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Alliance of Turkish Businesspeople unsuccessful at High Court

07 April 2019

Some readers will know that in 2018 the law changed regarding Turkish businesspeople and their right to acquire indefinite leave to remain (ie settlement).

Previously, because of the operation of the "Standstill Clause" within the Ankara Agreement, they could acquire settlement after four years. This was relatively generous compared to the rules for other working visa categories, which in many cases had a five-year settlement rule.

But because of the Standstill Clause it seemed that the four-year rule had to stand still and could not be changed by the Home Office and made any more onerous. But then suddenly the Upper Immigration Tribunal found itself examining this issue and it decided that this "rule" was not really a rule and was the result of misunderstanding and misinterpretation of the Standstill Clause.

This came as rather a shock because everyone - Home Office included - had for many years accepted that the four-year rule was correct.

In any event, the Home Office subsequently changed the four-year rule to a five-year rule.

The Alliance of Turkish Businesspeople was not prepared to take this lying down, and they applied to the High Court for judicial review of the Home Office’s action (R (Alliance of Turkish Businesspeople Ltd) v SSHD [2019] EWHC 603 Admin). As they pointed out to the court, it was not just a question of the new five-year settlement rule: applicants now also faced a hefty application fee to apply for settlement (whereas previously it had been free) and they now also faced an English language and Life in the UK test requirement.

The Alliance argued that (a) the change in the law was legally wrong and (b) that Turkish businesspeople had had a "legitimate expectation" that the old scheme would stay unchanged and that is was an "abuse of process" for the Home Office to change the rules in the way it did.

The High Court refused to entertain the claim that the change was legally wrong, and the Alliance appealed further about this to the Court of Appeal, so this issue still rumbles on.

But the High Court was prepared to entertain the legitimate expectation argument, and the issues were dealt with thoroughly.

The Alliance said that Turkish businesspeople had relied on the old rules and had formed their decisions on that basis. They had decided to set up their businesses in the UK because of what the rules promised. If the new rules had been in place then they might have decided to set up businesses somewhere else or stay in Turkey. It was not fair, so it said, of the Home Office to suddenly pull the rug from under their feet once they had already come to the UK on the basis of the expectations engendered by the old rules.

But the Home Office said that they were entitled to change immigration rules if they wanted to. (And, in fairness to the Home Office, in this particular case the change in the rules was prompted by the decision in the Upper Tribunal and also by decisions in some other British courts.)

It is certainly the case that the Home Office does change the immigration rules frequently, which they can do very easily with minimal parliamentary input. In most cases such changes are not sufficiently controversial to attract a judicial review challenge but in this case the Alliance said that the Home Office had made unambiguous representations that applicants would be able to rely on the old rules.

There was, the court decided, some substance to this argument. Unlike the normal case, the Turkish businessperson rules were not just a creature of the UK immigration rules; they were also the creature of an international treaty, ie the Ankara Agreement, which is an agreement between Turkey and the EEC.

The Home Office had clearly told applicants that they would be able to rely on the four-year settlement rule and the Standstill Clause - because of course the Home Office at the time believed it to be true. They did not know that the courts were going to discover that the interpretation of the Standstill Clause was wrong.

But the High Court’s deliberations went further than this. The court posed the question whether, notwithstanding that the change in the law had frustrated legitimate expectations, it was nonetheless proportionate, bearing in mind that the Home Office has the task and duty of managing and controlling immigration.

Yes, they decided, it was. The Home Office, it said, was entitled to change the law so as to bring the rules for Turkish nationals more closely into line with those for other non-EEA nationals and the change in the law was, in any case, relatively minor. The English language/Life in the UK test requirements were not a bad thing because they are likely to aid integration. And the imposition of the application fee was reasonable, it said, because "it is a payment towards the operation of the system which will benefit the applicants".

So there we are: the Alliance of Turkish Businesspeople did not succeed. But the challenge to the legality of the rule change is still to be determined, and we will see what happens.




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