Hasan Can Agca, R (on the application of) v The Secretary of State for the Home Department

Under the 1973 business rules, business experience and qualifications are not prerequisites for Turkish nationals seeking leave to establish themselves in business. They are relevant evidence in the overall merits assessment and must be considered in the context of the proposed business.

An application may rationally be refused where the applicant provides no evidence of relevant experience or of a basic understanding of business and financial management, particularly where the proposed role involves responsibility for finances, stock, sales, customer service and staff. The absence of such evidence may be decisive without becoming a legal prerequisite.

The appellant, a Turkish national, applied for leave to remain under the Agreement Creating An Association Between The Republic of Turkey and the European Economic Community to acquire and operate an existing grocery shop. The Secretary of State refused the application and maintained the refusal on administrative review, relying in part on the absence of evidence of relevant business experience and financial-management understanding.

Robin Knowles J refused judicial review in the Upper Tribunal Asylum and Immigration Chamber, holding that the absence of experience was a decisive and rational concern in the overall assessment. The central issue on appeal was whether that approach unlawfully treated business experience as a prerequisite or failed to apply the required open-textured assessment.

1. Appeal dismissed. The Court of Appeal upheld the refusal of judicial review.
2. Experience and qualifications are not requirements of the 1973 Rules. Under the ECAA business guidance, they are relevant to the overall assessment of the evidence and must be examined in the context of the proposed business. Common sense may indicate that a business can be established without relevant experience or qualifications, but businesspersons are expected to demonstrate at least a basic understanding of business and financial management, including cash-flow management.
3. The Secretary of State was entitled to require evidence addressing the practical operation and future viability of the proposed grocery business. The relevant matters included finance, stock, sales, customer service and staff management. The appellant supplied no evidence of relevant business experience or of such financial-management understanding, and no sufficient explanation of why the business plan remained viable without it.
4. The absence of experience was a decisive consideration because it went to future viability. Treating it as decisive did not elevate it into a prerequisite. The refusal was reasoned, rational and open-textured, consistently with the approach described in [2010] UKUT 425 (IAC) and [2019] EWHC 3208 (Admin). The judge’s findings were relevant and fair.

• Court of Appeal (Civil Division) — appeal from the Upper Tribunal Asylum and Immigration Chamber. Appeal dismissed.
• Upper Tribunal Asylum and Immigration Chamber — Robin Knowles J refused the application for judicial review on 10 March 2022.
• Permission to appeal was granted by Bean LJ on 8 August 2022.