ECAA Ankara Agreement - Applying For Settlement
Recent changes to policy and the Immigration Rules have brought uncertainty to the settlement regime for Turkish businesspersons (present under the ECAA with Turkey, the Ankara Agreement) where once the path was clear and – settled! In this article we look at some of the changes and challenges facing Turkish businesspersons looking to settle in the UK under the Ankara Agreement.
ECAA Ankara Agreement – Applying For Settlement – Background
Until early 2015, relying on paragraph 28 of HC 510, ECAA Turkish businesspersons could apply for Indefinite Leave to Remain with their dependants, having established themselves in self-employment for 4 years (link to previous article). Paragraph 28 (of HC 510, the ‘after entry’ provisions) provides:-
“28. A person who is admitted in the first instance for a limited period, and who has remained here for 4 years in approved employment or as a businessman or a self employed person or a person of independent means, may have the time limit on his stay removed unless there are grounds for maintaining it. Application for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4. Once the time limit is removed no further permission from the Home Office or the Department of Employment is needed to engage in any kind of business or employment. Application for variation of leave to enter with a view to settlement may also be received from people originally admitted as, for example, visitors; but permission has to be limited to close relatives of people already accepted for settlement.”
The ‘close relatives’ referred to above are those who had initially entered as dependants of the Turkish businesspersons, which is made clear in other paragraphs of both the before and post entry 1973 rules. As can be seen from paragraph 28, it did not matter how long the ‘dependants had been in the UK, and there were no other conditions imposed such as the ‘Life in the UK test (KoLL) or an English language requirement. The 1973 rules established that a Turkish businessperson who had been self-employed for 4 years, could be entitled to settlement. It was considered settled law that the ‘’standstill clause’’ applied to paragraph 28, meaning that the imposition of more restrictive conditions on the establishment and residence of businesspersons than those which were in place when the member state entered into the agreement were not permitted. The UK entered into the Agreement in 1972 and the rules which govern ECAA businesspersons (HC 509 and 510) came into force in 1973.
Turkish workers, having established themselves in employment in the UK, begin to acquire cumulative (and progressively less restrictive) rights of residence which they can rely upon directly with the passing of set numbers of years. As with EU qualified persons, so long as Turkish workers continued to work under the conditions set out in Decision 1/80, they had a right to reside. Previously, mirroring the other private life routes to settlement, they could apply for condition-free residence (indefinite leave to remain) after 10 years. An attempt to standardise the workers’ qualifying period for settlement (10 years) with those for businesspersons (4 years) failed in 2014 (see ‘Buer‘) as it was determined by the Court of Appeal that the two regimes were not only set up at different times, but were also concerned with different rights of residence.
ECAA Ankara Agreement – Applying For Settlement – The First Unheralded Change
In 2011 the Home Office guidance relating to settlement for ‘Ankara’ businessperson dependants inserted new qualifications. As in other categories under the Immigration Rules, the new ‘Ankara’ guidance stated that dependants must have resided in the UK for two years before they could apply for indefinite leave to remain. However, this policy was not followed, and applications were processed as before (under paragraph 28 of HC 520).
Suddenly, in early 2015, dependants applying for indefinite leave to remain along with their ECAA businessperson sponsor, were refused if they had not met the 2 year residence requirement. And if their sponsor had successfully been granted settlement, the dependant/s could not apply for further leave under the provisions because it was considered that their sponsor, having acquired settlement, was no longer an Ankara businessperson.
A flurry of litigation ensued, and in early 2017 two judgments were handed down by courts in England and Scotland. The first, on 21st February 2017, was a Scottish Court of Sessions judgment (BA & Ors, Re Judicial Review [2017] CSOH 27, available on EIN), which was echoed swiftly by a decision of the Upper Tribunal on 8th March 2017 (Aydogdu). These Applicants were successful in their applications and their decisions were declared unlawful, but the judgments went further – citing ‘Buer’, declaring that the Ankara agreement (and ‘standstill’) for both businesspersons and workers did not encompass settlement. This was little comfort for the Applicants, dependants of settled businesspersons, who were left with no right to be present in the UK and no clear route to regularise their status.
ECAA Ankara Agreement – Applying For Settlement – The Second Unheralded Change – A Rule Change
In the year which followed the ‘dependants’ litigation, no new policies were published to give settlement guidance to Ankara applicants. Further litigation ensued in the Administrative Court; arguments seeking to prove that BA and Aydogdu were wrong, made some headway. On 16th March 2018, new guidance was published. The guidance boldly stated that businesspersons and their dependants present under the Ankara agreement were not entitled to apply for settlement. The Turkish workers’ guidance, updated on 14th May 2018, continued to state that these provisions did not provide for settlement.
Please note that both sets of guidance are still on the Home Office website and have not been updated (see rule change below) with regard to settlement.
The Rule Change
On 15th June 2018, with no prior notice, changes to the Immigration Rules were announced (HC 1154) setting out a comprehensive settlement regime for those present under the ECAA Ankara Agreement. These new rules came into force on 6th July 2018, and are now set out in an Appendix to the Immigration Rules (Appendix ECAA), and the most recent guidance to these rules, dated 5th November 2018.
ECAA Ankara Agreement Settlement – Workers and their dependants
With these rule changes, settlement for workers under the Ankara agreement has now been added to Article 6(1), and, after 5 years’ presence in the UK under the provisions, a Turkish worker can apply for indefinite leave to remain.
ECAA Ankara Agreement Settlement – Businesspersons and their dependants
Mirroring the changes to the worker’s provisions (and, indeed, the EEA permanent residence qualifications, requiring 5 years’ residence, the rule change sets out new rules which seek to replace paragraph 28 of HC 510 (the 4 year rule). However, new requirements have also been imposed – the KoLL, an English language requirement, and large fees for each individual have been attached to applications for settlement where, applying ECJ jurisdiction, they had not been levied before. Further, by these changes, weighty fees have also been applied to applications for extensions of leave under the provisions. These charges run contrary to European jurisprudence which has ruled firmly against the charging more than nominal amounts for the issue of proof of entitlement to rights of residence, than those paid by EU nationals (Commission v Netherlands, Sahin).
Challenges To The New Rules
The failure to consult the Turkish community in respect of these changes, to make transitional arrangements for their implementation, and indeed the absence of any warning as to the scope and far-reaching nature of these changes has, unsurprisingly, given rise to new legal challenges. In a recent matter before the Administrative Court challenging the new rules, a group of Turkish businesspeople were granted permission by Mrs Justice Yip [R (on the application of the Alliance of Turkish Businesspersons) v SSHD, permission granted 27.11.18] on the issue of whether these businesspersons had legitimate expectations of a grant of settlement after 4 years – without conditions – when they first entered the UK, made their investments and established their businesses. There are still issues which remain live after BA and Aydogdu, relating to whether the ‘standstill clause’ does in fact apply to conditions relating to the application for settlement by businesspersons, and whether, in themselves the nature of the imposed new conditions are impermissible restrictions under European jurisprudence (see, in particular, Kahveci and Genc), and it is hoped those issues too will come before the Court of Appeal.
What Are The New Requirements For Settlement Under The ECAA Ankara Agreement?
Requirements vary depending on which category of Appendix ECAA the applicant falls under. The basic requirements which apply to both workers and businesspersons, applying for indefinite leave to remain under Appendix ECAA are as follows:-
There is a requirement that the applicant has been present under the provisions for 5 years. This is in line with the EU permanent residence conditions.
There is a requirement to demonstrate sufficient knowledge about life in the United Kingdom. This is fulfilled by taking the Life in UK test. More information on the nature of this test can be found here. In addition, there is an English language requirement. This element can be satisfied in either one of two ways: by having successfully completed a higher education qualification, which is recognised by UK NARIC, and which was taught or researched in English; or by having taken an English language test with an approved provider (Trinity College London or IELTS). Appendix KoLL provides more guidance on this requirement.
Note that neither of these conditions are imposed on EU nationals – yet.
There is a requirement that the applicant be able to support themselves and any dependants without recourse to public funds. This means relying on any benefits provided through state funds. Note that there is still no imposition of the Appendix FM income requirements.
Finally, the case must not contain any features contained in the ‘general grounds for refusal’, which can be found in section 322 of the Immigration Rules. This is a less discretionary regime than had previously been applied under HC 510. Paragraph 4 of HC 510 stated that when breaches of conditions or other matters had gone wrong in the course of the time the applicant had spent in the UK, all circumstances should be taken into account and discretion exercised – unless there had been a flagrant abuse of rights, the application still stood to be considered.
Extensive guidance to the requirements dated 6th July 2018 was published as the new rules came into force.
The Fees
The current fee to make an application for settlement from within the UK is £2,389 per application, i.e. per person. But as with most fees controlled by the Home Office, the amount may be subject to change at any point.
Rights of Appeal
At present there is no right of appeal against a refusal of an application for indefinite leave to remain for Ankara applicants. Administrative review is offered. However, this is being contested in the Court of Appeal, with judgment expected some time in the New Year (and will be the subject of a future article). This is an important issue because Turkish businesspersons will have their qualifying 5 year period of residence assessed in conjunction with the operation of their businesses, and, in these applications where there are no mandatory requirements as are found in the points-based system, discretion is often exercised incorrectly by decision makers.
Contact Our ECAA Ankara Agreement Immigration Lawyers
For expert advice regarding applications for settlement or for further leave to remain under the ECAA / Ankara Agreement, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
