Victims of the promising Ankara Agreement is in search of rights
The Home Office’s recent changes regarding obtaining indefinite leave to remain (ILR) or permanent residency via Turkish Businessperson visa (aka Ankara Agreement) aggravated the situation for thousands of Turkish people living in the UK. Ankara Agreement provides Turkish citizens with the rights to establish a business, work and reside in the UK. When the amendments made in the 15th of June 2018 began to be retrospectively implemented, the grievances have increased; and a legal process was initiated with the participation of thousands of volunteers. Although the outcome of the first case resulted in disappointment for the Turkish community, the legal struggle is not over yet.
Since coming into effect in 1963, the Ankara Agreement has been a hope for those who have moved from Turkey to the UK. Thousands of Turkish citizens have made investments and started new lives in the UK by obtaining the Ankara Agreement visa. However, some changes have been made in the conditions of application and citizenship processes within the last year. Even worse for the Turkish citizens, those changes were also requested to be implemented retrospectively.
The new regulation has created serious grievances for those who began benefiting from this visa type before 16 March 2018. The signatures have been collected for a petition campaign, and the amendments have been appealed and sued. Although the outcome of the first proceeding came as a disappointment for those who are at risk of losing their acquired right, it is not a lost cause yet. The appeal process is now underway.
So, what are the demands of the Turkish citizens who have already moved to the UK to run a business? What will happen next? We ask the experts of the subject and the followers of this painful process…
Non-practising barrister and solicitor Yaşar Doğan from Redstone Solicitors explains the amendments in question:
“Turkish citizens who want to start a new business in the UK were normally able to apply for indefinite leave to remain after having 1 year and then 3 years of limited leave to remain. They could also bring their supposes and children. The Home Office has changed the rules and stipulated that the supposes must have lived in the UK for at least 2 years. This amendment has not been put into practice for a while. Once it suddenly began to be implemented, many people’s applications have been rejected. One of the people whose application was rejected is Hacer Aydoğdu. In collaboration with other complainant families, the Aydoğdu family has sued the Home Office. It was claimed that the amendment contradicts the articles of the Ankara Agreement. Among many other cases, Hacer Aydoğdu case was chosen as the leading one.”
The conditions of the Ankara Agreement changed by a sudden decision
Hacer Aydoğdu has become the symbol of the legal struggle, which has been growingly continuing for nearly one year. Doğan highlights that despite not being relevant to the matter in dispute, the judge has ruled against the ILR rights of not only the spouses but also Turkish citizens. Doğan further points out that the family was unable to appeal against the decision due to financial difficulties.
Following this decision, applications for ILR have also been suspended. After a while, applications were restarted without any changes. However, with a sudden decision taken on 16 March 2018, Ankara Agreement visa holders’ right of ILR has been suspended. Then, on the 16th of June 2018, a guideline was issued to revise the right of ILR. With the new regulations issued in this guideline, the duration of residence has been increased to 5 years, the language and culture test became compulsory, and an application fee of £2389 for each family member was put into practice. Additionally, it was announced that the amendments will be retrospectively applied to those who have already made applications before 16 March 2018 and run their business in the UK in accordance with this type of visa.
Yaşar Doğan from Redstone Solicitors states: “This has created many grievances. The retrospective application of these amendments is evidently unjust.” He further explains the process happened thereafter as follows: “Turkish businessperson, led by Leni Candan, have formed the ‘Turkish Businessperson Association’. I have also voluntarily accepted to be a solicitor. We first sent a ‘letter before action’. As we were unable to get the result we wanted, we appealed to the High Court of Justice in UK. We claimed that the decision for the Aydoğdu family case is legally wrong and is inconsistent with the previous decisions of the European Court of Justice. The amendments also have contradicted the legitimate expectations of those benefiting from this specific visa. Our case took place on the 7th of March 2019 in the High Court. The judge postponed the decision due to the difficulties in the legal arguments of the case. On 18 March 2019, the High Court announced its decision.”
“The retrospective implementation of amendments is unnecessary, unjust, and disproportionate”
The High Court has ruled that the expectations held by the Ankara Agreement visa holders that they will not be affected by the amendments are legitimate; that the legitimate expectations have been violated by the Home Office; and that have caused legitimate grievances. However, it was also decided that the amendments are legitimate and balanced with the public interest. Solicitor Doğan asserts that the decision was disappointing. He also specifies that although the judge’s decision admitted that the recent amendments have caused legitimate grievance, it was decided that the grievances were not grave enough compared to the public interest.
Doğan comments on the decision: “Had the amendments not affected the Turkish Businessperson visa holders already living in the UK, it could then have been possible to agree with the judge. Following the changes, new Turkish applicants would know the updated visa requirements. The retrospective implementation of the changes to those already living in here cannot be seen as proportionate and legitimate.
The Home Office can, of course, change immigration rules. However, to be able to apply the changes retrospectively, there must be a very serious reason. An abstract reason such as the administration of the immigration system cannot justify this on its own. I also think it contradicts the decisions of the European Court of Justice. Even if it is in accordance with these decisions, the retrospective implementation is unnecessary, unjust, and disproportionate. We believe that the decision of the High Court is faulty. Therefore, we have decided to appeal these decisions.”
By the impact of the Aydoğdu case, the barristers of the case are set to lodge an appeal in order to remedy this injustice against Ankara Agreement visa holders. To be able to carry out this litigation process, the Turkish Businessperson Association, founded under the leadership of Leni Candan, has collected a donation of nearly £100,000. The process seems quite long and complicated… Especially the Turkish speaking community in the UK is now awaiting curiously what will happen next.
The matter in dispute…
Non-practising barrister and solicitor advocate Yaşar Doğan enumerates the matter in dispute as follows:
• Turkish business people who have made their applications for obtaining the Ankara Agreement visa before 16 March 2018 have a legitimate expectation that they will be granted ILR in the UK by being considered under the old articles of the agreement (ie obtaining ILR at the end of four years without being subjected to language and citizenship test and without having to pay an application fee).
• Home Office violated the above-mentioned legitimate expectation by making changes to the rules, introducing new requirements and applying these changes retrospectively.
• As a result of the violation of this legitimate expectation, people affected by this situation were exposed to unjust treatment and sufferings.
• Considering this unjust treatment, the Home Office’s attitude to Ankara Agreement visa holders is ‘disproportionate’ and should be considered as ‘malpractice’ in a democratic system.
The verdict of the court:
• The expectations of the claimant group that they will not be affected by the recent amendments to Ankara Agreement (ie obtaining ILR at the end of four years without being subjected to language and citizenship test and without having to pay an application fee) are justified and legitimate.
• The Home Office violated this legitimate expectation with the amendments made on March 16, 2018.
• As a result of this violation, the members of the claimant group suffered unjust treatment.
• However, as the Home Office’s reason for making the amendments outweighs the claimants’ grievances, the amendments are legitimate and proportional to the public interest. For this reason, the immigration policy changes cannot be considered as ‘malpractice’ (Effectively managing the immigration system while trying not to make Turkish business people suffer the consequences of the amendments).
Ankara Agreement signed with the EU, not the UK
Ankara Agreement, which is the underlying cause of all this chaos, may be abolished after Brexit.
Ayşegül Yeşildağlar, former Turkish attaché for labour and social security in London, summarises the history of Ankara Agreement as follows: “Ankara Agreement is in fact refers to the European Community Association Agreement (ECAA) signed between the then European Economic Community (EEC) and Turkey to initiate Turkey’s EU membership process in 1963. However, it is used in the United Kingdom to mention the visas and the right of free movement granted to Turkish citizens.
Yeşildağlar continues: “It is an agreement not only incorporating people’s free movement rights, but also all arrangements related to the former EEC membership. For example; the EU Customs Union, to which Turkey is a party as well, is a part of this agreement. As opposed to popular belief, the Ankara Agreement is not a special agreement signed between the UK and Turkey but instead, between Turkey and the EU. Therefore, even if the UK leaves the EU, the agreement will still be valid in other member states.”
Ankara Agreement has also seen some improvements
Commenting on the recent changes in the Home Office’s policy guides, Yeşildağlar also reminded the improvements to the agreement achieved in the past years. Despite the amendments made to the detriment of Turkish business people in the UK, we should remind ourselves the major improvements made in the conditions of Ankara Agreement as well, she says. For instance, while it was taking 10 years to obtain ILR for those applicants in the Turkish worker visa category, it now takes only 5 years, she added.
“For the Turkish society, it is not just a legal struggle but a struggle for existence”…
“Turkish state representatives did not participate in the discussions and have not been a party to our legal struggle thus far. However, the Turkish community in the UK, for the first time, came together and started a struggle to defend their legal rights against the restrictions imposed following the Aydoğdu case” said Yeşildağlar. Emphasising the role of the flow of highly-skilled Turkish immigrants to the UK in recent years, she goes on explaining the process after the court’s decision:
“This community came together and collected £100,000 to fund their legal struggle. I think even if the appeal process is settled against the Turkish complainants, seeing our community taking such an initiative for the first time without the help and support of the Republic of Turkey is a promising progress in itself.”
Founder of the Alliance of Turkish Business People Leni Candan: “We will pursue the case to the end!”
Leni Candan, who initiated a petition and donation campaign to file a lawsuit following the Aydoğdu case, evaluates the court’s verdict as follows:
“We are very disappointed by the verdict. Despite the judge’s conceding that the Home Office’s policy changes breached our legitimate expectations and that the Home Office violated these expectations; it is quite upsetting for us to see that the challenges faced by Turkish business people and their families as a result of these changes have not been deemed ‘unfair enough’. But we continue to believe that we are right. The acknowledgement of the High Court that there has been a violation of our legitimate expectations also suggests that we should pursue this case to the end. We already appealed to the Supreme Court. The general view of the supporters of the case is to continue our legal struggle to the end.”