Yusuf Ozmen, R (on the application of) v Secretary of State for the Home Department
[2023] EWCA Civ 1366
Hasan Can Agca, R (on the application of) v The Secretary of State for the Home Department
31 January 2023
[2023] EWCA Civ 56
Court of Appeal
A young man wanted to open a grocery store in the UK using money from his uncle. The government said he needed to show he knew how to run a business, which he didn't. The court agreed the government was right to refuse his application because he didn't show he could succeed.
Key Facts
- •Hasan Can Agca (appellant), a Turkish national, applied for leave to remain in the UK under the Ankara Agreement to establish a grocery business.
- •His application was refused by the Secretary of State for the Home Department (respondent), and subsequent administrative reviews upheld the refusal.
- •The refusal was primarily based on the appellant's lack of business experience and understanding of financial management.
- •The appellant challenged the decision through judicial review, which was dismissed by Robin Knowles J.
- •The Court of Appeal considered whether the respondent's decision was rational and whether the judge's decision was correct.
Legal Principles
The Ankara Agreement and associated Brussels Protocol prevent the UK from imposing stricter rules or practices than those in force in 1973 regarding Turkish nationals establishing businesses.
Ankara Agreement, Brussels Protocol, Re: EK (Ankara Agreement: 1972 Rules: Construction: Turkey) [2010] UKUT 425 (IAC)
Applications under paragraph 21 of HC510 (1973 Immigration Rules) are merits-based assessments, with a wide margin of appreciation for the Secretary of State.
R (Karagul) v SSHD [2019] EWHC 3208 (Admin)
While experience and qualifications are not prerequisites under the 1973 Rules, they are relevant factors in the overall assessment of an applicant's ability to establish a viable business.
ECAA business guidance (v10.0)
Outcomes
The Court of Appeal dismissed the appeal.
The respondent's decision, upheld by the judge, was rational and reasoned. The absence of evidence regarding the appellant's business experience was a relevant and decisive factor in assessing the viability of the proposed business. The respondent’s concerns were clearly communicated, and the appellant failed to provide sufficient evidence to address them.
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