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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Alliance of Turkish Business People Ltd), R (on the application of) v Secretary of State for the Home Department [2020] EWCA Civ 553 (28 April 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/553.html Cite as: [2020] INLR 564, [2020] EWCA Civ 553, [2020] WLR(D) 249, [2020] WLR 2436, [2020] 1 WLR 2436, [2020] Imm AR 1148 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE DINGEMANS
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE NEWEY
and
LADY JUSTICE ROSE
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THE QUEEN (ON THE APPLICATION OF ALLIANCE OF TURKISH BUSINESS PEOPLE LIMITED) |
Appellant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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Sir James Eadie QC and David Mitchell (instructed by Government Legal Department) for the Respondent
Hearing date: 26 March 2020
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Crown Copyright ©
Lord Justice Flaux:
Introduction
Relevant Factual background
"The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services"
"21… [This] stated on the front page "this guidance is based on the business provisions in force in 1973". On page 2 of 117 it stated "Turkish nationals who have completed at least four years lawfully in the UK as a businessperson are entitled to apply for indefinite leave to remain to settle in the UK." On page 3 of 117 next to the question "How long is leave to remain normally granted for?", the statement was made "applicants may be granted indefinite leave to remain on completion of 4 years in the category …". Next to the question "Are dependants allowed?" the answer was "Yes …". At the bottom of the page going onto page 4 of 117 the question was "Does this category lead to settlement (indefinite leave to remain)" and the answer given was "yes". On page 6 of 117 it was stated "Turkish nationals intending to come to the UK to establish in business generally have the right to have their application considered against the businessperson requirements in force in 1973. This date reflects when the UK became a signatory of the agreement with Turkey. Since then, Turkish ECAA applications have to be assessed against the Immigration Rules in force at that date. This `standstill clause' means applications for entry in this category are judged against HC509, while applications for leave to remain are decided by HC510 …".
22. Page 13 of 117 dealt with eligibility for leave to remain. This set out the 4 year scheme. Page 60 of 117 set out how paragraph 28 of the 1972 Control after Entry Rules was to be applied. Page 63 of 117 set out how to consider applications from dependant family members. There was an explanation of the background to the Ankara Agreement on page 114 of 117. Having rehearsed the background and the terms of the standstill clause it was stated "in respect of Turkish nationals seeking to enter or reside in the UK to establish themselves in business or provide a service, the UK must apply the domestic business provisions as they were within the Immigration Rules in force in 1973. These are HC509 (on entry rules) and HC510 (after entry rules). The Immigration Rules as they were in 1973 are far less stringent than the corresponding requirements in the current rules and must be applied in the context of the objectives of the ECAA"."
"you have applied for leave to remain in the United Kingdom (UK) as a business person under HC510, the Immigration Rules in force in 1973, by virtue of the terms of the European Community Turkey Association Agreement. I am writing to confirm that you have been granted 3 years leave to remain in the UK as a self-employed person under these provisions. One month before the expiry of your existing leave on 5th June 2018, you will be eligible to apply for indefinite leave to remain. You will need to complete an application form. To use this, go to the Home Office website … On the website you will find further information about the Turkish European Community Association Agreement …"
"I am persuaded that settlement is not a corollary of the freedom of establishment, but that, rather, the nature of the residence which is a corollary of that freedom is that necessary to render the freedom effective in the sense of allowing the setting up of a business and thereafter the maintaining of it. I do not accept that longer-term residence, of the nature of settlement or indefinite leave to remain, is necessary for that purpose. All that is necessary is residence of a character which subsists so long as the freedom of establishment is exercised, and is sufficient to allow the pursuit of that economic goal."
"The grant of limited leave to enter and remain to the family members of a Turkish national exercising rights will, in all cases bar the most exceptional, suffice to ensure the efficacious exercise and enjoyment of the economic right in play. The higher, optimum status of settlement is not necessary for this purpose. In the language of the governing jurisprudence, the grant of settlement status is neither a prerequisite to nor a corollary of the exercise of the primary rights engaged. There is no evidence warranting the assessment that only settlement will suffice to ensure that the rights in question can be efficaciously exercised. Nor is there any basis upon which judicial notice of this detriment is justifiable."
The judgment below
"In order to rely on the doctrine of legitimate expectation there must be a promise or representation, which representation may arise from habitual practice, which is clear and unambiguous and on which it is reasonable for the applicant to rely. This may require a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise or representation was made, and the nature of the statutory or other discretion to be exercised by the policy maker."
"The question will be whether the frustration of the substantive legitimate expectation can be objectively justified as a proportionate response having regard to a legitimate aim pursued by the public body in the public interest, see paragraph 68 of Nadarajah. The Court is the judge of what is unfair or abusive because this is not a back-stop review of the primary decision maker's position, see R (Bhatt Murphy) at paragraph 28."
"The requirement to take an English language test might affect some applicants even though the evidence did not illustrate those particular problems, but fluency in the English language will assist integration in the UK. The cost of making the application for ILR will be a burden for all and very difficult for some, but it is a payment towards the operation of the system which will benefit the applicants. Finally the increase of 1 year before ILR can be obtained is important, but the extra time is not excessive when compared to some other routes of settlements, even for those who had already satisfied the requirements to obtain ILR but had not yet applied for ILR before the policy changed. Different considerations might have applied if more extensive and more onerous requirements had been imposed on the applicants by the change of policy."
The grounds of appeal and cross appeal
(1) The judge erred in law in applying the test of proportionality and concluding that it was justifiable to frustrate what he had found was a substantive legitimate expectation as a proportionate response having regard to the respondent's aim to achieve a measure of uniformity with the nationals of other states;(2) The judge's findings that there had been an unambiguous promise, that there had been detrimental reliance and that the promise had been made to a specific group should have led him to conclude that the respondent's aim to achieve a measure of uniformity did not justify the imposition of the detrimental consequences of the policy changes on those already within the route to settlement.
The cross appeal: submissions of the parties
"Authority shows that where a substantive expectation is to run the promise or practice which is its genesis is not merely a reflection of the ordinary fact (as I have put it) that a policy with no terminal date or terminating event will continue in effect until rational grounds for its cessation arise. Rather it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured."
"Every ordinarily sophisticated taxpayer knows that the revenue is a tax-collecting agency, not a tax-imposing authority. The taxpayers' only legitimate expectation is, prima facie, that he will be taxed according to statute, not concession or a wrong view of the law…"
"The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain".
To the same effect was Lord Neuberger at [59]:
"The immigration rules would have been expected to be amended from time to time, as needs and perceptions change..."
Accordingly, Sir James Eadie QC submitted that the fact that the particular Rule had been in force for a long time did not matter, as its fundamental nature did not change.
"I now turn to the situation where HMRC issues a policy or guidance but later comes to the view that its policy or guidance was wrong in law. Legitimate expectations are not unqualified: see, for example, United Policyholders, above. If HMRC finds that they need to resile from guidance, a taxpayer can only rely on the legitimate expectation that the guidance created where, having regard to the legitimate expectation, it would be so unfair as to amount to an abuse of power."
That was no support for the respondent's proposition that it was extremely difficult to have a legitimate expectation based on an error of law.
"It is important to note that once you have entered under the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years' qualifying residence regardless of revisions to HSMP."
"unable to identify a sufficient public interest which justifies a departure from the requirement of good administration and straight forward dealing with the public, or which outweighs the unfairness that the increase in the qualifying period visits upon those already admitted under the scheme".
"The applicant asserts that the Secretary of State had no option in law other than to decide her case according to the immigration rules as they stood on the date of her application. She did not put that claim on the basis of any legitimate expectation…"
"The Defendant cannot rely on the principle in Odelola. It does not necessarily apply in all cases and where, as here, the Claimant has an extant application or a vested right or a legitimate expectation then it would not apply. In any event applying Odelola to an HSMP application would make a nonsense/nullity of the decisions in HSMP 1 and 2. The rule changes clearly do disadvantage the Claimant in respect of whom there is no evidence of any change in the nature and pattern of his work since his acceptance on the programme."
The cross appeal: discussion
"Where the court is satisfied that a mistake was made by the minister or other person making the statement, the court should be slow to fix the public authority permanently with the consequences of that mistake. That is not to say that a promise made by mistake will never have legal consequences. It may be that a mistaken statement will, even if subsequently sought to be corrected, give rise to a legitimate expectation, whether in the person to whom the statement is made or in others who learnt of it, for example where there has been detrimental reliance on the statement before it was corrected."
"Turkish nationals intending to come to the UK to establish in business generally have the right to have their application considered against the businessperson requirements in force in 1973. The 1973 date reflects when the UK became a signatory of the agreement with Turkey. Since then, Turkish ECAA applications have to be assessed against the Immigration Rules in force at that date. This `standstill clause' means applications for entry in this category are judged against HC509, while applications for leave to remain are decided by HC510 …"
The other passages in the Guidance and the letters on which Ms Ford relied do no more, as I see it, than repeat the same advice as in that passage.
The appeal: the parties' submissions
The appeal: discussion
Conclusion
Lord Justice Newey
Lady Justice Rose