Upper Tribunal decision in the case of: EK (Ankara Agreement - 1972 Rules - construction) Turkey [2010] UKUT 425 (IAC)
This case held that the previous decision in the case of OT (Turkey) [2010] UKUT 330 (IAC) was incorrect. The case of OT held that a student could not switch into the business status or anyone other than a visitor.
This case concerned an au pair seeking to switch into the ECAA business category. The respondents were appealing against the decision of the First Tier Tribunal allowing the appellant’s appeal.
The appellants are Turkish nationals. The second appellant is the husband of the first and dependant on her claim. The first appellant arrived in the UK with leave to remain as an au-pair. She then applied for further leave to remain pursuant to the EC Turkey Association Agreement. Her application was successful and she began her business as a provider of domestic services (including cleaner, baby sister).
The appellants thereafter applied for indefinite leave to remain in the UK having accumulated 4 years in the Ankara Agreement capacity. With her application, the appellant submitted accounts of her business showing a gradual decrease in net profits over the three years. The application was subsequently refused on the basis that she could not maintain and accommodate herself and her spouse sufficiently whilst in the UK as a self-employed individual. The Secretary of State for the Home Department stated in their refusal that whilst the appellant showed a net profit, her expenses far exceeded her earnings and therefore, they were not satisfied that she could maintain and accommodate her husband and herself in the UK in accordance with the requirements of the immigration rules.
The Tribunal considered the terms of the 1973 Immigration Rules as a consequence of Article 41 of the Additional Protocol dated 1972 to the Ankara Agreement which provides that:
“1. The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishing and the freedom to provide services”. The leading case of Savas held that this provision was an unequivocal “stand still “clause prohibiting contracting parties from introducing new restrictions post the date of entry of the Additional Protocol.
The Upper Tribunal considered the Statement of Immigration Rules of Control after entry laid before the House of Commons on 23rd October 1972 HC 510. In particular, they considered paragraph 28 regarding settlement. This provides that those who have remained in the UK in accordance with the provisions of their leave as a business person or self employed person should be granted indefinite leave to remain after 4 years. This is subject to paragraph 4 which provides that regard will be had to the person’s personal circumstances (i.e. character, conduct, associations etc)
In this case, the appellants had not had any recourse to public funds and it appeared that they had not been in breach of any of the conditions of their leave to remain. There were no discretionary factors to indicate a refusal either.
The Upper Tribunal held that the First Tier Tribunal decision was correct. There was no requirement for the appellants to substantiate that in each year since the grant of leave, she had maintained herself and her spouse from the profits of the business. The contents of the Immigration Rules of 1972 were very different in this context from the present rules. Further, there was nothing in HC 510 precluding third party contributions to living expenses.
The Tribunal held that the case of OT (Turkey) would need to be revisited as the decision was wrong in light of Para 4 of the Rules which provides that leave can be granted to other categories of people (other than visitors) if appropriate. This was not considered in the case of OT.
Accordingly, the Upper Tribunal dismissed the respondents appeal finding that there was no error of law.
December 2010
OT (Ankara Agreement students, businessmen, workers) Turkey [2010] UKUT 330 (IAC)
A reconsidered appeal to allow a Turkish national leave to remain as a businessman has been dismissed by the Upper Tribunal.
The appellant entered the UK as a student in January 2007 and was granted further leave to remain as a student until June 2008. Within that time he applied to remain as a businessman under the terms of the Ankara Agreement. The application included a form in which the appellant stated that he had started his business in October 2007.
The application was refused by the Home Department because the appellant had started the business in breach of his leave to remain as a student, which prohibited setting up in business. This was considered tantamount to fraud, and so the appellant could not rely on the Ankara Agreement. The application was refused under paragraph 208 of the Immigration Rules as the appellant did not enter with the capacity to set up in business.
The appellant appealed the decision on various grounds. He argued that the Ankara Agreement established a “standstill clause” prohibiting any new restrictions on freedom of establishment or freedom to provide services. He sought to rely on the European Court decision in R (Payir and others) v SSHD C294/06, that leave to enter as a student cannot deprive him of the status of a worker or prevent him from renewing his permission to work. He also argued that he had not acted “fraudulently” within the meaning of the relevant European law. He submitted that he had set up a company to take over a business he was purchasing, had moved into a flat above the business, but was not involved with the business at that time.
The Immigration Judge in the appeal did not accept the appellant’s submission that he was not involved in running the business. He found that the appellant had engaged in self-employment in breach of his leave to remain as a student, the prohibition on doing so being “well-known”. It was judged that the appellant was not entitled to rely on his own wrong doing in order to claim that he met the requirements of HC510, the immigration rules in place in 1973 and hence applicable to the appellant under the ”standstill clause” of the Ankara Agreement. The Immigration Judge accordingly found that the decision of the respondent was correct.
In passing, the judge considered whether the appellant could genuinely be considered a student.
The grounds for reconsideration were that the Immigration Judge should not have dealt with the question whether the Appellant had ceased to be a student, that he erred in law in not accepting the date of the completed purchase of the business, and that he did not consider all relevant factors under Article 8. The original application for reconsideration was refused but was later allowed by the High Court.
In the reconsidered appeal, it was decided that the Immigration Judge’s reference to whether or not the appellant was genuinely a student was irrelevant to the determination of the appeal. The appellant was found to be engaging in business on the facts relating to the business, not because he had ceased to be a student. It was decided that the Immigration Judge had not erred in law in finding that the appellant was engaging in business in breach of his leave to remain as a student.
Due to the “standstill clause” in the Ankara Agreement, the appellant was considered under the rules applicable in 1973. The judges found no suggestion in HC510 that a student in 1973 would have been able to “switch” to being a businessman.
The judges also found the case of Payir to be irrelevant, in that it dealt with cases of students who had been employed lawfully in the UK in accordance with provisions of their leave. The appellant has never worked, and does not seek to be a worker, but a self employed businessman.
The judges also found that the Immigration Judge had not erred in law by not considering Article 8, as it did not form part of the grounds for appeal to that judge.
Therefore, the appeal was dismissed.