(1) of the Additional Protocol if it imposed a condition less favourable than those in force in 1973.

3. The Upper Tribunal applied Oguz (external relations) [2011] EUECJ Case C-186/10. The standstill clause fixes, ratione temporis, the national rules by which the application must be assessed. It operates before any merits assessment or assessment of abuse. It does not prevent a Member State from penalising immigration abuse under national law, but it requires the relevant historic national rules to be used.

4. HC 510 contained general grounds of refusal but no equivalent to current paragraph 320(7A) or 322(1A). Nothing before the Tribunal showed that, in 1973, an applicant without personal blame was to be fixed with another person’s dishonesty. Rules 4 and 21 required all relevant facts to be considered and allowed a proportionate assessment of the degree and circumstances of any breach.

5. The application remained outstanding and was remitted to the Secretary of State for determination under HC 510, consistently with the finding that the appellant lacked personal dishonesty.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal to the limited extent that the refusal to apply HC 510 was not in accordance with the law.
• First-tier Tribunal: dismissed the appellant’s appeal in a determination promulgated on 12 December 2011.