Ankara Agreement - Indefinite Leave to Remain - Abolished

22 March 2018

Readers may well be familiar with the Upper Immigration Tribunal case of "Aydogdu", which was heard last year. (We previously reported about this: "Ankara Agreement - Dependants - Indefinite Leave to Remain", 21 May 2017 and "Ankara Agreement - Indefinite Leave to Remain - More News", 4 August 2017.)

The essence of the decision in the case of Aydogdu was that the "standstill clause" in the Ankara Agreement businessperson category - which prevents EU national governments from introducing any new restrictions on the establishment of businesses - does not apply to the provisions governing indefinite leave to remain (settlement).

The reasoning of the Tribunal revolved around the idea that the rules for settlement (whether for businesspeople or their family dependants) do not strongly affect the ability of businesspeople to establish themselves in the UK. This judgement thus indicated that the Home Office could, if it wanted to, introduce more onerous rules for settlement for such businesspeople and their dependants.

The wheels of the Home Office grind slowly but now we have discovered their intentions. They have announced that any Ankara Agreement businessperson applications for settlement - or from their family members - will not be accepted if postmarked later than 15 March 2018 (https://www.gov.uk/government/publications/turkish-ecaa-business-guidance).

The announcement was apparently posted on the Home Office website on 16 March 2018 - which, as the astute reader will note, was after 15 March 2018. (This is old trick that the Home Office sometimes employs.)

The Home Office website announcement went on to explain that settlement applications made before 16 March 2018 will be processed as normal and that affected migrants are still able to apply for further leave to remain - which is not affected by the Aydogdu judgement.

It also explains that a new immigration category for Ankara Agreement indefinite leave to remain is going to be introduced into the Immigration Rules. This new category will, we strongly imagine, be in line with other already-existing indefinite leave to remain categories, will certainly be far more onerous than the previously-existing rules and will inevitably be a five-year route, not a four-year one.

And applications under this new category will be charged: not free, as under the previous rules.

Corresponding amendments have now been made to the Home Office’s "ECAA business guidance" document, which informs the public about they will process Ankara Agreement applications. In connection with migrants who have applied for settlement after 15 March 2018, it contains the following:

"While such persons are not eligible for settlement under the ECAA, further periods of 3 years’ leave should be granted to any applicant who has erroneously applied for Settlement -and meets the necessary ECAA requirements for leave to remain."

The word "erroneously" is in fact erroneous: there was no reason why migrants who qualified should not apply for settlement, because the Home Office had not changed any rules. A decision of the courts is not binding on the public at large until such time as it is incorporated into a legal framework.

Anyway, the meaning of these words seems to be that applications for settlement will now be treated as applications for further leave to remain. So if the application is a strong one at least affected migrants will get something.

So where does this leave us? Turkish businesspeople were of course already worried about Brexit. The Ankara Agreement, although incorporated into the old UK Immigration Rules, is an agreement made with the EU, and is thus also part of European law. It was hardly likely that the Agreement would survive Brexit and, in any case, such indications as there were from the Government were to the effect that it is not very keen on the Agreement.

But if a migrant has acquired settlement via the Ankara Agreement they are "safe": it is hardly credible that the Home Office would try and take away settlement from somebody who has legitimately acquired it.

But for those who have not yet acquired settlement - and particularly those who have applied for settlement but who have now discovered that their application will not be fully entertained - the situation is a lot more worrying.

So we wait to see what kind of scheme the Home Office will introduce for settlement. And what kind of scheme will they introduce for future Turkish businessperson visa applications - initial applications and extension applications? And a subsidiary question: will there be transition arrangements for those already in the system?

It is surely quite certain that the current regime for initial applications will be abolished. It confers great advantages (which existed in 1973, when the rules were introduced in the UK) and is completely out of kilter with modern Home Office thinking. But when? Maybe Brexit date, supposedly in March 2019. The latest news is that the Government may agree to an immigration transition period up until December 2020, but it is by no means certain that it will apply to the Ankara Agreement.

Whatever new scheme is going to be introduced it is certainly going to be more onerous than that which exists at the moment. And it is possible that the Home Office will simply say that Turkish nationals will in future have to meet the criteria for Tier 1 Entrepreneur. Anyone who has experience of both Ankara Agreement business visas and Tier 1 Entrepreneur visas will be aware of the huge differences between the two, and of the various difficulties that face applicants in the latter category.

We will keep our ears close to the ground and inform our readers of developments.

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