FS (Breach of Conditions: Ankara Agreement) Turkey [2008] UKAIT 66 – Comprehensive Legal Commentary

Introduction

The case of FS (Breach of Conditions: Ankara Agreement) Turkey [2008] UKAIT 66 pertains to the interpretation and application of the Ankara Agreement of 1963 within the context of UK immigration law. The appellant, a Turkish national, sought to vary her leave to remain in the United Kingdom from a visitor status to that of a self-employed business person. Her application was denied by the Secretary of State, and subsequent appeals were similarly dismissed by the Immigration Judge and upheld upon reconsideration by the United Kingdom Asylum and Immigration Tribunal. This commentary delves into the intricacies of the case, exploring the legal principles involved, the court’s reasoning, and the broader implications for immigration law and the Ankara Agreement.

Summary of the Judgment

The appellant, admitted to the UK as a visitor with a condition prohibiting employment, sought to switch her status to self-employed under Paragraph 21 of HC 510, relying on the Ankara Agreement. Her application was initially refused on grounds of insufficient evidence of genuine self-employment and credibility concerns. Upon appeal, the Immigration Judge maintained the refusal, asserting that the appellant's operations amounted to disguised employment without substantive business assets or liabilities. The appellant further sought reconsideration, arguing that the size of her business should not be a restricting factor and that the Ankara Agreement should provide her entitlement despite breaches of her visa conditions. The Tribunal, however, invoked the ex turpi causa principle, rejecting the appellant's reliance on actions that breached her leave conditions. The decision underscores that the Ankara Agreement does not override the conditions of UK immigration leave.

Analysis

Precedents Cited

The judgment references several key precedents that shape the court's decision:

R (Tum and Dari) v SSHD – This case elucidates the boundaries of the "fraud exception" within the Ankara Agreement framework, establishing that rights under the Agreement cannot be based on fraudulent or illegal conduct.
Polanski v Cond Nast Publications Ltd [2005] UKHL 10 – Highlights the ex turpi causa principle, emphasizing that public policy prevents courts from assisting claimants who base their claims on illegal actions.
Tinsley v Milligan [1994] 1 AC 340 – Reiterates that individuals cannot rely on their own illegality to support a legal claim, reinforcing the stance against condoning breaches of immigration conditions.
LF (Turkey) [2007] EWCA Civ 1441 – Demonstrates the Court of Appeal’s refusal to grant judicial review when applicants breach immigration conditions, aligning with the principles upheld in the present case.

Legal Reasoning

The central legal issue revolves around whether the Ankara Agreement allows Turkish nationals to breach the conditions of their UK leave. The court applied the ex turpi causa principle, which prohibits reliance on one's own wrongdoing to establish a legal claim. The appellant's breach—working as a self-employed individual while holding a visitor visa that explicitly prohibits employment—constitutes an illegal act. The court reasoned that allowing such breaches to form the basis of immigration applications would undermine the integrity of immigration controls and public policy.

Furthermore, the court assessed Paragraph 21 of HC 510, concluding that it does not grant an inherent right to self-employment but only provides the opportunity to apply for such status, subject to meeting stringent criteria. The appellant's inability to demonstrate genuine self-employment, coupled with her breach of visa conditions, solidified the refusal.

Impact

This judgment reinforces the precedence that immigration conditions are binding and that the Ankara Agreement does not supersede these conditions. It sets a clear boundary that while the Agreement facilitates certain freedoms for Turkish nationals, it does not provide carte blanche to violate immigration terms. The ruling emphasizes the necessity for applicants to adhere strictly to visa conditions and the limitations of leveraging international agreements to justify breaches. Future cases involving similar circumstances will likely reference this judgment, underscoring the priority of national immigration laws over international agreements in matters of leave conditions.

Complex Concepts Simplified

Ex Turpi Causa

This Latin term translates to "from a dishonorable cause, an action does not arise." In legal contexts, it prevents individuals from pursuing legal remedies if they are based on their own illegal or immoral actions. In this case, the appellant's attempt to base her immigration status on activities that breached her visa conditions is barred by this principle.

Ankara Agreement

An international treaty signed in 1963 between Turkey and the European Economic Community (now the European Union) aimed at fostering economic integration and allowing Turkish professionals to establish businesses within the EEC. However, it does not override national immigration laws and conditions of stay imposed by member states.

Paragraph 21 of HC 510

Part of the UK Immigration Rules, Paragraph 21 allows visitors to apply for permission to establish themselves as self-employed individuals. However, this is subject to strict criteria, including evidence of genuine business activities, personal investment, and the capability to sustain oneself without resorting to employment prohibited under the visitor visa.

Conclusion

The FS (Breach of Conditions: Ankara Agreement) Turkey [2008] UKAIT 66 judgment underscores the supremacy of national immigration laws over international agreements concerning the conditions of stay. By applying the ex turpi causa principle, the court effectively barred the appellant from leveraging her breach of visa conditions to alter her immigration status. This decision serves as a pivotal reference point for future cases, reinforcing the imperative for immigrants to comply with the terms of their visas and delineating the boundaries within which international agreements like the Ankara Agreement operate in the realm of national immigration jurisprudence.