EUROPEAN COMMUNITY ASSOCIATION AGREEMENT (ECAA-2) WITH TURKEY

Under the European Community Association Agreement (ECAA) with Turkey, Turkish citizens have certain rights. Turkish citizens can apply to enter or stay in the United Kingdom if they want to establish themselves in business. The European Community Association Agreement (ECAA) with Turkey, known as the Ankara Agreement was signed on 12 September 1963. Article 13 of that Agreement refers to the progressive abolition of restrictions on freedom of establishment and provision of services. Article 41 known as the standstill clause, of the Additional Protocol to the Ankara Agreement, signed on 23 November 1970 states the following: “The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.” This clause prohibits the introduction of any new restrictions which means that the contemporary laws and restrictions on the free movement of people particularly concerning matters where individuals want to establish their own business cannot be applied to Turkish citizens.

Therefore, the effect of the standstill clause is that Turkish nationals seeking leave to enter or remain in the UK as business person ought to have their applications considered under domestic rules that are no less favourable to them than those in force when the UK joined the EU on 1 January 1973. The on entry rules at that time were HC509 and the after entry rules were HC510. These rules are applicable for those who wish to rely on the Ankara Agreement.

The European Court of Justice in case C-16/05 Tum and Dari (20 September 2007) held that the Ankara Agreement prohibits the introduction, from its entry into force, of any new restrictions on the exercise of the freedom of establishment and freedom to provide services, including those relating to the conditions governing first admission to a Member State.

The right to take the benefit of the standstill clause is subject to one exception which is consistent with the ECJ’s findings in Tum and Dari. Where fraud or abuse is established, the standstill clause will not be applied and the merits of the person’s business application will only be considered under the relevant current rules. The current immigration rules in force, which is far stricter than that in force in 1973 is HC395 as amended. This will normally be the Tier 1 (Entrepreneur) category in paragraphs 245H-245N or, where applicable, on general grounds for refusal.

The Ankara Agreement has recently come to light, in the last decade or so. It is an area where there is still scope for development. The UKBA, in an aim to control false claims and unfounded business are also introducing new measures such as a new interview process where applicants wishing to rely on the Ankara Agreement are interviewed by UKBA staff.

Entry Clearance / Leave to Remain

Applicants, who demonstrate a genuine intention to establish a viable business, may be granted leave to remain (or Entry Clearance) for 12 months from date of decision. After the 12 month ‘trial’ period for the business, if the business succeeds the applicant can then make an application for further leave to remain in the UK which will be considered under the After Entry Business Provisions in order to continue with their business. Generally and “appropriate extension of stay” for a period of 3 years is granted but this is not definitive. Upon completion of a total of 4 years leave to remain under a Turkish ECAA self employed visa, applicants may apply for indefinite leave to remain in the UK. Upon being granted indefinite leave to remain, applicants can then apply for naturalisation as a British citizen after a further 12 months.

Family Members

Family members of Turkish ECAA Self Employed persons can apply to join their spouse, civil partner, unmarried or same sex partner or parent (if the applicant is a child under the age of 18 at the time of the application) in the UK. They can also apply for settlement in the UK.

RECENT LEGAL DEVELOPMENTS

Recent Legal Developments

Strasbourg upholds right of British courts to impose whole-life terms

Whole-life tariffs are compatible with the European Convention on Human Rights and do not amount to ‘inhuman or degrading treatment’, the European Court of Human Rights has ruled. The case was taken to Europe in 2008 by Arthur

Forced marriage now a crime

Forcing someone to marry against their will is now a criminal offence. New legislation introduced on 16 June 2014 by the government is designed to help people in England and Wales. It also applies to UK nationals overseas

Supreme Court dismisses ‘right to die’ appeal

The Supreme Court dismissed the right to die appeal brought by the wife of the late Tony Nicklinson and campaigner Paul Lamb in a landmark judgment today. The appellants claimed the prohibition on assisted suicide in section 2(1)

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