The Secretary of State for the Home Department v CA (Turkey)

Article 41(1) of the Additional Protocol prevents new substantive or procedural restrictions on becoming entitled to exercise freedom of establishment, including conditions governing first admission. It does not freeze domestic remedies for alleging a breach of establishment rights. Subject to the EU law principle of effectiveness, Member States retain responsibility for determining the nature and extent of remedies. Replacing a right of appeal with administrative review therefore does not, without more, infringe Article 41(1). Worker cases under Decision 1/80 are distinguishable where directly effective individual rights carry inseparable procedural guarantees.

CA, a Turkish citizen, applied to extend his stay under the Ankara Agreement to establish a window-cleaning business. His application was refused and an administrative review maintained the refusal. Holman J quashed both decisions and held, in [2017] EWHC 297 (Admin), that the abolition of the former appeal right was incompatible with Article 41(1) of the Additional Protocol.

The Secretary of State obtained permission to appeal only on that compatibility issue. The central question was whether Article 41(1) prevented replacing the former appeal with administrative review, or whether any inadequacy of the revised remedy fell to be assessed under the separate principle of effectiveness.

The appeal was allowed unanimously. Newey LJ gave the leading judgment. Irwin LJ and the Senior President of Tribunals agreed. The appeal concerned only whether replacing the former immigration appeal with administrative review infringed Article 41(1) of the Additional Protocol.

1. Scope of the standstill. Article 41(1) has direct effect. The authorities establish that it can cover procedural obstacles, such as entry clearance, visas, work permits and residence-permit charges. Those examples concern restrictions on a person becoming entitled to exercise freedom of establishment. They do not concern a change in remedies available after an alleged breach.
2. Worker authorities distinguished. In Dörr and Ünal v Sicherheitsdirection für das Bundesland Vorarlberg, Case C-136/03, the CJEU extended procedural guarantees to Turkish workers because Decision 1/80 had created directly effective individual employment and residence rights. Those guarantees were inseparable from those rights. The worker regime provided no parallel for the establishment claim in this appeal. Article 13 of Decision 1/80 was not part of the reasoning in that case.
3. Parmak and Panayotova. The observations in R (Parmak) v Secretary of State for the Home Department, [2006] EWHC 244 (Admin), about the practical importance of appeal rights were expressly obiter and tentative. They did not determine the construction of Article 41(1). Panayotova v Minister voor Vreemdelingenzaken en Integratie, Case C-327/02, concerned the principle of effectiveness, rather than a standstill provision, and therefore did not assist on the issue.
4. Effectiveness and procedural autonomy. The principle of effectiveness requires procedural rules not to make exercise of EU rights impossible in practice or excessively difficult. It does not prescribe a particular form of remedy. Subject to that principle, Member States may determine the nature and extent of domestic remedies. The respondent had not alleged that administrative review breached effectiveness.
5. Text, context and purpose. The wording, context and object of Article 41(1) support this distinction. Article 41(2), and related establishment directives, use restrictions to mean barriers to establishment, not legal redress. The Court therefore held that the substitution of administrative review for a right of appeal did not infringe Article 41(1).

1. Court of Appeal (Civil Division): [2018] EWCA Civ 2875 allowed the appeal, holding that Article 41(1) did not prevent substitution of administrative review for the former appeal right.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: [2017] EWHC 297 (Admin) quashed the refusal and administrative review decisions and declared the abolition of the appeal right incompatible with Article 41(1).