NEWS: Home Office policy on Turkish businesses ruled unlawful

Posted On: 25 November 2010

The Court of Session has decided that instructions introduced in June 2009 conflict with the U.K.’s European Community law obligations. The case of L.E. (Turkey) concerned whether internal guidance issued by the Home Office introduced a new restriction on the ability of Turkish entrepreneurs to live in the U.K. The petitioner, L.E., was represented by Julius Komorowski of Murray Stable.

The Additional Protocol to the European Community – Turkey Association Agreement, Article 41(1) prohibited “any new restrictions on the freedom of establishment and the freedom to provide services”. The U.K. became bound by the Association Agreement in 1973. The petitioner had overstayed his visa by over a year when he made an application for leave to remain in the U.K. as a businessman. The Immigration Rules current in 1973 provided that overstaying a visa was a relevant fact to be taken account of. Instructions introduced in June 2009 provided that Home Office caseworkers should refuse applications where there had been overstaying for more than 28 days in the absence of exceptional circumstances. The question for the court was whether the 2009 Instructions introduced a “new restriction” prohibited by the Association Agreement.

In what the court described as a “clear and careful” presentation, Julius Komorowski argued that all rules, measures, policies, instructions or interpretations which, in design or effect, imposed conditions more onerous than had previously been applied were struck at by the standstill clause. Counsel for the respondent argued that only restrictions which had a legal status, such as a statutory impediment, were caught by the Association Agreement.

Lord Emslie concluded that the petitioner’s contentions were well founded. He held that new restrictions must not be allowed to affect applications in any form or to any material degree. When the June 2009 Instructions were compared with what had gone before, it was impossible not to hold that a more restrictive approach had been introduced. From June 2009 onwards the former discretion enjoyed by case workers was materially cut down.

Julius Komorowski said: “This decision may have important implications generally for how applications by Turkish immigrants setting up in business are handled. Solicitors whose client’s applications have been refused should check not only that the refusal is consistent with the literal terms of the Immigration Rules in force in 1973, but that it is also consistent in practice with how the requirements of those rules were applied. If the Home Office introduce, through internal policies or otherwise, a stricter approach to applications, whether when considering immigration history, adequacy of investment, profitability or other matters, their decisions are likely to fall foul of the Association Agreement.”

Julius was instructed by Morisons for Stewart & Watson. He practices in all areas of administrative law.

For the full judgement please click here.