Applicants of Turkish nationality who wish to establish in business (self-employed businessperson) or take up employment (Turkish worker) in the UK may do so under the provisions of the European Community Association Agreement (also referred to as the ECAA).

Self-employed Businessperson Route

Under the self-employed businessperson route, Turkish nationals will have their applications considered under the less stringent Immigration Rules as they existed in 1973 as derived from Article 41 (1) of the Additional Protocol to the Ankara Agreement which gives Turkish nationals the “freedom of establishment”. It states:

‘The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.’

Under this category, Turkish applicants can:

• start a new business in the UK
• join an existing business which the applicant will have an active part in running
• switch into this visa from another visa category
• extend stay if already in this visa category
• bring family members (‘dependants’)

Applications can be made whilst the Turkish national is within the UK or abroad.

Initial Applications

Applicants wishing to apply under this category must be of Turkish nationality and must demonstrate:

 A genuine intention to set up or partner in a viable business

• Sufficient funds to establish the business
• An ability  to pay their share of the costs of running the business
• That their share of profits will be enough to support the applicant and family members without the need to have additional employment

Applicant’s seeking to join an existing business they must demonstrate additional requirements:

• Active involvement in running the business
• A genuine need for their specific services and investment
• The accounts of the business from previous years
• audited business accounts immediately prior to joining the existing business

The benefits of the Ankara Agreement may be denied to those who have made fraudulent asylum claims or who have unlawfully set up in business in the UK (case of IY (Ankara Agreement – fraud and abuse) Turkey [2008] UKAIT 00081).

Business Plans

 Applicants will need to provide a detailed business plan in support of their application. A business plan is the critical driver of growth and should be a dynamic tool allowing Applicants to focus strategy and spot any potential problems in the business. It should contain a detailed breakdown of the set-up costs of the intended business along with short and long terms goals. It should cover objectives, keys to success, strategies, sales, marketing and a SWOT analysis (strengths, weaknesses, opportunities and threats).

The business plan should also contain financial projections covering the performance of the business for at least the first 12 months of operation. There should be a clear understanding of budget expenses.

Family members

The spouse/civil partner and children of an applicant can be dependants on the application and can join/accompany the applicant under the 1973 rules. They are entitled to work in the UK and can access the education system and the NHS service.

Successful applicants will be issued a visa for a period of 12 months.

Extension Applications

Applicants may apply to extend their visa for a further 3 year period provided they can demonstrate:

• Own assets have been used in the business
• The liabilities of the business can be borne
• Involvement in the business does not amount to disguised employment
• The share of the profits of the business will be sufficient to support the applicant and any dependants without recourse to employment or public funds

TURKISH WORKER ROUTE

A Turkish national who is legally employed in the UK can remain as a Turkish Worker under the provisions of the ECAA. In order to qualify, they must also have worked for the same employer continuously for at least one year.

A Turkish worker is permitted to change employers after working for three continuous years, as long as they continue in the same profession. The worker may be employed in any occupation and by any employer after 4 years of employment.

Settlement In The UK

Prior to 18 March 2018, applicants could apply to settle in the UK after a continuous period of 4 years lawful residence under the ECAA businessperson category. However, on 18 March, the Home Office announced changes to the ECAA guidance for Turkish Workers and Businesspeople stating that applications post marked later than 15^th March 2018 would no longer be accepted for settlement. This is further to the Upper Tribunal case of Aydogdu, R (on the application of) v Secretary of State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT 167 (IAC). This means that a large number of applicants who entered the ECAA businessperson category with the expectation that they would be eligible to apply for settlement in four years’ time are no longer able to do so.

On 18^th June 2018, a new Statement of Changes to the Immigration Rules was published outlining a new settlement category for Turkish business people, workers and their families. The new changes mean that Turkish workers and business people will be able to settle in the UK after 5 years as either an ECAA business person or ECAA worker providing the following criteria is met:

• The applicant must be a Turkish ECAA Business person; and
• Have spent a continuous period of 5 years lawfully in the UK, of which the most recent period of leave must have been as a Turkish ECAA business person, in any combination of the following categories:
•  the Turkish ECAA business person category; or
• othe Tier 1 (Entrepreneur) Migrant category; and
• The applicant must meet the English language requirement at B1 level and have passed the Life in the UK Test;
• Have been able to support any family members with them without recourse to public funds;
• The applicant must not have been absent from the UK for more than 180 days during any 12 month period during the 5 years.  Where the applicant has leave as:

•  a Turkish Business person;
• a Tier 1 Migrant other than a Tier 1 (Post Study Work) Migrant or Tier 1 (Graduate Entrepreneur)

Any absences from the UK must have been for a purposes that is consistent with the applicant’s basis of stay here or for serious or compelling reasons.

• The business which the applicant has established, taken over or become a director of will be subject to a “genuine test” where they will need to demonstrate the genuineness and viability of the said business.

The changes are expected to come into effect on 6^th July 2018.

Applicants who have not yet acquired settled status are naturally worried about the new changes and the implications of BREXIT. Many feel that the Home Office’s retrospective application of the new rules and lack of transitional arrangements for those already in the ECAA category, is unfair. Legal challenges are expected.

The requirements, which need to be met for those under the Turkish worker route are as follows:

• The applicant must be a Turkish ECAA worker; and
• Have spent a continuous period of 5 years lawfully in the UK, of which the most recent period of leave must have been as a Turkish ECAA worker, in any combination of the following categories:
• a Turkish ECAA worker;
• as a Tier 2 (General Migrant);
• as a Tier 2 (Minister of religion) Migrant;
• as a Tier 2 (Sportsperson) Migrant; or
• as a work permit holder; and The applicant must meet the English language requirement at B1 level and have passed the Life in the UK Test;
• Have been able to support any family members with them without recourse to public funds;
• The applicant must not have been absent from the UK for more than 180 days during any 12-month period during the 5 years.

At Descartes Solicitors, we will continue to monitor the developments and support any applicants who wish to challenge the impact of these changes on their application to settle in the UK after 4 years.

How We Can Help

We have Turkish speaking lawyers who can also assist applicants, family members or dependants to:

• Make an initial application
• Prepare a tailored business plan.
• Make an extension application
• Make a settlement application; or
• Challenge decisions by way of Administrative Review or other appeal process

We will assist by:

• Obtaining the complete facts of a case
• collecting relevant documents
• advising the best solutions
• Using our expertise to undertake one-to-one interview preparation
• preparing the application (including completion of forms)
• preparing covering submissions
• submitting the application(s) to the relevant authority
• communicating with the relevant authority until a decision is made
• advising about rights and entitlements following a decision an application
• providing follow up support and services