The AIRE Centre is pleased to announce that the Court of Justice of the European Union has delivered its judgment in the case of Oguz v Secretary of State for the Home Department (C-186/10), in which the AIRE Centre was granted permission to intervene as a third party.
The case concerned the application of the Article 41(1) of the Additional Protocol to the EC-Turkey Association Agreement (this Agreement provides for the freedom of establishment and freedom to provide services for Turkish nationals). Article 41(1) is also known as the ‘standstill clause’ and prohibits States that are party to the EC-Turkey Association Agreement from introducing any new restrictions on the freedom of establishment and the freedom to provide services. This means that applications under the EC-Turkey Association Agreement must be considered in accordance with the domestic immigration law rules that were in force at the time the standstill clause came into effect (the 1972 Immigration Rules), and can only be considered under subsequent rules if these are less restrictive. The AIRE Centre placed information before the Court on the abuse of rights principle under EU law and the application of this to Article 41(1), arguing that the principle did not apply to Article 41(1) which was largely a procedural mechanism and not a substantive right.
Mr Oguz is a Turkish national who was lawfully in the UK as a student from October 2000 and in August 2006 was granted further leave to remain for five years under the work permit scheme. He was made redundant from his employment in November 2006. He promptly found other employment and applied for a new work permit but this application was eventually rejected. In February 2008 Mr Oguz set himself up as a self-employed business person and in March 2008 applied for further leave to remain on the basis of his establishment as a self-employed person under the applicable provisions of the 1972 Immigration Rules.
Mr Oguz’s application was rejected on the basis that he had set up his self-employed business when he had only been given leave to remain in the UK for his previous employment and so he was not entitled to rely on the standstill clause; his application was to be considered under the current immigration rules (HC395) which had introduced a number of restrictions not found in the 1972 Immigration Rules.
In deciding whether Mr Oguz was entitled to rely on the standstill clause, the Court of Justice of the European Union stated its view that ‘The standstill clause…is intended to create conditions conducive to the progressive establishment of the right of establishment by imposing an absolute prohibition on national authorities, barring them from creating new obstacles to the exercise of that freedom by making more stringent the conditions which exist at a given time, so as not to render more difficult the gradual securing of that freedom between the Member States and the Republic of Turkey’ (§26/27).
The Court went on to find that ‘the standstill clause merely determines the provisions of the UK immigration rules in light of which the national authorities must decide on Mr Oguz’s application for further leave to remain as a self-employed person, and in no way prejudices the assessment of the merits of that application’ (§29).
‘The standstill clause must accordingly be understood as applying to a stage before the merits of the case are assessed and before an assessment is made as to whether there is any abuse of rights which may be imputed to the party concerned. In that regard, the Court has held that the issue of whether or not a Turkish national is legally resident in the territory of a Member State at the time of his application to establish himself in that State is irrelevant for the purposes of applying the standstill clause’ (§32-33).
The Court’s judgment, and in particular the clarification provided by the Court on the application of the standstill clause, is an important addition to this area of EU law.
The AIRE Centre is very grateful to Bindmans Solicitors, to Simon Cox of Doughty Street Chambers and to Charles Banner of Landmark Chambers all of whom acted for the Centre pro bono in this matter.