Ensar Baylan v The Secretary of State for the Home Department

Under paragraph 21 of HC 510 Statement of Immigration Rules of Control after Entry, a Turkish ECAA business application calls for an open-textured discretionary assessment. The proposed business must nevertheless be viable in the applicant’s own personal circumstances.

Relevant matters may include the applicant’s experience and ability where the business requires them, financial resources, ability to meet liabilities, and whether the anticipated share of profits will support the applicant and dependants. No one factor, including prior experience, is indispensable. Identical or near-identical business plans do not of themselves justify refusal, but may properly lead to scrutiny of whether the proposal is genuine, realistic and personally viable.

The appellant, a Turkish national with leave as a student, applied for leave to establish himself in business under the Turkey–European Community Association Agreement. His proposed business was to operate a pedicab in central London. The Secretary of State refused the application, principally because the supporting business plan substantially matched plans submitted for other applicants.

First-tier Tribunal Judge Brenells dismissed the appeal on 15 August 2011. Although identicality alone was not treated as determinative, the judge found that the plan contained errors and was not shown to be viable in light of the appellant’s evidence, experience and physical ability. The appellant appealed on procedural fairness and relevance grounds, and challenged the assessment of his experience and ability.

The central issue was whether the First-tier Tribunal had materially erred in applying paragraph 21 of HC 510 Statement of Immigration Rules of Control after Entry to the proposed Turkish ECAA business.

1. Appeal dismissed. The First-tier Tribunal made no material error of law, and its determination stood.

2. Paragraph 21 of HC 510 Statement of Immigration Rules of Control after Entry requires a broad, merits-based assessment of a Turkish ECAA business proposal. The historic rules are less stringent than the current business rules, but they require a viable proposal and permit consideration of a non-exhaustive range of relevant factors.

3. Experience and physical ability were relevant to viability where the proposed sole self-employment involved prolonged pedicab driving. Prior experience was not an indispensable condition. The First-tier Tribunal had treated it as one significant factor among others, and was entitled to test the appellant’s oral evidence against the assertions and documents in his plan.

4. There was no procedural unfairness. The appellant’s own plan had raised his cycling experience and ability, the judge sought further information, the appellant gave evidence on those matters, and both representatives addressed them in submissions.

5. The unchallenged findings of errors and misstatements in the business plan independently supported the conclusion that viability had not been established. The appellant had also failed to identify how his share of profits would support him and any dependants; that omission was a significant further consideration.

6. For future Turkish ECAA cases, identicality or near-identicality of applications is not itself a reason for refusal. A genuine, bona fide and realistic proposal may resemble other viable proposals. However, the applicant must show that the plan is viable in his own circumstances, including genuine self-employment, personal assets, ability to meet liabilities, and sufficient profits for maintenance.

• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appeal and upheld the First-tier Tribunal’s determination.
• First-tier Tribunal: On 15 August 2011, dismissed the appeal against refusal of leave to establish a business under the Turkish ECAA regime. No citation was stated.