Yilmaz v Secretary of State for the Home Department [2005] EWHC 1068 (Admin)

[2005] EWHC 1068 (Admin)Case No CO/1631/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/05/2005
Before
MR JUSTICE BEATSON
Between
GENCAY YILMAZClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr J Collins (instructed by CK Solicitors) for ClaimantMr A Sharland (instructed by The Treasury Solicitor) for DefendantHearing Hearing date: 26 th April 2005
Judgment
[1]The claimant Mr Gencay Yilmaz is a Turkish national. He applies for judicial review of the defendant’s decision, dated 13 October 2004 refusing his application made on 16 March 2004 for leave to enter the United Kingdom as a self-employed person. The claimant runs a café in Margate in partnership with Mr Unal Yilmaz. His application was made under the European Community Association Agreement with Turkey of 1963, and the 1970 Additional Protocol to that agreement. On accession to the European Community in 1973 the United Kingdom bound itself to that agreement.[2]The defendant gave two grounds for refusing the claimant’s application. The decision letter stated:
“[Y]ou do not hold a valid entry clearance for this purpose and in addition I am satisfied that on 17 October 1999 you practiced deception in an attempt to gain entry into the United Kingdom as a returning resident. You therefore do not qualify for entry into the United Kingdom under the current provisions of the Turkish ECAA.”
[3]The first of these grounds reflects the current Immigration Rules, HC 395, which were in force when the claimant made his application on 16 March 2004. HC 395 inter alia requires prior entry clearance by those wishing to establish themselves in business in the United Kingdom: see paragraphs 217 and 219. On 1 January 1973, when the United Kingdom became bound to the Association Agreement, the Immigration Rules then in force did not require prior entry clearance: see HC 509, paragraphs 31 and 32, and HC 510 paragraph 21. Article 41 of the Additional Protocol to the Association Agreement, known as “the standstill clause”, provides that:
“The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and freedom to provide services.”
The defendant’s longstanding position, which is maintained in the decision letter to the claimant, is that the United Kingdom is entitled to apply restrictions introduced after 1 January 1973 to applications under the Association Agreement with Turkey.[4]In R (Dari and Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788 the Court of Appeal, dismissing an appeal from Davies J, held that the defendant was not entitled to apply such restrictions to applications under the Association Agreement. The Court laid down a general rule that the Association Agreement and the standstill clause in the 1970 Protocol apply to a person whatever his status so far as his right to enter or to remain in the United Kingdom is concerned. The Secretary of State appealed to the House of Lords and the House of Lords referred the following question to the ECJ:
“Is Article 41(1) of the Additional Protocol to the Association Agreement signed at Brussels on 23 November 1970 to be interpreted as prohibiting a Member State from introducing new restrictions, as from the date on which that Protocol entered into force in that Member State, on the conditions of and procedure for entry to its territory for a Turkish national seeking to establish himself in business in the United Kingdom.”
The ECJ has not yet determined the matter.[5]In his written submissions Mr Collins, on behalf of the claimant, invited the Court to adjourn this case pending the decision of the ECJ in Dari and Tum’s case. He did not press this at the hearing and he was right not to do so. The claimant’s case does not turn on the absence of valid entry clearance, the first ground for the defendant’s decision. It is common ground between Mr Collins and Mr Sharland, on behalf of the defendant, that the outcome of this application depends on the second ground upon which the defendant refused the application; the claimant’s deception. Mr Collins accepted that the claimant had sought entry to the United Kingdom on the basis of fraudulent passport stamps. The question in the present case is whether the claimant’s fraudulent conduct entitled the defendant to refuse the application he made under the Association Agreement in March 2004. In Dari and Tum’s case Lord Woolf, with whom Brooke LJ agreed, stated that there is an exception to the general rule the Court laid down based on the applicant’s fraud. The issue before me is the scope of that exception and its applicability to the claimant’s case. It is clear from the decision of the Court of Appeal that Dari and Tum’s case did not involve fraud: see [2004] EWCA Civ 788 at paragraphs 24 and 29, per Lord Woolf LCJ and Sedley LJ. In view of this, and since (for obvious reasons) the House of Lords did not refer the effect of fraud to the ECJ, I would not, in the present case, be assisted by the decision of the ECJ in Dari and Tum.[6]Mr Sharland submitted that the effect of the judgment of Lord Woolf CJ in R (Dari and Tum) v Secretary of State for the Home Department is that the claimant’s fraudulent conduct is fatal to his application under the Association Agreement. Mr Collins submitted that the claimant’s conduct, although fraudulent, does not fall within the “fraud” exception to the general rule laid down in Dari and Tum’s case. Mr Collins argued that the “fraud” exception to that general rule should be construed narrowly and that, if so construed, the claimant does not fall within it. He recognised that there were formidable difficulties with pursuing this argument. Following the hearing I invited the parties to make submissions on two matters. One is whether the claimant was residing legally within the United Kingdom either in the period after he was given temporary admission until 15 December 1999, the date he was required to report back to Terminal Three, or after that date when he was treated as an absconder. The other is whether the decision of the ECJ in Case C-327/02 Panayotova and others v Minister voor Vreemdelingenzaken en Integratie 16 November 2004 has implications for the claimant’s application. Mr Collins and Mr Sharland have made helpful submissions on these matters. Before considering the parties’ submissions as to the applicability of the fraud exception and on the matters on which I invited submissions after the hearing I set out the facts in the present case and what was said about fraud in Dari and Tum’s case.[7]Mr Collins did not take issue with the factual background as set out in paragraphs 2-9 of the Defendant’s detailed grounds of resistance. On 17 October 1999 the claimant arrived at Heathrow Airport from Istanbul and sought leave to enter the United Kingdom as a returning resident. His passport contained an embarkation stamp which purported to have been dated 30 March 1998 but which had in fact been altered from 29 March 1998. The stamp granting indefinite leave was in unusual ink and was not authenticated by an Immigration Officer’s or a Home Office date stamp. The claimant, when questioned on 18 October 1999, said that he had first entered the United Kingdom in 1991, arriving by car from Germany, and said the indefinite leave to enter stamp was endorsed in his passport at an unknown port after a holiday in Turkey. The case notes exhibited to the witness statement of David Tomlins, an immigration officer at Terminal Three, indicate that the immigration officers considered the stamps in the claimant’s passport had been tampered with, and did not accept that he had been granted indefinite leave to enter. He was granted temporary admission pending Home Office checks which it was not possible to conduct at that time, but required to report back to Terminal Three on 15 December 1999. He failed to attend on that date and was treated as an absconder. The case notes record that on 18 October 1999 the claimant gave an address in Catford and said he worked at a café in Charlton. The case notes also record that on 16 December 1999 the SEA co-ordinator agreed to proceed to “absconder action”, that the relevant documentation was completed on 19 December, and that “detention was a realistic prospect”.[8]On 16 March 2004 the claimant, through his solicitors, made two applications to remain in the United Kingdom. The first, which is not relevant to the present application, was for indefinite leave to remain pursuant to the long resident concession. The second was that under the EC Association Agreement with Turkey and is the subject of the present application. In the letter containing the second application the claimant’s solicitors stated that he first arrived in the United Kingdom as an illegal entrant on 15 February 1990.[9]On 29 March 2004 the claimant was arrested by an immigration arrest team and refused leave to enter on the ground that he did not have indefinite leave to remain when he last left the United Kingdom. On 7 May 2004 he was interviewed in connection with his application under the Association Agreement with Turkey. This application was refused because he did not have a visa for the United Kingdom and because he had not been in legal employment for one year with the same employer. The defendant did not, at that stage, rely on the claimant’s fraud. It was not until 24 May 2004 that the Court of Appeal gave its decision in Dari and Tum’s case and stated the fraud exception to the general rule. On 7 May 2004 removal directions were set for 18 May and the claimant was detained. An application for judicial review was filed on 17 May. It was accepted on behalf of the claimant in those proceedings, as it is by Mr Collins before me, that the claimant had sought entry to the United Kingdom on the basis of fraudulent passport stamps. The defendant accepted that the decision refusing the application was defective because of the reference to the claimant’s employment status when his application was made on the basis of self-employment. The defendant agreed to consider the application afresh and to pay the claimant’s costs if the judicial review proceedings were withdrawn. In fact the fresh consideration on 13 October 2004, now challenged, occurred before the formal withdrawal of the earlier proceedings. A consent order, signed by the parties on 14 October 2004, was made by the Master of the Crown Office on 18 October 2004.[10]I have summarised the decision of the Court of Appeal in R (Dari and Tum) v Secretary of State for the Home Department [2004] EWCA Civ 788 in paragraph 4 above. Before considering the formulation and the scope of the fraud exception, I summarise the material facts of that case. Messrs Dari and Tum claimed asylum on arrival in the United Kingdom. They were granted temporary admission but their asylum claims were rejected on Dublin Convention grounds. They subsequently made applications for leave to enter under the Association Agreement with Turkey. Neither had obtained prior entry clearance to the United Kingdom as required by HC 395.[11]I turn to the formulation and scope of the fraud exception to the general rule laid down in Dari and Tum’s case. In paragraph 23 of his judgment, Lord Woolf CJ stated that he would make one exception to the position that the standstill clause applies to a person whatever his status so far as his right to enter the United Kingdom or to remain in the United Kingdom is concerned. The exception concerned “a person who achieves entry to this country by the use of fraud”. His Lordship continued:
“It has long been the situation that those who enter by fraud cannot benefit from the point of view of immigration status by so doing. The case of Kondova (Case C-235/99, 27 September 2001), which was not referred to in the court below, confirms that this is the position. The provisions which were being considered by the Court in that case are not the same as here, but for present purposes paragraph 80 can be applied. It says: “… a Bulgarian national who intends to take up activity in a Member state as an employed or self-employed person but who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purposes of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement”
. The sentiments expressed in that paragraph would be equally applicable to a situation where a person otherwise than in the position of the respondents [Messrs Dari and Tum] sought to gain access to this country as an asylum seeker by fraudulent means.” “… a Bulgarian national who intends to take up activity in a Member state as an employed or self-employed person but who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purposes of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement”.[12]Mr Collins submitted that the fraud exception to the general rule in Dari and Tum only applies to a person who obtained entry by fraud. He submitted that Case C-235/99 Kondova v Secretary of State for the Home Department [2001] ECR I-6427 was a case in which Ms Kondova was given leave to enter the United Kingdom on the basis of false information she provided to obtain entry clearance. In the present case, while the claimant attempted to obtain admission to the United Kingdom by fraudulent means, he was unsuccessful since he was denied entry on the passport containing the counterfeit endorsements. Accordingly, Mr Collins submitted the claimant does not fall within the scope of the bar identified in Kondova’s case and to which Lord Woolf referred in Dari and Tum’s case.[13]It is necessary to examine the facts and reasoning of the ECJ in Kondova’s case. Ms Kondova had been given a visa to enable her to undertake seasonal work at an international farm camp for a month in the summer of 1993 and was granted entry for this purpose. Shortly afterwards she claimed asylum. Her asylum claim was refused. She then applied to remain on the basis of a marriage entered into in July 1995. She acknowledged that her true intention on arrival in the United Kingdom was to seek asylum and that she had knowingly misled both the entry clearance officer who issued her with a visa and the immigration officer who questioned her on arrival in November 1995. As a result of her acknowledgement, she was served with an illegal entrant’s notice pending her removal: see [2001] ECR I-6427, paragraphs 15 and 18. In January 1996 she started working as a self-employed cleaner and in July 1996 made an application pursuant to the Bulgarian Association Agreement. Unlike the Turkish agreement, the Bulgarian agreement contains a directly applicable right of establishment: see [2001] ECR I-6427, paragraph 39.[14]The Secretary of State was prepared, in the exercise of his discretion, to grant her leave to remain under the provisions of the Agreement, notwithstanding the fact she had entered the United Kingdom illegally if she withdrew her application for judicial review. She was not prepared to do this unconditionally. In order to protect her position she stated that she would only withdraw her application on certain terms which the Secretary of State would not accept: see [2001] ECR I-6427, paragraph 26. The matter then came before the High Court which referred a number of questions to the ECJ. One of these was whether the Bulgarian Association Agreement confers rights of establishment on a Bulgarian national who under national immigration law is treated as having entered the territory of the Member State illegally. It does not appear that the Bulgarian agreement contained a standstill provision similar to that in the Turkish agreement and the focus of the ECJ was on the compatibility of a system of prior control such as that in HC 395 paragraphs 217 and 219 with Ms Kondova’s directly applicable right.[15]The ECJ held that the Secretary of State was entitled to reject Ms Kondova’s application under the Association Agreement. It stated (paragraphs 61-65) that a system of prior control such as that contained in HC 395 is compatible with the Association Agreement. It then stated (paragraph 76) that the effectiveness of a system of prior control “rests in very large measure on the correctness of the representations made by the persons concerned at the time when they apply for an entry visa from the competent authorities in their State of origin or when they arrive in the host Member State”. The ECJ also stated (paragraph 80) that a person “who gets round the relevant national controls by falsely declaring that he is entering that Member State for the purpose of seasonal work places himself outside the sphere of protection afforded to him under the Association Agreement.” Mr Collins relied on the statement at paragraph 82 of its judgment that a host state could reject an application under the Bulgarian Association Agreement “…on the ground that, when the application was made, the applicant was residing illegally within its territory by reason of false representations made to those authorities or non-disclosure of material facts for the purpose of obtaining initial leave to enter that Member State on a different basis.” This is substantially repeated in paragraph 4 of the ECJ’s answer to the questions referred to it by the High Court.[16]Kondova’s case was referred to by the ECJ in Case C-327/02 Panayotova and others v Minister voor Vreemdelingenzaken en Integratie 16 November 2004, a case concerning the Bulgarian, Polish and Slovakian Association Agreements. The Polish and Slovakia Agreements, like the Bulgarian one, include a directly effective right to establish a business (see paragraph 18 of the ECJ’s judgment). In Panayotova’s casethe ECJ stated (paragraph 31) that a host Member State was entitled to reject an application based on an Association Agreement where “the applicant was residing illegally within its territory by reason of false representations made to those authorities for the purpose of obtaining initial leave to enter that Member State on a separate basis, or of the failure to comply with an express condition attached to that entry and relating to the authorised duration of his stay in that Member State”. The two compatible grounds for rejecting an application under the Association Agreements depend on illegal residence; one is based on fraud and the other on breach of a condition of entry. An example of the latter would be (see paragraph 24 of the judgment) an application during stays for tourism on other purposes that are supposed to be short duration only. The judgments in Kondova’s case and Panayotova’s case must be read in the light of the concern of the ECJ that bars to rights under EU law, and any doctrine of abuse of rights must be interpreted in the light of the principles of the European Convention of Human Rights: see for example C-109/01 Secretary of State for the Home Department v Akrich [2004] QB 756, paragraph 58.[17]Mr Sharland submitted that Panayotova’s case has no impact on the present case because the East European Association Agreements are directly effective and because they contain no standstill clause. I do not accept the first of these reasons. Kondova’s case concerned the directly effective Bulgarian Association Agreement but it is central to the defendant’s case that the fraud ground in that case is of general application. There is no indication in Panayotova’s case that, while the fraud ground is of general application, the failure to comply with a condition of entry ground is confined to the East European Agreements. Both are the causes of the illegal residence.[18]Mr Sharland’s second reason is that the East European Agreements do not contain a standstill clause such as that in the Turkish Association Agreement. To the extent that the argument is that the standstill clause meant the defendant could not rely on non-compliance by an applicant under the Turkish agreement with requirements that did not exist on 1 January 1973 as grounding illegal residence, it has force. But it does not follow that a Turkish national could not be an illegal resident in the United Kingdom by reason of his failure to comply with an express condition attached to that entry. If he is such a person, he falls within the terms of the second of the grounds recognised in Panayotova’s case for rejecting an application under an Association Agreement. In the claimant’s case the breach of entry conditions which rendered him an illegal entrant occurred in 1999, over four years before his application under the Turkish Association Agreement. There is no suggestion that, at that time, and in the absence of an application by him under the Turkish Association Agreement, it was not legitimate for the immigration officer who granted him temporary admission to require him to report back. If so, the impact of Panayotova’s case on the present case depends on two factors. The first is whether, on the facts of the present case, the effect of the claimant’s failure to report and the defendant’s decision to treat him as an absconder, made him an illegal entrant. For the reasons set out in paragraphs 22 and 25 of this judgment I have concluded that the claimant became an illegal entrant when he failed to report back to Terminal Three on 15 December 1999. The second is whether the Secretary of State relied on this breach of condition as a ground for refusing the application. He did not do so and it is for this reason that Panayotova’s case has only limited impact in the present case.[19]Mr Collins’ argument seeks to draw a sharp distinction between a successful immigration fraudster, who he accepts is outside the sphere of protection afforded under the Association Agreement, and an unsuccessful immigration fraudster, who is nevertheless given temporary admission. This would mean that the unsuccessful fraudster’s position is improved by his temporary admission. Mr Collins submits that at all material times the claimant was residing legally in the United Kingdom. He argues that although the breach of a condition of temporary admission renders a person liable to be treated as an illegal entrant, there is discretion not to do so. Since no efforts were made to contact the claimant or to remove him until the Removal Directions dated 7 May 2004, Mr Collins argued the Secretary of State did not so do in the claimant’s case. It appears from the conditions upon which he was granted bail that his address remained the Catford address he gave to the immigration officer at the time of his temporary admission in 1999. The claimant was, in fact, arrested on 29 March 2004, his whereabouts perhaps coming to the notice of the authorities as a result of his application on 16 March. Mr Collins relied on the decision of Collins J in R v Secretary of State for the Home Department, ex p. Ogunniyi [1996] EWHC Admin. 230.[20]Mr Sharland submits that when the claimant absconded he was considered to be in the United Kingdom illegally. Before that time he was, by section 11(1) of the Immigration Act 1971 treated as not having entered the United Kingdom but, while not lawfully present, was not in the country illegally.[21]Mr Collins’ broad submission is untenable. Temporary admission, such as that given to the claimant in 1999 merely enables a person who makes a claim to enter this country not to be detained but to be released temporarily while his position is considered. In R (Singh) v Secretary of State for the Home Department [1987] Imm.A.R. 489, 495 Lord Woolf stated that such a person is not to be regarded as lawfully in the United Kingdom, but is in an intermediate position which differs from those in the country illegally. In Dari and Tum’s case Lord Woolf stated (paragraph 15) that the position of a person granted temporary admission “is neither improved nor prejudiced as a result of his being admitted in this way”. A fraudster should therefore not be in a better position because he or she is granted temporary admission.[22]In the claimant’s case his temporary admission was, moreover, subject to a condition requiring him to report back to Terminal Three on 15 December 1999, a condition he did not meet. When he failed to attend on that date, he was treated as an absconder. He was so treated because he failed to comply with the condition imposed on him when he was temporarily admitted. The effect of the decisions in R v Secretary of State for the Home Department, ex p. Taj Mohammed Khan [1985] Imm.A.R. 104 (Sir John Donaldson MR) and R v IAT, ex p. Akhtar [1993] Imm.A.R. 424, 428-430 (per Sir Thomas Bingham MR and Kennedy LJ, Evans LJ reserving his position) is that a person who breaks a condition of his temporary admission renders himself an illegal entrant. Sir Thomas Bingham MR stated:- “I agree with both the points argued on behalf of the Secretary of State to justify the detention of the appellant…. Such a person enters the country physically, but is deemed not to do so for immigration purposes. So long as he obeys the conditions he is not an illegal entrant; he is not an entrant at all. But his right to be here is conditional, and a breach of conditions, in my view, destroys the statutory presumption that such a person has not physically entered. That in turn has the result that he has entered at a time when he has not received leave to do so, and in those circumstances, as I understand the Act, he becomes an illegal entrant within the meaning of the Act and liable to be treated as such. That is the view which the courts appear to have taken on previous occasions and, in my view, they were correct.” Kennedy LJ stated that the applicant in that case “became an illegal entrant” when “he moved his address and was therefore in breach of the conditions of his temporary admission”.[23]R v Secretary of State for the Home Department ex p. Ogunniyi, on which Mr Collins relied, concerned an applicant who was granted temporary admission but moved from the address at which he was required to live. He also failed to attend for interview. The applicant wished to be treated as an illegal entrant so as to get the benefit of the family policy in Policy DP/2/93 which did not apply to port refusal cases.[24]Collins J considered there was considerable force in the argument that a breach of condition does not affect the grant of temporary leave and cannot create an entry unless there is evidence that the breach was for the purpose of avoiding controls on entry: see paragraph 61. Collins J, however, recognised that the effect of the decision of the Court of Appeal in ex p. Akhtar was that he had to treat the applicant as an illegal entrant: see paragraph 63. Notwithstanding this, his Lordship considered that the Secretary of State is not bound to treat a person who has breached a condition of his admission as an illegal entrant: see paragraphs 87-90. In ex p. Ogunniyi, after the Secretary of State discovered the change of address he decided to continue the temporary admission at the new address and treated the breach as trivial and not going to the root of the admission: see paragraph 86. Collins J held that, on those facts, notwithstanding ex p. Akhtar, the Secretary of State treated the breach as not resulting in Mr Ogunniyi becoming an illegal entrant: paragraph 91. In the present case the case notes show that the Secretary of State’s representatives did not decide to disregard the breach of condition or to regard it as trivial. They agreed “to proceed to absconder action” and they considered that detention was “a realistic prospect”. Neither is consistent with a decision to continue the temporary admission notwithstanding the breach of condition. I do not consider that the claimant is assisted by Ogunniyi’s case.[25]In the absence of a decision by the Secretary of State to continue the claimant’s temporary admission, the effect of his breach of the condition that he report back to Terminal Three on 15 December 1999 is to render him an illegal entrant. From that date he was in a similar position to Ms Kondova although, unlike her, he was not served with an illegal entrant’s notice. There is, however, no statutory provision requiring such a notice to be given: see Macdonald’s Immigration Law and Practice, 5th ed., paragraph 16.30. From the time he was treated as an absconder he was properly treated as an illegal entrant.[26]Before leaving the decision in ex p. Ogunniyi it must be noted that its context is also of relevance. I have referred to the fact that in that case the applicant wished to be treated as an illegal entrant so as to benefit from the family policy in DP/2/93. Collins J was influenced in his approach by the fact that the applicant was seeking to take advantage of and benefit from his deliberate breach of the conditions upon which he was given temporary admission: [1996] EWHC Admin 230 at paragraphs 94 and 96. I note that Mr Collins’ submission that the claimant in the present case is not an illegal entrant is the foundation of an argument which seeks to enable the claimant to take advantage of and benefit from his deliberate breach of the conditions upon which he was granted temporary admission.[27]Leaving aside the claimant’s status after he failed to report, I do not consider that the factual distinction between Kondova’s case and the claimant’s case is sufficient to sustain Mr Collins’ argument. The formulation in Panayotova’s case, which requires illegal residence “by reason of” either false representations or the failure to comply with an express condition of entry (see paragraph 16 above), provides some support for Mr Collins’s argument, but that case was not concerned with the effect of fraudulent conduct. The judgment of the ECJ in Kondova’s case does refer to a person “who gets round the relevant national controls” by a false representation (paragraph 80) and to a person who “was residing illegally” within the territory of the host Member State “by reason of false representations” (paragraph 82). That, however, simply reflects the factual scenario before the ECJ. To restrict the principle in the way Mr Collins suggests is not in my judgment consistent with the policy behind a bar based on fraud. The passage from paragraph 76 of the judgment in Kondova’s case quoted in paragraph 15 above gives an indication of what the ECJ had in mind. That passage suggests the rationale of the fraud bar is that the effectiveness of a system of prior national controls largely rests on the correctness of the representations made to immigration officials by those applying for visas and for entry. If this is so, it is, as Mr Sharland argued, the deceptive intention of the person seeking entry that is important, not whether that person is successful in the deception.[28]An examination of the totality of Lord Woolf’s references in Dari and Tum’s case to the effect of fraud also suggests that with Mr Collins’ proposed distinction must be rejected. As Mr Sharland submitted, it is clear that in Dari and Tum’s case Lord Woolf was not drawing a distinction between a person who obtained entry by the use of fraud and one who attempted to do so but was unsuccessful. In the passage from paragraph 23 of his judgment which is set out in paragraph 11 above, Lord Woolf states that the bar would apply to a person who “… sought to gain access to this country as an asylum seeker by fraudulent means” (emphasis added). Moreover, in paragraph 24 of his judgment, he stated that there is a “clear principle that a would-be-immigrant cannot improve his position by resorting to fraud” (emphasis added). This statement was made when dealing with dicta of Davies J, at first instance, that the submissions made on behalf of the Secretary of State in that case meant that a person granted temporary entry, perhaps by being economical as to the truth with the immigration authorities, but who unlawfully overstayed was potentially able to take advantage of the standstill clause. Lord Woolf stated that the dicta of Davies J should not be understood as in any way conflicting with the clear principle he set out about the effect of fraud. Brooke LJ agreed with Lord Woolf’s judgment. Sedley LJ also agreed (at paragraph 29) and stated that the court was not dealing with a fraud case, and that Davies J’s dicta was not necessary for the decision. Since the court was not dealing with a fraud case, it did not have to consider and determine the precise scope of the fraud exception. Nevertheless, Lord Woolf’s formulation does not suggest a narrow approach to it.[29]Notwithstanding the factual difference between the circumstances of the claimant’s case and those of Ms Kondova, I have concluded that the distinction Mr Collins invites me to make, should not be made. Fraud by an applicant under an Association Agreement does not only entitle the Secretary of State to refuse an application under the Association Agreement where the applicant obtains entry by his fraudulent conduct. First, the link made in Kondova’s case between the fraud as a ground for rejecting an application and the importance of the representations made to immigration officer as part of an effective system of prior control, suggests that what is important is deceptive intention not whether the intention to deceive succeeds. Secondly, the totality of Lord Woolf’s references to the effect of fraud in Dari and Tum’s case and in particular what is said about Davies J’s example are inconsistent with it. Thirdly, making the distinction would put a person who has made fraudulent representations in a better position than he would otherwise be because he has been granted temporary admission, contrary to the statements in the authorities to which I have referred in paragraph 21 above. The Secretary of State was in my judgment entitled to reject the claimant’s application under the Association Agreement on the ground of his fraudulent deception in attempting to gain entry. For the reasons given in paragraphs 16-18 above in my judgment, the Secretary of State would have been entitled to reject the claimant’s application under the Association Agreement on the ground that he was an illegal resident because of his breach of the conditions upon which he was granted temporary admission. If I am wrong about the scope of the fraud bar, I consider that the Secretary of State remains entitled to reject the application because, at the time of his application under the Agreement, the claimant was in the United Kingdom illegally because of his failure to comply with the conditions of his temporary admission. This application is dismissed.

Cited in 3 later judgments