Turkish businesspeople lose the right of appeal - again


15 January 2019
Some while ago in early 2017 the High Court made a decision that no doubt pleased some members of the Turkish community. The court decided that it was wrong for the Home Office to maintain that there was no right of appeal to the First-Tier Immigration Tribunal for Turkish businesspeople who had applied for visas under the Ankara Agreement but been refused.

Government and Parliament had decided to remove the right of appeal for a large number of immigration categories but the Home Office had gone further than this and made their own detailed rules about who did and who did not have the right of appeal, and it had decided that Turkish businesspeople did not. They were, said the Home Office, only entitled to “administrative review” - a process carried out by the Home Office itself, not by a court or tribunal.

But the High Court decided that this was wrong, because the “standstill clause” in the Ankara Agreement prevented the Home Office from introducing any form of new restrictions on the freedom of establishment for such migrants.

Not only this, but the court made some strong criticisms of the administrative review process. It was a remedy, the court said, that was far inferior to an appeal. We can hardly disagree with this. Our experience has demonstrated on many occasions that Administrative Review decision-making is very variable and sometimes very poor.

It is true of course that on occasion Immigration Judges make poor decisions, but probably less often, and there is a reasonably effective right of appeal to the Upper Immigration Tribunal against alleged errors in First-Tier Tribunal decisions. In the case of alleged errors in administrative review decisions the only remedy lies in judicial review. Judicial review is in many cases also carried out by the Upper Tribunal but it is a different and more difficult process than an appeal with generally less useful remedies.

But the Home Office were evidently not very happy with the High Court’s decision and they appealed to the Court of Appeal, which has recently published its appeal decision - the case is called “CA (Turkey)”.

The court’s decision informed us that more than 120 Turkish businesspeople had had their visa applications refused and had appealed to the First-Tier Tribunal, and all those appeal cases had been put on hold pending the Court of Appeal’s decision.

This must presumably mean that if the court decided that it had been wrong of the Home Office to remove the right of appeal then those appeal cases should proceed. But, on the other hand, if it decided that it had been correct for the Home Office to remove the right of appeal then those cases should presumably be discontinued, because there was not truly any right of appeal in the first place.

Well, sadly for those appellants - and indeed for others - the Court of Appeal saw things the Home Office’s way and the Home Office won. We imagine that those appellants should now be entitled to administrative review - but which, as we know, is not such a good remedy.

The substantial issue before the court was whether the standstill clause really did prevent adverse changes in rights of appeal. The less substantial issue was whether an appeal is a better remedy than an administrative review. What the court did say about the latter was that European law - which ultimately governs the Ankara Agreement - only requires that there be an “effective” remedy for challenge. This means in practical terms that as long as there is some kind of functioning system to provide a remedy for refused application that is good enough - it does not have to be a particularly “good” remedy.

Regarding the main issue, the court heard detailed arguments but was ultimately not persuaded that changes in rights of appeal really did meaningfully affect “freedom of establishment” for Turkish businesspeople. The court felt that the procedural arrangements for challenging decisions were too far removed from the protected legal rights under the Ankara Agreement and the standstill clause.

The court posed the issue in a succinct way: does the standstill clause “bite” on remedies? And it proceeded to determine that it did not.

Many of us (and evidently including the High Court judge) hold strongly in our minds the reality that an appeal is a better and fairer remedy than administrative review, and removal of the right of appeal is always a painful subject. But the Court of Appeal, as explained above, completely separated this issue from the issue concerning the standstill clause.

So - and it hardly needs to be said - it is better to submit a top-quality visa application rather than unnecessarily expose yourself to the tender mercies of administrative review.

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