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

For an application under paragraph 21 of the Statement of Immigration Rules for Control after Entry (HC510) to establish a business under the Turkish ECAA, an applicant must show both an intention to devote assets to the business and that those assets are their own. Ownership is assessed through control. The applicant must have sufficient control to prevent the funds being recalled or withdrawn from the business at short notice. A gift may constitute the applicant’s own asset, but it will not satisfy the requirement where another person has sole access to the account, can withdraw the money immediately, and has in fact used it for another purpose.

The applicant, a Turkish national, appealed against the Upper Tribunal’s refusal of permission for judicial review of the Secretary of State’s refusal of his application for leave to remain as a businessperson under the European Community Association Agreement. He relied on a £4,000 gift from his sister, deposited in his brother’s United Kingdom bank account, together with his brother’s written assurance that the money would be provided on request. The Upper Tribunal considered the judicial review application out of time and observed that it would in any event have failed on the merits. The central issue before the Court of Appeal was whether the funds amounted to assets of the applicant’s own for the purposes of paragraph 21 of the Statement of Immigration Rules for Control after Entry (HC510).

1. Appeal dismissed. The Court of Appeal upheld the conclusion that the applicant had not demonstrated sufficient control over the funds to meet paragraph 21 of the Statement of Immigration Rules for Control after Entry (HC510).
2. Paragraph 21 requires evidence that the applicant will devote assets to the business and that those assets are the applicant’s own. The first requirement was arguably met because the applicant intended to invest the £4,000 gift.
3. The accompanying guidance explains ownership by requiring evidence that the funds are under the applicant’s control and cannot be recalled or withdrawn from the business at short notice. The guidance was not challenged as to its content or status.
4. The gift belonged to the applicant, but his brother had sole access to the account. The brother had withdrawn part of the money on two occasions for his own purposes, although he later restored the original sum. The applicant therefore lacked immediate control capable of preventing withdrawal or use of the funds at short notice.
5. The refusal was not based on the absence of a bank account in the applicant’s name. It was based on the applicant’s failure to show sufficient control over the money. Sir Ernest Ryder gave the judgment, with Lord Justice Hickinbottom and Lord Justice Leggatt agreeing.

• Court of Appeal (Civil Division) [2019] EWCA Civ 1870: appeal from the Upper Tribunal (Immigration and Asylum Chamber) dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Judge Storey refused permission for judicial review, treating the application as out of time and stating that it would in any event have failed on the merits.
• Secretary of State: application for leave to remain as an ECAA businessperson refused on 7 July 2017; administrative review maintained the refusal on 23 August 2017.