This case concerned whether the Applicants were entitled Indefinite Leave to Remain (ILR) at the same time as the main Applicant’s husband even though specific residence requirements had not been met.
On 08/04/11, the main Applicant’s husband had been granted leave to remain in the UK for a period of 12 months to establish himself in business under the European Community Association Agreement (ECAA), more commonly known as the Ankara Agreement. He subsequently established a self-employed landscaping business.
Prior to the expiry of his leave, the main Applicant’s husband applied for an extension of his leave within this category and was granted further leave to remain on 08/10/12 until 08/04/15.
On 09/05/13, the main Applicant and her spouse were married in Turkey and on 23/09/13, she was granted leave to enter and remain in the UK until 08/04/15 as the dependant family member of a Turkish business person under the Ankara Agreement.
The Applicant entered the UK on 08/11/13 and the couple welcomed their first child on 04/02/15 who was the second Applicant.
The family made an application for permanent residence in the UK and main Applicant’s spouse was granted ILR on 18/08/15. However, on 23/09/15, the Applicants’ applications for ILR were refused on the basis that the Respondent was not satisfied that the Applicant and her husband had been living in the UK in a relationship similar to marriage or civil partnership for a period for at least two years as required under UK Immigration Rules.
The Respondent reasoned that, on the evidence, the main Applicant had only been living with her spouse for a period of just under 19 months when the application for ILR was made. This was not disputed by the Applicants.
The Applicants sought Administrative Review of this decision on the basis that it unlawful in view of the “standstill clause” of the ECAA. The “standstill clause” provided that EU governments could not introduce or impose any new legal restrictions on the requirements for Turkish nationals to establish in business in those member states. This was unsuccessful.
The Applicants subsequently applied to the Upper Immigration Tribunal for Judicial Review. Permission was granted and proceeded to an oral hearing.
The core submission of those who acted on behalf of the Home Office was that ILR did not fall within the scope of the “standstill clause” as it is not necessary for the exercise of the right in play – namely freedom of establishment on the part of the Turkish business person or self-employed person concerned under the Ankara Agreement.
The Judge, in this case, accepted this argument and ruled that the “the settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause”. The Judge added that “where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional Protocol.”
What is the impact of the Upper Tribunal’s decision?
The Respondent is currently considering her position as to how to implement the findings of the Upper Tribunal. As a result, many applications for ILR under the Ankara Agreement provision have been placed on hold.
If the ruling is fully implemented, it could mean those under the Ankara Agreement category would be able to retain their business but not necessarily acquire ILR. It could also mean that Applicant’s would only be able to settle following 5 or 10 years lawful residence as currently in place for other categories under the Immigration Rules.
The ruling does not, however, affect Turkish nationals who are submitting their initial application to enter or remain in the UK to establish their business or those applying to extend their stay in the UK.
The Respondent has not yet made a formal announcement as to how she wishes to deal with such applications. This firm has noted however, that a number of its applications that were previously put on hold are now being granted.
Prospective ILR applicants should keep an eye out for updates on this platform.
If you would like to discuss your immigration concerns with one of our experienced legal advisors, call our offices on 0208 995 3556 or email us at email@example.com.