Relatives of Turkish businessman win legal challenge over leave to remain in UK

A judge in the Court of Session ruled that the Secretary of State for the Home Department was wrong to refuse the applications of the petitioner’s wife and two children on the basis of a purported requirement of two years’ residence.

Lord Armstrong heard that the case concerned the interpretation and application of certain provisions of “An Agreement establishing an Association between the European Economic Community and Turkey”, signed at Ankara on 12 September 1963, and an Additional Protocol to it, signed on 23 November 1970 (the EEC – Turkey Association Agreement), and the legitimacy of decisions made on the basis of Home Office guidance, as to the application of those provisions, which were not incorporated in the Immigration Rules.

The court was told that in accordance with the EEC – Turkey Association Agreement the first petitioner “BA” was granted leave to remain as a businessman in terms of the Immigration Rules in force as at 1 January 1973.

He set up and operated a business in Edinburgh and in October 2015, after a period of about four years, he was granted indefinite leave to remain in terms of the rules.

The second, third, and fourth petitioners arrived in the UK in July 2014, having been granted leave to enter for the period from May 2014 to May 2015.

When the first petitioner applied for indefinite leave to remain, the second, third, and fourth petitioners did so also, but their applications were refused.

On 2 November 2015, following unsuccessful administrative reviews of these decisions, the Secretary of State issued decisions refusing to grant the second, third, and fourth petitioners leave to remain.

The petitioners sought reduction of the decisions, arguing that the first petitioner was already established in the UK as a businessman and was granted indefinite leave to remain, and the second, third, and fourth petitioners were his dependents and had sought the grant of indefinite leave to remain at the same time as him.

It was submitted that the second petitioner, as the first petitioner’s wife, had satisfied the requirements of the Immigration Rules, and so, as the wife of a person who was on the same occasion being admitted for settlement, should herself had been admitted for settlement.

And the third and fourth petitioners, as the children under 18 years of age, of both parents who, on the same occasion, should both have been admitted for settlement, should themselves have been admitted for settlement.

The judge sustained the petitioners’ plea in law and reduced the decisions to refuse their applications.

In a written opinion, Lord Armstrong said: “Whether or not the putting in place of a lesser requirement than that of the Immigration Rules is to be described as a concession, it was determinative for the purposes of the second, third, and fourth petitioners’ applications, and, on that test, could not properly be described as guidance.

“Since, as a purported rule, it had not been the subject of parliamentary scrutiny, I find that it was unlawful and should not have been taken into account in determining the second, third, and fourth petitioners’ applications.

“I find therefore that, in determining the applications of the second, third, and fourth petitioners on the basis of the purported requirement of two years’ residence, the Secretary of State took into account a matter which was irrelevant.

“Although the effect of my decision is that this application for judicial review succeeds, that success may appear, on one view, to be somewhat pyrrhic, in that the second, third, and fourth petitioners would in any event have fallen foul of the relevant requirement of five years’ residence, as stipulated in the Immigration Rules as at the time of their applications.”

He added: “In response to the submissions for the respondent, it was explained that, since the first petitioner has now been granted indefinite leave to remain, the second, third, and fourth petitioners are no longer able to take advantage of the EEC – Turkey Association Agreement, and, for other reasons, were not well-placed to seek leave to remain otherwise.

“In circumstances where, on refusal of their applications for indefinite leave to remain, no lesser grant resulted, in the form of an extension of their existing leave, a further irony is that, but for my decision in these proceedings, had the second, third, and fourth petitioners instead applied for extensions of their then existing leave to remain, rather than for indefinite leave to remain, and the first petitioner had postponed his application accordingly, then, having been resident in the UK since 27 July 2014, the second, third, and fourth petitioners would, by mid-2016, have been able to satisfy the two year residence requirement, and, presumably, would have been granted indefinite leave to remain on the basis of the then existing Home Office guidance.”