In the case of R (Akturk) v Secretary of State for the Home Department [2017] EWHC 297 (Admin), Mr Justice Holman had granted the claimant’s judicial review on traditional public law grounds of unfair decision making. He had also held that the abolition of the right of appeal in Turkish Ankara Agreement cases was a new restriction and therefore in breach of article 41 (1) of the additional protocol (the standstill clause).

The Secretary of State was granted permission to appeal on the appeal rights issue only and so everything that Holman J says about the decision-making process remains good law.

However, the Court of Appeal handed down judgment in SSHD v CA (Turkey) [2018] EWCA Civ 2875 on 21 December 2018 overturning the decision. It concluded that Article 41 (1) does not bite on remedies and the removal of the right of appeal does not breach the standstill clause.

Lord Justice Newey, giving the main judgment (Irwin LJ and the Senior President of Tribunals agreed), gave the following reasons for the decision:

1. The case of Dorr and Unal did not shed any light on how article 41 (1) was to be construed, essentially because it wasn’t a standstill case. It was a worker case, not about self-employed person under the Ankara Agreement, which had a more developed regime of individual rights [20]-[25].
2. A change in legal remedies would not naturally, on the face of its terms, be referred to as the introduction of a new restriction [33].
3. The term “restrictions” is used in 41 (2) also and plainly refers to the bars to freedom of establishment, not legal remedies [34]. “Restrictions” is used in other directives and in none of those contexts can there be any question of it denoting means of legal redress [35].
4. The object of 41 (1) was designed to prohibit restrictions on a person becoming entitled to exercise freedom of establishment, but it is not evidence that it was intended to apply to legal remedies. Procedural matters were considered to be within the province of the member states and makes it less likely that article 41 (1) was meant to encompass remedies [36]. 

A disappointing decision. It seems in the absence of a clear authority that the standstill clause covered remedies the court were not willing to take that step.

What now?

Many cases were stayed in the Administrative Court and in the tribunal pending the outcome of this case. Mr Akturk unfortunately is not seeking to appeal this decision. Therefore, stayed judicial reviews need to consider whether to continue with other pleaded grounds or seek to amend their grounds.  

The criticisms of the Home Office’s decision-making in these cases, and particularly the need to ask questions in an interview or request further information before making assumptions, that appear in the initial Akturk judgment is undisturbed by the Court of Appeal judgment and may form a basis in many cases for continuing with the judicial review.

Some cases stayed in the tribunal may be able to argue that they had in substance made a human rights claim and the refusal amounts to an appealable decision under current legislation in order to continue with an appeal. These will of course be fact specific cases.

The Secretary of State continued to argue in the Court of Appeal that applicants had the option of reapplying with better evidence if their applications had been refused. This remains an option for some applicants. It was argued by Mr Akturk that the Home Office would often refuse applications on the basis of overstaying further to paragraph 4 of HC510 in these circumstances. But in light of the Secretary of State’s  submissions to both the Admin Court and the Court of Appeal in this regard, as long as applications were made in a timely manner following the refusal, admin review decision or withdrawal of judicial review, arguably it would be unfair to refuse only on this basis.

Finally, there maybe a different avenue to pursue in light of the Secretary of State’s position in the appeal and the court’s judgment. Although whether the change in the remedial regime was effective was part and parcel of the standstill clause argument, the principle of effectiveness was not relied upon as a stand alone ground as noted by the court in paragraphs [15] and [41]. However, the Secretary of State  positively averred in Akturk that applicants must look to the principle of effectiveness in order to maintain the remedy available to them [15]. Together with the undisturbed findings of Holman J below, criticising decision making and the administrative review regime, it maybe that an argument advanced on the principle of effectiveness will gain some traction.