Last Chance to Switch to the Turkish Worker Route
At the end of the Brexit transitional period, at 11pm on 31 December 2020, new applications from Turkish citizens who have been present working in the UK in other employment categories will no longer be able to switch into the Turkish Worker Visa route. After that date, the provisions set out in Appendix ECAA will preserve the rights of those present in the category before 31 December 2020. Thereafter the UK will no longer be a participant in the agreement between the EU and Turkey (the ECAA or ‘Ankara’ agreement) and the Turkish worker provisions will no longer form part of the law of the UK. Therefore if a Turkish worker completes the first year of employment after 31 December 2020, they cannot apply to switch into the category because effectively it will no longer exist for new applicants.
Current Turkish Worker Visa Route
We have discussed eligibility for the Turkish Worker Visa route in previous blogs, most recently here. The current provisions which set out the rights of Turkish workers are contained within Article 6(1) of decision 1/80 of the Association Council established by the European Community Association Agreement (ECAA) with Turkey. It states that workers with Turkish nationality:-
- 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.
These are known as the ‘three indents’; note that the rights to employment accumulate after one year, three years and four years present on the Turkish worker route.
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 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. Please note that this guidance has not included the provisions for qualifying for indefinite leave to remain contained in Appendix ECAA (see below).
Applications to switch to the Turkish Worker route must be made before 31 December 2020
The position of Turkish workers present in the UK under these provisions has therefore been advantageous, particularly with the reduction in the qualifying period to apply for indefinite leave to remain in the category with the introduction of Appendix ECAA, from 10 years to 5 years. Appendix ECAA further preserves the right to apply for indefinite leave to remain after Brexit for Turkish workers and their partners and children after 31 December 2020.
As the ECAA is an agreement between Member States of the European Union and Turkey, when the transition period ends on 31 December 2020 and the UK finally exits the EU, this route will be closed to new applicants.
Changes to the Immigration Rules announced on 22 October 2020 will preserve the ability to apply for extensions of leave for those workers (and their partners and children) already present in the category, broadly under the same ‘three indent’ criteria (see above). Further, after 31 December 2020 those already on the route will no longer be called ‘Turkish’ workers, they will become ‘ECAA’ workers.
Time is therefore running out for Turkish Workers who have accumulated the rights under the ECAA to switch to this route.
Contact our Immigration Barristers
For advice and assistance with applying to switch to the Turkish Worker route before 31 December 2020, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.