RIGHTS FOR TURKISH WORKERS & TURKISH BUSINESS PERSONS UNDER THE ANKARA AGREEMENT
On 12 Sept 1963 the Turkish European Community Association Agreement was signed at Ankara. It aimed to establish free movement between Turkey and the EC within 22 years and was intended as a step towards full Turkish membership of the EC. This has not as yet occurred mainly due to Turkey’s human rights record. The UK became bound by this agreement when it joined the EC in 1973.
Additional later measures such as the Additional Protocol of 1970 provided a standstill clause preventing the contracting parties from introducing new restrictions on the freedom of establishment, the freedom to provide services and on the conditions of access to employment in respect of workers legally resident and employed in a member state. What this has come to mean in UK immigration law is that Turkish workers already lawfully employed in the UK can rely on the far more flexible work permit scheme existing in 1976 and Turkish nationals wishing to establish themselves in business can rely on the more liberal 1973 rules than the much more restrictive ones which came into force after 1973. I deal first with the situation as it relates to Turkish workers and then I deal with those Turkish nationals who wish to set themselves up in business here.
Three decisions were adopted by the Association Council (who represents the contracting parties to the Agreement) and for a long time these were unpublished and, therefore, were not known. The most important for present purposes is Decision 1/80 which was passed on 19 September 1980 and which includes Article 6(1).
This Article says as follows:
“… a Turkish worker duly registered as belonging to the labour force of a member state:
- 1. Shall be entitled in the Member State, after one year’s legal employment , to the renewal of his permit to work for the same employer, if a job is available;
- 2. Shall be entitled in the Member State , after 3 years’ of legal employment and subject to the priority to be given to workers of member states of the Community, to respond to another offer of employment , with an employer of his choice, made under normal conditions and registered with the employment services of that state , for the same occupation;
- Shall enjoy free access in that Member State to any paid employment of his choice, after 4 years of legal employment
As a result of Article 6(1), Turkish nationals who have entered the UK and who have been in lawful employment here as a result of having a visa which gives them permission to work may:
- Apply for further permission to stay in the UK after they have worked here for one year, so that they may continue to work for the same employer ( if a job is available )
- Change employers after they have been working here for 3 years , if they are continuing to work in the same occupation; and
- Work in any type of job for any employer after they have been working here for 4 years
The Agreement does not grant the same rights as EC nationals have. EC nationals may enter the UK to seek and obtain work. The Turkish national must have already entered and taken up lawful employment here and s/he must belong to the labour force. This means that there must be some stability and permanence to his/her right to take employment and that their employment must be legal. An overstayer or illegal entrant would not have the status to become “duly registered as belonging to the labour force of a member state” and employment in breach of immigration conditions would not be legal employment. But otherwise where a person has been granted permission to come here and is permitted to work, any period spent in employment will entitle him/her to have his right to work extended.
To qualify under Article 6(1) you must:
- Be a worker
- Be duly registered as belonging to the UK’s labour force
- Have been in legal employment with the same employer for at least one year
The Article provides for increasing freedom so that after 3 years of legal employment a worker can take up employment with any employer within the same occupation. After 4 years of legal employment a worker can take up any offer of employment.
In EC law the definition of “worker” is briefly that a person performs services for and under the direction of another person in return for which they receive payment. The activities must be real and genuine and excludes activities which are conducted on a small scale so as to be regarded as purely marginal and ancillary.
“Duly registered” is defined in EC law to mean as when the worker is “employed on the same conditions of work and pay as those claimed by workers who pursue identical or similar activities and where the worker complies with the rules and regulations of the UK, for example, payment of tax and national insurance.
“Legal employment” is defined in EC law as having a “secure and stable position in the labour force and residence on the basis of valid and lawfully obtained leave”.
Turkish nationals who are resident on a temporary basis whilst awaiting the outcome of an application or an appeal are not likely to be considered to be in a secure and stable position and so will not obtain rights under Article 6(1).
In addition, to qualify under the Article, employment must be continuous although certain periods of unemployment will not count so as to break continuity. For example, maternity leave, absences due to an accident at work and short periods of sickness leave wont break continuity of employment. Involuntarily unemployment and being registered with the jobcentre as actively seeking work and a long absence from work due to illness will not count as legal employment. However, such matters will not effect rights which have been already gained as a result of an earlier preceding period of continuous employment. A worker who leaves the labour force and who has no reasonable chance of rejoining it or who exceeds a reasonable time limit for finding new employment after a period without work will lose any rights.
Additionally, a worker who obtained leave to enter or to remain in the UK by deception will not be able to rely on Article 6(1).
Students, au pairs and trainees who have the right to work and whose employment and status meets the requirements set out above will gain rights under Article 6(1).
The periods of leave that will be granted will depend on the length of continuous legal employment. If a worker has been in continuous legal employment for 12 months, he will normally receive 2 years’ leave to remain. If they have been in continuous legal employment for 3 years they would be granted 12 months’ leave to bring them up to the 4 years. Once they have been in legal employment for 4 years they would normally be granted a maximum of 3 years leave to remain. It is noteworthy that Article 6(1) does not provide for settlement and only provides for the right to take up to 4 years’ employment. Any application for settlement under this European Community Association Agreement is likely to be refused and only further grants of leave to remain are grantable. This does not prevent an application for settlement being made under other immigration rules and/or Human Rights.
TURKISH BUSINESS PERSONS
For Turkish Business Persons there have been some new developments. From September 2009 the UK Border Agency has opened up a new visa route for Turkish nationals who wish to set themselves up in business here. Previously only Turkish nationals already here could set themselves up in business. Such applications are decided under the more favourable business rules which were in force in 1973 as a result to the standstill clause set out at the beginning of this article.
Alongside this development it will be the case that from April 2010 that some Turkish nationals who are already here will not be able to switch into Turkish ECAA category. Switching will only be permitted in respect of Turkish nationals who are here legally as visitors or those who are here already with permission to run a business and other exceptional cases.
Briefly to come here and set yourself up in business you need to show that:
- You have the skills and ability to do so
- You will be bringing sufficient funds to establish your business
- You will be able to bear the costs of running the business; and
- Your share of the profits will be enough to support you and any dependants coming with you without you needing to find other employment for which a work permit would normally be required
Rather than set yourself up in business you may wish to join an existing business and if so, you must show in addition to the above that:
- You will have an active part in running the business
- That there is a genuine need for your services and investment; and
- Provide the accounts from previous years of the business
If one is able to show that they can meet the above requirements, one is granted one year’s leave to remain initially which can be extended providing that you can show that you continue to meet the above requirements. Your leave will normally be extended for another 3 years and you will only be allowed to work as a Turkish ECAA business person. Once here continuously for 4 years in this category you can apply for settlement.
Similarly to the workers’ rules set out above, you cannot take advantage of this provision if you are here in breach of UK immigration law, if fraud and/or deception has been used to obtain leave to enter and/or remain and/or if the application is abusive. An abusive application is one where the applicant never had any intention of establishing themselves in business in accordance with the applicable 1973 business rules.
The above sets out a part of UK immigration law that many Turkish nationals may not be aware of. The rules and requirements are detailed, complex and the caselaw is constantly evolving. It is recommended that before making any application under the Turkish European Association Agreement that advice is sought from an Immigration Practitioner with experience and expertise in this area.
Ms Lesley Woods is a practising Barrister who has specialised in immigration law since 1992. She is also a level 3 ( highest level ) immigration advisor regulated by the Offices of the Immigration Services Commission. She also practises in other areas of law.