SCOLAG: Immigration and Asylum Update

Posted On: 09 November 2007

Author: Alan Caskie

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A review of significant Immigration and Asylum case by Alan Caskie, Advocate. This collection covers July to September 2007.

Veli Tum & Mehmet Dari v Secretary of State for the Home Department, ECJ, C 16/05

This case is before the House of Lords who have made a referral to the ECJ for a preliminary ruling.  The issue is whether failed Turkish asylum seekers who were granted Temporary Admission may rely upon the EEC/Turkish Association Agreement to resist removal.  HELD:  The United Kingdom had no power to introduce new rules after 1st January 1973 restricting access to Turkish citizens wishing to be self employed in the United Kingdom.  The court rejected the argument of the Government that failed asylum seekers should not be allowed to rely on the Association Agreement, since that would be tantamount to endorsing fraud or abuse.  But the court said that whilst according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends (Case C-255/02 Halifax and Others [2006] ECR I 1609, paragraph 68) and national courts may, case by case, take account – on the basis of objective evidence – of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely.  However, it is apparent from the documents sent to the Court by the national court that the courts which gave rulings on the substance of the cases currently pending before the House of Lords that Mr Tum and Mr Dari could not be accused of any fraud and that the protection of a legitimate national interest, such as public policy, public security or public health, was not at issue.  Moreover, the Court has been shown no specific evidence to suggest that, in the cases in the main proceedings, the individuals concerned are relying on the application of the 'standstill' clause in the Association Agreement with the sole aim of wrongfully benefiting from advantages provided for by Community law.  In those circumstances, the fact that Mr Tum and Mr Dari had, prior to their applications for clearance to enter the United Kingdom for the purpose of exercising freedom of establishment, made applications for asylum which were refused by the Home Office and on appeal, cannot be regarded, in itself, as constituting abuse or fraud.  Furthermore, the Agreement does not lay down any restriction as regards its scope, in particular in so far as concerns Turkish nationals to whom those authorities have refused the status of refugees, with the result that the refusal of the asylum applications is of no relevance for the purpose of deciding whether that provision is applicable in the cases in the main proceedings.  Having regard to all the foregoing considerations, the answer to the question referred for a preliminary ruling must be that the Association Agreement is to be interpreted as prohibiting the introduction, as from the entry into force of that agreement of any new restrictions on the exercise of freedom of establishment, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that State, of Turkish nationals intending to establish themselves in business there on their own account. COMMENT:  ILPA produced a book some time ago on the Turkish Association Agreement that had a style business plan for a window cleaner at the back.  It might be worth getting hold of a copy!!!  We now await the final decision from the House of Lords.

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