Kotuk v Entry Clearance Officer, Warsaw

Article 41(1) of the Additional Protocol is a standstill obligation concerned with freedom of establishment and provision of services. It protects residence only so far as residence is a necessary corollary of, or materially affects, the effective exercise of the economic activity. It does not preserve a right to settlement or permanent residence for the Turkish national or immediate family members, provided they may reside while the activity continues. The provision does not confer substantive rights or require the United Kingdom to offer positive incentives or permanent status. A domestic immigration rule in force in 1973 can be invoked only if the later restriction falls within that limited scope.

The appellant, a Turkish national, was granted leave to enter and remain in the United Kingdom for just over nine years. His wife, also a Turkish national, had established a business in the United Kingdom and obtained indefinite leave to remain. He sought judicial review, arguing that rule 35 of the Immigration Rules for Control on Entry (HC 509), preserved by article 41(1) of the Additional Protocol, entitled him to indefinite leave to remain.

The Upper Tribunal dismissed the claim. On appeal, the respondent relied on the additional argument that settlement fell outside article 41(1). The Court of Appeal considered that issue first and did not hear argument on the remaining grounds. The central issue was whether restrictions on settlement fell within the standstill obligation.

The appeal was dismissed. Leggatt LJ gave the judgment, with which Newey LJ agreed.

1. Article 41(1) of the Additional Protocol has direct effect but confers no substantive right of establishment or residence. It does not preserve the whole system of immigration rules in force in 1973. A historic domestic right of entry or residence is protected only if refusing it would make it materially more difficult for a Turkish national to exercise freedom of establishment or to provide services.
2. The relevant question is whether the restriction is likely to affect the exercise of the economic activity in the host state. The approach in Dogan v Bundesrepublik Deutschland [2015] 1 CMLR 16 and Genc v Integrationsministeriet [2016] 3 CMLR 21 supported that interpretation.
3. Residence protected by article 41(1) is residence which is a corollary of, or necessary to render effective, the exercise of the economic freedom. The reasoning in R (Buer) v Secretary of State for the Home Department [2014] EWCA Civ 1109 applied equally, despite the absence of an equivalent to article 6 of Decision No 1/80 in the establishment context. Limited residence while the business is being established or maintained is sufficient. Settlement or permanent residence is not necessary and falls outside the standstill protection. The same applies a fortiori to immediate family members, provided they may reside while the economic activity continues.
4. The suggested disincentive caused by the absence of permanent residence for dependants was speculative and irrelevant. Article 41(1) imposes a negative obligation not to introduce new restrictions; it does not require positive incentives or rights greater than those necessary for effective establishment.
5. The restrictions on settlement were therefore outside article 41(1). The appellant could not rely on rule 35 of the Immigration Rules for Control on Entry (HC 509) to claim indefinite leave to remain. The other grounds did not arise.

1. Court of Appeal (Civil Division) The appeal from the Upper Tribunal was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber) On 15 June 2016, Mr Justice Green, sitting as an Upper Tribunal judge, dismissed the judicial review claim.