Mehmet Alper Temiz, R (on the application of) v The Secretary of State for the Home Department

Under HC 510, an applicant’s immigration breaches are relevant to the discretionary decision whether to grant leave to establish a business, but they are not determinative. Paragraph 4 requires consideration of all relevant facts. Paragraph 21 requires an assessment of the merits of the proposed business; its listed matters are relevant factors rather than cumulative conditions.

The decision-maker must not exclude evidence merely because it was accumulated during an unlawful stay. Nor may the fact of overstaying be treated as an automatic reason for refusal. The decision-maker must assess the context and gravity of the breach, including whether unlawful self-employment, fraud, abuse, or reliance on an unlawfully established business is alleged.

This was a first-instance judicial-review claim by a Turkish national against the Secretary of State’s refusal of leave to remain to establish a medical-equipment import and export business.

It was common ground that article 41(1) of the Additional Protocol to the Ankara Agreement required the application to be assessed under the 1973 rules in HC 510, in particular paragraphs 4 and 21. The Secretary of State refused the application because the claimant had overstayed and because his supporting documents had been accumulated while he was unlawfully present.

The central issue was whether that approach lawfully exercised the discretion required by paragraphs 4 and 21.

1. The claim succeeded. The Secretary of State’s decision of 16 September 2014 was unlawful and was quashed.

2. The standstill clause required the claimant’s application to be decided under the 1973 rules in HC 510. It did not prevent the Secretary of State from considering immigration status where that was relevant under those rules. In particular, paragraph 4 expressly required account to be taken of all relevant facts, including compliance with time limits and conditions of admission. That conclusion was consistent with Oguz v SSHD, which preserved the application of the standstill clause even where there had been an immigration breach.

3. Paragraph 21 did not impose mandatory requirements to be satisfied seriatim. It identified relevant factors in an open-textured discretionary assessment. Read with paragraph 4, it required consideration of all the circumstances, including both the merits of the business proposal and the applicant’s immigration history.

4. The Secretary of State unlawfully excluded the claimant’s documentary evidence from consideration under paragraph 21 solely because it had been accumulated during his unlawful presence. The rules did not require that evidence to be ignored. That error also prevented a lawful overall assessment under paragraph 4.

5. The Secretary of State further adopted an impermissibly unnuanced approach to the claimant’s overstaying. The decision-maker had to consider its context and its connection, if any, with the claimant’s ability to meet the business criteria. There was no allegation of fraud, abuse, or unlawful self-employment on which the claimant relied to establish the proposed business. Unlawful presence alone could not be equated automatically with those more serious circumstances.

6. The claimant was entitled to a fresh and lawful consideration of his application under paragraphs 4 and 21.

This was a first-instance judicial-review claim in the Upper Tribunal. The judgment records that an earlier First-tier Tribunal appeal against removal was dismissed in 2012, and that permission for judicial review of earlier refusals was refused in 2014. No lower-court judgment was appealed in the present proceedings.