“Article 12 The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them. Article 13 The Contracting Parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them. Article 14 The Contracting Parties agree to be guided by Articles 55, 56 and 58 to 65 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom to provide services between them.”
“1. The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services. 2. The Council of Association shall, in accordance with the principles set out in Articles 13 and 14 of the [Ankara Agreement], determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide services. The Council of Association shall, when determining such timetable and rules for the various classes of activity, take into account corresponding measures already adopted by the Community in these fields and also the special economic and social circumstances of Turkey. Priority shall be given to activities making a particular contribution to the development of production and trade.”
“In the fields covered by this Protocol Turkey shall not receive more favourable treatment than that which Member States grant to one another pursuant to the Treaty establishing the Community.”
“Article 13 The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respective territories. Article 14 1. The provisions of this section shall be applied subject to limitations justified on grounds of public policy, public security or public health. 2. They shall not prejudice the rights and obligations arising from national legislation or bilateral agreements between Turkey and the Member States of the Community where such legislation or agreements provide for more favourable treatment for their nationals.”
“26 The first point to be noted … is that, since the judgment inCase C-192/89 Sevince[1990] ECR I-3461 , at paragraph 26, the Court has consistently held that Article 6(1) of Decision No 1/80 has direct effect in the Member States and that Turkish nationals who satisfy its conditions may therefore rely directly on the rights which the three indents of that provision confer on them progressively, according to the duration of their employment in the host Member State (see, in particular,Case C-1/97 Birden[1998] ECR I-7747 , paragraph 19). 27 Second, it is also settled case-law that the rights which that provision confers on Turkish workers in regard to employment necessarily imply the existence of a corresponding right of residence for the person concerned, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of all effect (see, inter alia, Birden, paragraph 20).”
“the reasoning of the decision letter and the approach of the decision-maker was, in my view, so defective or unfair on a range of points that the overall conclusion that this was not a genuine or viable application simply cannot stand”
“I hold that the absence, since its abolition, of a right of appeal for Turkish citizens seeking to exercise their freedom of establishment under the [Ankara Agreement] is incompatible with the [Ankara Agreement] in that it breaches the requirements of article 41(1) of the Additional Protocol to the [Ankara Agreement]; and that that incompatibility has not been avoided or removed by the introduction of administrative review in such cases”
“In my view, the effect of article 41 [of the Additional Protocol] is to require, subject to article 59, that the appeal or review procedure available to the claimant should not be less favourable now than it was in 1973. For the reasons already given, it is in my view markedly less favourable. The limitations and shortcomings of administrative review, relative to a judicial appeal, are very obvious and were indeed well illustrated by the history of this case. Although the claimant has ultimately succeeded by way of judicial review, judicial review is no substitute for an appeal. It is a more limited remedy in which there is the procedural hurdle of permission; oral evidence is rarely heard; and the court, unlike on an immigration appeal, can normally at best only quash the decision and order a reconsideration, as I have done. Unlike on an appeal, it would be a highly exceptional case in which the court on judicial review could substitute its own decision.” 14. In the immediately preceding paragraphs, the judge had explained as follows: “81 The observations of the ECJ at paragraph 69 of Tum and Dari and paragraph 67 of Dorr and Unal seem to me to make clear that the standstill in article 41 applies no less to procedural rights and guarantees than to substantive ones, being ‘inseparable from the rights to which they relate.’ It is true that those authorities are distinguishable on their facts and in their context, but the reasoning of the court must apply no less to the standstill effect of article 41. 82 Further, the observations of Sullivan J in Parmak at paragraph 27, although obiter, powerfully describe and illustrate the practical importance of appeal rights. I can see no rational basis, nor any imperative, for drawing the line, as [counsel for the Secretary of State] does, immediately after the first decision, but before any review or appeal process.”
“is to be interpreted as prohibiting the introduction … of any new restrictions on the exercise of freedom of establishment, including those relating to the substantive and/or procedural conditions governing the first admission into the territory of that state, of Turkish nationals intending to establish themselves in business there on their own account”
“It must be added that article 41(1) of the Additional Protocol is intended to create conditions conducive to the progressive establishment of freedom of establishment by way of an absolute prohibition on national authorities from creating any new obstacle to the exercise of that freedom by making more stringent the conditions which exist at a given time, so as not to render more difficult the gradual securing of that freedom between the member states and the Republic of Turkey. That provision of the Additional Protocol thus appears to be the necessary corollary to article 13 of the [Ankara] Agreement, and constitutes the indispensable precondition for achieving the progressive abolition of national restrictions on freedom of establishment: Abatay v Bundesanstalt für Arbeit (Joined Cases C-317 and C-369/01)[2003] ECR I-12301 , paras 68 and 72. Even if, initially, with a view to the progressive implementation of that freedom, existing national restrictions as regards establishment may be retained (see, by analogy, Peskeloglou v Bundesanstalt für Arbeit (Case 77/82) [1983] ECR 1085, para 13, and the Abatay case[2003] ECR I-12301 , para 81), it is important to ensure that no new obstacle is introduced in order not further to obstruct the gradual implementation of such freedom of establishment.”
“Article 8 The person concerned shall have the same legal remedies in respect of any decision concerning entry, or refusing the issue or renewal of a residence permit, or ordering expulsion from the territory, as are available to nationals of the State concerned in respect of acts of the administration. Article 9 1. Where there is no right of appeal to a court of law, or where such appeal may be only in respect of the legal validity of the decision, or where the appeal cannot have suspensory effect, a decision refusing renewal of a residence permit or ordering the expulsion of the holder of a residence permit from the territory shall not be taken by the administrative authority, save in cases of urgency, until an opinion has been obtained from a competent authority of the host country before which the person concerned enjoys such rights of defence and of assistance or representation as the domestic law of that country provides for. This authority shall not be the same as that empowered to take the decision refusing renewal of the residence permit or ordering expulsion. 2. Any decision refusing the issue of a first residence permit or ordering expulsion of the person concerned before the issue of the permit shall, where that person so requests, be referred for consideration to the authority whose prior opinion is required under paragraph 1. The person concerned shall then be entitled to submit his defence in person, except where this would be contrary to the interests of national security.”
“62 The Court has inferred from the wording of those provisions that the principles laid down in the context of Art.48 of the Treaty must be extended, so far as possible, to Turkish nationals who enjoy the rights conferred by Decision 1/80. 63 The Court has also held, when determining the scope of the public policy exception provided for in Art.14(1) of Decision 1/80, that reference should be made to the interpretation given to that exception in the field of freedom of movement for workers who are nationals of a Member State of the Community. Such an approach is all the more justified because Art.14(1) is formulated in terms that are almost identical to those of Art.48(3) of the Treaty. 64 On the basis of these elements, the Court held, in paras [46] and [47] of Cetinkaya, that Art.14(1) of Decision 1/80 imposes on the competent national authorities limits analogous to those which apply to a measure expelling a national of a Member State and that the principles established on the basis of Art.3 of Directive 64/221 can be extended to Turkish workers who enjoy the rights recognised by Decision 1/80. National courts must, therefore, take these principles into consideration in reviewing the lawfulness of the expulsion of such a Turkish worker. 65 The same considerations require that the principles enshrined in Arts 8 and 9 of Directive 64/221 be regarded as capable of extension to Turkish workers who enjoy the rights recognised by Decision 1/80 . 66 Such an interpretation is justified by the objective of progressively securing freedom of movement for Turkish workers, as set out in Art.12 of the Association Agreement. The social provisions of Decision 1/80 constitute a further stage in securing that freedom. In particular, Art.6(1) of Decision 1/80 grants to migrant Turkish workers who fulfil its conditions precise rights with regard to the exercise of employment. It is established case law that Art.6(1) of Decision 1/80, which has been recognised as having direct effect, creates an individual right as regards employment and a correlated right of residence. 67 In order for those individual rights to be effective, Turkish workers must be able to rely on them before national courts. To ensure the effectiveness of that judicial protection, it is essential to grant those workers the same procedural guarantees as those granted by Community law to nationals of Member States and, therefore, to permit those workers to take advantage of the guarantees laid down in Arts 8 and 9 of Directive 64/221. As the Advocate General states in point AG59 of his Opinion, such guarantees are inseparable from the rights to which they relate.”
“Let us remember that Art.6 of Decision 1/80, which has been acknowledged to have direct effect, creates an individual right of access to the employment market and a correlative right of residence. It must be possible, if that individual right is to be effective, to invoke it before a competent authority which will protect it. The procedural safeguards laid down in Art.9 of Directive 64/221 must not be regarded merely as technical rules unconnected with the substantial rights conferred on individuals. On the contrary, they safeguard and protect those rights. They are therefore fundamental guarantees required to ensure the effectiveness of those rights and of the principle of the free movement of workers. In that sense, they are inseparable from that principle and those rights. To the extent to which the substantive rights conferred on nationals of the Member States have been extended to Turkish nationals under Decision 1/80, the procedural protection granted by Community law for the assertion of those rights must also be afforded to such nationals. There is no justification for establishing a separate, lower level of protection for the rights conferred by Decision 1/80.”
“If [the claimant] would not have been entitled to an in-country right of appeal under the immigration legislation then in force, there is no reason why he should be entitled to such a right in 2006.”
“26 Given the importance of procedural rules in the immigration field (as shown by Parliament’s repeated amendments to the legislation over recent years) and the extent to which matters of procedure and matters of substance may well be inextricably interlinked in such cases, I would not be prepared to accept, in the absence of further and more detailed argument, that there is necessarily a clear-cut distinction to be drawn between procedural and substantive rules in this field. 27 As Dörr and Ünal shows, substantive rights may well be ineffective or less effective if they are not backed up by appropriate procedural guarantees in relation to matters such as rights of appeal. It will be recalled that in para.[67] of its judgment the ECJ agreed with the point made by the Advocate General that such procedural guarantees ‘are inseparable from the rights to which they relate’. There is nothing in Savas or in Tum and Dari to suggest that making procedural rights less favourable for an applicant who relies on the standstill agreement is acceptable in terms of Community law. Community law is concerned with practicality rather than procedural formality. Much, for example, may depend upon the extent to which it is necessary in practice for applicants to appeal in order to succeed in establishing their claims. For example, if there is a very high rate of initial refusals and, correspondingly, a high rate of success on appeal, then removing the right of appeal might well have the practical effect of worsening the position for applicants, even though the substantive rules, applied both at first instance and on appeal, remain unchanged.”
“The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasijudicial proceedings.”
“26 It should also be pointed out that the procedural rules governing issue of such a temporary residence permit must themselves be such as to ensure that exercise of the right of establishment conferred by the Association Agreements is not made impossible or excessively difficult. 27 It follows in particular that the scheme applicable to such temporary residence permits must be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasijudicial proceedings. It should be remembered, in this last respect, that Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law, and that this principle of effective judicial protection constitutes a general principle which stems from the constitutional traditions common to the Member States and is enshrined by the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on November 4, 1950, in Arts 6 and 13 of the Convention.”