Turkish Businesspersons and Workers under the Ankara Agreement
In a previous article we looked at the history of the ECAA with Turkey (the ‘Ankara Agreement’) and the ‘standstill clause’. In this article we look at the requirements of the Ankara Agreement for Turkish Businesspersons and Workers.
Provisions governing Turkish workers – Article 6 (1) of Decision 1/80
Once a worker is already registered as belonging to the UK’s labour force (students, work permit holders, etc), 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. These are as follows:
- under the first indent of article 6(1) of decision 1/80, a Turkish worker can be granted permission to work for the same employer after one year’s legal employment, if a job is available
- under the second indent of article 6(1) of decision 1/80, a Turkish worker can be granted permission to work after 3 years of legal employment for an employer of their choice, in the same occupation
- under the third indent of article 6(1) of decision 1/80, a Turkish worker can have free access to any paid employment of their choice, after 4 years of legal employment
There is guidance published in respect of these provisions, the most recent dated 14th May 2018 (full guidance here). This guidance must, however, be read with caution, as it is now incorrect in at least one major area (settlement).
The Domestic Rules governing businesspersons (HC 509 and HC 510)
HC 509 covers the requirements for businesspersons applying for entry clearance to come to the UK to establish a business (before entry). Paragraphs 31 and 32 set out these requirements, and are as follows:-
‘For an applicant to obtain an entry clearance for this purpose he will need to show, if joining an established business, that he will be bringing money of his own to put into the business; that he will be able to bear his share of the liabilities; that his share of the profits will be sufficient to support him and his dependants; that he will be actively concerned in the running of the business; and that there is a genuine need for his services and investment. The accounts of the business for previous years will require to be produced, in order to establish the precise financial position. An entry clearance will not be issued where it appears that the proposed partnership or directorship amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment for which a work permit is required.’
‘If the applicant wishes to establish in business in the UK on his own account, he will need to show that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.’
HC 510 covers the requirements for businesspersons already lawfully present in the UK for leave to remain to establish a business in the UK (after entry). Paragraph 21 sets out these requirements, and as can be seen, provides for an initial 12 month period and an extension period (which has usually been 3 years) thereafter. The provisions are as follows:-
Businessmen and self-employed persons
People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant’s part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required. Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment. Where the application is granted the applicant’s stay may be extended for a period of up to 12 months, on a condition restricting his freedom to take employment. A person admitted as a businessman in the first instance may be granted an appropriate extension of stay if the conditions set out above are still satisfied at the end of the period for which he was admitted initially.’
Those familiar with the extensive requirements for entrepreneurs under the Points-Based System will be surprised by the sparse nature of the provisions governing applications from potential Turkish businesspersons – for example, there is no minimum investment level and there are no specified documents which need to be provided. There is, however, extensive guidance published in respect of these provisions, the most recent dated 16th March 2018 (full guidance here). Again, this guidance must be read with caution, as it is now incorrect in at least one major area (settlement), and the Home Office are slow to update to reflect case law and changes in policy – and indeed in statute. Further, in scrutinising this lengthy guidance, it must be noted that the UK courts have repeatedly found that applications must be considered by the Home Office employing a ‘wide-ranging discretion’, thanks in part to the sparseness of the 1973 rules, coupled with the prohibitions against new restrictions or requirements set out in the ‘standstill clause’, see Akinci and EK.
Contact Our ECAA Immigration Barristers
At Richmond Chambers we have particular expertise in matters relating to applications under the ECAA / Ankara Agreement with Turkey. Call our immigration barristers on 0203 617 9173 or complete our enquiry form below.