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Ankara Agreement/ECAA settlement route - new rules
23 June 2018
Turkish migrants (and their lawyers for that matter) got rather a shock in May 2017 when the Upper Immigration Tribunal, in a case called "Aydogdu", suddenly decided that the four-year route to settlement for Ankara Agreement businesspeople was wrong and inappropriately generous (see "Ankara Agreement - Dependants - Indefinite Leave to Remain", 21 May 2017).
This was a very curious case because this issue was not, initially, the issue being tested. For years everybody had accepted that the four-year route was legally correct. But the matter was suddenly introduced, out of the blue, by the Home Office and the Tribunal got its teeth into it.
The result of the Tribunal’s decision might seem to be that such Turkish businesspeople would now have to meet a five-year requirement for settlement - which is the requirement for many other types of working visa. Tier 2 General migrants, Representatives of Overseas Businesses and Ancestry visa holders, for example, have such a five-year route. And Tier 1 Entrepreneurs and Tier 1 Investor in many cases are subject to a five-year route (but they have the possibility of accelerated routes to settlement in certain defined circumstances).
Now, just over one year down the road, it has all become clear. In the latest statement of changes to the Immigration Rules the Home Office has set out the new settlement route for Ankara Agreement businesspeople and their family members. The new rules will be effective on all decisions taken on or after 6 July 2018.
It is, as widely expected, a five-year route. And, as also widely expected, there are various other requirements that bring this route more into line with other working routes. The Ankara Agreement always had a rather hybrid status. Although a creature of Turkish/EEC agreement it was nonetheless governed by the UK Immigration Rules but, because of the "standstill clause" within the Agreement, it was governed by the Immigration Rules as they stood in 1973, when the UK joined Europe. The style and content of the Rules in 1973 were hugely different to what we see in the Rules today: they were a great deal broader and vaguer.
Now we have the new rules, which are in a much more modern style - and also more onerous. There is a new "less than 180 days" rule, ie that the migrant must not have been outside the UK for more than 180 days per 12-months during the five-year period. This is not too bad perhaps but there is now also an English language and Life in the UK test requirement.
And there are new requirements that the business or businesses on which the migrant is relying have been "genuinely operated" by the migrant and, further, that such a business/businesses must be "viable". This is not precisely defined, but we can guess that a "viable" business is doing some trading and produces sufficient profits that can realistically support the businessperson and any family members. If the business/businesses are lossmaking then there may surely be a problem.
Those affected might perhaps take some comfort from the fact that the new settlement rules are not entirely as strict and complex as comparable rules for the points-based system. But, on the other hand, they are rather stricter than those for Representatives of Overseas Businesses, which do not have the "viable" criterion. And there is one small bonus (but which might not affect many people): Turkish businesspeople can combine their leave with previously-held leave as a Tier 1 Entrepreneur to achieve the five-year period.
The new rules also govern Turkish "workers" (ie those who work in employment in the UK) and their family members under the Ankara Agreement. This is a separate category from the businessperson category. Previously, such migrants could only acquire settlement after ten years continuous lawful residence, either entirely as a Turkish worker or in conjunction with other forms of immigration leave.
Under the new rules there is now a five-year route for settlement for such migrants. This could of course be good news, although the new rules are very similar to the businessperson rules, ie with 180-day and English language/Life in UK test requirements. And such Turkish workers can combine their leave with previously-held leave as a Tier 2 migrant in order to achieve the five-year period.
The new rules have been long-awaited and do not contain any really major surprises. At least now we know exactly where we stand and, with Brexit looming, clarification is useful. We imagine that the Ankara Agreement cannot survive Brexit, but we hope and trust that when it happens those who are already in the Ankara Agreement route when Brexit happens will still be able to rely on the new rules.