R v Secretary of State for the Home Department ex parte Tum and one other action [2003] EWCA Civ 788 Nicola Rogers - Immigration Team

Wednesday 11 February 2004

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The Secretary of State had petitioned the House of Lords seeking to overturn the Court of Appeal's decision (leave having been refused by the Court of Appeal).The matter was listed for oral hearing in the House of Lords on Wednesday, 26 October 2004 to determine the Secretary of State's application for leave to appeal.

Their Lordships decided to refer a question on the scope of the standstill clause in Article 41(1) of the Additional Protocol to the European Court of Justice (the ECJ). The justification for the reference was the importance of the case and the impact it would have in the UK as well as other Member States. Mr Tum did oppose the reference being made on the basis that Community law is clear and the Court of Appeal's judgment was correct. Their Lordships decided that it would be appropriate for the ECJ to determine the issues. Leave to appeal was not in fact granted and is adjourned pending the reference to the ECJ.

The order for reference is now in the process of being agreed between the parties and the Respondent will endeavour to ensure that the order for reference is made as quickly as possible. It is anticipated that the ECJ will not deliver a final judgment in this matter sooner than 18 months.

In the meantime all applications from Turkish nationals for leave to enter the UK (whether in the UK on temporary admission or applying from outside the UK) will likely be put on hold pending the outcome of the reference to the ECJ. Any Turkish national wishing to make such application should do so on the understanding that it is unlikely to be processed at the present time. Applicants without work permission will have to seek the Secretary of State's permission to commence in business pending decision on their applications.

There is no reason for in-country switching applications from Turkish nationals wishing to remain in the UK in business to be put on hold pending the outcome of the reference to the ECJ since the ECJ already determined that the standstill clause does apply to Turkish nationals who have already entered the UK (even if they have overstayed their leave). A Turkish national who applies to remain in the UK in business should have his application determined under the 1973 Immigration Rules (HC 510: after entry).

Nicola Rogers

Two Garden Court Chambers

Instructed by Bindman & Partners

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