30 April 2018
The British government has substantially impeded Turkish citizens from securing indefinite leave to remain in the UK
- The Ankara Agreement had previously provided a route to permanent residence for Turkish nationals who set-up businesses in the UK
- Applications for indefinite leave to remain have now been suspended following a ruling by the courts
- The British government has failed to clarify the situation, leaving the future of a significant number of the community in limbo
The British government has indicated that it will no-longer accept indefinite leave to remain (ILR) applications from Turkish nationals under the provisions of the Turkish Economic Community Association Agreement (ECAA), otherwise known as the ‘Ankara Agreement’. The decision was announced via an update to the relevant guidance page of the British government’s website on March 16, which stated that ECAA ILR applications made after this date would no longer be processed.
The move has significantly added to the uncertainty over the status of Turkish nationals seeking permanent residence in the UK. Until the recent changes, the Ankara Agreement had enabled Turkish passport holders to apply for a visa to establish their own business in the UK on relatively attainable terms, subsequently making them eligible for ILR after a period of four years and eventually full citizenship.
The Ankara Agreement was signed between Turkey and the European Economic Community (a precursor to the European Union) in 1963, with the aim of increasing economic integration as a step towards Turkish accession to the community. In 1970, an additional protocol was added which stipulated that signatures to the Ankara Agreement should “refrain from introducing new restrictions on the freedom of establishment and freedom to provide services”. This ‘stand still clause’ has made Turkish citizens immune from further restrictions on establishing businesses in the UK since the country became a signatory of the Ankara agreement by joining the European Economic Community in 1973.
The rights of Turkish citizens applying to live and work in the UK under the Ankara Agreement were upheld in a landmark 2007 ruling by the European Court of Justice in favour of two Turkish nationals seeking to set up a business in the UK. Lawyers acting for Veli Tum and Mehmet Dari successfully appealed against the British government’s decision to remove the pair from the country on the basis that it contravened the ‘stand sill cause’ of Ankara Agreement by imposing further restrictions of the freedom to establish and provide services.
This paved the way for a visa track under the Ankara Agreement, giving Turkish citizens a preferential status to non-EU nationals, who are required to invest at least £200,000 in the UK in order to acquire a comparable ‘Tier 1 Entrepreneur’ visa. In comparison, Ankara Agreement applicants are only required to show that the profits of their business will be sufficient to support them and their dependents, effectively allowing them to work as self-employed contractors or run small businesses.
However, the British government has increasingly sought to constrain the implications of the Ankara Agreement, introducing restrictions on the applications process, including language tests and fees. Turkish citizens also remain disadvantaged in comparison to their EU counterparts in several respects, including access to public services and employment.
The British government’s decision to suspend ILR applications under the Ankara Agreement comes after a ruling by the Upper Tribunal of the Immigration and Asylum Chamber in March 2017 that permanent residence does not in fact fall under the ‘stand still clause’. Rather, limited leave to remain is deemed sufficient to fulfil the Ankara Agreement.
The British government is likely to argue that it has no influence over a judicial decision. However, nothing in the judgement is mandatory, and the Home Office is under little obligation to apply its conclusions more widely. The changes are also likely in contravention of several recent rulings by the European Court of Justice, which upheld the right of indefinite leave to remain under the Ankara Agreement, most notably in a case from Germany in 2014.
Instead, the move to limit the right of Turkish citizens under the Ankara Agreement appears to be politically driven. Prior to suspension, a growing number of ILR applications under the Ankara Agreement have been turned down through the implementation of a more stringent reading of the necessary criteria. This peaked after the Brexit vote, when migration from Turkey in particular was demonised.
If, as expected, the UK leaves the European Union in March 2019, it will no longer be bound by the Ankara Agreement, meaning the provisions it afforded Turkish citizens are likely to be cancelled. The status of Turkish citizens will therefore depend in large part on the UK’s relationship with the EU, with the Ankara Agreement tied closely to the customs union. The UK staying in the customs union may see the Ankara Agreement remain in place, but government ministers have continued to insist that this will not be the case.
The British government has indicated that it plans to put an alternative arrangement for Turkish citizens in place, but this has so-far failed to materialise. Thus far, the only public statements on the issue have come from the British Embassy in Turkey, which sought to assuage the Turkish publics concerns without addressing the issue directly.
By suspending ILR applications under the Ankara Agreement, the British government has left large numbers of Turkish citizens in limbo, many of whom have been living, working, and paying tax in the UK on the understanding they would likely be granted residence. This has been done arbitrarily, without due warning, and in many cases contravenes written guarantees provided to those who have already begun the application process.
The Ankara Agreement has functioned as the basis for Turkish citizens to make an active contribution to the UK, setting up many thousands of small businesses and building a vibrant community. Urgent clarification of the situation is therefore needed from the British government, or it risks damaging the reputation for openness and fairness that it has built amongst the Turkish citizens at home and abroad.
Please read summary of our event with legal professionals on the recent changes to Ankara Agreement here.
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