No In-Country Right of Appeal for Turkish Nationals Under the Ankara Agreement: SS & Ors (2006) UKAIT 74

Introduction

The case of SS & Ors (Ankara Agreement, no in-country right of appeal) Turkey ([2006] UKAIT 74) addresses the contentious issue of whether Turkish nationals, whose asylum claims have been rejected in the United Kingdom, possess an in-country right of appeal under the Ankara Agreement. The appellants, all Turkish nationals engaged in business or self-employment in the UK, leverage the "standstill" provisions of the EC-Turkey Association Agreement (1963) and its Additional Protocol (1970) to challenge their refusal of leave to enter or remain in the country.

Summary of the Judgment

The United Kingdom Asylum and Immigration Tribunal (UKAIT) concluded that the appellants do not hold a valid in-country right of appeal against the decisions refusing their applications under the Ankara Agreement. This determination was based on the legislative framework in effect post-4 April 2005, which requires appellants to have made explicit asylum or human rights claims to the Secretary of State, a condition unmet by the appellants in this case.

Analysis

Precedents Cited

The Tribunal extensively referenced prior case law to navigate the complex legal landscape surrounding the Ankara Agreement:

R(Mehmet Parmak) [2006] EWHC 244 (Admin): Held that Article 41(1) of the Additional Protocol does not confer a direct right of establishment or residence, but prohibits new restrictions.
C-37/98 Savas [2000] ECR 1-2927: Determined that Article 13 of the Ankara Agreement lacks direct effect in conferring individual rights.
R (Tum and Dari) v Secretary of State for the Home Department [2004] EWCA Civ 788: Explored the applicability of standstill clauses to Turkish nationals who failed asylum claims.
SA (Bangladesh) [2005] UKAIT 00178: Provided a framework for understanding sections 82, 84, and 92 of the Nationality, Immigration and Asylum Act 2002.
JM (Liberia) [2006] UKAIT 00009: Confirmed that human rights claims can be raised in notices of appeal.

Legal Reasoning

The Tribunal’s legal reasoning can be dissected into several key components:

Standstill Provisions: The Ankara Agreement's standstill clauses prevent the introduction of new restrictions on the freedom of establishment and provision of services. However, these do not automatically grant individuals a right to appeal immigration decisions within the UK.
Legislative Framework: Under the Nationality, Immigration and Asylum Act 2002, sections 82, 84, and 92 govern the appeal process. The Tribunal examined whether the appellants' situations fit within the categories that permit in-country appeals.
Effect of Procedural Changes Post-2005: The Immigration and Asylum Tribunal's procedural rules, established after 4 April 2005, necessitate that human rights claims be explicitly made to the Secretary of State to qualify for in-country appeals. The appellants failed to meet this requirement.
Direct Effect of Treaty Provisions: Drawing from the ECJ’s decision in Savas, the Tribunal noted that while certain treaty provisions can have direct effect, they do not, in this context, facilitate an individual’s right to an in-country appeal.

Impact

This judgment has significant implications for Turkish nationals in the UK who rely on the Ankara Agreement to secure their immigration status:

Limitation on Appeal Rights: Turkish nationals no longer retain an in-country right of appeal if they did not explicitly include asylum or human rights claims in their applications before the procedural changes in 2005.
Increased Legal Uncertainty: The decision underscores the necessity for clear and timely assertion of human rights claims to maintain appeal rights, potentially complicating the immigration process for businesspersons and self-employed individuals.
Future Legislation Considerations: Anticipated changes with the Immigration, Asylum and Nationality Act 2006 may alter the landscape, potentially reintroducing or redefining appeal mechanisms for affected individuals.

Complex Concepts Simplified

Standstill Provisions

These are clauses within international agreements that prevent parties from enacting new restrictive laws that would impede the rights established under the agreement. In this case, the standstill clauses in the Ankara Agreement prevent the UK from introducing new restrictions on Turkish nationals' ability to establish businesses or provide services.

In-Country Right of Appeal

This refers to the ability of an individual to challenge an immigration decision within the UK, without having to leave the country. The Tribunal determined that such a right was not available to the appellants under the current legislative framework.

Direct Effect

A principle where certain provisions of international agreements are directly enforceable in domestic courts without the need for additional legislation. The Tribunal clarified that while some treaty provisions have direct effect, they do not extend to granting individual appeal rights in this context.

Conclusion

The judgment in SS & Ors (2006) UKAIT 74 clarifies the limitations of the Ankara Agreement's standstill provisions in granting in-country appeal rights to Turkish nationals. By meticulously analyzing the legislative framework and relevant precedents, the Tribunal affirmed that without explicit asylum or human rights claims made to the Secretary of State, appellants do not possess a valid in-country right of appeal. This decision emphasizes the critical importance of adhering to procedural requirements and underscores the evolving nature of immigration law, particularly in the interplay between international agreements and domestic legislative provisions.

For practitioners and individuals navigating the complexities of UK immigration law, this case serves as a pivotal reference point for understanding the boundaries of appeal rights under the Ankara Agreement and highlights the necessity for precise compliance with procedural mandates to safeguard one’s legal avenues.