The United Kingdom Border Agency has announced that it has opened a visa route for Turkish nationals applying to establish themselves in business under the European Community Association Agreement (ECAA).
The decision follows - albeit two years afterwards - the European Court of Justice's decision in Veli Tum and Mehmet Dari v Secretary of State for the Home Department (Case no 16/05) (20-9-2007). In that case the European Court of Justice (ECJ) held that:
"the 'standstill' clause set out in Article 41(1) of the Additional Protocol must be regarded as also applicable to rules relating to the first admission of Turkish nationals into a Member State in whose territory they intend to exercise their freedom of establishment under the Association Agreement."
This move is a spin-off of the original case, in which Tum and Dari successfully argued that decisions to remove them from the UK were unlawful because they conflicted with the Turkish European Community Association Agreement singed in Ankara, Turkey on 12 September 1963 (hence the Ankara Agreement). The ECJ found that the agreement applied as much to those Turkish nationals who wished to enter the UK to establish themselves in business as it did to those already in the UK.
(However it shouldn't be thought that the absence of an official visa route has stopped people from making such applications in the past - IY (Ankara Agreement - fraud and abuse) Turkey [2008] UKAIT 00081 is an example of an (unsuccessful) appeal against a decision to refuse entry clearance on the basis of the Agreement).
Article 13 of that agreement referred to the contracting parties (Turkey and the nations who at that time comprised the European Community) agreement to be bound by the relevant articles of the Treaty establishing the European Community for the purposes of abolishing restrictions on the freedom of establishment between them. What later caused the controversy surrounding the Tum and Dari case was Article 41 of the Additional Protocol to the Ankara Agreement - which provides that Member States shall:
"refrain from introducing new restrictions on the freedom of establishment and freedom to provide services"
- for Turkish nationals from the date the ECAA and the Additional Protocol came into force for the Member State concerned. So when the UK joined what was then called the European Economic Community (EEC) in 1973 it became bound not to impose any more stringent requirements than those required to be met by people wishing to establish themselves in business in the UK under the 1973 Immigration Rules. This is the "standstill clause" referred to in the ECJ's ruling.
As would be expected the 1973 Immigration Rules were far less demanding that their modern equivalent - the Tier 1 (Entrepreneur) Migrant route of the points based system (for the requirements please see Rule 245J of HC 395).
Far from requiring applicants to have at least £200,000 to invest in a new or existing UK business and to ensure that their businesses will create new jobs in the UK - applicants under the Ankara Agreement must meet the requirements of Rule 31 of HC 509.
This required / requires:
"For an applicant to obtain an entry clearance for this purpose he will need to show, if joining an established business, that he will be bringing money of his own to put into the business; that 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. The accounts of the business for previous years will require to be produced, in order to establish the precise financial position. An entry clearance will not be issued where it appears that the proposed partnership or directorship amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment for which a work permit is required."
The UKBA can refuse to apply the standstill clause in Article 41 to applications where they can say that the applicant has engaged in "fraudulent or abusive activity". This exception is noted by the ECJ in its judgment in Tum and Dari v Secretary of State:
"according to settled case-law, Community law cannot be relied on for abusive or fraudulent ends... and [that] the national courts may, case by case, take account on the basis of objective evidence of abuse or fraudulent conduct on the part of the persons concerned in order, where appropriate, to deny them the benefit of the provisions of Community law on which they seek to rely".
The scope of this exception, and in particular whether there needs to be fraud or whether abuse on its own is sufficient to disentitle someone to rely on Article 41 (1 ) of the Additional Protocol - has been the subject of a lot of argument in the UK Courts. The most recent case on the subject is Filiz Somnez and (3) Others v Secretary of State for the Home Department (2009) EWCA Civ 58. As is clear from Gherson's report on that case, the majority of the Court of Appeal agreed that abuse was sufficient. It should be noted however that the majority did acknowledge that the application of the abuse principle could be difficult.
According to the Immigration Directorate's Instructions (the IDIs) which have accompanied the UKBA's announcement abuse can be established where someone has established a business during a period spent in the UK on temporary admission - and has then returned to Turkey and made an application relying on that business, even if he or she had permission to work at the time the business was established. This is because "permission to work has never extended to permission to establish in business."
Gherson's solicitors have extensive experience of advising clients in respect of all areas of business related immigration, including applications made under the Ankara Agreement.