Akturk, R (on the application of) v Secretary of State for the Home Department

Applications under the 1973 immigration rules must be assessed on their merits and in the round. Specified factors guide the exercise of discretion; they are not automatic prerequisites. Decision-makers must engage with relevant evidence and give applicants a fair opportunity to answer concerns, particularly where credibility is questioned. Guidance may identify reliable evidence without becoming an unlawful rule, provided it does not make that evidence mandatory. The standstill obligation in article 41 of the Additional Protocol to the ECAA extends to procedural safeguards connected with establishment rights. Replacing a judicial appeal with materially less favourable administrative review therefore breaches that obligation, subject to article 59.

The claimant, a Turkish national, sought leave to remain in order to establish himself as a self-employed window cleaner under the ECAA. The Secretary of State refused the application under paragraphs 4 and 21 of HC510 and rejected administrative review. The claimant challenged the factual and procedural soundness of both decisions, the lawfulness of Home Office guidance concerning evidence of funds, and the abolition of the former statutory appeal in favour of administrative review.

The central issues were whether the decisions were unlawful, whether the guidance imposed an unlaid immigration rule or a new restriction contrary to article 41 of the Additional Protocol, and whether administrative review provided a remedy sufficiently favourable under articles 41 and 59.

1. The original refusal and the administrative-review decision were quashed. Paragraphs 4 and 21 of HC510 required a broad, overall assessment. The specified matters were factors to be considered, not prerequisites. The decision-maker failed to assess the case in the round and made serious errors, including ignoring the explanation for the absence of a UK bank account, making unsupported assumptions about English proficiency, misreading the business plan, and drawing adverse conclusions about credibility without putting the concerns to the claimant.
2. Where credibility, integrity or legitimacy is in issue, it is generally unfair to reach an adverse conclusion without giving the person an opportunity to answer questions and explain himself, unless powerful documentary evidence makes an interview unnecessary. The application was to be reconsidered afresh; the court made no finding on whether the business was genuine or viable.
3. Page 33 of the Home Office guidance was lawful. It did not make a UK bank account a mandatory criterion. Its direction to assess the effect of missing relevant or requested documents did not introduce a new restriction under article 41 or a new immigration rule within the approach in Alvi v Secretary of State for the Home Department [2012] UKSC 33. That part of the claim was dismissed.
4. Article 41 applied to procedural rights and guarantees inseparable from the underlying establishment rights. Replacing an independent judicial appeal with internal administrative review was markedly less favourable. Judicial review was not an equivalent remedy. Article 59 did not save the change because EU redress rights included a judicial process under article 31(3) of Directive 2004/38.
5. The absence of the appeal right breached article 41 and administrative review did not cure the incompatibility. The Secretary of State was ordered to reconsider the application and pay the claimant’s costs.

This was a first-instance judicial review. Green J granted permission on paper, and similar cases had been stayed pending determination. No prior judgment under appeal is identified.