Turkish Worker Visa Post-Brexit

The Turkish Worker route is not immune to the legislation relating to the withdrawal of the UK from the EU. This post explores the current situation during the transitional period to 31 December 2020, and speculates about the future of the Turkish Worker visa route after Brexit. 

Current Turkish Worker Visa Route

A Turkish worker visa application is made pursuant to the Association Agreement between the European Economic Community and Turkey (‘ECAA or Ankara Agreement’), signed at Ankara on 12th September 1963, between Turkey and the then member states of the European Economic Community, which later became the EU. 

Article 41 of the additional Protocol to that Agreement was signed at Brussels on 23rd November 1970. This additional Protocol put in place a ‘standstill clause’, the effect of which is that Turkish nationals are able to establish themselves in self-employment in any EU member state under domestic immigration rules of that member state that are no less restrictive than at the date the protocol came into force.

Once duly registered as belonging to the UK’s labour force, the rights of Turkish workers are set out in article 6(1) of decision 1/80 of the Association Council established by the European Community Association Agreement (ECAA) with Turkey. They:

• shall be entitled in that Member State, after one year’s legal employment, to the renewal of his permit to work for the same employer, if a job is available; 
• shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that State, for the same occupation; 
• shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment. 

This is an EU (pre-accession) treaty derived right. However, the procedure for applying per Article 6, “shall be those established under national rules.” 

To break down the requirements: 

• Firstly, to be a “worker”, you must perform services for and under the direction of another person, in return for payment in cash or kind. The activities must be real and genuine, and not small scale marginal activities.  
• Secondly, you must be duly registered as belonging to the UK’s labour force, meaning you are employed on the same conditions of work and pay as those claimed by other workers who pursue similar activities in compliance with the UK’s rules and regulations.
• Thirdly, you must have been in at least one year of legal employment with the same employer. This must have been a stable and secure position in the labour force and you must have an undisputed right of residence on the basis of valid and lawfully obtained leave which permits employment.

Rights can also be limited on grounds of public policy, public health and public security. The Turkish Worker Guidance (which is in some respects outdated) indicates that the Home Office will also consider breaches of immigration laws although they will not automatically lead to exclusion from consideration under the ECAA provisions.

Brexit and the Transitional Period Ending  

The United Kingdom officially left the European Union at 11pm on 31 January 2020. The European Union (Withdrawal) Act 2018 repealed the European Communities Act 1972 on 31 January 2020, which is defined as exit day, by The European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 3) Regulations 2019. From that day, the UK ceased to be a member state of the EU.  

The European Union (Withdrawal) Act 2018 still repeals the European Communities Act 1972 on exit day, but its effect has been saved by the withdrawal agreement, for a transitional/implementation period ending on 31 December 2020.

Is the Ankara Agreement covered during the transitional period?

Yes. It does not fall into the exclusions in Article 127 of the Withdrawal Agreement, which states, “Unless otherwise provided in this Agreement, Union law shall be applicable to and in the United Kingdom during the transition period”. “Union law” is defined in Article 2 of the Withdrawal Agreement, as including “the international agreements to which the Union is party and the international agreements concluded by the Member States acting on behalf of the Union”. The ECAA is such an international agreement. 

In theory, the UK could request an extension of up to 2 years before 1 July 2020. However, currently section 33 of the European Union (Withdrawal Agreement) Act 2020, adds section 15A to the European Union (Withdrawal) Act 2018 prohibiting an “extension of the implementation period”.

Section 4 of the European Union (Withdrawal) Act 2018 provides for EU rights and obligations not falling within sections 2 and 3, including directly effective rights contained within EU Treaties, to be “saved”, i.e. recognised and available in domestic law after the implementation period. Under this section, rights under the Ankara Agreement would continue as directly effective rights. 

However, this is limited by section 2 of The Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019, to avoid preferential treatment towards Turkish nationals, which could affect the UK’s WTO obligations (according to the Explanatory Memorandum to those Regulations). The rights, powers, liabilities, obligations, restrictions, remedies and procedures derived directly or indirectly from Article 13 (for abolishing restrictions on freedom of establishment) and Article 14 (abolishing restrictions on freedom to provide services) of the Ankara Agreement and Article 41 of the Additional Protocol to that Agreement will cease to be recognised and available in domestic law (and to be enforced, allowed and followed accordingly).

This appears to cease the EU treaty-derived rights of Turkish workers under the ECAA at the end of the implementation period. 

Turkish Workers after the Brexit Transition period 

It is not entirely clear what will happen to those already in the Turkish worker route on 1 January 2021. 

In the Home Office’s guidance they refer to Turkish workers as being granted “permission to work”. However, there are two reasons to believe that the Home Office has granted leave to remain to Turkish workers (as opposed to for example simply acknowledging rights as it does with EEA residence cards):

• The Appendix ECCA ILR guidance refers to a “Turkish national who has valid leave to remain under the ECAA for the purpose of working here” (page 7); and 
• Appendix ECAA 1.1(a) also refers to an ECAA worker as a Turkish National who “(b) has been granted leave to remain under the ECAA worker category, which has not been revoked, curtailed or lapsed”.

Therefore, it is arguable that as Turkish Workers have been granted leave to remain in the UK, extending their initial grant which permitted them to lawfully work in the UK. Insofar as I can see, there is no specific provision to bring leave to remain which has been granted to Turkish workers to an end at the end of the transitional period.

In fact the rest of the system is switching to one requiring leave to remain. For example, The Immigration and Social Security Co-ordination (EU Withdrawal) Bill when it is brought  into force will omit the exemption under Section 7 of the Immigration Act 1988 of the requirement to have leave to enter or remain for persons exercising EU rights and nationals of member States.

Unfortunately, at this point, I have seen no further update regarding trade negotiations between the UK and Turkey to secure the future of Turkish business persons and workers in the UK. 

However, the Explanatory Memorandum to the Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 suggests a route may be kept open: 

2.12: […] Unless changes to UK law are made in specific areas, the removal of these rights is not expected to prevent those […] Turkish nationals who are operating businesses or providing services immediately before exit day from continuing to be able to do so immediately after exit day (where they retain residence rights).

2.18: “Directly effective rights of establishment and free movement of services derived from Articles in the Ankara Agreement and the Additional Protocol have an impact on the immigration regime applied to Turkish nationals in the UK, providing the legal basis for preferential treatment of Turkish nationals (compared to non-EU/EEA). This Instrument ensures that Turkish nationals operating a business or providing services in the UK immediately before exit day will not lose residence rights by virtue of the disapplication of the directly effective rights of establishment and free movement of services. Changes to immigration policy will be delivered through separate legislation. See 6.5 below.”

6.5: “A route will be kept open through the immigration rules to ensure Turkish national service providers and their family members currently resident in the UK will be able to continue to reside in the UK where they continue to meet the relevant conditions.” 

On the basis of this statement, Turkish workers currently in the route appear to be safe after the transitional period ends. Whether they will be granted further leave, and be able to reach 5 years, is a separate question which is not clear from the above, and will depend on the “route” that is kept open.

Furthermore, it is not clear whether you must have your rights under the ECAA already acknowledged and leave to remain granted on that basis prior to 31 December 2020. If you apply before 31 December 2020, but it is not decided until the New Year (when you no longer have rights), no transitional provisions appear to be in place. 

Our recommendation to Turkish Workers

Therefore, given the 6-month processing timeframe for these applications, I would recommend that eligible applicants apply as soon as possible to have the best chances of having their Turkish worker applications successfully decided before 31 December 2020 (although of course, especially during COVID-19, there is no guarantee). 

If you are in the UK, as a Turkish Tier 2 (General) or other worker who has been made redundant or had their job placed in jeopardy due to the coronavirus, this may be an option for you to quickly pursue.   

Contact our Business Immigration Barristers

For advice and assistance with applying for a Turkish Worker visa, contact our business immigration barristers on 0203 617 9173 or complete our enquiry form below.