Hasan Can Agca, R (on the application of) v The Secretary of State for the Home Department
[2023] EWCA Civ 56
Yusuf Ozmen, R (on the application of) v Secretary of State for the Home Department
23 November 2023
[2023] EWCA Civ 1366
Court of Appeal
Yusuf wanted to be a mobile barber in the UK. The government rejected his application because they thought getting to one client would take too long, based on a quick internet search. The court said the government didn't look at all his evidence properly and must reconsider his application, as their decision was unfair.
Key Facts
- •Yusuf Ozmen, an 18-year-old from Eastern Turkey, applied for leave to remain in the UK as a business person under the European Community Association Agreement with Turkey (ECAA).
- •His application, supported by an 89-page business plan, was refused by the Home Office.
- •The refusal was based on insufficient evidence to demonstrate the business's viability, particularly concerning travel times to a client in Marple.
- •Ozmen's application for administrative review was also unsuccessful.
- •Ozmen challenged the decisions through judicial review, which was initially refused but later granted.
- •The Upper Tribunal dismissed Ozmen's application.
- •Ozmen appealed to the Court of Appeal on three grounds.
Legal Principles
ECAA applications must be considered under the Immigration Rules in force at the date of the UK's accession to the EEC (1 January 1973).
Saini J in R (Karagul) v SSHD [2019] EWHC 3208 (Admin)
The assessment of an ECAA application is a merits-based evaluative assessment; courts will not interfere unless the Secretary of State has not followed a fair procedure, considered irrelevant factors, or reached an irrational conclusion.
Saini J in R (Karagul) v SSHD [2019] EWHC 3208 (Admin)
While there's no obligation to interview an applicant, it would be rare for it to be fair and lawful not to interview if the application might be rejected for lack of genuine intention to run the business.
Saini J in R (Karagul) v SSHD [2019] EWHC 3208 (Admin)
The Home Office guidance on ECAA applications uses 'credibility' in two senses: genuineness/honesty and viability/feasibility.
Home Office ECAA Business Guidance, version 10 (March 2020)
Outcomes
The Court of Appeal allowed the appeal.
The Home Office failed to consider relevant evidence in Ozmen's business plan regarding public transport, relying instead on an inaccurate Google Maps search that didn't account for Covid-related temporary timetable changes. This constituted irrational decision-making and procedural unfairness.
The Secretary of State was directed to reconsider Mr. Ozmen’s application.
The Court found that the original decision was a superficial and flawed analysis of Mr. Ozmen’s application, overlooking key evidence about readily available public transport options, and relying on an inaccurate assessment of travel times.
Similar Cases
Ahmad Zarrin Ghadam, R (on the application of) v Secretary Of State For The Home Department
[2024] UKUT 281 (IAC)
Ilirjan Hima v The Secretary of State for the Home Department
[2024] EWCA Civ 680
Dahir Elmi Abdi & Ors v Entry Clearance Officer
[2023] EWCA Civ 1455
Arifuzzaman Rana v First-Tier Tribunal (Immigration & Asylum Chamber)
[2024] EWCA Civ 1211