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Ankara Agreement - Indefinite Leave to Remain - More News
04 August 2017
We previously reported on a case in the Upper Tribunal called "Aydogdu" ("Ankara Agreement - Dependants - Indefinite Leave to Remain", 21 May 2017). In its decision - delivered by Mr Justice McCloskey, the President of the Tribunal - the Tribunal came to a surprising conclusion, ie that migrants who hold Ankara Agreement businessperson visas and their dependants should only be able apply for Indefinite Leave to Remain (ILR) after five years in the UK.
The previous understanding - held over many years - was that Ankara Agreement businesspeople, because of the "Standstill Clause" in the Ankara Agreement, could apply for ILR after four years. And their partners could apply after just two years.
The decision of the Upper Tribunal was not challenged in the higher courts, so it should be effective law. And as a result of the decision it was expected that the Home Office would introduce new, more onerous, rules or policies for the acquisition of ILR for those under the Ankara Agreement businessperson route. The Home Office has stopped - or at any rate severely slowed down - processing such applications for ILR, and we assumed that this was so that they could reflect on the Upper Tribunal’s judgement and come up with new policies.
But no announcement or new policies have emerged from the Home Office so far. We emailed the Home Office for information about this and we received the following reply from a caseworker in the ECAA department:
"Thank you for your email regarding Suspended ILR Applications.
As you are aware, the decision in Aydogdu made clear that the ‘standstill clause’ does not apply to settlement applications under the 1973 Rules. The judgment was made by the President of the Upper Tribunal and there is no reason to depart from it. However, the Home Office will consider the judgment carefully. If changes are made to the policy then these will be announced.
Following the judgment, there has been a delay to the processing of ECAA ILR applications. We are now considering applications as normal whilst we consider the judgment and whether any changes should be made to guidance and policy. Applications will be considered in strict date order."
This seems peculiar. The judgement was published on 8 March 2017, and so the Home Office has had plenty of time to consider the judgement and come up with new policies. The Home Office generally sees its mission in life as making immigration to the UK as difficult as possible and, historically, it has taken full advantage - and in some cases more than full advantage - of legal decisions that have gone in its favour. Not only this, but sometimes they have been evidently reluctant to implement decisions that have gone against them.
Could it be that the Home Office really is still considering the judgment and is still considering making new policies? In which case perhaps it is encountering unexpected difficulties of some sort.
At any rate, the email from the ECAA Department indicates that the Home Office is now resuming processing ILR applications, but under the four-year rule, not any new five-year rule. But if at any point an applicant applies for ILR on the basis of four years as an Ankara Agreement businessperson and it is refused on the basis of any new five-year policy then there will be the right of legal challenge. There should be either a right of appeal to the First-Tier Tribunal (as per the High Court decision made earlier this year in "Akturk") or otherwise a right to administrative review by the Home Office.
But, in either situation, if the migrant were unsuccessful and kept on fighting the matter could come before the Upper Immigration Tribunal, either by the route of appeal or of judicial review. Presumably in such a situation the Upper Tribunal would follow its previous decision on the subject (because it normally follows its own decisions), but thereafter the case could reach the Court of Appeal, which would have the power to overturn the Upper Tribunal’s understanding and reinstate the four-year rule.
In such a situation, if there were a number of cases concerning this same issue, the court could join all the cases together such that its decision would determine the outcome in all the cases.
So our advice to any Ankara Agreement businessperson who applies for ILR and who is refused on the basis of only having acquired four years’ leave is to instruct a good lawyer. If such a decision can be challenged in the higher courts this will give them an opportunity to examine the four years/five years issue.