PETITION OF (FIRST) BA; (SECOND) MA; (THIRD) CA; AND (FOURTH) HA (AP) FOR JUDICIAL REVIEW
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 27
P116/16
OPINION OF LORD ARMSTRONG
In the Petition of
(FIRST) BA; (SECOND) MA; (THIRD) CA; and (FOURTH) HA (AP)
Petitioners
for
Judicial Review of decisions of the Secretary of State for the Home Department, issued on 2 November 2015, to refuse to grant leave to remain
Respondent
Petitioners: Dewar QC, Caskie; Drummond Miller LLP
Respondent: Webster; Office of the Advocate General
21 February 2017
Introduction
[1] The pursuers are a family, all of whom are citizens of Turkey. The first petitioner is the husband of the second petitioner, and father of the third and fourth petitioners. The respondent is the Advocate General for Scotland, representing the Secretary of State for the Home Department.
[2] The case concerns 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 is not incorporated in the Immigration Rules.
[3] The UK acceded to the EEC on 1 January 1973. Subsequently, in accordance with the EEC ‑ Turkey Association Agreement, the first petitioner 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. On 7 October 2015, after a period of about four years, he was granted indefinite leave to remain in terms of these rules.
[4] The second, third, and fourth petitioners arrived in the UK on 27 July 2014, having been granted leave to enter for the period from 29 May 2014 to 26 May 2015. When the first petitioner applied for indefinite leave to remain, the second, third, and fourth petitioners did so also. Their applications were refused. On 2 November 2015, following unsuccessful administrative reviews of these decisions, the Secretary of State for the Home Department issued decisions refusing to grant the second, third, and fourth petitioners leave to remain. The petitioners seek reduction of these decisions.
[5] A question arose as to whether, in these circumstances, the first petitioner had sufficient interest in the matters at issue, such as to constitute standing. Although the point was not conceded by the respondent, it was not pressed, on the basis that it was accepted that the issues at large concerned only the second, third, and fourth petitioners, albeit in the context of the circumstances of a single family unit.
[6] Both parties lodged and adopted written submissions, the terms of which, together with the oral submissions made at the bar, are reflected in what follows.
The Submissions for the Petitioners
(i) The EEC ‑ Turkey Association Agreement
[7] The aims of the EEC ‑ Turkey Association Agreement, which included the conferring on Turkish citizens of the right to establish a business in any of the member states of the EEC, was to be viewed in the context of the long‑term objective of Turkey becoming a member of the EEC and, subsequently, the European Union.
[8] Its preamble indicated the wide‑ranging extent of the agreement and, in particular, recognition that the parties had determined “to establish ever closer bonds between the Turkish people and the peoples brought together in the EEC”. Title I, Article 2 confirmed the aim to promote “the continuous and balanced strengthening of trade and economic relations between the parties”, and Article 4 envisaged the establishment of a customs union between Turkey and the EEC and an alignment of economic policies. The Additional Protocol included provisions in relation to the free movement of goods and to the movement of persons and services. In particular, Article 41 of the Additional Protocol provided:
“1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
[9] The effect of that provision (“Article 41”) was that it operated as a “standstill clause” in that its terms required that, as from 1 January 1973, the date of the accession of the UK to the EEC, the rights conferred by the UK’s Immigration Rules, at that time, were to remain in place without subsequent diminishment. At that time, the Immigration Rules comprised “Statement of Immigration Rules for Control of Entry” (“HC 509”), and “Statement of Immigration Rules for Control after Entry” (“HC 510”).
[10] In so far as the application of HC 509 was concerned, it was significant that all the petitioners had sought admission for settlement (indefinite leave to remain) at the same time. Paragraph 37, which concerned the admission for settlement of the dependents of a person who was, on the same occasion, given indefinite leave to enter, applied to the second, third, and fourth petitioners. 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. The second petitioner, as the first petitioner’s wife, had satisfied the requirements of paragraphs 37 and 38, and so, in terms of paragraph 39, as the wife of a person who was on the same occasion being admitted for settlement, should herself had been admitted for settlement. In terms of paragraph 41, 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.
[11] In so far as HC 510 was concerned, paragraph 28 was in the following terms:
“28. A person who is admitted in the first instance for a limited period, and who has remained here for 4 years in approved employment or as a businessman or a self‑employed person or a person of independent means, may have the time limit on his stay removed unless there are grounds for maintaining it. ………. Applications for variation of leave to enter with a view to settlement may also be received from people originally admitted as, for example, visitors; but permission has to be limited to close relatives of people already accepted for settlement. Particulars are set out in paragraphs 37 - 44 of the Rules for Control on Entry dated October 1972 (HC 509).”
[12] The first part of paragraph 28 applied to the first petitioner. He had remained as a businessman in the UK for the appropriate period, and there were no grounds for maintaining the time limit on his stay. The second part of paragraph 28 applied to the second, third, and fourth petitioners, as close relatives of someone already accepted for settlement. Since they met the requirements of Rules 37, 38, 39 and 41 of HC 509, they ought to have been admitted for settlement.
[13] In the event, in terms of the decision letters referable to the second, third, and fourth petitioners, dated 7 October 2015, indefinite leave to remain was refused because none of them had been living in the UK with the first petitioner for a period of at least two years. However, the requirement of two years’ residence in the UK was not part of the 1973 Immigration Rules (HC 509 or HC 510), and in circumstances where Article 41 required to be given effect, the requirement of two years’ residence in the UK should not have been applied in considering the applications by the second, third, and fourth petitioners.
[14] In terms of the decision letters, dated 2 November 2015, confirming that administrative review of these decisions had been unsuccessful, reliance was placed on current policy, as at 2015, which required a period of residence of two years in the UK, rather than the Immigration Rules as at 1973. Again, in circumstances where Article 41 required to be given effect, and where the requirement of two years’ residence constituted a new restriction, that requirement, which was not part of the Immigration Rules as at 1973, should not have been taken into account.
[15] It was relevant to note that the effect of the refusal decisions on the family was significant. Since their applications were unsuccessful, the second, third, and fourth petitioners were required to leave the UK, which meant that if the first petitioner was to continue with his established business, he would be permanently separated from his family, and they from him.
(ii) The case law
[16] Reference was made to Regina v Home Secretary, ex p. Savas (ECJ) (2000) 1 WLR 1828, for the proposition that Article 41 was an unconditional and unequivocal standstill clause which had direct effect, and precluded a member state from adopting any new measure having the effect of making the establishment and, as a corollary, the residence, of a Turkish national in its territory, subject to stricter conditions than those which applied at the time when the Additional Protocol came into effect (paragraphs 46 ‑ 48, 69; see also, LE (Turkey) 2010 CSOH 153, at paragraphs 1, 4, 18).
[17] It was significant that in Savas, supra, the reference to the right of residence was as a corollary to the freedom of establishment (paragraph 69). That was consistent with the need for certainty of a family who would require to reside in the UK in order to make a business succeed.
[18] The fact that the two year residence requirement was imposed by policy did not preclude it being caught by the standstill effect of Article 41. Measures adopted by the government of a member state which did not have binding effect, were still capable of influencing the conduct of undertakings in that state, and of frustrating the aims of the EEC. What mattered was the substance and effect of the measure. The petitioners were entitled to protection from any new restriction which offended against Article 41 (Bulk Oil (Zug) AG v Sun International Limited and another 1986 COMER 732, at paragraph 9).
[19] A person in the position of the first petitioner was entitled to have regard to the content of the Immigration Rules, as at 1973, in deciding whether to establish a business in the UK. In terms of these rules, he would be entitled to assume that, on establishing his business and residing in the UK for four years, he would be entitled to the right of settlement, unless there were good reasons otherwise, and that, were he to obtain the right of settlement, so too would his family, on admission to the UK. Against that background, a two year residence requirement, with drastic and draconian consequences in the event of it not being met, represented a significantly more restrictive measure than any forming part of the 1973 rules.
[20] The decision of a Turkish national to establish himself in a member state, in order to exercise there a stable economic activity, could be negatively affected where the legislation of the member state made family reunification difficult or impossible, so that the Turkish national could find himself forced to choose between his economic activity in the member state and family life in Turkey. Such legislation constituted a “new restriction” in terms of Article 41 (Dogan v Bundesrepublik Deutschland (2015) 1 CMLR 16, at paragraphs 35 ‑ 36; Genc v Integrationsministeriet (2016) 3 CMLR 21, at paragraphs 33 ‑ 34).
(iii) The legitimacy of the reliance on guidance
[21] Further, commonly issued guidance imposing requirements to be met in qualifying for indefinite leave to remain, must be subject to parliamentary scrutiny in order to be lawful. Since the two year residence requirement, applied in the case of the second, third, and fourth petitioners, had not been subject to such scrutiny, and was not incorporated in the Immigration Rules, it was an unlawful measure. In that regard, reference was made to R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants Intervening) (2012) 1 WLR 2208. Where, as in the cases of the second, third, and fourth petitioners, the two year residence requirement, by analogy, was not merely guidance but, in effect, amounted to detailed information, the application of which would determine whether or not an applicant would qualify for indefinite leave to remain, it had the character of a rule within the ordinary meaning of that word. In these circumstances, in terms of section 3(2) of the Immigration Act 1971, it ought to have been laid before Parliament for scrutiny and, if appropriate, approval (Alvi, supra, at paragraphs 57, 62, 66, 94). Where that was not the case, it was not open to the Secretary of State to rely on it as a ground for rejecting the applications.
[22] It was noted that the respondent founded on Article 59 of the Additional Protocol which provided as follows:
“In the fields covered by this Protocol, Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community”.
In that context, and in circumstances where the right of settlement for European Economic Area (“EEA”) nationals arose after five years’ residence (The Immigration (European Economic Area) Regulations 2006, regulation 15), the respondent’s contention was that if Article 41 applied to the right of settlement, as the petitioners maintained, then, contrary to Article 59, Turkish nationals would have an enhanced entitlement in that respect compared to that of EEA nationals.
[23] In response, it was submitted that although the respondent’s argument was predicated on the assumption that the right of permanent residence for EEA nationals was first introduced from 2006, by virtue of Directive 2004/38/EC, in fact the right, comparable to that of Turkish nationals, arose from Regulation 1251/70, articles 2 and 3. Reference was made to Derin v Landkreis Darmstadt‑Dieburg (2007) 3 CMLR 41, at paragraphs AG 87 ‑89. Thus, in circumstances where, from 1970, there had existed comparable rights of permanent residence to both Turkish nationals and EEA nationals, it was not the case that by the application of Article 41 Turkish nationals were more favourably placed.
Submissions for the Respondent
[24] It was important to distinguish between establishment and settlement. The EEC ‑ Turkey Association Agreement and its Additional Protocol had the effect of providing a standstill in relation to establishment, but not in relation to settlement.
[25] Since 1 January 1973, successive Secretaries of State had increased the requirements for settlement in the UK. As at the date of the decisions under challenge, the requirement in terms of the Immigration Rules was five years. However, the Secretary of State had also issued guidance, which amounted to a concession, that in the case of Turkish nationals, the right of settlement would be granted where a period of residence in the UK of two years, a shorter period than the requirement of the Immigration Rules, could be demonstrated. It was that concessionary requirement which was relied upon in the refusal of the applications of the second, third, and fourth petitioners.
[26] In so far as the case of Alvi, supra, was concerned, if the petitioners’ argument, that the application of the adopted policy was unlawful, was correct, then the default position was that of the Immigration Rules, namely, a requirement of five years’ residence, which constituted a higher hurdle. In any event, the position was not comparable to that in Alvi. The policy did not require the approval of parliament. The Secretary of State had a discretion to set, by way of concession, a lower limit.
[27] Further, the consequence of refusal was not the draconian effect identified on behalf of the petitioners. It was open to the second, third, and fourth petitioners to apply for leave to remain, for a limited period, while in the UK, or, if outwith the UK, for leave to enter. They had options available to them which included obtaining the right to remain. In these circumstances, it was not the case that the first petitioner was faced with the choice of remaining in the UK in order to carry on his business, or returning to Turkey to maintain his family life.
[28] The central issue in the case was whether the right of establishment necessarily carried with it a general right of settlement.
(i) The EEC ‑ Turkey Association Agreement
[29] The agreement was not wide‑ranging in its scope but, rather, as was clear from Article 2 of Title I, was limited to the promotion of clear economic aims.
[30] Article 41 was expressly limited in its application to the freedom of establishment and the freedom to provide services. Rights of citizenship, or permanent residence, were separate and distinct from these freedoms.
[31] The right of establishment included the right to take up and pursue activities as a self‑employed person (Consolidated Version of the Treaty on the Functioning of the European Union, Part 3, Title I, Chapter 2, Article 49). Its essence involved an economic component.
[32] In contrast, citizenship, comprising the general right of permanent residence for EU nationals, was defined separately (Part 2, Article 20), and was introduced by Directive 2004/38/EC (“the Citizens’ Directive”), article 16, with effect from 2006. Regulation 1251/70, referred to Derin, supra, at AG 89, was repealed on the basis that Direction 2004/38/EC, article 17, reflected the terms of that regulation. In particular, paragraph 17 of the recital to Direction 2004/38/EC expressly set enjoyment of permanent residence within the context of the promotion of social cohesion (see also Secretary of State for Work and Pensions v Lassal (2011) 1 CMLR 31, at paragraph 32). In that regard, while it was accepted that residence was a corollary of establishment, as noted in Savas, supra, that reference was not to be interpreted as encompassing permanent residence, which was a distinct concept, unrelated to the economic right of establishment.
(ii) The Immigration Rules as at 1973
[33] The rules for control on entry (HC 509) were principally concerned with admission and entry to the UK, and with the grant of leave to remain in that context.
[34] The rules which were relevant to the position of the first petitioner, as a businessman, at Part 3, paragraphs 29 – 32, indicated, expressly in their terms, their economic context. Properly interpreted, paragraph 35, of application to wives and children of a person admitted as businessman, concerned admission to the UK for business reasons.
[35] The rules relevant to admission for settlement, were set out separately in Part IV. In particular the terms of paragraph 37 made it plain that these rules, including paragraphs 38, 39 and 41, covered the position with regard to family members on admission. Since the second, third, and fourth petitioners were not in that position, but were already living in the UK, the rules comprising the content of HC 509 were not applicable to them.
[36] The rules for control after entry (HC 510), paragraph 21, of specific application to businessmen and self‑employed persons, provided that once admitted and still in the UK, such a person might be granted an extension of stay. Such an extension was to be distinguished from the grant of a permanent right to remain. In that regard, citizenship, or permanent residence, was not necessary in order for a person to further his right of establishment.
[37] Paragraph 28 of HC 510 comprised distinct rules with application specifically to the right to settlement.
[38] In relation to these two paragraphs, the effect of Article 41 was to apply a standstill in relation to paragraph 21, since it concerned economic rights, but not in relation to paragraph 28, because it did not. That being so, it was open to the Secretary of State to increase the requirement in relation to the right of settlement, which, in the event, had in fact been done. Whereas the requirement as at 1973 had been one of four years’ residence, after 2006, reflecting the impact of Directive 2004/38/EC, the requirement in the Immigration Rules was increased to one of five years. At the time of the decisions under challenge, the second petitioner, in applying for indefinite leave to remain, was required to demonstrate five years’ residence in the UK. The position of third and fourth petitioners was dependent on the outcome of second petitioner’s claim. These requirements had been the subject of parliamentary approval.
(iii) The Guidance
[39] As at the time of the decisions under challenge, guidance entitled “Business applications under the Turkish EC Association Agreement” was used by the Home Office in determining applications in respect of leave to enter, leave to remain, and indefinite leave to remain, made in relation to the agreement.
[40] In relation to applications for indefinite leave by dependent partners of qualifying business persons, the effect of the guidance was to introduce, by concession, a requirement of two years’ residence in the UK. Since that concession involved a reduction in what would otherwise be the relevant requirement, the reasoning in Alvi, surpa, did not apply, and the application of the guidance was legitimate. In any event, on the basis of the distinction between settlement and establishment, and the fact that the right to settlement had no direct economic component, Article 41 did not apply to restrict increases in the requirements of settlement.
(iv) The Case Law
[41] The effect of Article 41, in prohibiting the introduction of new restrictions on the exercise of the freedom of establishment and the freedom to provide services, was recognised as impacting on the intended use of “those economic freedoms” (Oguz v Secretary of State for the Home Department (2012) 1 WLR 709, at paragraph 22).
[42] It was only where the activity in question was the corollary of the exercise of an economic activity that the standstill clause (Article 41) might relate to the conditions of entry and residence of Turkish nationals (Dogan v Bundesrepublik Deutschland, supra, at paragraph 28). Although, for the petitioners, reliance was placed on the decision in that case, to the effect that legislation which made family reunification more difficult constituted a new restriction within the meaning of Article 41, it was to be noted that the issue in that case did not concern the right of permanent residence, but rather, the economic imperative of establishment. In circumstances where the issue in that case concerned a tightening of the conditions for first admission to a member state in respect of a family member, and the effect of that on the principal economic migrant in exercising his rights to establishment, what the decision indicated was that it was consistent with the right of establishment that a family member could be granted a right to remain, short of indefinite leave to remain, and that the carrying on of the economic activity of running a business in the host member state continue on that basis. In circumstances where establishment could be pursued even where family members had a limited right to remain, the refusal of a claim by a family member for settlement did not force an established businessman to choose between economic activity in the host state or family life in Turkey. The issue in Dogan, supra, was whether the applicable rules on family migration restricted migration to the point that a principal economic migrant was forced to make such a choice. That was not the position in the case of the first petitioner. It was open to the second, third, and fourth petitioners to seek leave to remain in order to be with the first petitioner in the UK.
[43] It was appropriate only to refer to the situation of the principal economic migrant, here the first petitioner, in determining whether, under the standstill provision, a measure fell to be disapplied if it affected his freedom to carry out the economic activity involved in his establishment (Genc, supra, at paragraph 37). Thus, where the principal economic migrant could continue the running of his business in circumstances where his family members had a right to remain, less than indefinite leave to remain, it did not follow, as the petitioners asserted, that settlement was a component of establishment.
[44] In R (Buer and others) v Secretary of State for the Home Department (2015) 1 CMLR 3, the court considered the nature of the right of residence which was the corollary of establishment (Savas, supra, at paragraph 28) for the right of access to work, in the context of a provision (Article 13 of Decision No. 1/80) the terms and effect of which, in respect of the promotion of freedom of movement of workers, were equivalent to those of Article 41 in respect of the promotion of freedom of establishment and the freedom to provide services. The court noted that the right of residence at issue was that necessary to render effective the right of access to work, which was very different from a right to settlement or permanent residence. The required nature of the residence was that necessary to facilitate the right or freedom in question and not longer‑term residence or settlement. The decision of the court was that Article 13 was concerned with residence for the purpose of work, and not with residence which extended to settlement in the host member state (paragraphs 35 ‑ 43). In particular, at paragraph 43, it was stated: “There is, moreover, nothing in the case law of the European Court of Justice to support the appellant’s case that Article 13 extends to settlement”. The court’s decision in Buer was equally applicable to the effect of Article 41.
[45] On that basis, the Immigration Rules bearing on settlement, as at 1973, were not preserved by Article 41, and there was no proper basis to conclude that the applications of the second, third, and fourth petitioners, for indefinite leave to remain, fell to be considered by these rules. Although it was submitted for the petitioners, under reference to Derin, supra, that a Turkish worker was entitled to make an informed choice as to how matters would progress were he to seek to establish himself in the UK, the reality was that such a person was always in a position to do that. Properly understood, while the EEC ‑ Turkey Association Agreement and its Additional Protocol preserved rights of entry and the requirements for leave to remain, for the purposes of establishment, as set out in HC 509 and HC 510, it did not preserve the then existing rules in relation to settlement, which were therefore susceptible to change.
Discussion
[46] For the purposes of the applications by the second, third, and fourth petitioners, for indefinite leave to remain, the Immigration Rules set out in HC 509, referable to control on entry, read in isolation, were not applicable, since, by the time of their applications, they had been living in the UK since 27 July 2014.
[47] However, paragraphs 37 ‑ 44 of HC 509 were applicable, by virtue of the operation of paragraph 28 of HC 510, that being the general rule on settlement, in effect as at 1 January 1973, in relation to control after entry.
[48] The first question to be considered, therefore, is whether Rules 37 ‑ 44 of HC 509 were subject to the standstill effect of Article 41. In that regard, two issues arise: first, whether the restriction put in place by Article 41 was limited in its application to the economic aspects of the freedom of establishment, and, secondly, whether settlement, or indefinite leave to remain, is a corollary of establishment, or is distinct and separable because of its primarily social component.
[49] Although it is correct to state that the the EEC ‑ Turkey Association Agreement includes, in its preamble, reference to the aspirations of the parties in the context of improved social cohesion, the principal stated context of the agreement is that of accelerated economic progress, expansion of trade and the reduction of disparity between the economies of the parties, all with a view to the facilitation of the intended accession of Turkey to the EEC at a later date. Against that background, it is to be noted that the terms of Article 41 are brief, and limited in their scope to the freedom of establishment and the freedom to provide services. In that regard, I am satisfied that the character of the activity involved in establishment, in the sense set out in paragraph 21 of HC 509, that is, by a businessman setting up in business and thereafter operating it, is primarily economic.
[50] It is accepted, rightly, that in this context residence is a corollary of establishment. Were it otherwise, the practicability of the freedom of establishment would be defeated. For the petitioners, however, the argument went further. It was submitted that settlement is a corollary of the right of establishment, since, if the position were otherwise, a material disincentive would frustrate the freedom of establishment. That issue, in various contexts, and to varying extents, has been the subject of a number of decisions of the European Court of Justice, analysed and applied by the Court of Appeal in R (Buer), supra. On the basis of the reasoning in that decision (paragraphs 35 ‑ 43), which applies as equally to Article 41 as to the provision under consideration in that case, I am persuaded that settlement is not a corollary of the freedom of establishment, but that, rather, the nature of the residence which is a corollary of that freedom is that necessary to render the freedom effective in the sense of allowing the setting up of a business and thereafter the maintaining of it. I do not accept that longer‑term residence, of the nature of settlement or indefinite leave to remain, is necessary for that purpose. All that is necessary is residence of a character which subsists so long as the freedom of establishment is exercised, and is sufficient to allow the pursuit of that economic goal. In such circumstances, where a lesser grant of leave to remain may be granted, the concern expressed in Dogan, supra, in relation to a situation where stable economic activity could be negatively affected by measures which made family reunification difficulty or impossible, does not arise.
[51] On that basis, I find that the effect of Article 41 does not extend to affect measures relating to settlement put in place since 1 January 1973. In consequence, it is correct to state that the content of paragraph 21 of HC 509, which concerns the economic activity of businessmen, is preserved by Article 41, whereas paragraph 28, concerning settlement, which was the basis of the applications made by the second, third, and fourth petitioners, is not.
[52] In the event, the requirements for indefinite leave to remain have been increased since 1 January 1973. At the time of the decisions under challenge, the relevant requirement was one of five years’ residence in the UK. The applications of the second, third, and fourth petitioners, however, were refused on the basis of the Home Office guidance which stipulated a requirement of two years’ residence. Contrary to the submissions for the petitioner to the effect that such a requirement, not having been the subject of parliamentary scrutiny, was unlawful, the position for the respondent was that since the requirement was in effect a concession, being lesser than the five year criterion set out in the Immigration Rules, parliamentary approval was unnecessary. On this issue, I accept the argument for the petitioners. On the basis of the test formulated in Alvi, supra,(paragraphs 41, 56, 57, 63, 94, 106), the requirement of two years’ residence was a rule, in the sense that it was a requirement which, if not satisfied, would lead to an application for leave to remain being refused. 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.
[53] In a separate argument, reliance was placed, for the respondent, on Article 59 of the Additional Protocol to the the EEC ‑ Turkey Association Agreement, which is expressed in the following terms:
“In the fields covered by this Protocol, Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community”.
It was submitted that if Article 41 applied to the right of settlement, as asserted by the petitioners, then Turkish nationals would have an enhanced entitlement to indefinite leave to remain, compared with EEA nationals, to whom a requirement of five years continuous residence applied (Directive 2004/38/EC, article 16). In passing, I raise the issue, for others to consider, whether, in circumstances where Article 41 does not extend to matters concerned with settlement, in any event, the requirement of two years’ residence in the Home Office guidance is in conflict with Article 59.
[54] 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.
[55] 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.
Decision
[56] In the result, for the reasons I have stated, I will sustain the petitioners’ plea in law, repel the respondent’s pleas in law, and reduce the decisions of 2 November 2015 relating to the second, third and fourth petitioners.
[57] I reserve meantime all questions of expenses.