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High Court declares unlawful the abolition of right of appeal for Turkish nationals

High Court declares unlawful the abolition of right of appeal for Turkish nationals

In the case of R (on the application of Akturk) v Secretary of State for the Home Department [2017] EWHC 297 (Admin) a Turkish wannabe window cleaner entered the UK as a visitor and then applied for leave to remain to establish his window cleaning business under the 1973 Immigration Rules, known as HC510. These rules continue to apply to self employed Turks because of the “Ankara Agreement”, the accession treaty between the EU and Turkey to which the UK signed up on joining the EU in 1973. This treaty included a “standstill clause” which prevents the imposition of additional immigration rules over and above those in place at the time of the treaty, which for the UK means the rules for self employed Turks are those that applied in 1973.

Mr Akturk’s application was refused on the basis that his business was not credible. He was not permitted any right of appeal, only an application for “administrative review.” This involves a second civil servant taking another look at the decision. The success rate of applications for administrative review was less than 1%. The application for administrative review duly failed.

Mr Akturk made an application for judicial review. His argument was that the decision was unlawful and unfair and that he should also have been allowed a full right of appeal, as rights of appeal were available back in 1973.

The application was refused because the applicant had no bank account, but the applicant was unable to open a bank account because the Immigration Act 2014 prevented him from doing so. Various points were taken against the applicant without his having an opportunity to answer them. The decision maker assumed the applicant could not speak very good English and that this would hamper the development of his window cleaning business.

Mr Justice Holman was clearly unimpressed by the approach of the Home Office in this case:

In my view, some of these matters individually, and certainly all of them cumulatively, render the decision of 27 October 2015 unfair, unsound, in parts factually wrong, and a defective application of paragraphs 4 and 21 of HC510.

Holman J goes on to find that the standstill clause applies to procedural rights and guarantees as well as substantive ones and that the abolition of the right of appeal was an additional “restriction”:

In my view, it is clear that the position of the claimant, or of someone in his position, since the abolition of the right of appeal and its replacement by administrative review, is markedly less favourable than it was before. The appeal was to an independent judicial body with a further avenue of appeal. Administrative review is performed by an official within the Home Office. On an appeal, oral evidence for and on behalf the applicant could be, and routinely was, heard. The tribunal could substitute its own discretion for that of the Secretary of State, whereas administrative review is limited to considering whether the original decision was incorrect.

The upshot of this conclusion is that the abolition of rights of appeal for Turkish self employed workers applying under the Ankara Agreement was unlawful. Unless the Home Office successfully appeals this judgment, it would seem that the right of appeal will need to be restored.

Source: Akturk, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 297 (Admin) (08 February 2017)

Colin Yeo
Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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