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. The factors identified in the rules are matters to consider, not automatic prerequisites. Decision-makers must engage with the evidence, avoid unsupported credibility findings, and act fairly. Where credibility or genuineness is in doubt, an interview may be necessary, particularly where no effective appeal exists.

Guidance is not an unlawful new rule merely because it recommends particular evidence, provided the decision-maker retains an evaluative discretion. The standstill obligation in article 41 of the Additional Protocol extends to procedural safeguards. Replacing a judicial appeal with materially less favourable administrative review may therefore introduce a prohibited new restriction, subject to the ceiling in article 59.

The claimant, a Turkish national, sought to vary visitor leave so that he could establish himself as a self-employed window cleaner under the European Community Association Agreement with Turkey. The Secretary of State refused the application and administrative review upheld the refusal.

He sought judicial review on three grounds: factual and procedural defects in the decisions; unlawfulness of Home Office guidance concerning evidence of business funds; and incompatibility of the abolition of a statutory appeal with the ECAA. The court considered whether the decisions were lawful, whether the guidance imposed an undisclosed immigration rule, and whether administrative review provided protection no less favourable than the position preserved by the ECAA.

1. Decisions quashed. The original refusal and administrative review decision were both seriously defective. The application had to be reconsidered afresh.
2. Under paragraphs 4 and 21 of HC510, the specified matters were factors to be considered, not prerequisites. The decision-maker had to consider all relevant evidence and assess the application in the round, consistently with R v Immigration Tribunal, ex parte Joseph [1997] Imm AR 70.
3. The decision-maker acted unfairly and irrationally by treating the timing of the application as seriously undermining credibility without putting the point to the claimant; ignoring the explanation for the absence of a UK bank account; assuming inadequate English without seeking evidence or conducting an interview; demanding detail not required by the rules or guidance; overlooking the stated pricing policy; and placing an unfair construction on the proposed transport arrangements.
4. Where credibility, integrity or genuineness is in issue, it is generally unfair to reach an adverse conclusion without giving the applicant an opportunity to answer questions and explain himself, unless powerful documentary evidence makes an interview unnecessary. The removal of an appeal may increase the need for an administrative interview.
5. The challenge to the guidance failed. Applying the general approach in Alvi v Secretary of State for the Home Department [2012] UKSC 33, the relevant page did not impose possession of a UK bank account as a mandatory criterion. Its reference to bank statements remained subject to an assessment of the effect of missing or alternative evidence.
6. The abolition of the judicial appeal breached article 41(1) of the Additional Protocol. The standstill obligation covered procedural as well as substantive restrictions. Administrative review was materially less favourable than the former judicial appeal because it was conducted by an official, generally lacked oral evidence, could not substitute a decision, and was confined to identifying error.
7. The reasoning in Tum and Dari v Secretary of State for the Home Department C-16/05 [2008] 1 WLR 94 and Dorr and Unal C-136/03 [2005] 3 CNLR 11 supported treating procedural guarantees as inseparable from the relevant substantive rights. Article 59 did not save the abolition, since restoring a judicial appeal would not give Turkish applicants more favourable treatment than EU nationals.