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
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 have established in business as self-employed businesspersons.2
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.
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
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’
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.
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
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 in 1980.12
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
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- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- self- 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.
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
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 Member States.34
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.
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].
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 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.
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].
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_-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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
66 ibid.
67 Neva Ozturk, ‘Current Developments in Citizenship, Immigration, Refugee law and law of Foreigners: International Symposium Proceedings 15 and 16 May’ (2010) JIANL 24(4) 376, 377-378.
68 Business applications under the Turkish EC Association Agreement, Home Office, 8
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
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.
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.
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
94 ibid 118. 95 ibid 118.
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
98 ibid 118. 99 ibid 118. 100 ibid 43.
101 Desdemir [2013] UKUT [11].
102 IDI Chapter 6, Section 6, Business Applications under the Turkish ECAA May 2011, 4.2.3. and Business applications under the Turkish EC Association Agreement, Home Office, 44
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
103 Desdemir [2013] UKUT 121. 104 ibid [25].
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
107 ibid 32. 108 ibid 32.
109 Akinci [2012] UKUT 266 [21].
110 IA139802013 & IA140382013 [2014] UKAITUR IA139802013 [33], [34], [39], [45].
111 Baylan [2012] UKUT 83 [19]. 112 ibid [22].
113 Business applications under the Turkish EC Association Agreement, Home Office, 64
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
118 ibid 15. 119 ibid 66.
120 EK (Ankara Agreement – 1972 Rules-construction) [2010] UKUT 425 [22]. 121 ibid [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).
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015) and
Nationality, Immigration and Asylum Act 2002, section 82(1).
139 Business applications under the Turkish EC Association Agreement, Home Office, 97
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
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
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4291 85/Turkish_ECAA_business_v5_0.pdf > (last accessed on 15.6.2015).
143 ibid 102-105.
144 Immigration Rules Appendix AR, 2 and Nationality, Immigration and Asylum Act 2002, section 82(1).
145 Immigration Rules Appendix AR, 2.
146 13, http://www.lexisnexis.co.uk/pdf/Immigration%20Act%202014%20-%20LexisPSL%20Immigration%20Analysis.pdf (accessed on 21.5.2015). 147 ‘Immigration Act 2014’ (2014) JIANL 28(4) 310, 311.
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.
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).
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.
