1. Introduction

The case R (on the application of) Alliance of Turkish Business People Ltd v. Secretary of State for the Home Department ([2020] EWCA Civ 553) was heard by the England and Wales Court of Appeal (Civil Division) on April 28, 2020. This appeal and cross-appeal challenged the Home Office's alterations to the Immigration Rules and guidance that impacted Turkish self-employed businesspeople and their dependents' eligibility for Indefinite Leave to Remain (ILR) in the United Kingdom. The central legal questions revolved around the interpretation of the Additional Protocol to the Ankara Agreement (ECAA), specifically the "standstill clause," and whether the changes constituted an abuse of power by frustrating legitimate expectations of the applicants.

2. Summary of the Judgment

The Court of Appeal examined whether the Home Office's policy changes from July 6, 2018, infringed upon the rights of Turkish businesspeople to obtain ILR based on the standstill clause of the Ankara Agreement. The applicants argued that the changes in the Immigration Rules and the removal of certain benefits established a legitimate expectation that their ILR applications would be processed under the less stringent rules of 1973.

The original judge found that there was a clear and unambiguous representation in the Home Office's guidance that ILR applications would continue to be assessed under the 1973 rules. This created a substantive legitimate expectation. However, upon appeal, the Court of Appeal ruled that the guidance did not constitute such a representation, as it merely reflected the state of affairs at the time rather than making a binding promise about future policies.

Consequently, the cross-appeal by the Home Office was allowed, while the main appeal was dismissed. The Court held that no legitimate expectation arose from the guidance, thereby upholding the Home Office's right to modify immigration policies.

3. Analysis

3.1 Precedents Cited

The judgment extensively referenced several key precedents that shaped the court's reasoning:

• R v Secretary of State for the Home Department ex parte Savas [2000] ECR I-2927: Established that the standstill clause prevents member states from imposing stricter conditions on Turkish nationals than those in force in 1973.
• R (Buer) v Secretary of State for Home Department [2014] EWCA Civ 1109: Addressed the interpretation of similar standstill clauses in immigration law.
• BA (Turkey) v Advocate General for Scotland [2017] CSOH 27; [2017] SLT 1061: Clarified that settlement is not a corollary of the freedom of establishment under the standstill clause.
• R (Aydogdu) v Secretary of State for the Home Department [2017] UKUT 167 (IAC): Held that refusal to grant ILR does not undermine the primary rights of Turkish businesspeople under the Ankara Agreement.
• R (HSMP Forum Limited) v Secretary of State for the Home Department [2009] EWHC 711 (Admin): Demonstrated that assurances in guidance could create legitimate expectations.
• Odelola v Secretary of State for the Home Department [2009] UKHL 25: Emphasized that the Immigration Rules are subject to change and do not inherently create legitimate expectations.
• R v Education Secretary Ex parte Begbie [2000] 1 WLR 1115: Discussed the conditions under which mistaken representations by public authorities can give rise to legitimate expectations.
• R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755: Highlighted the necessity for specific and clear representations for the formation of legitimate expectations.

3.2 Legal Reasoning

The Court of Appeal delved into the doctrine of legitimate expectation, evaluating whether the Home Office's guidance created a binding promise that should be upheld despite subsequent policy changes. The judge initially found that the guidance explicitly stated that ILR applications for Turkish businesspeople would be assessed based on the 1973 rules, thus establishing a legitimate expectation.

However, upon reviewing the guidance in detail, the Court of Appeal determined that the statements made were not promises or representations about future policies but rather explanations of the current state of the law. The critical difference highlighted was that, unlike in the HSMP Forum cases where clear assurances were provided, the present guidance did not irrevocably bind the Home Office to maintain the existing rules in the face of policy changes.

Furthermore, the Court emphasized that the Immigration Rules are inherently flexible and subject to amendment, underscoring that long-standing rules do not confer immunity from change. As such, the Court concluded that no legitimate expectation was established by the Home Office's guidance, negating the appellant's primary argument.

3.3 Impact

This judgment reinforces the principle that guidance documents, while influential, do not necessarily create legally binding expectations unless they contain clear and unambiguous promises about future policies. It underscores the Home Office's authority to modify immigration rules in pursuit of policy objectives, even if such changes adversely affect specific groups previously assured of favorable treatment.

The decision serves as a cautionary tale for applicants who rely on policy guidance, emphasizing the importance of understanding the transient nature of administrative policies. It also impacts how public authorities draft guidance, highlighting the need for precision to avoid unintended legal obligations.

4. Complex Concepts Simplified

4.1 Standstill Clause

The standstill clause, as part of the Additional Protocol to the Ankara Agreement, prevents the UK from imposing new restrictions on Turkish nationals regarding establishment and service provision that are stricter than those existing at the time the agreement was signed (1973). Essentially, it aims to protect the rights of Turkish businesspeople from being undermined by future policy changes.

4.2 Legitimate Expectation

Legitimate expectation is a legal principle where individuals have a right to anticipate certain actions or policies from public authorities based on previous statements or practices. For such an expectation to be enforceable, the representation must be clear, unambiguous, and the reliance reasonable. In this case, the appellants argued that the Home Office's guidance created such an expectation regarding ILR eligibility under the 1973 rules.

4.3 Abuse of Power

An abuse of power occurs when a public authority acts beyond its legal authority or in a manner that is unjustifiably unfair. The appellants contended that the Home Office's immediate policy changes unfairly frustrated their legitimate expectations, thereby constituting an abuse of power.

5. Conclusion

The Court of Appeal's decision in R (on the application of) Alliance of Turkish Business People Ltd v. Secretary of State for the Home Department reaffirms the principle that public authority guidance does not inherently create binding legal expectations unless it embodies clear and unequivocal promises about future policies. By dismissing the appeal and allowing the cross-appeal, the court upheld the Home Office's discretion to modify immigration policies in pursuit of broader objectives, provided such changes do not stem from binding promises.

This judgment holds significant implications for both applicants and public authorities. Applicants are reminded to critically assess the nature of guidance documents, recognizing that they may not offer irrefutable assurances about future policy consistency. Public authorities, on the other hand, are encouraged to draft guidance with precision to avoid unintended legal obligations, ensuring that any statements about policy continuity are made with the necessary legal rigor.

Overall, the case exemplifies the delicate balance courts maintain between upholding individuals' legitimate expectations and granting public authorities the flexibility to adapt policies in response to evolving administrative and societal needs.