Although Brexit process is regarded as a bilateral issue between UK and EU, final departure of UK from the EU can have dire repercussions for Turkish people who seek entry and leave to reside in UK in order to establish business or find employment in UK labor market.
A group of Turkish entrepreneurs have lost a High Court case which they brought against the Home Office over a change to immigration rules last year.
The Alliance of Turkish Businesspeople had brought the judicial review challenge claiming the Home Office had acted unlawfully in imposing additional requirements on Turkish business people and their dependants if they wanted to obtain indefinite leave to remain. However; as Financial Time reports Justice James Dingemans dismissed the judicial review claim and found in favor of the Home Office.
Following the ruling, the Home Office stopped accepting applications for ILR (Indefinite Leave to Remain) under the ECAA — catching thousands of Turkish business owners established in the UK off guard. It then extended the minimum residency requirement by one year to five years — in line with the policy for EU nationals.
To challenge the policy change in the courts, those affected founded The Alliance of Turkish Businesspeople Limited (AOTB). They argue that the changes affect people that started their application before changes became effective; thus have ex post facto effects and had brought real hardship on them and their dependents and that they amounted to an abuse of power.
The alliance has lately been granted the right to appeal in order to once again challenge the changes at the Court of Appeal.
WHAT IS ANKARA AGREEMENT AND WHY IS IT SO IMPORTANT FOR TURKISH WORKERS AND BUSINESS PEOPLE?
The European Communities Association Agreement (ECAA) was set up under the Ankara Agreement of 1963 – before the UK joined the EU. The aim was to promote economic relations between Turkey and the community and lead to accession of Turkey to the (now) EU at a later date.
What are the Advantages afforded to Turkish Business People by the Agreement?
The Additional Protocol developed the 1963 provisions in relation to restricting freedom of establishment and the freedom to provide services, and required that states do not introduce any new restrictions on the freedom of establishment or freedom to provide services. This requirement for states to refrain from restricting action is also referred to as a ‘standstill clause’ and means that national restrictions which are less favorable simply cannot be applied to citizens of Turkey.
According to the established case law of European Court of Justice, new restrictions are prohibited unless the restriction is justified by an overriding reason in the public interest, is suitable to achieve the legitimate objective pursued and does not go beyond what is necessary in order to attain it.
The Court of Justice of the European Union (CJEU) recently confirmed the correct approach to restrictions and standstill clause in Ankara Agreement applications. In its judgment in Case C‑89/18, A, ECLI:EU:C:2019:580, the Court of Justice ruled that: ECAA must be interpreted as meaning that a national measure which makes family reunification between a Turkish worker legally resident in the Member State concerned and his spouse conditional upon their overall attachment to that Member State being greater than their overall attachment to a third country, constitutes a ‘new restriction’, within the meaning of that provision. Such a restriction is unjustified”
Restrictions of any sort not already in place at the time to Protocol started to have application can thus be ‘new restrictions’ even where they do not relate to a main applicant themselves. The only time when restrictions are allowed to be introduced are where these are justified in the public interest as set out above.
The UK became bound by the ECAA and the ‘no new restrictions’ rule i.e. the famous “standstill clause “when it joined the then European Economic Community (now the EU) in 1973. This means that the Immigration Rules applicable at the time in 1973 must be applied to Turkish business people making applications to come or to remain in the UK.
The rules for a Turkish businessperson visa are thus far less strict than the rules for non-Turkish business people who wish to move to the UK.
Up until March 2018, a Turkish national could settle in the UK to set up a business if they could prove they had the sufficient funds to do so as per the Ankara Agreement signed with the European Union in 1963.
After a year, Turkish citizens self-employed in the UK could apply for further leave to remain — usually for three years — and then apply for Indefinite Leave to Remain (ILR) for free.
The agreement also allowed them to bring dependants to the UK, including spouses, civil partners and children under the age of 21.
POSSIBILITIES FOR TURKISH BUSINESS PEOPLE AFTER BREXIT
Currently; there is hope for considering that the ECAA provisions will be preserved for a certain period under the transitional arrangements for withdrawal, along with the rights of EU citizens present in the UK. Article 2 would preserve domestic legislation which has been derived from EU law (businesspersons – HC 509 and 510); Article 3 is likely to preserve Article 6(1) (workers – direct effect). The suggested last day of the transition period is 31st December 2020.
Speculation about long-term preservation of the provisions past the end of the transition period is a much opaquer issue. After the final exit of the UK from the EU there may be some future arrangement between Turkey and the UK as part of one of the stated aims of Brexit – the forging of new trade agreements with countries outside the EU. It is expected, whatever transpires, that any new arrangement for Turkish nationals seeking to establish businesses or to work in the UK is likely to follow the current (more restrictive) immigration regimes which are in place for non-Turkish nationals.
In the case of Hard Brexit, there is a real danger that Turkish business people may lose their advantageous status derived from Ankara Agreement and find themselves in a very precarious position. That is why there has been a considerable increase of Turkish nationals seeking to obtain residence permits before the window of opportunity closes after a hard Brexit.
 C‑225/12, Demir, ECLI:EU:C:2013:725, paragraph 40