UK: Special Employment Rights For Turkish Nationals Under European Law

Last Updated: 10 January 2012
Article by Pinar Coktas

When the right for a migrant to work in the UK is in question, a division is usually made between EEA nationals1 and the rest of the world. The former do not require permission to work as an employee or on a self-employed basis. The latter do; permission can be obtained on a number of different bases such as through a grant of one of the relevant types of leave, a generalised permission to work in the UK, or a right to take up a particular job offer. For those who require permission, the same Immigration Rules apply without consideration of the nationality of the applicant – except if the applicant is Turkish where various more generous provisions may apply.

Introduction

The Agreement Creating An Association Between The Republic of Turkey and the European Economic Community (the 'Ankara Agreement'), made in 1963, is an agreement aiming towards the accession of Turkey into the European Community. The Ankara Agreement initiated a three-step process toward creating a Customs Union which would help secure Turkey's full membership in the EC. As a result, an Association Council was set up by the Agreement and to control its development and to give the Agreement detailed effect by making Decisions. In 1970, Turkey and the EEC also agreed an Additional Protocol to the Agreement. The additional protocol contains technical adaptations necessary for the Ankara Agreement, institutional provisions and provisions concerning the EC-Turkey customs union.

The Ankara Agreement, its Additional Protocol ('the Protocol') and Decisions of the Association Council are all part of EC law (collectively: 'the Agreement' in this article). The European Court of Justice has decided that these give specific rights to Turkish nationals and businesses which the EEC Member States are required by EC law to respect. These documents all require attention when assessing whether a Turkish national could benefit from permission to enter, work in, remain or settle in the United Kingdom. this article all the potential scenarios, below is a summary of some of the rights afforded to Turkish nationals.

Key elements of 'the Agreement'

The objective of the Agreement was to enable Turkey's eventual accession to EC. The emphasis is consequently on the abolition of restrictions on freedom of establishment and freedom to provide services. The most important provision is Article 41 (1) of the Protocol which provides: "The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services".

This clause (usually referred to as 'the standstill clause') has the effect of precluding a State from imposing greater restrictions within the relevant field than exists at the nominated time, though there is no bar to other amendments. In the UK that applies as of the date of UK's accession in 1973. On its face this may seem underwhelming, but the 1970's were the beginning of the tightening of immigration policy which continues to this day, and many comparatively generous provisions of the Immigration Rules, which applied to the world at large at the time have been swept away, other than for Turkish nationals. Other important provisions include:

Article 9 of the Ankara Agreement

'The Contracting Parties recognise that within the scope of this Agreement, and without prejudice to any special provisions which may be laid down pursuant to article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in article 7 of the Treaty establishing the Community.'

Furthermore, Article 10(1) of Decision 1/80 states that:

'The Member States of the Community shall, as regards remuneration and other conditions of work, grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers'.

Key benefits to Turkish nationals

(i) the direct effect of the 'standstill clause'

Details of the Agreement are to be interpreted by the principles of Community law and in Savas [2000] INLR 398 it was established that Art 41 (1) had direct effect and Turkish business people could, therefore, rely directly on the rights it confers. For this reason, any application by a Turkish national to set up in business in the UK has to be considered in light of the Immigration Rules (HC 510) as they were in 1973. As an example, Mr Savas had overstayed his visitor's visa for several years and commenced his businesses while an overstayer, before making an application to remain on that basis. Such an application would have little, if any, prospect of success under the current Immigration Rules, but the Court concluded that his application must be considered under HC 510 (which allowed for applications to remain 'as a businessman' by those who had entered as visitors).

The fraud exception

In case C-l 86/10 Oguz Tural, the Court of Justice invited the Court to respond to the question of whether the above standstill clause was fraud sensitive and whether setting up a business in breach of a condition of leave to remain by could preclude reliance on the clause to rely on the more favourable 1973 business rules. The Court responded that as Article 41(1) does not confer any substantive right and requires only that national legislation is applied, it is to be left to the national legislation to protect against fraud: "The standstill clause must accordingly be understood as applying to a stage before the merits of the case are assessed and before an assessment is made as to whether there is any abuse of rights which may be imputed to the party concerned".

(ii) Association Council Decision 1/80

Article 6(1) of Association Council Decision 1/80, specifically allows Turkish nationals legally employed in an EEC Member State for certain periods to gain rights to remain or switch employment in that State in the following ways:

  • a Turkish national legally employed by the same employer for one year has the right to permission from the Member State to remain in that employment;
  • a Turkish national legally employed for three years in a particular area of work has the right to permission from the Member State to take employment with any employer in that area;
  • a Turkish national legally employed for four years has the right to permission from the Member State to take employment with any employer.

The above rights afforded by EC law can also lead to settlement subject to restrictions. For example, a Turkish national with limited Leave who 'has remained here for 4 years as a business man' is entitled to settlement under HC510 §28. This applies equally to her/his relatives: HC510 §28. A Turkish self-employed person who marries a person settled here is normally granted immediate settlement: HC510 § 24.

(iii) EC law not UK law  

As these rights accrue on the basis of a treaty made by the EC as a whole, the interpretation must be in conformity with EC law. For example the question of whether claimed 'family members' of Turkish workers, are to be regarded as such is a question of EC law. This is most useful where:

  • the dependant would not count as a 'family member' under UK policy/immigration rules but may do under EC law (e.g. a child living under the same roof as his parents, but aged over 18) or
  • a relationship with the Principal has ended before the family member has obtained ILR.

Some other rights under the Agreement

In relation to family members of Turkish nationals who are self-employed in the UK, UKBA policy is to apply 1972 Immigration Rules to family members. These rules apply to in-country and out-of-country applications. They can also lead to settlement subject to restrictions. For example, a Turkish national with limited Leave who 'has remained here for 4 years as a business man' is entitled to settlement under HC510 §28. This applies equally to her/his relatives: HC510 §28. A Turkish self-employed person who marries a person settled here is normally granted immediate settlement: HC510 § 24.

The key elements of these provisions are:

  • the principal must be a Turkish national with leave to enter/remain as a self-employed businessperson;
  • (spouse/partner) relationship must be genuine;
  • (child) must be under 18;
  • the business must provide sufficient profits to support the principal and the (new) dependants;
  • an applicant for leave to remain must have last been granted leave as a family member of the principal.

There are no English language requirements although there are some restrictions.

Current UKBA policy is to grant leave to spouse/partner/children of Turkish workers on the same basis as their policy on family of self-employed persons, except there is no requirement to show sufficient funds; IDIs, Chapter 5, section 10, Annex A. Any tightening of this policy would arguably contravene the standstill clause for workers.

Duncan Lewis have assisted many clients in matters relating to these matters, and have experienced lawyers fluent in Turkish ready to advise on the Agreement.

Footnotes

1. EC nationals and those from the European Economic Area, which includes Iceland, Liechtenstein and Norway. Switzerland, technically not an EEA member, is treated in the same manner in this (and most other) aspects

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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