What is the current law under the Ankara Agreement in relation to immigration of self-employed Turkish citizens into the United Kingdom?
Tuuli Nikkilä 10866035
CONTENTS
1 Introduction 3 1.1 Methodology 4 1.2 Structure of the thesis 5
2 The Ankara Agreement 7 2.1 The history and substance of the Ankara Agreement 7 2.2 The standstill clauses 8 2.3 Article 41(1) of the Additional Protocol 9
3 The immigration legislation in the United Kingdom 16 3.1 Immigration legislation applicable under the Ankara Agreement 16 3.2 Administrative review 24 3.3 Immigration legislation generally applicable to third-country nationals 26
4 Abusive and fraudulent conduct 29 4.1 The establishment and application of the ‘fraud exception’ 30 4.2 The modern approach towards fraud and abuse in the United Kingdom 36
5 Conclusion 40
Bibliography
2 1 Introduction
The Ankara Agreement is a decades old agreement but it remains to stay relevant as it still continues to benefit Turkish nationals that wish to migrate and establish in business in the United Kingdom, as well as in other Member States of the European Union. Turkey is not a Member State of the EU but this Agreement enables Turkish self-employed businesspersons to enter the EU Member States more freely than other third-country nationals that wish to enter and establish in business in the EU. In 2011 it was estimated that there were almost 2,5 million Turkish nationals residing in the EU and approximately 150,000 of these individuals resided in the UK.1 It has been predicted that approximately one third of these Turkish nationals that reside in the UK 2 have established in business as self-employed businesspersons.
The purpose of this thesis is to thoroughly describe the current immigration legislation that applies to Turkish nationals that wish to migrate and establish themselves in business in the UK under the Ankara Agreement. This area of law has gone through changes during the past years and therefore it is an interesting topic to research. The actual wording of the provisions of the Ankara Agreement has remained the same but the interpretation of these provisions has evolved during the past years. This evolution is also reflected in the scope and the applicability of the national immigration rules in the UK. This thesis aims to establish what the current scope of the UK immigration provisions applicable to Turkish nationals under the Ankara
Agreement is today.
I worked in an immigration law practice in London and I was intrigued about the Ankara Agreement because the law that applies in the UK under this agreement has gone through significant changes. I wanted to find out what are the key legal provisions that govern Turkish self-employed nationals in the UK today and how
1 House of Commons, Home Affairs Committee, Implications for the Justice and Home Affairs area of the accession of Turkey to the European Union, Tenth Report of Session 2010-2012, 38 http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/789/789.pdf (accessed on 26.5.2015). 2 Saniye Dedeoglu, Migrants, Work, and Social Integration: Women’s Labour in the Turkish Ethnic Economy (Palgrave Macmillan 2014) 52-53 and House of Commons, Home Affairs Committee, Implications for the Justice and Home Affairs area of the accession of Turkey to the European Union, Tenth Report of Session 2010-2012, 38.
3 those provisions are interpreted and applied. I also chose to focus on the UK because I have previous knowledge of the legal system and I am aware that this area of law has evolved significantly in the UK during the past years. Hopefully this thesis can be useful to law practitioners and other individuals that wish to deepen their knowledge in this area of law.
The problem that this thesis aims to address is that the interpretation, and therefore the scope, of the law applicable to Turkish self-employed nationals in the UK has changed a lot during the past years. The rapid changes and developments in this area of law have made it more challenging for law practitioners and Turkish nationals themselves to keep up with the changing law. This thesis aims to solve this problem by providing clarification of the current law. Especially the approach towards fraud and abuse in relation to Ankara Agreement has been an ambiguous topic for years. Also the new Immigration Act 2014 has arguably introduced new challenges to Turkish self-employed nationals. It is well known that the immigration rules in the UK in general are considered to have become increasingly more demanding in relation to third-country nationals wishing to establish in business and therefore it is essential to find out what the current position of the immigration rules applicable to self-employed Turkish nationals is under the Ankara Agreement. This thesis is necessary because an updated description of the law is needed in this ambiguous and unclear area of immigration law.
1.1 Methodology
This is a descriptive thesis that focuses to describe the immigration rules that are currently applied to Turkish nationals wishing to migrate and establish in business in the United Kingdom under the Ankara Agreement. The purpose of this thesis is not to propose new law or carry out a comparison between different legal systems. In this thesis, I will rely on a number of different sources. The Ankara Agreement will be consulted together with English immigration rules that were in force in 1973, which is the year when the Additional Protocol came into force. This Protocol is discussed more thoroughly in chapter 2 of this thesis. Also, current English immigration rules will be explored in order to see how different the current immigration laws are compared to the laws that were in force in 1973, which apply to
4 Turkish nationals under the Ankara Agreement. Textbooks and journal articles will be used as sources in this thesis. However, the variety of literature in this area of law is not very versatile or broad, so heavy reliance will be placed on case law and Home Office documents. UK and ECJ case law effectively demonstrates and explains how the UK immigration rules applicable to Turkish self-employed nationals under the
Ankara Agreement have evolved and how they are applied today.
1.2 Structure of the thesis
After the introduction, this thesis will progress to consider and describe the Ankara Agreement. The background and the substance of the Ankara Agreement will be outlined. Especially Article 41(1) of the Additional Protocol is thoroughly discussed in this chapter because it is arguably the most important provision of the Agreement in relation to self-employed Turkish nationals. The applicability and scope of Article
41(1) are described in this chapter with reliance on ECJ case law.
Once the Ankara Agreement has been discussed, the thesis will progress to consider and describe the most important provisions of the UK immigration legislation that generally apply to Turkish self-employed nationals who wish to establish in business in the UK. Consideration will first be given to the rules that govern the Turkish nationals’ applications for entry clearance, leave to enter, leave to remain, and indefinite leave to remain. This chapter also outlines the requirements that the dependants of the Turkish self- employed businesspersons must fulfil in order to migrate to the UK. The rights of appeal and the administrative review process are also briefly described and considered in this chapter. After the immigration rules applicable under the Ankara Agreement have been described, the current UK immigration legislation that generally applies to third-country nationals wishing to establish themselves in the UK as self-employed businesspersons is described in a similar manner. By describing the two sets of immigration rules in a similar manner, it is easier to distinguish how different the rules applicable under the Ankara Agreement actually are. In the end of this chapter, a comparison of the key differences between the immigration rules is conducted. In the process of describing the UK immigration rules, heavy reliance is imposed on the Home Office’s ‘Business applications under the Turkish EC Association Agreement’
5 guidance document because it contains important law provisions of House of Commons Papers (HC) 509 and 510. Also Chapter 6 Section 6 of the Immigration Directorate Instructions (IDI) May 2011, and Immigration Rules Part 6A are heavily relied upon in this chapter. This chapter is very descriptive because its aim is to state the content of the key UK immigration law provisions.
After consideration has been given to the immigration rules that are in force in the UK, this thesis will consider the issue of fraudulent and abusive conduct and its relevance to Turkish applicants that seek to benefit from the Ankara Agreement. This chapter discusses the concept of abusive and fraudulent conduct in relation to applications that are made by self-employed Turkish nationals that wish to establish in business in the UK. The interpretation of the scope of abusive and fraudulent conduct has gone through significant changes in the UK during the past ten years. The three landmark cases that have considerably shaped the approach of the UK towards abuse and fraud are Tum and Dari, Oguz, and KA (also known as Ascioglu). This chapter first discusses the case of Tum and Dari and how that judgment was reflected in subsequent case law in the UK. Secondly, this chapter considers the main principles that were established in the judgments of Oguz and KA, which represent the current meaning and scope of abuse and fraud today. Finally, this chapter offers insight into how self-employed Turkish nationals’ applications that contain fraud or abuse are assessed and decided today in the UK. This chapter heavily relies on case law because this is arguably the most effective way to demonstrate how the concept of fraud and abuse in relation to applications made under the Ankara Agreement has developed to what it is today.
Finally, in the end of this thesis, a conclusion will be drawn where the findings of this thesis are established.
6 2 The Ankara Agreement
2.1 The history and substance of the Ankara Agreement
The Ankara Agreement is the oldest association agreement that is still in force today.3 Turkish self-employed nationals are considered to be in a significantly more favourable position compared to other third-country nationals because of the provisions of this Agreement.4 This Agreement obliges EU Member States to assess applications of self-employed Turkish nationals under the national immigration rules that were in force in the Member States in 1973. The Republic of Turkey and the Member States of the European Economic Community signed this agreement on 12 of September in 1963 in Ankara.5 This Agreement was concluded and confirmed by Council Decision 64/732/EEC on 23 of December in 1963.6 The objective of the Ankara Agreement is to ‘promote the continuous and balanced strengthening of trade and economic relations’ between Turkey and the EU.7 Article 13 of the Ankara Agreement encourages the EU Member States ‘to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community’ when the rights of establishment of Turkish nationals are concerned.8 These particular Articles set out provisions on rights of establishment that oblige all EU Member States to comply with.9 However, Article 13 of the Ankara Agreement does not have significant use to Turkish nationals as it does not have direct effect in the EU Member States and therefore it does not give direct rights to the Turkish nationals.10 The Ankara Agreement is also
3 Leila Simona Talani, Globalisation, Migration, and the Future of Europe: Insiders and Outsiders (Routledge 2012) 83. 4 Anne MacGregor and Gordon Blanke, ‘Free movement of persons within the EU: current entitlements of EU citizens and third country nationals – a comparative overview’ (2002) Int TLR 8(6) 173, 189. 5 Elspeth Guild, ‘European Commission v Netherlands (C-92/07)’ (2010) JIANL 24(3) 270. 6 ibid 270 and Case C-92/07 European Commission v Kingdom of the Netherlands. 7 Agreement establishing an Association between the European Economic Community and Turkey, art 2(1). 8 Agreement establishing an Association between the European Economic Community and Turkey, art 13 and Edgar Lenski, ‘Turkey and the EU: on the Road to Nowhere?’ ZaöRV 63(2003) 85 and Leila Simona Talani, Globalisation, Migration, and the Future of Europe: Insiders and Outsiders (Routledge 2012) 83. 9 Treaty on the Functioning of the European Union, art 49-52, 54. 10 ‘Free Movement: ECJ rules on scope of EC-Turkey Agreement’ (2000) EU Focus 55 13 and Friedl Weiss, Clemens Kaupa, European Union Internal Market Law
7 supplemented by two additional legal instruments; the Additional Protocol, which was signed on 23rd of November in 1970 and came into force on 1st of January in 197311, and Decision No 1/80, which the Association Council adopted on 19th of September 12 in 1980.
2.2 The standstill clauses
Article 41(1) of the Additional Protocol and Article 13 of the Decision No 1/80 are considered to be ‘standstill clauses’.13 Both of these standstill clauses aim ‘to create conditions conductive to the gradual establishment of freedom of movement for workers, of the right of establishment and of freedom to provide services by prohibiting national authorities from creating new obstacles to those freedoms so as not to make the gradual achievement of those freedoms more difficult between the Member States and the Republic of Turkey’.14 In other words, both of these standstill clauses require the EU Member States to only apply the immigration rules that were in force before the standstill clauses were introduced.15 In Abatay, the ECJ held that both of these provisions have the same meaning but they cannot apply simultaneously because they regulate different rights.16 Decision No 1/80 regulates the rights of Turkish workers in the EU Member States while Article 41(1) of the Additional Protocol concerns the rights of self-employed Turkish nationals.17 As Article 41(1) of the Additional Protocol holds more importance in relation to self-employed Turkish nationals, this particular standstill clause is focused on in this thesis.
(Cambridge University Press 2014) 27 and Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [45]. 11 Steve Peers, ‘EC immigration law and EC association agreements: fragmentation or integration?’ (2009) EL Rev 34(4) 628, 629. 12 Elspeth Guild, ‘European Commission v Netherlands (C-92/07)’ (2010) JIANL 24(3) 270. 13 Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 118. 14 Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit [72]. 15 Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 118. 16 Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit [86] and Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 119. 17 Eric Fripp, The Law and Practice of Expulsion and Exclusion from the United Kingdom (Hart Publishing 2015) 204.
8 2.3 Article 41(1) of the Additional Protocol
As the Ankara Agreement itself does not grant the right of establishment to Turkish nationals directly, Article 41(1) of the Additional Protocol is an important provision for self-employed Turkish nationals who wish to migrate and establish in business in the EU Member States.18 This provision states that ‘the Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment’.19 The wording of this provision is arguably quite vague and the actual meaning of this prohibition is a topic of great interest for scholars as well as to the ECJ.20 It has been argued that the fact that an EU Member State eases their immigration rules from those that were in force before the entry into force of Article 41(1), but later decides to revoke the rules back to the more restrictive rules that were in force prior to the entry into force of the standstill clause, is still to be considered to be prohibited under Article 41(1) because this would undermine the ultimate aim of the Ankara Agreement.21 In the case of Soysal, the ECJ clearly stated that Article 41(1) prohibits Member States from imposing new visa requirements for Turkish nationals.22 The actual meaning of the prohibition was also considered in the case of Dogan, but this time in relation to family reunification. In this case, the ECJ noted that family reunification is an important factor in improving the quality of life of those Turkish nationals who are self-employed in the EU Member States.23 It was argued that the national legislation regulating family reunification should not be so demanding that the Turkish self-
18 Nicola Rogers, ‘The Turkish Association Agreement applications – a myriad of problems and some solutions’ (2006) JIANL 20(4) 283, 285 and Friedl Weiss, Clemens Kaupa, European Union Internal Market Law (Cambridge University Press 2014) 27. 19 The Additional Protocol, art 41(1). 20 Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 119-120. 21 Stanislas Adam, Peter Van Elsuwege, ‘Citizenship rights and the federal balance between the European Union and its Member States: Comment on Dereci’ (2012) EL Rev 37(2) 176, 186 and Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 119-120 and Friedl Weiss, Clemens Kaupa, European Union Internal Market Law (Cambridge University Press 2014) 29. 22 C-228/06 Soysal and Savatli v Germany [57] and Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 122. 23 Case C-138/13 Naime Dogan v Bundesrepublik Deutschland [34].
9 employed national is put into a position where he has to choose between continuing his economic activity in an EU Member State or return back to Turkey to be with his family.24 Therefore, the ECJ held that national legislation that makes family reunification more difficult should be considered to be prohibited under Article 41(1) if that particular legislation has been introduced after the Additional Protocol came into force in the EU Member State in question.25 It was decided that the standstill clause of Article 41(1) does not allow new and more demanding measures to be imposed in relation to spouses of Turkish self-employed nationals.26 In this case the ECJ held that the German language requirement was not necessary to satisfy the public interest objective and therefore such a measure was considered to be unnecessarily restrictive.27 It has been recognized that new measures that equally apply to EU nationals and the Turkish nationals can be allowed to be applied under the standstill clause because Article 59 of the Additional Protocol precludes more favourable treatment to be given to Turkish nationals than to the EU nationals.28
The direct effect of Article 41(1) of the Additional Protocol has been discussed in a number of important EU cases.29 In the case of Demirel, the ECJ famously held that ‘a provision in an agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.’30 The case of Savas is one of the most significant cases in relation to the standstill clause of Article 41(1).31 In this case the ECJ held that Article 41(1) has direct effect because the wording of the provision shows that it ‘lays down, clearly, precisely and unconditionally an unequivocal
24 ibid [35]. 25 ibid [36]. 26 ibid [39]. 27 ‘German language requirement for Turkish spouses unlawful’ (2014) EU Focus 322 23, 24. 28 Case C-92/07 European Commission v Kingdom of the Netherlands [62]. 29 Firat Cengiz and Lars Hoffmann, Turkey and the European Union: Facing New Challenges and Opportunities (Routledge 2014) 123. 30 Case C-12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [14]. 31 Firat Cengiz and Lars Hoffmann, Turkey and the European Union: Facing New Challenges and Opportunities (Routledge 2014) 123.
10 standstill clause, prohibiting the contracting parties from introducing new restrictions on the freedom of establishment as from the date of entry into force of the Additional Protocol’.32 In the cases of Abatay and Oguz, the ECJ confirmed the direct effect of Article 41(1).33 The fact that Article 41(1) is directly effective means that Turkish nationals can rely on this particular provision before the national courts in the EU 34 Member States.
All Turkish nationals that are residing, whether legally or illegally, in an EU Member State can benefit from Article 41(1) of the Additional Protocol. In the case of Savas, which concerned a Turkish national who had overstayed his visa by a number of years, the ECJ held that the Turkish national in question was still able to rely on the standstill clause and therefore the immigration rules that were in force in 1973 could be applied to his case.35 This decision arguably widened the scope of Article 41(1) of the Additional Protocol to a certain extent but at the same time it left ambiguity because the ECJ stated that the standstill clause only applies to applicants that are considered to be ‘regular’ in an EU Member State.36 The UK government interpreted the decision in Savas to mean that the standstill clause may only apply to Turkish nationals that have been previously granted lawful leave to enter or remain in the UK.37 Therefore, it was considered that the standstill clause would not benefit illegal immigrants or asylum seekers who had entered the UK under temporary admission.38 In the case of Tum and Dari, the ECJ developed the decision in Savas further and provided clarification on the actual scope of potential applicants that can benefit from
32 Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [46]. 33 Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit [117] and Case C-186/10 Tural Oguz v Secretary of State for the Home Department [23]. 34 Pieter Boeles, Maarten den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (2nd edn, Intersentia 2014) 118. 35 Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [66] and Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [42]. 36 Steve Peers, ‘Turkish visitors and Turkish students: New rights from the European Court of Justice’ (2009) JIANL 23(2) 197 and Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [65]. 37 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [35]. 38 Nicola Rogers, ‘The Turkish Association Agreement applications – a myriad of problems and some solutions’ (2006) JIANL 20(4) 283, 285.
11 the Ankara Agreement. In that case, the Secretary of State had argued that only Turkish nationals that had legally entered the UK could rely on the standstill clause and if they had not been granted legal entry into the UK, then the current immigration rules applied to them.39 However, the Court of Appeal and the ECJ held that a Turkish national who has entered the Member State illegally could still benefit from the standstill clause when making an application to establish himself in business in the EU Member State, because the legality of the applicant’s residence is an irrelevant factor when considering whether the standstill clause could apply.40 This decision arguably widened the scope of possible applicants and therefore provided an even more favourable position to Turkish nationals.
In the case of Tum and Dari the ECJ clarified the way in which the standstill clause of Article 41(1) operates. In this case the ECJ held that the standstill clause ‘does not operate in the same way as a substantive rule by rendering inapplicable the relevant substantive law which it replaces, but as a quasi-procedural rule which specifies…the provisions of a Member State’s legislation that must be referred to for the purposes of assessing the position of a Turkish national who wishes to exercise freedom of establishment in a Member State’.41 In other words, the standstill clause does not replace, remove or modify the national legislation that was in force in the EU Member State before Article 41(1) came into force. It only obliges the EU Member States to refer to their national legislation that was in force in 1973 when considering applications of Turkish nationals wishing to establish in business in the UK. In the case of Oguz, the ECJ confirmed that Article 41(1) does not itself give a substantive right to a Turkish national, as the right of establishment remains to be governed by the national law of the EU Member State.42
The standstill clause of Article 41(1) of the Additional Protocol also applies to the national immigration rules that govern the first entry of a Turkish applicant into the
39 Veli Tum, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 788 [21]. 40 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [59]. 41 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [55]. 42 Case C-186/10 Tural Oguz v Secretary of State for the Home Department [26].
12 United Kingdom.43 This was established in Tum and Dari and that judgment drastically widened the applicability of the standstill clause.44 It had been previously established in the cases of Savas and Abatay, that the first admission of a Turkish national to an EU Member State is governed by the national legislation of the particular Member State.45 However, by extending the scope of Article 41(1) of the Additional Protocol to also include applications for first admission, the ECJ held that the EU Member States are not allowed to introduce ‘any new restrictions on the exercise of freedom of establishment, including those relating to the substantive and/or procedural conditions governing the first admission to the territory of that State’.46 The ECJ held that the standstill clause did not grant a substantive right of entry and therefore it does not interfere with the state’s right to control immigration.47 In other words, this suggests that the self-employed Turkish nationals must fulfil the requirements for entry and establishment that were in force in the EU Member State in 1973 and the standstill clause does not change those requirements.48 Rather than establishing new law, Article 41(1) provides a limitation, which prevents EU Member States from imposing any new legislation after the entry into force of the standstill clause.49 The applicability of this standstill clause to the Turkish national’s first admission was also confirmed by ECJ in the case of Oguz.50
43 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [63]. 44 Richard Ball, The Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals (Routledge 2014) 183. 45 Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [65] and Eran Abatay and Others (C-317/01) and Nadi Sahin (C- 369/01) v Bundesanstalt für Arbeit [65]. 46 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [69] and ‘Establishment “standstill” clause in Turkey agreement applies to first entry’ (2007) EU Focus 218 20, 21. 47 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [56]. 48 Nicola Rogers, ‘The Turkish Association Agreement applications – a myriad of problems and some solutions’ (2006) JIANL 20(4) 283, 285. 49 Alexander Hoogenboom, ‘Moving forward by standing still? First admission of Turkish workers: comment on Commission v Netherlands (Administrative Fees)’ (2010) EL Rev 35(5) 707, 709. 50 Case C-186/10 Tural Oguz v Secretary of State for the Home Department [22].
13 The standstill clause of Article 41(1) does not give rights to Turkish nationals, but it makes the domestic law the law that was in force in 1973.51 It has been clearly established that Article 41(1) of the Additional Protocol does not give Turkish nationals the same right of freedom of movement that is given to nationals of EU Member States.52 In the case of Abatay the ECJ found that a Turkish national who exercises ‘self-employed activity’ can be given ‘certain rights’ under EU law in relation to his self-employment and his residence.53 The word ‘certain’ arguably reinforces the idea that the rights granted to Turkish nationals are restricted compared to the rights that are given to the nationals of EU Member States. The definition of ‘certain’ rights is not clearly outlined but it has been discussed in case law. In the case of Demirkan, the applicant was a Turkish national who wished to visit her stepfather in Germany, without the requirement to obtain a visa.54 The ECJ held that the aim of the Ankara Agreement and the Additional Protocol is not to create an identical ‘freedom of movement for persons of a general nature’ that is provided to nationals of the EU Member States.55 The Ankara Agreement only allows the Turkish nationals to enjoy ‘certain rights’ in the specific EU Member State where they are residing.56 The standstill clause does not itself give Turkish nationals ‘a right of establishment or, as a corollary, a right of residence …or to enter the territory of a Member State’.57 In its judgment the ECJ suggested that the exercise of economic activity as a self-employed businessperson engages the standstill clause, and only then can the standstill clause apply to the ‘conditions of entry and residence’ in an EU Member State.58
Abusive and fraudulent conduct is discussed in detail later on in this thesis, but it is useful to briefly state the modern approach towards applications that contain
51 Veli Tum, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 788 [20]. 52 Case C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas [59] and OY (Ankara Agreement; standstill clause; worker’s family) Turkey [2006] UKAIT 00028 [23]. 53 Eran Abatay and Others (C-317/01) and Nadi Sahin (C-369/01) v Bundesanstalt für Arbeit [65]. 54 C-221/11 Leyla Ecem Demirkan v Bundesrepublik Deutschland [22]-[23]. 55 ibid [53]. 56 ibid [53]. 57 ibid [54]. 58 ibid [55].
14 fraudulent or abusive conduct. The case of Tum and Dari is a significant case because it established the famous ‘fraud exception’ that was referred to in many subsequent cases in the UK for a long time.59 In that case it was held that if an application of a Turkish national who wished to establish in business in the UK falls under the fraud exception, then that particular application will be directly removed from the scope of the standstill clause and therefore it was to be assessed under the current immigration legislation of the UK.60 The ECJ famously held that a Turkish applicant should not benefit from the standstill clause if the applicant was guilty of abusive or fraudulent conduct.61 For several years after the establishment of the ‘fraud exception’ principle, applications made under the Ankara Agreement were bluntly removed from the scope of the standstill clause and therefore they were not assessed under the immigration rules that were in force in the UK in 1973.62 Recently, the meaning and scope of fraudulent and abusive conduct drastically changed as a consequence of the ECJ judgment in the case of Oguz. In that case, the ECJ held that businessperson applications that have been made under the Ankara Agreement and which involve fraud or abuse are still to be considered to fall within the scope of the standstill clause and they should therefore be initially assessed under the immigration provisions that were in force in 1973 in the UK.63 If the application is found to contain fraud or abuse under the 1973 immigration rules, then the application will possibly be refused under those rules and instead it will be assessed under the current immigration rules.64
59 Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142. 60 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015). 61 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [64]. 62 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015). 63 Case C-186/10 Tural Oguz v Secretary of State for the Home Department [31]. 64 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_-
15 3 The immigration legislation in the United Kingdom 3.1 Immigration legislation applicable under the Ankara Agreement
As it has been established above, the standstill clause of Article 41(1) of the Additional Protocol obliges the United Kingdom, as an EU Member State, to consider the applications of Turkish self-employed nationals under the immigration rules that were in force on 1st of January in 1973. The UK immigration legislation that was in force at that time mainly consisted of HC 509 and HC 510 of the Rules for Control on Entry, and therefore the Turkish businessperson applications are generally considered under these rules.65 The entry applications of self-employed Turkish nationals are decided under HC 509 and the applications for leave to remain and indefinite leave to remain fall under the scope of HC 510.66 The decisions of the ECJ in relation to the scope of the standstill clause of Article 41(1) hold high significance in the UK because they shape and develop the scope of the immigration rules that apply in the UK.67
The provisions of HC 509 govern applications for entry clearance, which could simply be described as a permission to enter the UK. Under these provisions, the requirements for entry clearance are slightly different, depending on whether the Turkish national wishes to join an already established business or whether he wishes to establish his own business in the UK. If a Turkish national wishes to join an already established business in the UK, he has to fulfil the entry clearance requirements set out in paragraph 31 of HC 509.68 In order for an entry clearance under this provision to be granted, the applicant must show that he has funds to invest
_Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015). 65 Business applications under the Turkish EC Association Agreement, Home Office, 7
16 in the existing business and that he will be actively involved in operating the business.69 Also it must be proven that the applicant can ‘bear his share of the liabilities’.70 The applicant must also prove that the business creates enough money to support the applicant and any of his possible dependants.71 The applicant must also be able to prove that the applicant’s investment in the existing business is genuinely needed.72 This provision also obliges the applicant to provide the previous accounts of the business so that the financial standing of the business can accurately be established.73 Paragraph 31 clearly prevents Turkish nationals from being granted entry clearance if the work of the individual amounts to disguised employment.74 The concept of disguised employment is discussed with greater detail later on in this thesis, in relation to the requirements that are contained in paragraph 21 of HC 510. Paragraph 32 of HC 509 sets out the requirements for entry clearance that the Turkish applicant must fulfil if he wishes to establish his own business in the UK.75 The Turkish national must prove that he has adequate funds to establish a business in the UK and that his business will create enough profit to financially support the applicant and any of his dependants.76 Entry clearance under this provision will not be granted to the applicant if his work amounts to employment rather than self-employment.77
Under paragraph 30 of HC 509, it is stated that a Turkish national does not require an entry clearance in order to enter the UK.78 If the Turkish national has satisfied the requirements stated either in paragraph 31 or 32 of HC 509, he can be granted with an entry clearance for up to 12 months.79 However, the Home Office has established that an applicant that has a valid entry clearance is not allowed to enter the UK if it has been found out that the applicant had been granted such entry clearance on the basis that the application contained incorrect information or that the applicant had not
69 ibid 116. 70 ibid 116. 71 ibid 116. 72 ibid 116. 73 ibid 116. 74 ibid 116. 75 ibid 8. 76 ibid 116. 77 ibid 116. 78 ibid 8, 115. 79 ibid 9, 115.
17 disclosed important information in the application.80 Another reason that may prevent an applicant, with a valid entry clearance, from entering the UK is when there has been ‘a change in circumstances’ and as a consequence of that change, the applicant no longer has basis to claim admission to the UK.81 A Turkish national that does not have a valid entry clearance can be granted leave to enter the UK for up to two months if he can prove that he is capable of fulfilling the requirements that are contained in paragraphs 31 or 32 of HC 509.82 This is an interesting feature of the immigration rules, as it suggests that a Turkish national that has been unable to fully satisfy the conditions of the rules initially, can be granted an entry clearance so that he can prove himself to the Home Office.
Turkish nationals applying for leave to remain in the UK as self-employed businesspersons have their applications assessed under paragraphs 4 and 21 of HC 510.83 Generally, a person can apply for leave to remain when he wishes to continue staying in the UK. In order for the Turkish applicant to have his application considered under the above-mentioned provisions, he must have entered the UK with a valid entry clearance that has been granted under HC 509, or alternatively, when he has not been granted such an entry clearance, he has been granted leave to enter for two months.84 A Turkish national can also have his application for leave to remain considered under these provisions if he had entered the UK in a different category but decides to change to the Turkish self-employed businessperson category.85 However, before the application can be considered under paragraph 21, it must be assessed under paragraph 4 of the HC 510, which provides the general grounds for refusal.86 Paragraph 4 sets out a number of factors that can lead to refusal of the applicant’s application.87 In determining whether the application should be refused, consideration should be given to factors such as ‘whether the person has observed the time limit and conditions subject to which he was admitted; whether in the light of his character, conduct or associations it is undesirable to permit him to remain; whether he
80 ibid 10. 81 ibid 10. 82 ibid 11, 115. 83 ibid 13. 84 ibid 13. 85 ibid 13. 86 ibid 13. 87 ibid 13.
18 represents a danger to national security; or whether, if allowed to remain for a period for which he wishes to stay, he might not be returnable to another country’.88 The process of refusing applications under paragraph 4 is outlined with greater detail later on in this thesis in relation to abusive and fraudulent conduct.
Paragraph 21 of HC 510 sets out conditions that the Turkish national wishing to establish in business in the UK must fulfil in order for the leave to remain to be granted.89 This provision expressly states that Turkish nationals that have entered the UK as ‘visitors’ can ask for a permission from the Secretary of State to establish in business in the UK.90 For a long time it was held that only Turkish visitors could be granted leave to remain to establish themselves in business in the UK.91 However, in the case of EK it was considered that it was not correct to assume that only visitors can be granted such leave, and therefore it was held that such leave can also be granted to Turkish nationals who have been granted leave to enter the UK in a different capacity other than as a visitor and therefore the range of possible applicants was arguably widened.92 Under paragraph 21, a Turkish national can apply to establish himself in business by starting his own business or by becoming a partner in a business that is established in the UK.93 Under paragraph 21 the applicant is obliged to prove that he has adequate funds to invest in the business and that ‘he will be able to bear his share of any liabilities the business may incur’.94 The applicant must also prove that the business generates enough profit to support the applicant and his possible dependants.95 It has been established that HC 510 does not set out any requirements for the size of the business and therefore it does not necessarily mean that a small business is not able to produce enough profit to support the applicant.96
88 ibid 118. 89 ibid 32. 90 ibid 118. 91 OT (Ankara Agreement, students, businessmen, workers) [2010] UKUT 330 [30]. 92 EK (Ankara Agreement – 1972 Rules-construction) [2010] UKUT 425 [27]. 93 Business applications under the Turkish EC Association Agreement, Home Office, 118
19 When a Turkish national wishes to join an existing business, paragraph 21 obliges him to prove that he will be ‘actively’ involved in operating the business and that his investment is genuinely needed.97 Also he has to provide a ‘statement of terms’ that sets out his role and obligations when entering the existing business.98
One of the key conditions in order for the leave to remain to be granted is that the applicant must not engage in disguised employment and that he will not engage in employment that requires him to obtain a work permit.99 Disguised employment can be held to occur when the applicant claims that he is self-employed, but in reality his work amounts to employment rather than self-employment.100 Paragraph 4.2.3. of the IDI Chapter 6 Section 6 provides guidance into what constitutes disguised employment.101 In this paragraph, it is stated that the applicant is likely an employee if, for example, he works for a fixed number of hours or if he is ‘paid by the hour, week, or month’, or if he receives ‘overtime pay’.102 In the case of Desdemir, the differences between employment and self-employment were considered.103 It was decided that the relationship between the applicant and the business owners that the applicant supplied his services to was a critical factor in determining whether the applicant was an employee or a self-employed person.104 It was held that the relationship in question suggested that the applicant in this case should be considered to be a part-time employee rather than a self-employed businessperson.105 It is well
97 Business applications under the Turkish EC Association Agreement, Home Office, 118
20 established that applications involving disguised employment will be refused under paragraph 21 of HC 510106.
The guidance document of the Home Office highlights that the business rules of 1973 do not require the applicant to provide a business plan, but providing such a document will make the application stronger and therefore more likely to succeed.107 The business plan should contain ‘a summary of the business proposal, an outline of the marketing and sales strategy, a timetable for establishment, and the financial forecast for the business over the first 12 months of trading.’108 It was held in Akinci that the applicant’s business plan should be ‘realistic’.109 It has been established that the business plans and other evidence should not be examined too critically, which would potentially undermine the genuine intention of the applicant to establish in business.110 In the case of Baylan, it was held that even if several different applicants have submitted identical business plans, it does not in itself mean that the applicants will not be able to succeed with their applications.111 However, the business plan ‘must be specific to an applicant’s personal and financial circumstances’.112 The case law suggests that the business plan is to be assessed broadly and all necessary factors are to be taken into account.
Under paragraph 21 of HC 510, if a Turkish national has previously been granted a period of leave to remain as a self-employed businessperson under the Ankara Agreement, he may be granted an extension of that leave for a period of three years.113 If the applicant has not fully satisfied the Home Office, he can only be
106 Business applications under the Turkish EC Association Agreement, Home Office, 43
21 granted leave to remain for a period of up to 12 months.114 This again suggests that Turkish nationals are given a generous chance to prove themselves if they do not fully meet the requirements when their applications are assessed by the Home Office initially.
Paragraphs 4 and 28 of the HC 510 contain legislation that governs granting of indefinite leave to remain for Turkish self-employed nationals.115 Generally, a person can apply for indefinite leave to remain once he has stayed in the UK for a specific number of years. If this leave is granted, there will not be any restrictions on the duration of the person’s stay in the UK.116 In order to satisfy the conditions under paragraph 28 of the HC 510, the Turkish self-employed national must prove that he has spent four consecutive years in the UK before making an application for indefinite leave to remain and that he has spent the most recent time in the UK as a self- employed businessperson under the Ankara Agreement.117 The rest of that four-year period the applicant must have stayed in the UK as a self-employed businessperson under the Ankara Agreement, ‘a Tier 1 (Entrepreneur) migrant, a businessperson, or an innovator’.118 If indefinite leave to remain can be successfully granted to the Turkish applicant, he can stay and work in the UK without restrictions.119 In the case of EK, it was held that in order for an applicant to successfully be granted indefinite leave to remain, he is not obliged to prove that for four continuous years he has fulfilled the conditions and requirements of paragraph 21 of HC 510.120 The applicant only has to prove that he has fulfilled those requirements when he applies for leave to remain under the Ankara Agreement for the first time and when he wishes to extend that leave for the first time.121
114 ibid 64. 115 ibid 15. 116 https://www.gov.uk/settle-in-the-uk (last accessed on 28.7.2015). 117 Business applications under the Turkish EC Association Agreement, Home Office, 15
22 The dependants of Turkish self-employed businesspersons are also able to migrate into the UK if they satisfy certain conditions.122 Dependants are considered to be the partners and children of the Turkish self-employed businesspersons.123 The requirements that the partners and children have to fulfil are relatively similar to each other. Annex D of the IDI states that the scope of ‘partner’ contains ‘spouse, civil partner, unmarried or same-sex partner’.124 It is essential that the dependant partners and children fulfil a set of requirements in order to be granted entry clearance, leave to enter or leave to remain.125
The first requirement is that the dependants ‘must not fall for refusal under the general grounds for refusal’ and secondly, they must not have entered the UK illegally.126 In order to be granted leave as a dependant, the applicant must also prove that the applicant’s partner, or parent, has ‘valid leave to enter or remain’ in the UK as a self-employed businessperson under the Ankara Agreement.127 The married partner applicant must also prove that the marriage is ‘subsisting at the time the application is made’.128 The actual meaning of ‘subsisting’ in this context was determined in the case of BK and Others, where it was straightforwardly stated that ‘a marriage is subsisting if it has been lawfully entered into and has not thereafter been lawfully dissolved or annulled’.129 The partner applicant must also prove that she will live together with the Turkish businessperson in the UK.130 If the applicant wishes to be granted leave as the child dependant of a Turkish self-employed businessperson, the general requirement is that he has to be under the age of 18 years when making the application.131 Also, the child dependant must be unmarried and prove that he is still
122 IDI Chapter 6, Section 6, Business Applications under the Turkish ECAA May 2011, Annex D(1). 123 Ibid. 124 ibid Annex D(2). 125 ibid Annex D(3). 126 ibid Annex D(4)(a), Annex D(8)(a). 127 ibid Annex D(4)(b)(1), D(8)(b)(i). 128 ibid Annex D(4)(d). 129 BK and Others (Spouses: Marriage, Meaning of ‘subsisting’) [2005] UKAIT 174 [5]. 130 IDI Chapter 6, Section 6, Business Applications under the Turkish ECAA May 2011, Annex D(4)(e). 131 ibid Annex D(8)(c).
23 dependant on his businessperson parent.132 The applicant, whether the partner or the child of the self-employed businessperson, must satisfy the Home Office that he or she is not planning to stay in the UK for longer than the period that is granted to the Turkish businessperson.133 The final requirement is that the business of the Turkish businessperson must be able to support the dependant applicant.134 The requirements for indefinite leave to remain are similar to the above-mentioned requirements.135
3.2 Administrative review
The introduction of the new Immigration Act 2014 has arguably changed the position of Turkish self-employed nationals that have had their applications refused by the Home Office. The new Immigration Act 2014 has significantly reduced the rights of appeal of those Turkish applicants who have had their applications refused by the Home Office.136 Under the new Act, a Turkish national can only appeal to a Tribunal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 if the applicant’s ‘protection claim’ or ‘human rights claim’ have been refused, or the applicant’s protection status has been revoked.137 Also, the Turkish applicants that have had their applications refused before 6th of April in 2015 are still allowed to benefit from the old rights of appeal, which means that they can appeal to a Tribunal and they have a wider selection of possible grounds to base their appeals upon.138 The Turkish applicants, who have had their applications refused on or after 6th of April in 2015, are generally considered to only be able to apply for administrative review.139
132 ibid Annex D(8)(d). 133 ibid Annex D(4)(f), D(8)(e). 134 ibid Annex D(4)(g), D(8)(g). 135 ibid Annex D(6). 136 Rowena Moffatt and Carita Thomas, ‘And then they came for judicial review: proposals for further reform’ (2014) JIANL 28(3) 237, 252. 137 Rights of Appeal: Version 2, Home Office 7. 138 Business applications under the Turkish EC Association Agreement, Home Office, 97
24 In order for their applications for administrative review to be successful, the decisions that they have received from the Home Office must be considered to be eligible.140 In order for the decision to be eligible, it must have refused an application for leave to remain or it has granted leave to remain, but the applicant believes that the ‘period or conditions’ of that leave need to be reviewed.141
The administrative review process is very different compared to the previous rights of appeal to a Tribunal. The administrative review process only aims to correct ‘caseworking errors’ that have been done by the Home Office caseworker that initially assessed the applicant’s application.142 The Home Office has constructed a list of possible errors that can allow the decision to be admitted to administrative review.143 One of the most significant differences between administrative review and the previous rights of appeal is that previously a refused Turkish applicant had the possibility to appeal to a Tribunal that was not part of the Home Office.144 The Home Office itself carries out the administrative review process.145 Administrative review only has one stage, and generally applicants do not have the possibility to appeal the decision made by Home Office at administrative review.146 Additionally, the possibility for the applicant to present new evidence when applying for administrative review is very restricted.147 Taking into consideration the above points, it could be argued that this new Act is not in conformity with the objective of the Ankara Agreement as it restricts the freedom of establishment of Turkish self-employed nationals in the UK. Considering the above mentioned points, it could be argued that the new Act makes it more difficult for Turkish nationals to successfully be granted leave if their application has initially been refused. However, as this is a very recent
140 Appeals Guidance, Home Office, 1.2. 141 Immigration Rules Appendix AR, AR3.3. 142 Business applications under the Turkish EC Association Agreement, Home Office, 101
25 development in law, it is challenging to say with certainty how in reality this new Act will affect Turkish nationals that have had their applications refused by the Home Office.
3.3 Immigration legislation generally applicable to third-country nationals
In order to demonstrate the more flexible nature of the immigration rules applicable to Turkish self-employed nationals, it is useful to describe the current immigration rules that generally apply to other third-country nationals wishing to migrate and establish in business in the UK. These rules also apply to the applications of Turkish applicants, which have not satisfied the rules that were in force in 1973. As mentioned above, the current immigration rules are more demanding and complex than the rules that were in force in 1973. Other third-country nationals can make an application under a number of different categories, but in this chapter consideration is given to applications that are made under Tier 1 (Entrepreneur) migrant category. Applicants applying under this category usually have the same aim as Turkish self-employed nationals that apply under the Ankara Agreement, as they also wish to establish in business.
A third-country national must have a valid entry clearance if he wishes to enter the UK and establish in business in the UK under the Tier 1 (Entrepreneur) migrant category.148 In order to gain an entry clearance, the applicant must fulfil three conditions in relation to his investment. He has to prove that he has access to at least £200,000 to invest in the UK, and that this ‘money is held in one or more regulated financial institutions’.149 The third condition is that the money must be ‘disposable in the UK’.150 Once the conditions relating to the applicant’s investment are fulfilled, it must be proven that the applicant’s English language skills are sufficiently advanced.151 It is also essential for the applicant to prove that he has adequate funds to support himself in the UK.152 The funds of the applicant must be at least £3,310 and there has to be proof that the applicant has had this amount of money on his bank
148 Immigration Rules Part 6A, 245DA. 149 Immigration Rules Part 6A, 245DB and Immigration Rules Appendix A, Table 4. 150 Immigration Rules Part 6A, 245DB and Immigration Rules Appendix A, Table 4. 151 Immigration Rules Part 6A, 245DB and Immigration Rules Appendix B. 152 Immigration Rules Part 6A, 245DB.
26 account for 90 consecutive days prior to making the application for entry clearance.153 The applicant must also pass the ‘Genuine entrepreneur test’ before entry clearance can be granted.154 In order to pass this test, the applicant must satisfy the Home Office that he has a genuine intention and that he actually has the required funds to establish in business in the UK.155 The applicant is also obliged to provide a business plan together with his application.156 Entry clearance can be granted for three years and four months.157
In order for the applicant to satisfy the requirements of leave to remain, he must show that he has invested at least £200,000 ‘into one or more businesses in the UK’.158 Also the applicant must show that he has ‘registered with HM Revenue and Customs as self-employed’ or that he has registered with ‘Companies House as a director of a new or an existing business’ within six months after arriving in the UK if he had previously been granted entry clearance in Tier 1 (Entrepreneur) migrant category.159 Also, there is a requirement that if the applicant has established a new business, the business has to have ‘created the equivalent of at least two new full time jobs for persons settled in the UK’.160 The same requirement applies if the applicant has joined an existing business in the UK, as his investment in the business must have ‘resulted in a net increase in the employment provided by the business or businesses for persons settled in the UK by creating the equivalent of at least two new full time jobs’.161 When applying for leave to remain in this category, the applicant must prove that he has had £945 on his bank account for 90 consecutive days prior to making the application.162 The above-mentioned ‘English language’ and ‘Genuine entrepreneur test’ requirements also apply to extension applications.163 Leave to remain can be
153 Immigration Rules Appendix C, Tier 1 Migrants (2)(a). 154 Tier 1 (Entrepreneur), Home Office, 13. 155 Ibid. 156 Immigration Rules Part 6A, 245DB(g). 157 ibid 245DC(a). 158 Immigration Rules Part 6A, 245DD(b) and Immigration Rules Appendix A, Table 5. 159 Ibid. 160 ibid. 161 ibid. 162 Immigration Rules Part 6A, 245DD(d) and Immigration Rules Appendix C, Tier 1 Migrant (2)(b). 163 Immigration Rules Part 6A, 245DD(c) and (k).
27 granted for two years if the applicant has previously been granted leave as a Tier 1 (Entrepreneur) migrant.164
In order for indefinite leave to remain to be granted, the applicant must satisfy a number of conditions. In addition to having fulfilled similar conditions that are mentioned above in relation to applications for leave to remain, the applicant must also prove that he has spent five continuous years in the UK as a ‘Tier 1 (Entrepreneur) migrant’, ‘Businessperson’ or ‘Innovator’.165 The most recent leave that he has been granted must be in the Tier 1 (Entrepreneur) migrant category.166 In special circumstances the applicant can be granted indefinite leave to remain after only three continuous years, but in general the five-year rule applies.167 In addition to the above-mentioned requirements, the applicant is also obliged to take the ‘Life in the UK’ test in order to prove that he has an adequate understanding of what life in the UK entails.168
A Tier 1 (Entrepreneur) migrant is allowed to bring his dependants to the UK if he can meet specific financial requirements. If the Tier 1 (Entrepreneur) migrant applies for the visa from outside of the UK or he has been residing in the UK for less than 12 months, he must prove that he has £1,890 for each of his dependants.169 Alternatively, if the applicant has been residing in the UK for over 12 months, then he only has to prove that he has £630 for each of his dependants.170
It is obvious that the immigration rules that were in force in 1973, and which generally apply to Turkish nationals, are much less demanding than the immigration rules that are in force today. One of the clearest differences between the rules is that a Turkish applicant does not have to make a specific investment nor create job
164 ibid 245DE(a)(i). 165 Immigration Rules Part 6A, 245DF(c) and Immigration Rules Appendix A, Table 6. 166 Ibid. 167 ibid. 168 Immigration Rules Part 6A, 245DF(d). 169 Points Based System (Dependant) – Policy Guidance version 04/2015 10. 170 Ibid.
28 positions.171 Additionally, Turkish applicants are not required to possess a valid entry clearance in order to enter and establish in business in the UK.172 The applicants applying under the Tier 1 (Entrepreneur) migrant category are also imposed with a mandatory requirement to provide a business plan when making their applications. Although Turkish applicants are also highly encouraged to provide a business plan, it is still not a mandatory requirement. Also, Turkish nationals are not imposed with a requirement to have a specific amount of money to support their dependants in the UK. The obligation to pass the ‘Genuine entrepreneur test’ also does not apply to Turkish nationals applying under the Ankara Agreement. It should also be noted that there is no expressly stated English language requirement for Turkish applicants.173 Additionally, a remarkable difference regarding the application for indefinite leave is that a Turkish national can apply for settlement after staying in the UK for four years, while an other third-country national has to have stayed in the UK for five years before he can make an application for indefinite leave to remain. In relation to the application process for indefinite leave to remain, Turkish nationals are not imposed with the requirement to take the ‘Life in the UK’ test. It is clear that Turkish nationals gain a significant advantage from the Ankara Agreement as the rules governing their applications are much more flexible and generous than the rules that govern the applications of the other third-country nationals that wish to enter and establish in business in the UK under the Tier 1 (Entrepreneur) migrant category.174
4 Abusive and fraudulent conduct
It has been established above that Turkish self-employed nationals generally benefit from relatively generous immigration rules when making an application under the Ankara Agreement. However, it has been established in ECJ and UK case law that when abuse or fraud is involved in the application or in the conduct of the applicant, the success of the application may be affected. The case law below demonstrates the
171 Nicola Rogers, ‘The Turkish Association Agreement applications – a myriad of problems and some solutions’ (2006) JIANL 20(4) 283, 285. 172 Ibid. 173 Business applications under the Turkish EC Association Agreement, Home Office, 59
29 approaches that have been taken by Courts in the UK as well as the ECJ when determining the effect that abuse and fraud have on the scope and applicability of the standstill clause. The interpretation of fraud and abuse has not been very consistent in the UK, which highlights the ambiguity of this topic. The case law suggests that the decisions of the ECJ set out the scope and limits for the UK Courts when it comes to interpretation of the concept of abuse and fraud.
4.1 The establishment and application of the ‘fraud exception’
The case of Tum and Dari is considered to be an extremely important case in relation to fraud and abuse because the ‘fraud exception’ was established in this case and it was also held that this particular fraud exception applies in cases concerning Article 41(1) of the Additional Protocol.175 The Court of Appeal held that the fact that an application for asylum has been refused does not mean that the applicant has been fraudulent, because in some instances also genuine asylum applications can be refused.176 In this case, the ECJ agreed with the Court of Appeal judgment and it famously held that a Turkish applicant is not able to rely on the standstill clause if his application contains abuse or fraud.177 This judgment also gave the national courts the power to take into consideration abuse or fraudulent conduct on a case-by-case basis, and if such conduct has occurred, the applicant may not be allowed to benefit from the standstill clause.178 Arguably this finding gave UK courts a relatively wide discretion to determine what constitutes fraud or abuse and when an application falls outside the scope of the standstill clause. It was held that when determining whether an applicant can benefit from the standstill clause, the decisive factor is not whether the applicant’s previously submitted asylum application had been refused but whether the applicant’s application under the Ankara Agreement contained fraud.179 This decision was significant because it has been argued that the ECJ in its judgment
175 Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142 and FS [2008] UKAIT 66 [21] and Sonmez v Secretary of State [2009] EWCA Civ 582 [67]. 176 Veli Tum, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 788 [16]. 177 Case C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [64]. 178 Ibid. 179 ibid [67], [68].
30 suggested that applicants that have applied for leave under the Ankara Agreement should not be penalised for the sole fact that they might have previously applied for asylum but their applications had been refused.180
The case law from the past decade demonstrates how the interpretation of the scope of the ‘fraud exception’ has caused ambiguity and a certain degree of inconsistency in the UK Courts. In the High Court case of Yilmaz it was considered whether the Secretary of State was allowed to refuse the applicant’s application under the Ankara Agreement on the basis that he had sought entry into the UK with a passport that contained fraudulent stamps.181 In this case the Court interpreted the ‘fraud exception’ principle that was established by the Court of Appeal in the case of Tum and Dari, and it was considered that the scope of this principle should not be interpreted narrowly.182 The Court held that the fraud exception does not only cover applicants that have ‘obtained entry by fraud’.183 This particular exception also includes applicants that tried to gain entry by fraud but were unsuccessful.184 It was held that the ‘deceptive intention’ is the crucial factor that determines whether the fraud exception applies.185 The Court held that the applicant’s application under the Ankara Agreement was to be refused because the applicant had exercised fraudulent conduct when he initially sought to gain entry into the UK.186 The decision of this case clearly demonstrates that the UK Courts believed that the fraud exception was to be interpreted broadly and therefore it would potentially catch a greater number of Turkish applicants.
In the High Court case of Taskale the fraud exception was applied and it was held that the applicant’s application was not to be assessed under the immigration rules that
180Richard Ball, The Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals (2014 Routledge) 183. 181 Yilmaz v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) [5] and Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142. 182 Yilmaz v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) [28]. 183 ibid [12], [28]. 184 ibid [12], [28]. 185 ibid [29]. 186 ibid [29].
31 were in force in 1973.187 In this case the applicant had entered the UK illegally and upon entry he claimed asylum but his application was refused because he had given fraudulent information to immigration officers.188 The applicant established a business with a business partner in the UK and applied for leave to remain as a self- employed businessperson under the Ankara Agreement.189 The principles established in the judgment in Yilmaz were reflected in the decision of the Court in this case and it was held that the Secretary of State was allowed to refuse the application on the basis that the applicant had previously tried to enter the UK fraudulently.190 It was held that the Secretary of State was allowed to take into consideration the immigration history of the applicant, especially the fact that he had initially tried to enter the UK by giving false information in order to be granted asylum.191
In the High Court case of Aksu, the applicant had not been granted leave to enter the UK under the Ankara Agreement and he decided to challenge the refusal of his application.192 The Court held that the Secretary of State was correct in relying on the ‘fraud exception’ that had been established in the case of Tum and Dari because the applicant in this case had not been genuine when he applied for asylum in the UK, as he had not disclosed important information upon arrival.193 The applicant had not informed the immigration officers that he had previously claimed asylum in Germany and that his application had been refused.194 The decision of this case suggests that the UK Courts effectively penalized Turkish applicants also for their past, which may not have direct connection to their actual application under the Ankara Agreement.
In the High Court case of Arslan the Court for the first time arguably considered whether all types of fraud automatically could remove the applicant from the scope of
187 Taskale, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 712 (Admin) [34]. 188 ibid [3], [34]. 189 ibid [4]-[5]. 190 ibid [34]. 191 ibid [34]. 192 Aksu, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1382 (Admin) [1] and Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142. 193 Aksu, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1382 (Admin) [19]-[20]. 194 ibid [2].
32 the Ankara Agreement. In this case the applicant had been refused leave to remain in the UK as a self-employed businessperson.195 He first entered the UK claiming asylum but the application was refused.196 The Court held that the Secretary of State was allowed to rely on the fraud exception when refusing the applicant’s application because there was an obvious link between the applicant’s application for asylum that involved fraudulent conduct and his application for leave to remain in the UK as a self-employed businessperson under the Ankara Agreement.197 This case was significant because the judge questioned the decision reached in Taskale, where it was held that the fraud exception can be applied also when the applicant’s fraudulent conduct did not ‘successfully lead to the grant of leave to enter or remain’.198 The judge questioned whether a Turkish applicant should be refused from any reliance on the Ankara Agreement if fraud is not directly linked to his application under the Ankara Agreement.199 However, the judge did not consider this question further because in this case there was a link between fraudulent conduct and the application made under the Ankara Agreement.
In the High Court case of KT, the claimant had entered the UK illegally and also he had lied in an interview and had not informed the officials about his immigration history and his application for leave to enter the UK was refused.200 In this case the Court held that a Turkish applicant that has been able to satisfy the requirements of the immigration rules that were in force in 1973 by breaching conditions of his admission is not allowed to benefit from the standstill clause.201 The Court also considered what constitutes fraud. It was argued that the applicant is guilty of fraudulent conduct if he relies on false information in the hope of being granted a leave.202 Also it was held that in this particular case, the fact that the applicant had intentionally decided not to inform the immigration officers that he had previously
195 Arslan v Secretary of State for the Home Department [2006] EWHC 1877 (Admin) [1]. 196 ibid [2]. 197 ibid [27]. 198 ibid [27]. 199 ibid [27]. 200 KT, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2450 (Admin) [2], [7]. 201 ibid [40]. 202 ibid [34].
33 claimed asylum in Italy, constituted fraud.203 The broad scope of the ‘fraud exception’ was clearly visible in this case. Breach of conditions was classified as being a factor that automatically takes the applicant outside the scope of the standstill clause.
The Court of Appeal case of LF arguably broadened the scope of the fraud exception even more as it was held that it also covers the abuse of rights.204 Lord Justice Laws drew a link between the judgment of the ECJ in Tum and Dari and the common law principle of ex turpi causa non oritur actio, meaning that ‘a man may not profit from his own wrong’.205 The Court of Appeal decided that the applicant in this case could not benefit from the standstill clause because he had only fulfilled the requirements of the immigration rules that were in force in 1973 by reason of his own wrongdoing in establishing a business in violation of the conditions of his temporary admission.206 The judgment in this case clearly reinforced the principle that was established in Tum and Dari, that an applicant was taken outside the scope of the standstill clause when abusive or fraudulent conduct had occurred.207
Some of the principles that were established by ECJ in Tum and Dari were reflected in the judgment that was given in the High Court case of Aldogan. In this case it was argued that failed asylum seekers should not be automatically considered to be guilty of abusive or fraudulent conduct.208 It was argued that an applicant that has been honest with his application should not be set out of the scope of the standstill clause on the basis of him being a failed asylum seeker.209 On the other hand, if the substance of the application made under the Ankara Agreement contained fraud then the applicant should not be able to benefit from the standstill clause as the fraud exception would apply in such a case.210 This case arguably narrowed down the scope of the ‘fraud exception’ because this decision suggests that only the actual content of
203 ibid [34]. 204 ZY (Turkey) v Secretary of State for the Home Department [2011] EWCA Civ 65 [13]. 205 LF (Turkey) v Secretary of State [2007] EWCA Civ 1441 [17]. 206 ibid [18]. 207 KA (Turkey) v Secretary of State for the Home Department [2013] 1 CMLR 2 (CA) [32]. 208 Aldogan, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2586 (Admin) [12]. 209 Ibid. 210 ibid.
34 the application made under the Ankara Agreement should be assessed when determining whether fraud or abuse has been involved.
In the Tribunal case of FS, the Tribunal applied the ex turpi causa principle and held that the applicant was not allowed to benefit from the standstill clause because she had breached the conditions of her leave as a visitor.211 It was also established in this case that the fact that an applicant can be considered to have overstayed his previous leave in the UK does not mean that the applicant is guilty of breaching the conditions of his leave.212 The Tribunal also made an important finding by stating that paragraph 21 of HC 510 allows a Turkish visitor to switch to a businessperson category but it does not allow an applicant to breach the conditions of his leave as a visitor.213 The paragraph only allows the applicant to request authorisation from the Secretary of State to establish a business in the UK, and it does not allow the applicant to breach the conditions of his visitor leave by starting a business before being granted such permission.214 The conclusion of the Tribunal suggests that the fraud exception should apply in cases such as this, where the breach of conditions is directly linked to the grounds that the applicant relies upon when making an application under the Ankara Agreement.215 This decision arguably keeps the scope of the ‘fraud exception’ narrow, as it arguably restricts the Home Office from giving too much weight to the immigration history of the applicant.
In the Tribunal case of IY, the Tribunal considered and established a number of points. It was held that the fraud exception also applies to entry clearance applications that are made outside the UK.216 The Tribunal also held that the Secretary of State refused the applicant’s application for the right reasons.217 According to the Tribunal, the Secretary of State would have had two possible grounds to refuse the applicant’s application in this case.218 One of the possible grounds was the fact that the applicant had established in business in the UK after he had been given notice precluding him
211 FS (Breach of conditions: Ankara agreement) Turkey [2008] UKAIT 00066 [27]. 212 ibid [23]. 213 ibid [26]. 214 ibid [26]. 215 ibid [27]. 216 IY (Ankara Agreement – Fraud and Abuse) Turkey [2008] UKAIT 81 [53]. 217 ibid [48]. 218 ibid [48].
35 from engaging in business and that he was relying on this business when applying for entry clearance outside of the UK.219 The other ground for refusing his application was that he had used fraudulent information when seeking to claim asylum in the UK in the first place, prior to making any of his applications for leave to remain under the Ankara Agreement.220 In this case the Tribunal suggested that the Secretary of State is allowed to take into consideration the previous fraudulent conduct of the applicant even if it does not necessarily directly relate to the present application made under the Ankara Agreement.221 Arguably this decision broadened the scope of the ‘fraud exception’ again.
In the case of Sonmez, the Court of Appeal followed in the footsteps of the previous cases and it was held that the Court was bound by the judgment that was given in the case of LF.222 In this case the Court considered the fraud exception, which is able to prevent an application to fall within the scope of the standstill clause of Article 41(1).223 The Court held that the fraud exception applies when the applicant has breached the conditions of his previous leave.224 In this case the Court suggested that a breach of condition amounts to ‘fraudulent activity’.225
4.2 The modern approach towards fraud and abuse in the United Kingdom
The above-mentioned cases demonstrate that the ‘fraud exception’ has been interpreted broadly and narrowly in the past and arguably it could be described as an accordion. The common ground between both of these interpretations is that the ‘fraud exception’ prevents the application of the Turkish national to be considered under the immigration rules that were in force in the UK in 1973. Also the case law clearly suggests that breach of conditions of the Turkish applicant’s previous leave
219 ibid [6], [48]. 220 ibid [48]. 221 ibid [45]. 222 Sonmez v Secretary of State for the Home Department [2009] EWCA Civ 582 [86]. 223 ibid [58]. 224 ibid [50]. 225 Sonmez v Secretary of State for the Home Department [2009] EWCA Civ 582 [87] and Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142.
36 amounts to fraudulent conduct. As it was mentioned earlier in Chapter 2, the decision of the ECJ in the case of Oguz established a completely new approach towards abuse and fraud in the UK. Under this approach, applications containing fraud or abuse are considered to fall within the scope of the standstill clause and are therefore to be assessed under the immigration rules that were in force in the UK in 1973.226 The ECJ explained this by stating that the application automatically falls within the scope of the standstill clause before it is considered and determined whether the applicant is guilty of abusive or fraudulent conduct.227 Arguably, the ECJ erased the ‘fraud exception’, and therefore made the previous UK case law meaningless, because according to the new approach, fraud and abuse do not prevent the application to be covered by the standstill clause.228
In the case of Oguz, the Turkish national’s application for leave to remain as a businessperson was refused under the current immigration rules because he had breached the conditions of his previous leave as he had established in business.229 It was argued that by breaching the conditions of his previous leave to remain, he was guilty of abusive and fraudulent conduct and therefore fell outside the scope of the standstill clause.230 The ECJ had to consider whether a Turkish national that has breached the conditions of his previous leave to remain by engaging in self- employment, and later on seeks to extend that leave on the basis of the business that he had established in breach of the conditions, can benefit from the standstill clause.231 The ECJ held that under Article 41(1) of the Additional Protocol EU Member States are allowed to refuse the Turkish national’s application only under the
226 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015). 227 ‘Additional protocol applies before assessment of merits’ (2011) EU Focus 287 13, 14. 228 Richard Ball, The Legitimacy of the European Union Through Legal Rationality: Free Movement of Third Country Nationals (Routledge 2014) 184. 229 Case C-186/10 Tural Oguz v Secretary of State for the Home Department [14]- [15]. 230 ibid [15]. 231 ibid [19].
37 immigration provisions that were in force in 1973.232 The ECJ held that the fact that the applicant has breached the conditions of his previous leave to remain is not relevant when considering whether he falls within the scope of Article 41(1).233 The ECJ concluded that the standstill clause applies to Turkish applicants when they have breached the conditions of their previous leaves in the UK by establishing in business, and when they later on rely on those businesses when they make their applications for leave to remain in the UK as self-employed businesspersons.234
The judgment in the Court of Appeal case of KA followed in the footsteps of the judgment that was made in Oguz.235 The Court of Appeal clarified this by stating that ‘nothing, not even fraud, takes a case outside the standstill clause’.236 This case was also significant for other reasons because it was held that a breach of condition should not be automatically equated with fraud or abuse of rights.237 It was held that considering a breach of conditions to be identical to fraud or abuse of rights would mean that the fact that a breach of condition can take place in a number of different forms would be ignored.238 The Court also noted that cases should be examined and considered on a case-by-case basis under the 1973 immigration rules rather than have a ‘blunt test’ applied in all of the cases, which would mean that different circumstances and facts of different cases would not be considered.239
The decisions in Oguz and KA have had a significant impact on how the applications of Turkish businesspersons are to be decided in the UK today, when such applications contain fraud or abuse.240 It is obvious from pre-Oguz case law that applications
232 ibid [31]. 233 ibid [34]. 234 ibid [46]. 235 Ascioglu v Secretary of State for the Home Department [2012] EWCA Civ 1183 [51]. 236 ibid [53]. 237 ibid [53]. 238 ibid [53]. 239 ibid [53]. 240 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015) and Gina Clayton, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) 142.
38 involving fraud or abuse were directly removed from the scope of the standstill clause and therefore the applications were considered under the more demanding immigration rules that had entered into force after 1973.241 Today, the fact that the application contains abuse or fraud does not mean that the application will be immediately taken out from the scope of the standstill clause.242 As it was mentioned above in KA, a breach of conditions should not be considered to be identical to abuse or fraud in every case in relation to self-employed Turkish applicants.243 This judgment also stated that all possible factors must be considered when determining whether abuse or fraud is present in the application.
This new interpretation of fraud and abuse has been reflected in the Home Office’s guidance documents. As all the businessperson applications that are made under the Ankara Agreement are to fall within the scope of the standstill clause, they are to be assessed under the immigration rules that were in force in the UK in 1973.244 This means that all applications must satisfy the requirements in paragraph 4 of HC 510 or otherwise they will be refused.245 As it has been stated above, this paragraph contains the general grounds for refusal and therefore all applications must satisfy them. The exact wording of paragraph 4 was stated earlier in this thesis. When the Home Office determines whether a Turkish national’s application under the Ankara Agreement should be refused, consideration will be given to a number of different factors.246 The immigration history of the applicant is considered, such as his possible illegal entry into the UK or his possible use of ‘deception’ when applying for a leave, which are factors that usually lead to the application to be refused under paragraph 4.247 Also, if the applicant has breached conditions of his previous leave, his application would
241 Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf (accessed on 14.5.2015). 242 ibid. 243 ibid. 244 ibid. 245 ibid. 246 Business applications under the Turkish EC Association Agreement, Home Office, 20
39 generally be refused under paragraph 4.248 However, the Home Office must take into account all possible features and circumstances of the applicant and his business when determining whether the application should be refused under this ground. The Home Office has suggested that when determining whether an application involving breach of conditions should fall for refusal, it should be considered whether the applicant could have satisfied the requirements of paragraph 21 of HC 510 if he had not breached the conditions of his leave.249 If the Home Office is satisfied that the applicant would have been able to satisfy the conditions without the breach, then the likelihood for the application to be refused would be lower.250 On the other hand, if it is clear that the applicant would not have been able to satisfy the requirements, then there is a higher chance for the application to be refused under paragraph 4.251 This suggests that the Home Office has still got quite a broad discretion to determine whether an application should be refused because of fraud or abuse. However, it can be argued that as long as the Home Office initially examines all fraud-containing applications under paragraph 4, they are acting in conformity with the approach of the ECJ.
5 Conclusion
This thesis has established that the current immigration law that governs the self- employed Turkish nationals wishing to migrate and establish in business in the UK under the Ankara Agreement can be found in the Immigration Rules of HC 509 and HC 510, which were in force in 1973. The applications of the Turkish self-employed nationals are to be decided under these rules because the standstill clause of Article 41(1) of the Additional Protocol obliges the UK, as a Member State of the EU, not to introduce any new immigration rules that are more restrictive than the ones that were in force in 1973. However, it is important to remember that if the application of the Turkish national does not satisfy the requirements of the above mentioned provisions, his application will be considered under the current immigration rules. Arguably, it is unlikely that the Turkish applicant would succeed under the current immigration rules
248 ibid 23. 249 ibid 24. 250 ibid 24. 251 ibid 25.
40 if he already failed to satisfy the rules that were in force in 1973. This thesis has established that the immigration rules that are generally applied to third-country nationals wishing to establish in business in the UK have very strict and demanding requirements.
This thesis has established that Turkish applicants continue to gain a remarkable advantage under the immigration rules that were in force in the United Kingdom in 1973. This thesis suggests that the already favourable UK immigration rules that govern applications of Turkish self-employed nationals have been becoming more favourable, while the immigration rules generally applicable to applicants from other third countries continue to become stricter. In order for Turkish nationals to be granted leave to enter or remain in the UK as self-employed businesspersons, they are not obliged to have access to strictly specified sums of money and they are not required to prove that their businesses will create a certain number of employments in the UK. The findings of this thesis suggest that the Turkish self-employed applicants are arguably in a better and more favourable position to create businesses in the UK compared to other third-country nationals and they are possibly more willing to take risks because they are not under pressure to guarantee that their businesses will succeed and be able to create new jobs. Also the fact that Turkish businesspersons can bring their dependants into the UK without the need to satisfy strict financial requirements provides a significant advantage because as it has been established, separation from family members may negatively affect the eagerness of the Turkish nationals to migrate and establish in business in the UK and therefore the purpose of the Ankara Agreement would be undermined.
This thesis has recognized that the immigration rules that currently apply to Turkish self-employed nationals wishing to migrate and establish in business in the UK are the same immigration rules that were in force in 1973, but arguably the scope of these rules has been widened as a consequence of recent ECJ and UK case law. Arguably, a broader group of Turkish nationals may have their applications assessed under these rules. The ECJ has established that the legality of the applicant’s residence in the UK is no longer a factor that can automatically prevent the applicant from benefiting from the standstill clause. It is also important to note that the UK case law has widened the scope of possible applicants that can apply for leave to remain as a self-employed
41 businessperson in the UK under paragraph 21 of HC 510. Previously, only applicants that had entered the UK in a visitor category were considered to be able to be granted such leave to remain and therefore change to the self-employed businessperson category. However, today such ‘switching’ is a possibility afforded to all Turkish nationals, no matter in what capacity they entered the UK initially. Additionally, an applicant that is guilty of abusive or fraudulent conduct is still considered to benefit from the standstill clause and therefore his application must be assessed under paragraph 4 of HC 510. This development in relation to fraud and abuse is relatively new and it arguably widens the scope of possible applicants because previously applications involving fraud or abuse were refused without them being assessed under the immigration rules that were in force in 1973. The modern approach towards fraud and abuse arguably provides better chances for applicants to succeed with their applications because, for example, the fact that the applicant has breached the conditions of his previous leave in the UK does not mean that the application is automatically refused.
This thesis also described the new changes that the Immigration Act 2014 has introduced and which arguably have a restrictive effect on the Turkish applicants that have had their applications under the Ankara Agreement refused in the UK. Turkish applicants in the UK no longer have the same rights of appeal to a Tribunal when the Home Office has refused their applications. It has been argued in this thesis that the new Act is not in conformity with the Ankara Agreement because it arguably makes the position of Turkish self-employed nationals worse than it was before when the old rights of appeal were still in force. The administrative review process is a very recent development and therefore it remains to be seen what effect it will have on Turkish self-employed nationals. An interesting research topic for future research would be to investigate the effect that the new Immigration Act 2014 has on Turkish self- employed nationals that have had their applications refused by the Home Office. However, this research should be conducted when there is more material on this topic.
42 BIBLIOGRAPHY
Legislation: Agreement establishing an Association between the European Economic Community and Turkey Immigration Act 2014 Immigration Rules Appendix A, Home Office Immigration Rules Appendix AR, Home Office Immigration Rules Appendix B, Home Office Immigration Rules Appendix C, Home Office Immigration Rules Part 6A, Home Office Nationality, Immigration and Asylum Act 2002 The Additional Protocol Treaty on the Functioning of the European Union
Cases (ECJ): C-12/86 Meryem Demirel v Stadt Schwäbisch Gmünd C-37/98 The Queen v Secretary of State for the Home Department, ex parte Abdulnasir Savas C-317/01 and C-369/01 Eran Abatay and Others and Nadi Sahin v Bundesanstalt für Arbeit C-16/05 The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department C-228/06 Soysal and Savatli v Germany C-92/07 European Commission v Kingdom of the Netherlands C-186/10 Tural Oguz v Secretary of State for the Home Department C-221/11 Leyla Ecem Demirkan v Bundesrepublik Deutschland C-138/13 Naime Dogan v Bundesrepublik Deutschland
Cases (UK): Akinci [2012] UKUT 266 Aksu, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 1382 (Admin) Aldogan, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 2586 (Admin) Arslan v Secretary of State for the Home Department [2006] EWHC 1877 (Admin) Ascioglu v Secretary of State for the Home Department [2012] EWCA Civ 1183 Baylan [2012] UKUT 83 BK and Others (Spouses: Marriage, Meaning of ‘subsisting’) [2005] UKAIT 174 Desdemir [2013] UKUT 121 EK (Ankara Agreement – 1972 Rules-construction) [2010] UKUT 425 FS (Breach of conditions: Ankara agreement) Turkey [2008] UKAIT 00066 IA139802013 & IA140382013 [2014] UKAITUR IA139802013 IY (Ankara Agreement – Fraud and Abuse) Turkey [2008] UKAIT 81 KT, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 2450 (Admin) LF (Turkey) v Secretary of State [2007] EWCA Civ 1441 OT (Ankara Agreement, students, businessmen, workers) [2010] UKUT 330 OY (Ankara Agreement; standstill clause; worker’s family) Turkey [2006] UKAIT 00028
43 Sonmez v Secretary of State for the Home Department [2009] EWCA Civ 582 Taskale, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 712 (Admin) Veli Tum, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 788 Yilmaz v Secretary of State for the Home Department [2005] EWHC 1068 (Admin) ZY (Turkey) v Secretary of State for the Home Department [2011] EWCA Civ 65
Journal articles: — — ‘Additional protocol applies before assessment of merits’ (2011) EU Focus 287 13-14 — — ‘Establishment “standstill” clause in Turkey agreement applies to first entry’ (2007) EU Focus 218 20-21 — — ‘Free Movement: ECJ rules on scope of EC-Turkey Agreement’ (2000) EU Focus 55 13 — — ‘German language requirement for Turkish spouses unlawful’ (2014) EU Focus 322 23-24 — — ‘Immigration Act 2014’ (2014) JIANL 28(4) 310-312 Adam S, Van Elsuwege P, ‘Citizenship rights and the federal balance between the European Union and its Member States: Comment on Dereci’ (2012) EL Rev 37(2) 176-190 Guild E, ‘European Commission v Netherlands (C-92/07)’ (2010) JIANL 24(3) 270- 271 Hoogenboom A, ‘Moving forward by standing still? First admission of Turkish workers: comment on Commission v Netherlands (Administrative Fees)’ (2010) EL Rev 35(5) 707-719 Lenski E, ‘Turkey and the EU: on the Road to Nowhere?’ (2003) ZaöRV 63 MacGregor A, Blanke G, ‘Free movement of persons within the EU: current entitlements of EU citizens and third country nationals – a comparative overview’ (2002) Int TLR 8(6) 173-193 Moffatt R, Thomas C, ‘And then they came for judicial review: proposals for further reform’ (2014) JIANL 28(3) 237-253 Ozturk N, ‘Current Developments in Citizenship, Immigration, Refugee law and law of Foreigners: International Symposium Proceedings 15 and 16 May’ (2010) JIANL 24(4) 376-379 Peers S, ‘EC immigration law and EC association agreements: fragmentation or integration?’ (2009) EL Rev 34(4) 628-638 Peers S, ‘Turkish visitors and Turkish students: New rights from the European Court of Justice’ (2009) JIANL 23(2) 197-203 Rogers N, ‘The Turkish Association Agreement applications – a myriad of problems and some solutions’ (2006) JIANL 20(4) 283-288
Textbooks: Ball R, The Legitimacy of the European Union through Legal Rationality: Free Movement of Third Country Nationals (Routledge 2014) Boeles P, den Heijer M, Lodder G, Wouters K, European Migration Law (2nd edn, Intersentia 2014) Cengiz F, Hoffmann L, Turkey and the European Union: Facing New Challenges and Opportunities (Routledge 2014)
44 Clayton G, Textbook on Immigration and Asylum Law (6th edn, Oxford University Press 2014) Dedeoglu S, Migrants, Work, and Social Integration: Women’s Labour in the Turkish Ethnic Economy (Palgrave Macmillan 2014) Fripp E, The Law and Practice of Expulsion and Exclusion from the United Kingdom (Hart Publishing 2015) Rogers N, Scannell R, Walsh J, Free Movement of Persons in the Enlarged European Union (2nd edn, Sweet & Maxwell 2012) Talani LS, Globalisation, Migration, and the Future of Europe: Insiders and Outsiders (Routledge 2012) Weiss F, Kaupa C, European Union Internal Market Law (Cambridge University Press 2014)
Websites: https://www.gov.uk/settle-in-the-uk http://www.lexisnexis.co.uk/pdf/Immigration%20Act%202014%20- %20LexisPSL%20Immigration%20Analysis.pdf
Others: Appeals Guidance, Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/396591 /Appealsguidance-wordgovuk_revisededition_LS.pdf Business applications under the Turkish EC Association Agreement, Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/429185 /Turkish_ECAA_business_v5_0.pdf Fraud and abuse in Turkish ECAA applications, Policy Notice, 06/2013: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/309055 /30748_-_Annex_8_-_Notice_06-2013_- _Fraud_and_abuse_in_Turkish_ECAA_cases_-_redacted.pdf House of Commons, Home Affairs Committee, Implications for the Justice and Home Affairs area of the accession of Turkey to the European Union, Tenth Report of Session 2010-2012: http://www.publications.parliament.uk/pa/cm201012/cmselect/cmhaff/789/789.pdf Immigration Directorate Instructions Chapter 6, Section 6, Business Applications under the Turkish ECAA May 2011: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/263075 /section6.pdf Points Based System (Dependant) – Policy Guidance version 04/2015: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/420033 /PBS_dependant_guidance_0415.pdf Rights of Appeal: Version 2, Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/421560 /Rights_of_appeal_guidance_v2.0_EXT.pdf Tier 1 (Entrepreneur), Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/427993 /Tier_1_Entrepreneur_12.0_EXT.pdf
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