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The Ankara Agreement - Turkish Business Persons and Workers (20 December 2018)

Date: 20/12/2018
Duncan Lewis, Business Immigration Solicitors, The Ankara Agreement - Turkish Business Persons and Workers

Under the Ankara Agreement European Community Association Agreement (ECAA) a national of Turkey may apply to enter or stay in the UK to establish and run a business, and, in certain circumstances, for an extension of leave to continue employment in the UK. The Ankara Agreement dates back to 1963 with an Additional Protocol in 1970.

In order to determine the rights granted to Turkish nationals it is necessary to refer to EU law and the provisions of the ECAA. Here is what you need to know if you are a Turkish national business person looking to establish your business in the UK, or if you are a Turkish national seeking employment in the UK.

Self-employed business persons under the Ankara Agreement

Article 41 (1) of the Additional Protocol states: ‘The Contracting Parties shall refrain from introducing between themselves and any new restrictions on the freedom of establishment and the freedom to provide services.’

This has the effect of going back in time and freezing the treatment/rights of Turkish nationals to the moment the UK joined the European Community known as the ‘standstill clause’. It prevents a Member State from introducing any new measure subjecting them to stricter conditions than those which applied at the time when the Additional Protocol came into force with regard to the Member State.

The UK joined the European Community on 1st January 1973, therefore the relevant Immigration Rules at the time that are applicable to Turkish nationals intending to establish a business in the UK are Immigration Rules HC 510 and 509. These rules are far more beneficial than the current Immigration Rules regarding business persons.

Rule 21 headed ‘Businessmen and Self Employed Persons’ states as follows:

‘People admitted as visitors may apply for the consent of the Secretary of State to their establishing themselves here for the purpose of setting up in business, whether on their own account or as partners in a new or existing business. Any such application is to be considered on merits. Permission will depend on a number of factors, including evidence that the applicant will be devoting assets of his own to the business, proportional to his interest in it, that he will be able to bear his share of any liabilities the business may incur, and that his share of its profits will be sufficient to support him and any dependants. The applicant’s part in the business must not amount to disguised employment, and it must be clear that he will not have to supplement his business activities by employment for which a work permit is required.

‘Where the applicant intends to join an existing business, audited accounts should be produced to establish its financial position, together with a written statement of the terms on which he is to enter into it; evidence should be sought that he will be actively concerned with its running and that there is a genuine need for his services and investment’.

This is considerably more favourable than the Tier 1 (Entrepreneur) route as:

  • There is no minimum investment.

  • There are no set rules on maintenance requirements or specified documents.

  • The main requirement is for Turkish national business people to show they can maintain and accommodate themselves and any dependants from the profits of the business.

  • Where Turkish nationals are buying into an existing business, which is very common, they need to show that the investment is needed and they will have a controlling and active interest in the business.

If you are a Turkish national intending to set up in business in the UK or would like specialist assistance regarding the Ankara Agreement please contact Ayan YalchinDirector of Business Immigration on 020 7275 2011 or at ayany@duncanlewis.com, or any member of the Duncan Lewis Business Immigration team.

Turkish National Workers

The rights of Turkish workers can be seen in a Decision of the Association Council, Decision 1/80 which provides Turkish workers who have been in ‘legal employment’ for a certain period of time with a right to have their permission to work renewed and to have their right of residence renewed in line with the right to work.

Turkish workers can only benefit from Article 6 (1) if they satisfy the requirements in terms of legal employment and being a worker as follows;

  • The Turkish national worker must not be working in breach of any legal conditions of stay and must not have entered on false documentation, subsequently entering into employment as a result of fraudulent conduct. The question then posed is whether or not the Turkish national is in “genuine and effective employment” where the temporary nature of employment and level of pay are not determining factors.

  • Following the case of Payir and Ozturk the European Court of Justice accepted that students and au pairs were deemed as workers and duly registered as a part of the labour force.

  • There could be breaks by way of temporary unemployment that do not break lawful residence.

  • Formalities laid down in national law for example contributions for tax, health, pension, unemployment etc. must be complied with.

  • The Turkish national must have been employed for one of these three possible time periods:
    1. Article 6 (1) ...‘A worker shall, after 1 year’s legal employment, be entitled to have his permit to work extended to continue to work for the same employer if a job is available’…

    2. ...‘A worker shall be entitled to change employers within the same occupation after 3 years legal employment’...

    3. ... ‘A worker shall be free to take up any employment after 4 years legal employment’…

If you are a Turkish national worker in the UK and require specialist assistance regarding the Ankara Agreement please contact Ayan Yalchin Director of Business Immigration on 020 7275 2011 or at ayany@duncanlewis.com,, or any member of the Duncan Lewis Business Immigration team.

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