SS & Ors (Ankara Agreement, no in-country right of appeal) Turkey

Factual and Procedural Background

This notice concerns appeals by four appellants, all nationals of Turkey, who are failed asylum seekers claiming entitlement under the "standstill" provisions of the Ankara Agreement due to engaging in business or self-employment in the United Kingdom. The appeals raise the general issue of whether such appeals may be brought in-country. Originally, seven appellants were considered, but three had their appeals withdrawn following the Secretary of State's withdrawal of the decisions under appeal. The initial hearing focused on whether the appellants had an in-country right of appeal. A preliminary decision was made in favour of an in-country right of appeal, but this was subject to reconsideration by the current panel. Attention was drawn to a recent Administrative Court judgment (Mehmet Parmak) which held there was no in-country right of appeal for a similar appellant. The parties were invited to make submissions on this. Further procedural developments included the withdrawal of an additional case. All four appellants arrived in the UK between 2000 and 2003, claimed asylum at port, were granted temporary admission or bail, but were refused asylum and lost subsequent appeals. After exhausting asylum appeal rights, they applied for leave to enter or remain under the Ankara Agreement as businessmen or self-employed persons. Their applications were refused by the Secretary of State, who issued refusal letters and, in some cases, removal directions. Appeals were lodged relying on the Ankara Agreement and, for three appellants, human rights grounds. Issues arose as to the timeliness and appealability of the decisions, and whether the decisions were validly made and served.

Legal Issues Presented

1. Whether failed asylum-seeking Turkish nationals engaged in business or self-employment in the UK have an in-country right of appeal under the Ankara Agreement's standstill provisions.
2. Whether the refusal letters and notices constitute appealable immigration decisions under the Nationality, Immigration and Asylum Act 2002.
3. Whether appeals against such decisions can be validly brought in-country given the legislative framework, including the impact of the Asylum and Immigration Tribunal (Procedure) Rules 2005.
4. Whether the appellants made valid asylum or human rights claims to the Secretary of State sufficient to confer an in-country right of appeal.

Arguments of the Parties

Appellants' Arguments

• They rely on the "standstill" provisions of the Ankara Agreement to claim rights arising from engaging in business or self-employment in the UK.
• They argue that they have an in-country right of appeal against the refusal decisions.
• Some appellants also argue that removal would breach their human rights under Article 8 and Article 1 Protocol 1 of the European Convention on Human Rights.
• They submit that human rights claims were implicit in their applications under the Ankara Agreement due to their business activities and property interests.
• They contend that human rights claims made in grounds of appeal post-decision suffice to establish an in-country right of appeal.
• They maintain that refusal letters constitute appealable immigration decisions even if formal notices were not served, and any such procedural requirements can be waived.

Respondent's Arguments

• The respondent submits that the refusal letters do not constitute appealable immigration decisions under s.82 of the 2002 Act.
• Only the first appellant was served with a valid notice of decision; therefore, others have no appeal rights in-country.
• The decisions were invalid as they were not signed by an immigration officer, contrary to the Immigration Act 1971.
• Turkish nationals are not EEA nationals and cannot rely on rights conferred under Community Treaties for in-country appeals.
• Human rights claims must be made to the Secretary of State to confer an in-country right of appeal; the appellants did not do this prior to 4 April 2005.
• Post 4 April 2005 procedural changes mean that appeals cannot be made in-country unless the human rights claim was made to the Secretary of State before the appeal.

Table of Precedents Cited

Court's Reasoning and Analysis

The court commenced by assuming that the refusal letters constituted appealable immigration decisions under s.82 of the 2002 Act, despite procedural irregularities regarding service and signatory authority, relying on the Carltona principle. It then examined whether the appeals could be brought in-country under s.92 of the 2002 Act. The court noted that none of the decisions fell within the categories listed in s.92(2) that always allow in-country appeals. Consequently, the appellants would need to rely on s.92(4)(a) or (b) to establish in-country appeal rights.

The court rejected reliance on s.92(4)(b) as Turkish nationals are not EEA nationals. It then analyzed s.92(4)(a), which requires that appellants must have made an asylum or human rights claim "to the Secretary of State" while in the UK. The appellants' applications under the Ankara Agreement did not expressly contain human rights claims, and the court found it impermissible to read such claims implicitly into the applications. It further held that human rights claims made only in grounds of appeal post-decision do not satisfy the requirement of being made to the Secretary of State.

The court considered procedural changes effective from 4 April 2005, whereby notices of appeal are filed with the Tribunal rather than served on the Secretary of State. This change precludes making asylum or human rights claims to the Secretary of State via the notice of appeal, thereby precluding in-country rights of appeal for claims made after this date unless the claim was made earlier to the Secretary of State. The appellants in this case all lodged their appeals after this date and did not make earlier claims to the Secretary of State.

The court acknowledged that the 2006 Immigration, Asylum and Nationality Act will amend definitions to address this issue in the future but held that under the current law, the appellants have no in-country right of appeal. The court reinforced this conclusion by reference to the 1973 legislative framework, under which no in-country right existed for persons in the appellants' position, consistent with the Administrative Court's decision in Mehmet Parmak.

Holding and Implications

The court held that the appellants do not have an in-country right of appeal against the refusal of their applications under the Ankara Agreement. Specifically, failed asylum-seeking Turkish nationals relying on the Ankara Agreement's standstill provisions who lodged appeals on or after 4 April 2005 without having made asylum or human rights claims to the Secretary of State prior to the appeal do not have a valid in-country appeal.

The direct effect of this decision is that the appeals of all four appellants are invalid and must be dismissed. The court did not establish any new precedent beyond applying existing statutory provisions and case law to the facts. The decision clarifies the procedural requirements for in-country appeals under the 2002 Act and the impact of the 2005 procedural changes on asylum and human rights claims in this context.