Parmak, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 244 (Admin)

Case No CO/5707/2005[2006] EWHC 244 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 13th February 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF MEHMET PARMAKClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MICK CHATWIN (instructed by Messrs Souleiman GA Solicitors, 262 Holloway Road, 1st Floor Offices, Antonia House, London N7 6NE) appeared for CLAIMANTMR PUSHPINDER SAINI (instructed by the Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared for DEFENDANT
J U D G M E N TIntroduction
[1]MR JUSTICE SULLIVAN: In this application for judicial review, the claimant challenges a decision of the defendant dated 23rd July 2005 refusing him leave to enter the United Kingdom in order to establish himself in business as a contract cleaner and stating that directions would be given for his removal to Turkey. The letter said that there was no right of appeal against the refusal of leave to enter. Removal directions were given on 3rd August. Section 3 of the claim form identified the date of the decision to be judicially reviewed as 3rd August and sought a quashing order in respect of the decision letter dated 23rd July and a mandatory order requiring the Secretary of State to accord the claimant a right of appeal to the Asylum and Immigration Tribunal.[2]The claim has not challenged the substance of the decision letter dated 23rd July 2005 and the issue raised in these proceedings is whether he is entitled to make an "in-country" appeal against the decision with the practical consequence that removal directions would have to be suspended pending the final determination of such an appeal. The background facts[3]The parties are agreed that the background facts can be summarised as follows. The claimant is a Turkish national who was born in Kigi, Turkey on 27th June 1980. He arrived in the United Kingdom via Dover on 21st August 1999 and claimed asylum at the port on the grounds that he had a well-founded fear of persecution in Turkey because of his Kurdish ethnicity. On 14th October 2001, the Secretary of State refused his claim for asylum and the claimant appealed to an adjudicator. On 24th April 2003, the Adjudicator's determination, dismissing the claimant's appeal, was promulgated. The Adjudicator concluded that the claimant did not have a well-founded fear of persecution if he was to return to Turkey. The claimant sought permission to appeal against that decision and, by a determination dated 5th June 2003, the Immigration Appeal Tribunal refused permission to appeal on the grounds that there was no arguable error of law by the Adjudicator and no basis to challenge the Adjudicator's findings of fact.[4]On 12th July 2005, the claimant was detained in Campsfield House, Oxford, pending his removal to Turkey. Whilst he was in detention, his solicitors made a new application on his behalf. This was an application to enter the United Kingdom on the basis that the claimant wished to start a business as a contract cleaner. He sought to rely upon the provisions of the EC-Turkey Association Agreement and submitted what was described as a business proposal to the Secretary of State. The business proposal was prepared on his behalf by accountants. The application for leave to remain in the country on this basis was refused in the decision letter dated 23rd July 2005. Community law[5]When the United Kingdom became a member of the European Community on 1st January 1973 it also became bound by the prior agreements which the Community had entered into with those third countries. One of those agreements was the agreement establishing an association between the European Economic Community and Turkey, which was signed at Ankara on 12th September 1963 ("the Agreement") and the additional Protocol thereto signed at Brussels on 23rd November 1970 ("the Protocol").[6]Article 2(1) of the Agreement states that the aim of the Agreement is to promote the continuous and balanced strengthening of trade and economic relations between the contracting parties, which includes, in relation to the work force, the progressive securing of freedom of movement for workers. Workers' rights are dealt with in Article 12 and Article 13 deals with the abolition of restrictions on freedom of establishment and Article 14 with the freedom to provide services, all with a view to improving the standard of living of the Turkish people and facilitating the accession of Turkey to the community at a later date (see the fourth recital in the preamble and Article 28).[7]Article 1 of the Protocol states that it lays down the conditions, arrangements and timetables for implementing the transitional stage referred to in Article 4 of the Agreement. The Protocol includes Title II, headed "Movement of Persons and Services", Chapter I of which concerns "Workers" and Chapter II of which "Rights of establishment, services and transport". Article 36 of the Protocol, which is in Chapter I, states. "Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement. "The Council of Association [a joint EC-Turkey body] shall decide on the rules necessary to that end."[8]Article 41 of the Protocol is in Chapter II, which is headed "Rights of establishment, services and transport", and provides. "1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services. "2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services. "The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade."[9]The Council of Association has not, as yet, adopted any measures under Article 41(2) of the Protocol. By contrast, in the field of workers (as opposed to those wishing to establish businesses), various formal decisions have been made by the Council to secure rights of freedom of movement for Turkish nationals within the Member States. The Savas judgment[10]In C-37/98 Savas [2000] ECR 1-2927 the European Court of

Justice was concerned with the interpretation of Article 13 of the Agreement, which provides:

"The Contracting Parties agree to be guided by Articles 52 and 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them."
In paragraphs 41 to 45 the court considered whether Article 13 of the Agreement was of direct effect. The court said:
"41. It should be noted that the Court has already held that Article 12 of the Association Agreement essentially serves to set out a programme and that its provisions are not sufficiently precise and unconditional to constitute rules of Community law directly applicable in the internal legal order of the Member States..." "42. It is clear that, like Article 12, which concerns freedom of movement for workers, Article 13 of the Association Agreement does no more than lay down in general terms, with reference to the corresponding provisions of the EC Treaty, the principle of eliminating restrictions on freedom of establishment between the contracting parties, and does not itself establish precise rules for the purposes of attaining that objective. "43. Pursuant to Article 22(1) of the Association Agreement, which confers a decision-making power on the Council of Association in order to attain the objectives of the Agreement, Article 41(2) of the Additional Protocol empowers the Council of Association to determine, in accordance with the principle set out in Article 13 of the Association Agreement, the timetable and rules for the progressive abolition of restrictions on freedom of establishment between the contracting parties. "44. However, the Council of Association has not adopted any measures under that latter provision for the concrete implementation of the general principle that obstacles to the right of establishment between the contracting parties are to be gradually abolished. "45. In those circumstances, the conclusion must be that Article 13 of the Association Agreement is no more capable than is Article 41(2) of the Additional Protocol, also referred to by the national court, of directly governing the legal position of individuals and cannot therefore have direct effect. The Court then considered the direct effect of Article 41(1) of the Additional Protocol, saying: "46. As its very wording shows, this provision lays down, clearly, precisely and unconditionally, an unequivocal 'standstill' clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol." "54. It follows from the considerations set forth above that Article 41(1) of the Additional Protocol lays down a precise and unconditional principle that is sufficiently operational to be applied by a national court and therefore capable of governing the legal position of individuals. The direct effect which must therefore be accorded to that provision implies that the individuals to which it applies have the right to rely on it before the courts of Member States." "69. It should also be noted that the 'standstill' clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment, and, as a corollary, the residences of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned. "
It is therefore for the national court, which alone has jurisdiction to interpret its own domestic law, to determine whether the domestic rules applied to Mr Savas by the competent authorities have the effect of worsening his position in comparison with the rules which were applicable in the United Kingdom on the date on which the Additional Protocol entered into force in relation to that Member State."[11]The Court concluded that Article 41(1) of the Additional Protocol has direct effect in Member States:
"Article 41(1) of the Additional Protocol is not in itself capable of conferring upon a Turkish national a right of establishment and, as a corollary, a right of residence in the Member State in whose territory he has remained and carried on business activities as a self-employed person in breach of the domestic immigration law. "
However, Article 41(1) of the Additional Protocol prohibits the introduction of new national restrictions on the freedom of establishment and right of residence of Turkish nationals as from the date on which that protocol entered into force in the host Member State. It is for the national court to interpret domestic law for the purposes of determining whether the rules applied to the applicant in the main proceedings are less favourable than those which were applicable at the time when the Additional Protocol entered into force." The Tum and Dari decision[12]The implications of the ECJ's decision in Savas were considered by the Court of Appeal in R (on the applications of Tum and Dari) v Secretary of State for the Home Department [2004] CMLR 48, 1131 (2004 EWCA Civ 788). The claimants, who were Turkish nationals, had sought asylum and had been granted temporary admission. Mr Dari had started a business, Mr Tum intended to. Both applied for leave on enter under the Agreement. They did not comply with the current immigration rules (HC395) which require inter alia that an applicant, before applying for leave to enter under the Agreement, must have prior entry clearance. The claimants argued that their applications should have been considered by the Secretary of State under the less onerous requirements of the Immigration Rules (HC509) which were in force on 1st January 1973 and which did not inter alia require prior entry clearance in every case.[13]Having referred to the ECJ's judgment in Savas, Lord Woolf Chief Justice, with whom Brooke and Sedley LJJ agreed, said in paragraphs 20 to 23:
"Having regard to that judgment the respondents, both before us and in the court below, have accepted that the 'standstill' provisions do not give any right of establishment or any right of entry into the United Kingdom, other than those which are conferred by domestic law (the law of the United Kingdom). However, they say that in relation to the content of the domestic law the 'standstill' provisions have the effect of making that law the law which was applicable on 1 January 1973 and not the current law. Putting it shortly, it is because the Secretary of State did not apply the law as it stood in 1973 that his decision was defective. "
On the other hand, the Secretary of State contends that if a person has lawfully entered this country, and, having done so, seeks to establish himself here and to operate a business, he can rely on the law as it was in 1973, and argues that only applies to those who have so entered..." "In particular, it is submitted by Mr Saini that those who have attempted to obtain admission to this country as asylum seekers but who have had their asylum claim rejected cannot rely upon the provisions of Art.41(1) of the Additional Protocol. "22. Davis J rejected that argument, and so do I. There is nothing in Art.41(1) of the Additional Protocol itself to support that argument. Furthermore, when the judgment in Savas is properly understood as falling into two clear parts, then it seems to me that the judgment strongly supports the contention of the respondents. The fact that the 'standstill' provisions are to apply to a person whatever his status so far as his right to remain in this country or his right to enter this country are concerned, is covered by the 'standstill' provisions. "23. The one exception that I would make to that clear position is with regard to a person who achieves entry to this country by the use of fraud. 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..."[14]Fraud is not relied upon by the defendant in the present case. The Secretary of State petitioned the House of Lords for leave to appeal against the Court of Appeal's judgment and the House of Lords has referred various questions to the ECJ. Pending a ruling on those questions, the Secretary of State has considered applications from persons in the claimant's position under both the current Immigration Rules and the rules as they applied in 1973. The position in 1973[15]In the claimant's skeleton argument it was conceded that, under domestic legislation as it stood in 1973 (and setting aside any argument based on community law), while a claimant on temporary admission who was refused leave to enter would have had a right of appeal under Section 13(1) of the Immigration Act 1971 by virtue of subsection 13(3):
"... a person shall not be entitled to appeal against a refusal of leave to enter so long as he is in the United Kingdom, unless he was refused leave at a port of entry and at a time when he held a current entry clearance or was a person named in a current work permit."
[16]Thus, it is common ground that in 1973 the claimant, who did not have current entry clearance and was not a person named in a the current work permit, would have had an out-of-country right of appeal to an adjudicator against the refusal of leave to enter. The claimant's submissions[17]On behalf of the claimant, Mr Chatwin submitted that, by analogy with the ECJ's approach on the rights of workers under Article 12 of the Agreement (which is in similar terms to Article 13), procedural safeguards should be conferred upon the claimant. He submitted that a distinction should be drawn between substantive rights (which were those contained in HC509 rather than HC395) and procedural rights. In case C-136/03 Dörr and Ünal the ECJ had been prepared to apply the existence of procedural safeguards even though such safeguards had not been expressly conferred upon the applicants. The applicants in that case (a German national and a Turkish national working in Austria respectively) had challenged their expulsion from Austria. The court first considered the protection to which Mr Dörr was entitled as an EU national under Articles 8 and 9 of Directive 64/221.[18]Articles 1 and 2 describe the scope of that directive in these terms:
"Article 1 "1. The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services..." "
Article 2 "1. This Directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health. "2. Such grounds shall not be invoked to service economic ends." Article 8 provides:
"The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration."
[19]In paragraph 57 of its judgment, the court said:
"In light of the foregoing considerations, the answer to the first question must be that Article 9(1) of Directive 64/221 is to be interpreted as precluding legislation of a Member State under which appeals brought against a decision to expel a national of another Member State from the territory of that first Member State have no suspensory effect and, at the time of examination of such appeal, the decision to expel can be the subject only of an assessment as to its legality, inasmuch as no competent authority within the meaning of that provision has been established."
[20]The Court then considered the second question, which was:
"... whether the procedural guarantees provided by Articles 8 and 9 of Directive 64/221 apply to Turkish nationals whose legal status is defined by Article 6 or Article 7 of Decision No 1/80."
Decision 1/80 was a decision of the Council of Association made pursuant to the Council's power to make rules confirmed by Article 36 of the Protocol. Article 6(1) of Decision 1/80 is in these terms:
"Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: " - shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available; " - shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that Member State, for the same occupation; " - shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment."
In paragraphs 61 and 62 the court said:
"61. It should be reiterated that, in terms of Article 12 of the Association Agreement, 'the Contracting Parties agree to be guided by Articles 48, 49, and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them'. Article 36 of the Additional Protocol specifies the stages by which free movement of workers between the Member States of the Community and the Republic of Turkey is progressively to be secured and provides that 'the Council of Association shall decide on the rules necessary to that end'. Decision No 1/80 seeks, according to the third recital in the preamble thereto, to improve, in the social field, the treatment accorded to workers and members of their family. "62. The Court has inferred from the wording of those provisions that the principles laid down in the context of Article 48 of the Treaty must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision No 1/80..."
In paragraphs 65 to 68 Court said:
"65. The same considerations require that the principles enshrined in Articles 8 and 9 of Directive 64/221 be regarded as capable of extension to Turkish workers who enjoy the rights recognised by Decision No 1/80. "66. Such an interpretation is justified by the objective of progressively securing freedom of movement for Turkish workers, as set out in Article 12 of the Association Agreement. The social provisions of Decision No 1/80 constitute a further stage in securing that freedom ... It is established case-law that Article 6(1) of Decision No 1/80, which has been recognised as having direct effect, creates an individual right as regards employment and a correlated right of residence..." "67. In order for those individual rights to be effective, Turkish workers must be able to rely on them before national courts. To ensure the effectiveness of that judicial protection, it is essential to grant those workers the same procedural guarantees as those granted by Community law to nationals of Member States and, therefore, to permit those workers to take advantage of the guarantees laid down in Articles 8 and 9 of Directive 64/221. As the Advocate General states in point 59 of his Opinion, such guarantees are inseparable from the rights to which they relate. "68. That interpretation is valid not only for Turkish nationals whose legal status is defined in Article 6 of Decision No 1/80, but also for members of their family whose status is governed by Article 7 of that decision. Nothing can justify the granting to those nationals residing lawfully in the territory of a Member State, as regards the rights granted to them by Decision No 1/80, of a separate level of protection lower than that laid down in Articles 8 and 9 of Directive 64/221. If Article 14(1) of Decision No 1/80 did not impose on the competent national authorities procedural limits analogous to those which apply to a decision to expel a national of a Member State, as the Court has already held in Cetinkaya, cited above, the Member States would have complete freedom to render impossible the exercise of the rights to which Turkish nationals enjoying a right granted by Decision No 1/80 are entitled."
The respondent's submissions and my conclusions[21]I accept Mr Saini's principal submission that Dörr and Ünal is clearly distinguishable on the basis that Turkish workers, as opposed to Turkish citizens who wish to establish themselves in business within the EU, have been given individual rights in respect of employment and related rights of residence not by Article 12 alone but because Article 12 is carried a step further when considered in conjunction with Decision 1/80, which confers rights upon individuals and is of direct effect. In order to ensure that those individual right are effective, the ECJ has insisted upon appropriate procedural guarantees (the same as those enjoyed by EU nationals). Those procedural rights of appeal "piggy back" on the individual's substantive rights.[22]However, as Savas makes clear, Article 13 on its own does not (any more than would Article 12 on its own) confer any such rights (see paragraphs 41 to 45 of the ECJ's judgment, cited above). The only right conferred upon the claimant is that he is entitled to rely upon the standstill clause in Article 41(1). Thus, his position must be no worse than it would have been under the rules which were applicable on 1st January 1973; see paragraph 70 of the ECJ's judgment in Savas and paragraphs 20 to 22 of the Court of Appeal's judgment in Tum and Dari. If he would not have been entitled to an in-country right of appeal under the immigration legislation then in force, there is no reason why he should be entitled to such a right in 2006.[23]For the sake of the completeness I should mention that Mr Saini also submitted that Dörr and Ünal should be distinguished on a further ground, that Directive 64/221 was concerned with expulsion on the grounds of public policy, public security or public health, none of which are in issue in the present case. I would not have been inclined to accept that submission, since in my judgment the principle underlining the ECJ's decision -- that where community legislation does confer individual rights it is necessary to give them effective judicial protection through appropriate procedural guarantees through the domestic courts -- is not dependent on the precise subject matter of Directive 64/221. Mr Chatwin also referred to Article 58 of the Protocol, which provides inter alia that:
"In the fields covered by this Protocol..." "the arrangements applied by the Community in respect of Turkey shall not give rise to any discrimination between Turkish nationals or Turkish companies or firms."
However, during the course of his submissions he accepted that this provision was concerned to prevent discrimination between legal entities and natural persons. It does not therefore advance the claimant's case.[24]For these reasons, I am satisfied that the claimant is not entitled to an in-country right of appeal by virtue of the operation of the standstill agreement. Further submissions.[25]In his skeleton argument Mr Saini submitted that, although the claimant would have been entitled to an out-of-country right of appeal in 1973, Savas did not require the Secretary of State to grant the claimant the same procedural rights in a decision made in 2005. He relied upon on decision of Ms Clare Montgomery QC, sitting as a Deputy High Court judge refusing a renewed application for permission to apply for judicial review. The decision is dated 23rd November 2005 [2005] EWHC 3171 (Admin). Ms Montgomery said this in paragraph 5 of a short judgment:
"I turn to the first issue: (1) does the [agreement] operate to prevent change in the procedural processes employed in connection with applications for rights to establishment or to provide services? Ms Fielden [for the claimant] relied on a number of passages in the first instance decision in R (Tum and Dari) v Secretary of State for the Home Department [2003] EWCH 2745 (Admin) as indicating that the rules effective in 1973 should apply in full to such applications, whether those rules are procedural or substantive. She also submits that any restriction on in-country appeal will restrict freedom of establishment. I do not agree. The appeal procedures, available either in 1973 or now, do not place any restriction directly on the right to establishment. They merely establish the forum on which that right may be assessed. Any changes in the appeal procedures do not necessarily mean that any stricter conditions apply in determining whether or not to grant rights to establishment. For these reasons, I do not consider that the standstill requirement under the [agreement] operates to require a standstill of procedural rules."
For the purposes of the present case, it is unnecessary to resolve that issue. If the claimant was not entitled to an in-country right of appeal, then the defendant was entitled to issue the removal directions under challenge in these proceedings whether or not the claimant was entitled to an out-of-country appeal. I readily accept Mr Saini's submission that the effect of the standstill clause is not that any procedures must remain precisely the same. The question is whether the rules now applied to the claimant "are less favourable..."[26]Given the importance of procedural rules in the immigration field (as shown by Parliament's repeated amendments to the legislation over recent years) and the extent to which matters of procedure and matters of substance may well be inextricably interlinked in such cases, I would not be prepared to accept, in the absence of further and more detailed argument, that there is necessarily a clear-cut distinction to be drawn between procedural and substantive rules in this field.[27]As Dörr and Ünal shows, substantive rights may well be ineffective or less effective if they are not backed up by appropriate procedural guarantees in relation to matters such as rights of appeal. It will be recalled that in paragraph 67 of its judgment the ECJ agreed with the point made by the Advocate General that such procedural guarantees "are inseparable from the rights to which they relate". There is nothing in Savas or in Tum and Dari to suggest that making procedural rights less favourable for an applicant who relies on the standstill agreement is acceptable in terms of community law. Community law is concerned with practicality rather than procedural formality. Much, for example, may depend upon the extent to which it is necessary in practice for applicants to appeal in order to succeed in establishing their claims. For example, if there is a very high rate of initial refusals and, correspondingly, a high rate of success on appeal, then removing the right of appeal might well have the practical effect of worsening the position for applicants, even though the substantive rules, applied both at first instance and on appeal, remain unchanged.[28]In his skeleton argument, Mr Saini submitted that the fact that the claimant cannot appeal (out-of-country) to the Immigration Tribunal but must challenge the defendant's decision by way of judicial review:
"... does not mean that the United Kingdom has made establishment harder. It is just the forum for challenge which has changed."
That submission ignores the very real distinction (often urged upon this court by counsel on behalf of the Secretary of State) between an appeal on the merits and judicial review. In 1973 an adjudicator's powers on appeal were contained in Section 19 of the Immigration Act 1971, which was in these terms:
"19(1) Subject to sections 13(4) and 16(4) above [which are not in issue in this case], and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act - "(a) shall allow the appeal if he considers - (i) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and "(b) in any other case, shall dismiss the appeal."
[29]Those provisions gave rise to a great deal of litigation over the years. Because this matter was not directly in issue in this case, the parties did not address the question of the extent to which, in practical terms, an appeal to an adjudicator in 1973 under section 19 of the 1971 Act would differ from an application for judicial review today; see, for example, the discussion and the authorities referred to in paragraph 18.50 of McDonald's Immigration Law and Practice, 6th edition. In the absence of detailed submissions and citation on this point, I would prefer to leave a decision on this point to a case where the claimant is seeking an out-of-country right of appeal and is not simply challenging removal directions. I do not consider, in any event, that such a question should be considered in the abstract simply by reference to the enactments. Whether an applicant's position has or has not been made worse should focus on the practical realities rather than procedural detail. For example, it is not clear whether, under the terms of HC509, businessmen seeking admission to the United Kingdom in order to establish their businesses would have been given leave to enter for two months or temporary clearance. The relevant paragraphs in HC509 are in these terms:
"29. Businessmen admitted to the United Kingdom as visitors are free to transact business during their visit. "30. Passengers who have obtained entry clearances for the purpose of establishing themselves in the United Kingdom in business, whether a new or existing business, should be admitted for a period not exceeding 12 months with a condition restricting their freedom to take employment. Passengers who are unable to present such a clearance but nevertheless seem likely to be able to satisfy the requirements of one of the next 2 paragraphs should be admitted for a period of not more than 2 months, with a prohibition on employment, and advised to present their case to the Home Office."
The next two paragraphs set out the various requirements, for example if an applicant is joining an established business; that he be bringing money of his own; that he be able to bear his share of liabilities et cetera; that an applicant wishing to establish a business on his own account will need to show that he will be bringing sufficient funds to establish the business and that the business can realistically be expected to support him and any dependants without recourse to employment, for which a work permit is required.[30]HC509 does not on its face always distinguish clearly between admission and leave to enter (see for example paragraphs 25 and 26, which refer to refusal to leave to enter if a passenger is coming to the United Kingdom to take employment but has no work permit), but simply to admission for the period specified in the permit, subject to conditions, if the applicant is the holder of a current work permit. Self-employed persons are dealt with in paragraph 34, which provides that they may be admitted if the immigration officer is satisfied they do not intend to do work for which a work permit is necessary and that they would be able to support themselves and any dependants without recourse to any public funds. Paragraph 35 provides that the wife and children under 18 of a person admitted to the United Kingdom to take or seek employment, or as a businessman, a person of independent means or a self-employed person, should be given leave to enter for the period of his authorised stay. If leave to enter was given, then in 1973 the beneficiary of such leave would have had an in-country right of appeal against a refusal, for example to extend the period of leave (see section 14(1) of the 1971 Act).[31]For the purposes of the present case, those questions are academic since it is common ground that the claimant did not seek to enter this country in order to set up a business. He entered plainly to be a refugee. He was granted temporary admission. When his refugee claim failed, and whilst he was still temporarily admitted to this country but had not been given leave to enter, he sought leave to enter upon the basis of the Agreement. In 1973 an applicant in such a position would have had an out-of-country right of appeal but not a right to an in-country appeal.[32]For these reasons, the application for judicial review must be refused.[33]MR SAINI: I am not sure if the claimant is legally aided but I do ask for my costs of the application.[34]MR CHATWIN: My Lord, the claimant is not legally aided. This is a privately funded matter.[35]I would only ask, my Lord, that the -- I appreciate that your Lordship has not heard full argument on the question of the appeal, only in comparison with the judicial review. But, in view of my Lord's approach to the question of whether there ought to be an appeal right at all or whether the Secretary of State's position appears correct on the face of things, regarding the appeal I would ask that that be taken into account; that perhaps we have not entirely lost on the question of whether there ought to be a right of appeal. The decision in this case was that there should be none at all and, while I appreciate that this application is refused, nonetheless I would hope that that would be something my Lord might take into consideration.[36]MR SAINI: What I say in response is that the relief that was sought was an in-country right of appeal and that was what the parties argued.[37]MR JUSTICE SULLIVAN: I think so far as costs are concerned, the fact that Mr Saini might have been tempted to argue a little too much does not gainsay the fact that essentially he succeeded is staving off the argument that there should be an in-country right of appeal. So it seems to me that the claimant should bear the defendant's costs, those costs to go for detailed assessment unless they are otherwise agreed.

Cited in 6 later judgments