Turkish Nationals establishing themselves in business
The Home Office Guidance of January 2006 covers those who wish to apply from within the UK under the Association Agreement between the European Community and Turkey (the Ankara Agreement or ECAA agreement).
One effect of the Agreement is that applications from Turkish nationals wishing to establish themselves in business can be considered under the UK immigration rules that applied on 1 January 1973, in accordance with the Association Agreement between the EU and Turkey, and not the more onerous immigration rules in force subsequently. This is described as the ‘standstill clause’.
The 2004 case of Dari and Tum tackled the question of whether or not the Turkish European Community Association Agreement ‘standstill’ clause applied to all Turkish nationals wishing to establish themselves in business in the UK or just to some of them. The UK Court of Appeal held that, with the exception of people who had gained entry to the UK by fraud, Turkish nationals must have their applications dealt with in line with the more favorable business immigration rules in place as at 1 January 1973. The case was appealed to the UK House of Lords and the House of Lords referred the case to the European Court of Justice (ECJ). The decision of the ECJ is awaited; so far we have only the Advocate General’s opinion.
One question is whether the ECJ will interpret the Ankara agreement to say that people seeking leave to enter the UK from Turkey to establish themselves in business can benefit from the more favourable Immigration Rules in force in 1973. Another is whether the ECJ will interpret the agreement so that it continues to apply to Turkish nationals applying from within the UK to establish themselves in business.
Currently, if a Turkish national has either leave to enter (a visa) or leave to remain and they are present in the UK, they may apply to ‘switch’ immigration categories (to change from one category to another) if they meet the requirements of the Immigration Rules in force in 1973. All applications alleged to involve fraudulent or illegal behaviour will be scrutinised very carefully following the Court of Appeal judgment in Dari and Tum. The UK Home Office splits its guidance into categories of fraudulent and non-fraudulent in-country cases, which gives a general indication of the approach. The Home Office will make reference to past immigration applications or interviews to try to establish any inconsistencies. People can also be prevented from benefiting from the standstill clause on the grounds of public policy, public security and public health.
The Immigration Rules in force in 1973 and applicable to an applicant joining an established business in the UK require that:
“he will bring in money of his own to put into the business, he will be able to bear his share of the liabilities; that his share of the profits will be sufficient to support him and his dependants; that he will be actively concerned in the running of the business and that there is a genuine need for his services and investment.”
Alternatively, if the applicant wishes to establish a business in the UK on his or her own account, he or she needed to prove that “he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required.”
The Immigration Rules now in force in the UK for people from any country outside the European Economic Area (EEA) who wish to establish themselves in business are more stringent and include the requirements that a person is investing not less than £200,000 of their own money under his control and disposable in the UK, and that the business will create two new full-time jobs for people already settled within the UK.
It must be emphasised that although the rules in force in 1973 were more generous than the immigration rules now in force, an application relying on the ‘standstill’ clause is not a simple affair. An exceptional amount of preparation, often involving accountants and extensive business plans, is necessary to submit an application capable of succeeding under these provisions.