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Court of Appeal says Turkish Business Persons had no legitimate expectation of settlement

The Court of Appeal decision in R (otao Alliance of Turkish Business People Limited) v Secretary of State for the Home Department [2020] EWCA Civ 553 was handed down this morning (28 April 2020).  The Court was composed of Lord Justice Flaux, Lord Justice Newey and Lady Justice Rose.  The decision challenged was the 2019 decision of Mr Justice Dingemans, accessible here

The case concerned indefinite leave to remain for Turksh Business People – a contested matter since the abolition of the route to settlement under the Ankara Agreement in March 2018.  We have previously discussed this important topic here – and the matter of whether indefinite leave to remain is part of the “standstill” clause or whether there was a legitimate expectation of settlement are vitally important issues. 

High Court decision – March 2019

The High Court decision was that there was a legitimate expectation of settlement, as the Home Office had given a “clear and unequivocal representation” that individuals could get indefinite leave to remain – settlement – after four years.  However, at §49 Mr Justice Dingemans held that closing the route was justified: 

“as a proportionate response in the public interest. This is because the Home Office was entitled to attempt to introduce some uniformity with the nationals of other states, and because changes to the requirements have been restricted so as to reduce the impact on the applicants for ILR… the increase of 1 year before ILR can be obtained is important, but the extra time is not excessive when compared to some other routes of settlements, even for those who had already satisfied the requirements to obtain ILR but had not yet applied for ILR before the policy changed. Different considerations might have applied if more extensive and more onerous requirements had been imposed on the applicants by the change of policy.” 

Court of Appeal decision – April 2020

The Court of Appeal heard grounds of appeal as well as a cross appeal by the SSHD: 

Grounds of Appeal:

(1) The judge erred in law in applying the test of proportionality and concluding that it was justifiable to frustrate what he had found was a substantive legitimate expectation as a proportionate response having regard to the respondent’s aim to achieve a measure of uniformity with the nationals of other states;
(2) The judge’s findings that there had been an unambiguous promise, that there had been detrimental reliance and that the promise had been made to a specific group should have led him to conclude that the respondent’s aim to achieve a measure of uniformity did not justify the imposition of the detrimental consequences of the policy changes on those already within the route to settlement.

Grounds of Cross-Appeal: 

  1. it was an error of law for the judge to find that there was a legitimate expectation that immigration policy will not be changed.

The Court of Appeal considered the question of legitimate expectation first, as this matter necessarily precedes the question of proportionality:

50 “it is common ground that before a statement or representation can be relied upon as giving rise to a legitimate expectation, it must be clear, unambiguous and devoid of relevant qualification and Ms Ford QC accepted that what was required was also a promise or representation that the present policy will continue. In the present case, there is nothing in the Immigration Rules in force in January 1973 which indicated that they would continue in force so far as Turkish business people who were in the scheme are concerned. Indeed, by definition, those Rules have long been superseded.” 

54 … Unlike the statement made in the Guidance in the HSMP Forum cases, no promise or representation was being made as to the future and, specifically, no promise was being made that, if the policy did change, those already in the scheme would continue to be treated under the 1973 Rules. In my judgment, that is the critical difference between the present case and the HSMP Forum cases. Nor do I consider that there is anything in the point that the application of the 1973 Immigration Rules under the scheme had remained unchanged for 45 years. As Sir James Eadie QC submitted, the fact that the Immigration Rule in question has been in force for a very long time does not change its fundamental nature or mean that, unlike any other Immigration Rule, it may not change if the government policy changes.

  1. It follows that, in my judgment, there was no statement or representation capable of giving rise to a legitimate expectation and the judge was wrong in the conclusion he reached on this issue at [41] to [43] of the judgment. Accordingly, I would allow the cross-appeal.”  (emphasis added)

Despite the appeal being bound to fail, submissions were considered in full from §56 – 65, and assessed by the Court of Appeal at §66-68:   

  1. … at [49] of his judgment, the judge has only addressed whether the respondent had shown good reasons for the change of policy so far as the future is concerned. In relation to those who were already in the scheme, the judge has not considered at all whether there was any necessity for an immediate change of policy which affected them adversely, as opposed to a change for the future which affected only those yet to enter the scheme. He has not considered at all whether a more proportionate approach by the respondent would have been to effect the change of policy only in relation to those who were not yet in the scheme and/or to introduce transitional provisions which preserved the original policy so far as concerned those who were already in the scheme…

67, Where the judge has failed to deal at all with the position of the individuals already in the scheme in considering the issue of proportionality and fairness, then… I consider that … this Court is entitled to review and interfere with the judge’s assessment, even though it involved an evaluation of facts: see [55]-[59] of the judgment of the Privy Council given by Lord Neuberger in The United Policyholders Group v The Attorney-General of Trinidad and Tobago [2016] UKPC 17; [2016] 1 WLR 3383.

The conclusion drawn by the Court of Appeal will be little comfort to Turkish Business Persons hoping to settle on the four year route to settlement: 

“Accordingly, if I had considered that the judge was correct in his conclusion as to whether there was legitimate expectation, I would have concluded that he had erred in his evaluation that it was justifiable to frustrate that legitimate expectation by making the immediate changes in policy and I would have allowed the appeal. However, since I have concluded that there was no statement or representation capable of giving rise to a legitimate expectation, so that the cross-appeal must be allowed, it necessarily follows that the appeal must be dismissed and the judge’s judgment upheld, albeit on different grounds.” (emphasis added)

It remains to be seen if an application to the Court of Appeal for permission to appeal to the Supreme Court will be sought. 

As Turkish Business Persons await any further developments, there is, of course, Appendix ECAA and the five year route to indefinite leave to remain introduced in 2018 for any applicants who can have lived in the UK continuously for five years, and can afford the £2,389 application fee for themselves and any family members.  

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