Ankara Agreement - Dependants - Indefinite Leave to Remain

21 May 2017

As many readers will know, the Ankara Agreement (more formally known as the European Community Association Agreement (ECAA)) is an association agreement made some decades ago between the EEC (nowadays known as the EU) and Turkey. It was an agreement which gave certain special working and business rights to Turkish nationals, in an attempt to facilitate Turkey’s entry into the EEC. Turkey’s entry into Europe looks rather a stalled project at the moment but nonetheless the Ankara Agreement survives.

One of the important rights that the Ankara Agreement conferred was the right of Turkish nationals to establish themselves in business in the EEC member states. And there was an associated right for the businessperson’s close family members (partners and children under 18), of any nationality, to dependant visas, so they could be with the main applicant businessperson whilst he/she was exercising their Ankara Agreement rights.

When the UK joined the EEC in 1973 the Ankara Agreement became effective in the UK, along with the rest of European law.

Under the Ankara Agreement scheme as it operated in the UK, the businessperson could acquire Indefinite Leave to Remain (ie the right to live in the UK permanently, often referred to as "ILR" or "settlement") after four years of holding their visa. In 1973, the period of four years was a standard period for working visa holders generally to obtain settlement, so this provision was in line with standard practice.

However, about a decade ago the UK rules changed, and under the new rules working visa holders were in most cases now required to accrue five years for settlement, not four. This is still the current requirement for working visa holders generally, and indeed now also for spouses/partners in both working visa and family visa categories.

However (and this is the interesting bit), this rule change did not affect Ankara Agreement businessperson visa holders. The reason for this was the "Standstill Clause", which is a clause that had been inserted into the Ankara Agreement, and which has binding legal effect on the governments of the EU countries. The Standstill Clause says that the EU governments cannot introduce any new legal restrictions into the scheme under the Ankara Agreement for the establishment of businesses and the provision of services.

As the Home Office itself puts it officially: "the United Kingdom may not impose conditions for business applicants less favourable than were in force when the Agreement came into force for the United Kingdom in 1973."

There has been a lot of litigation in the courts about what constitutes or does not constitute "new" restrictions, but generally the courts have taken the strict view that the clause means just what it says, and thus national governments have had very little room for manoeuvre about this. So, for example, whilst the Home Office would no doubt have liked to introduce the new five-year rule into the Ankara Agreement businessperson visa scheme they did not do so, presumably because they were under the impression that it would not be legally acceptable because of the Standstill Clause (and certainly the Home Office wording quoted above does rather give this impression).

So, since 1973 the situation in the UK has been like this: Ankara Agreement businessperson visa holders have been able to acquire settlement after four years. And their partners (who are subject to different rules) have been able to acquire settlement after just two years. This confers an advantage on applicants under the Ankara Agreement visa route as opposed to applicants in other visa categories, but it was the established understanding on the subject.

But recently something remarkable happened, which may have overturned this. A lady called Hacer Aydogdu, whose husband held Indefinite Leave to Remain which had been granted under the terms of the Ankara Agreement, applied to the Home Office for settlement, along with her minor son. This application was refused by the Home Office, on the basis that Mrs Aydogdu had not spent the required period of time in the UK, ie two years.

The applicants applied for Administrative Review of the refusal decision but the Administrative Review was unsuccessful. They subsequently applied to the Upper Immigration Tribunal for Judicial Review of the refusal decision and the Upper Tribunal accepted and heard the case.

And here things became unexpectedly complicated. The barrister representing the Home Office maintained, firstly, that the refusal decision had been correct, insofar that Mrs Aydogdu had indeed not spent the required two years in the UK.

But, secondly - and this was surely something that must have been quite unexpected - she said that the Home Office had been considering its position "with some care" and had come to the conclusion that, in any case, Mrs Aydogdu’s application should not have been considered under the old 1973 rules but rather under the relevant current rules, because the Standstill Clause should not apply to settlement applications.

Why did the Home Office suddenly decide this, after so many years of accepting the old rules, and what was the reasoning behind this sudden change of tack? It seems that it suddenly occurred to somebody in the Home Office or perhaps their legal team that the granting of settlement did not materially affect the establishment of business and provision of services. In other words, someone can set up and run a business just as easily and effectively if they are going to be entitled to settlement in five years rather than in four years, or if the requirements for settlement are a bit more difficult than they were previously. So if this argument is deemed to be a good argument then the Standstill Clause does not apply to settlement applications, either for dependants or for the businessperson visa holder.

But, bearing in mind the strictness with which the courts have historically interpreted the Standstill Clause, is it really a good argument? Unfortunately for those concerned, the Upper Tribunal decided that it was. In its judgement the Tribunal said: "The grant of limited leave to enter and remain to the family members of a Turkish national exercising rights will, in most cases bar the most exceptional, suffice to ensure the efficacious exercise and enjoyment of the economic right in play," and, more broadly, that: "The settlement of migrant Turkish migrants and their family members does not fall within the scope of the "stand-still clause" … as it is not necessary for the exercise of freedom of establishment…".

This decision was not very helpful for Mrs Aydogdu; clearly if she might not meet the two-year rule then there was no possibility of her meeting the five-year rule, but this decision goes well beyond her case. As the reader will note, a case that began with the question of whether a dependant met the requirement of the rules for settlement turned into a case about the basis for settlement for both dependants and businesspeople - a remarkable escalation of the issues.

Where does the Upper Tribunal decision leave us?

If the decision of the Upper Tribunal is indeed correct this changes the legal landscape somewhat. Ankara Agreement businesspeople and their dependants will not be able to acquire settlement after four years. Their applications will likely be considered under the current rules. But the current rules do not only require a longer period for the acquisition of settlement. They also contain various other requirements about, for example, minimum income and English language capability, and this is the case with both working visa and family visa categories. It is quite possible that the Home Office will seek to introduce such requirements for Ankara Agreement businesspeople and their dependants. Although the Ankara Agreement comes under the auspices of European law, Turkish nationals are not EEA nationals, and the introduction of such new rules is quite possible.

Those affected or potentially affected - and particularly in the light of Brexit - need to be aware of the problems that this judgement may engender. We must emphasise that this judgement only affects settlement applications, not initial visa applications or extension applications, but of course for some people this may be an issue or a problem.

We will of course keep our readers informed of any developments about this and if you are, or might be, affected by this we recommend you to take good legal advice.

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