OY (Ankara Agreement; standstill clause; worker’s family) Turkey [2006] UKAIT 00028 (17 March 2006) [2006] UKAIT 00028

UKAIT
OY (Ankara Agreement; standstill clause; worker’s family) Turkey [2006] UKAIT 00028 (17 March 2006)
[2006] UKAIT 00028 · 2006-03-17
[1]OY (Ankara Agreement; standstill clause; worker's family) Turkey [2006] UKAIT 00028 ASYLUM AND IMMIGRATION TRIBUNAL Date of hearing: 15 November 2005 Date Determination notified: 17 March 2006 Before Mr C M G Ockelton (Deputy President) Mr P R Lane (Senior Immigration Judge) Professor A Grubb (Senior Immigration Judge) Between OY APPELLANT and Secretary of State for the Home Department RESPONDENT For the Appellant: Mr J Walsh, Counsel instructed by Birnberg Pierce & Partners, Solicitors For the Respondent: Mr P Deller, Home Office Presenting Officer DETERMINATION AND REASONS The standstill clause in Article 6 of Association Council Decision 80/1 is concerned solely with the conditions relating to the worker's "access to employment" in the UK. It is not concerned with the admission to the UK of a Turkish worker or his family. Consequently, the admission to the UK of the family of a Turkish worker is to be determined on the basis of the relevant immigration rule (and any policies) in effect at the date of the entry clearance decision. The appellant is a citizen of Turkey born on 20 June 1984. On 20 January 2004, together with his mother and 3 siblings, he applied for entry clearance to join his father, a Turkish national who was employed in the United Kingdom. It seems that his family were successful but the appellant's application was refused by the Entry Clearance Officer on that date. His appeal to an Adjudicator, Mr P J Robinson, was dismissed in a determination promulgated on 16 November 2004. The appellant was granted permission to appeal to the Immigration Appeal Tribunal in January 2005 and that grant now takes effect as an order for reconsideration before the Asylum and Immigration Tribunal under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (Commencement No 5 and Transitional Provisions) Order 2005, SI 2005/565, restricted, by virtue of rule 62(7) of the Procedure Rules, to the grounds upon which leave was granted. The background[2]The appellant's father left Turkey and his family sometime in 1995 and came to the UK where he claimed asylum. Although the Secretary of State rejected his application, on 20 July 1999 he was granted leave to enter until 25 May 2003 and then on 15 May 2003 he was granted indefinite leave to remain. Evidence was produced before the Adjudicator, which is not disputed, that the appellant's father is a full-time kebab chef in a restaurant in Colchester. It is not entirely clear from the evidence when he began work in the UK. Mr Walsh, who appeared for the appellant, told us it was sometime in 2003 after he obtained indefinite leave to remain. Amongst the documents before the Adjudicator is a document from his employers recording national insurance deductions made from his wages covering, it would seem, the tax year April 2003 – April 2004. There is not, as far as we are able to see, any further evidence of his employment prior to this. The Adjudicator also had evidence before him relating to the financial situation of the appellant's father and his accommodation.[3]Mr Walsh argued unsuccessfully before the Adjudicator, and renewed the argument before us, that the Entry Clearance Officer was wrong to consider the appellant's application to join his father in the UK under the current Immigration Rules, namely paragraph 317 (in particular 317(i)(f)) of HC 395 under which it is now accepted that the appellant could not succeed because, at the date of decision, he could not establish that he was "living alone" in "the most exceptional compassionate circumstances" in Turkey. It was upon that basis that the Entry Clearance Officer initially refused his application. Instead, Mr Walsh maintained, that the appellant was entitled to have his application considered under the Immigration Rules in force at a much earlier date by virtue of the EC-Turkey Association Agreement (September 12, 1963) and the Additional Protocol (November 23, 1970) (hereafter 'the Ankara Agreement') which applied to him as his father was a Turkish worker in the UK. Mr Walsh maintained that by virtue of the Ankara Agreement and Association Council Decisions 2/76 and 1/80, the appellant's application should be considered under paragraph 42 of HC 509, Statement of Immigration Rules for Control on Entry which was in force on the date of the UK's accession to the EC on 1 January 1973. The latter Immigration Rule, it was suggested, was more generous in cases of family reunion, in particular when applied to children who have reached the age of 18 but who are under 21 (as was this appellant at the date of decision).[4]In a carefully reasoned determination, the adjudicator rejected Mr Walsh's argument which, as we shall see, is novel and not without subtlety. The adjudicator decided that the appellant could not take advantage of the Ankara Agreement and, therefore, that the Entry Clearance Officer was correct to apply the current rule, namely paragraph 317 of HC 395. Mr Walsh submitted before us that this was a material error of law; the Entry Clearance Officer's decision was "not otherwise in accordance with the law" and we should allow the appeal to the extent that the appellant's application for entry clearance remains outstanding before the Entry Clearance Officer.[5]We begin by setting out the relevant provisions of the Ankara Agreement and Association Council Decisions. The Ankara Agreement[6]The Ankara Agreement is an Association Agreement entered into between the EC and Turkey intended to assist and facilitate in promoting and developing trade and economic relations between the Member States and Turkey with a view to the eventual accession of Turkey to the European Union (see R v SSHD ex p Savas (Case C-37/98) [2000] INLR 398 at [53]). To this end, there are a number of provisions relating to Turkish workers and those who wish to establish themselves in business or self-employment in a Member State. We are, of course, only concerned with the position of workers.[7]In relation to workers, Article 12 of the main Agreement provides the foundation for the development of free movement of Turkish workers in the EU as follows:
"The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purposes of progressively securing freedom of movement for workers between them."
[8]The reference to the EC Treaty provisions (now re-numbered Articles 39, 40 and 41 respectively) is to the free movement provisions in the EC Treaty for EU national workers.[9]Further provision towards the "progressive" securing of free movement of Turkish workers is found in Articles 36-40 of the Additional Protocol signed in 1970. In particular, Article 36 provides:
"Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after entry into force of that Agreement. The Council of Association shall decide on the rules necessary to that end."
[10]Directly neither of these provisions assists the appellant in this case and Mr Walsh did not seek to rely upon them directly. The European Court of Justice in Demirel v Stadt Schwäbisch Gmünd (Case 12/86) [1987] ECR 3719 decided that neither provision has direct effect because both lack sufficient precision and unconditionality. They do, however, give the context of the detailed rules that follow and set out the aim of progressive recognition of free movement rights for workers for Turkish workers in the EU in accordance with Community law principles. Association Council Decision 1/80[11]The role of the Council of Association is crucial. As Article 36 of the Additional Protocol stipulates, it is the role of the Association Council to give content to the generalised aims and objectives of Article 36 read with Article 12 of the main Agreement. Mr Walsh relied particularly upon parts of Decision 2/76 and Decision 1/80. For our purposes it suffices to set out the relevant articles of the latter decision which, from 20 December 1976, again for our purposes, superseded the earlier decision.[12]Article 6 of Decision 1/80 sets out certain "rights" of a Turkish worker in the following terms:
"1. Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State: - shall be entitled in that 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; - shall be entitled in that Member State, after three 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 four years of legal employment. ..."
[13]Article 7 – which had no counterpart in the earlier Decision 2/76 – provides for certain rights for family members of Turkish workers as follows:
"'The members of the family of a Turkish worker duly registered as belonging to the labour force of a Member State, who have been authorised to join him: - shall be entitled - subject to the priority to be given to workers of Member States of the Community - to respond to any offer of employment after they have been legally resident for at least three years in that Member State; - shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years. Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years. "
[14]Article 9 of Decision 1/80, which we need not set out, also provides for certain further educational entitlements for the children of Turkish workers.[15]Although these Articles do have direct effect ( Sevince v Staatssecretaris van Justitie (Case C-192/89) [1990] ECR I-3461 and Kadiman v State of Bavaria (Case C-351/95) [1997] ECR I-2133), it is clear from reading them that none directly assists the appellant in this case. The provisions are limited in their entitlements for workers (and their families) once resident in the UK. For workers, Article 6 is not concerned with their "first employment" in the UK but rather with their entitlement to remain and continue employment when already part of the workforce. The appellant is, of course, not a Turkish worker seeking to rely upon an entitlement to continue working under Article 6. Nor is he a family member already in the UK seeking to rely on the work entitlement after 3 years residence set out in Article 7. Nor is he seeking to rely on the educational entitlement under Article 9. Given the particular terms and scope of Articles 6 and 7, it is perhaps not surprising that the European Court of Justice has accepted that the Ankara Agreement, and Association Council Decisions made under it, do not confer any entitlement upon a Turkish national, whether as a prospective worker in the UK or family member seeking reunion with an existing worker, to enter the UK. Entry is a matter for the Member States' national laws (see, e.g. Kadiman v State of Bavaria (Case C-352/95) above and Ergat v Stadt Ulm (Case C-329/97) [1999] ECR I-1487). The standstill clause – Article 13[16]On their own terms, therefore, these provisions in Decision 1/80 provide no support for the appellant's case. Indeed, their precise terms and limited scope both in respect of workers and their families, if anything, militate against the appellant's more general claim to enter on the favourable basis of earlier Immigration Rules.[17]Mr Walsh, however, relied on Article 13 of Decision 1/80 – the so-called "standstill clause" - which is as follows: "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".[18]There is no doubt that this clause has direct effect from 20 December 1976 (see, Sevince , above). Equally, it is clear that the effect of a standstill clause is to fix in time an individual's entitlement or what restrictions may be imposed upon him according to the terms and scope of the particular clause so as to "prevent the Member State from reverting to less liberal provisions" in respect of that individual (see Procureur de Roi v Royer (Case C-48/75) [1976] ECR 497 at [74]).[19]Mr Walsh accepted that Article 13 of Decision 1/80 did not confer a right directly upon the appellant. The enumerated right (if that be the correct description of it) is plainly that of his father – the worker. Instead, Mr Walsh contented himself with submitting that the appellant has a derived right from his father's to be considered for entry to the UK on no less favourable terms than when the standstill clause came into effect. Otherwise, he submitted, the appellant's father would be subject to "new restrictions on the conditions of access to employment" because he might feel compelled to return to Turkey if his family could not join him. Mr Walsh submitted, this meant that the appellant was entitled to have his application considered on the basis of the Immigration Rules in force on 1 January 1973 when the UK joined the EC and became a party to the Ankara Agreement. He referred us to paragraph 42 of HC 509. In fact, the correct date is 10 January 1976 since this is the date that the standstill clause first came into effect through Council Decision 2/76. The relevant Immigration Rule is, therefore, paragraph 39 of HC 81 which replaced HC 509 with effect from 25 January 1973. Nothing is, however, affected by this as the material terms of the two paragraphs are identical. Paragraph 39 provides as follows:
"39. Generally, children aged 18 or over must qualify for admission in their own right; but subject to the requirements of paragraphs 34 and 35, an unmarried and fully dependent son under 21 or an unmarried daughter under 21 who formed part of the family unit overseas may be admitted if the whole family are settled in the United Kingdom or are being admitted for settlement."
[20]Paragraph 34 sets out the requirement that the sponsor will accommodate and maintain the person seeking entry without recourse to public funds. Paragraph 35 sets out visa requirements in respect of certain nationals.[21]Mr Walsh submitted that the appellant – who was 19 at the date of decision – fulfilled these requirements on the evidence: he was dependent, unmarried and, at the time his father left Turkey in 1995 (which, Mr Walsh said, was the correct time to consider this), he was part of the family unit in Turkey because they all lived together. Mr Deller took a different view on the evidence given that at the date of decision in January 2004, the appellant was employed in Turkey and was no longer living as family since his father had left Turkey in 1995. A number of issues were raised about the assumption that paragraph 39 was satisfied on the evidence. These are, however, issues that only need to be resolved if the appellant is entitled to be judged on the earlier rule. Our conclusions[22]Mr Walsh's submissions have a certain beguiling quality to them, praying in aid as they do the well-accepted Community Law approach when interpreting the free movement rights of EU citizens within the EU. EU legislative provisions and the European Court of Justice have consistently conferred or recognised an ancillary right of free movement upon a close family member to accompany or join the EU national who is exercising his or her EU right in another Member State (see, e.g. Council Regulation 1612/68 and Directive 68/360 – workers' families; and Baumbast v SSHD (Case C-413/99) [2002] ECR I-7091 – parent of EU dependent child in education). The ancillary right is conferred in order to remove any obstacle to the exercise of the free movement right of the EU national. Frequently, the European Court of Justice gains support for its approach from the parties' right to respect for their private and family life protected by Article 8 of the ECHR (see, e.g Carpenter v SSHD (Case C-60/00) [2002] ECR I-6279 ). So, one might ask, if so for a family member of an EU national who exercises his or her EU rights, why not also for a family member of a Turkish worker taking advantage of his enforceable entitlements under the Ankara Agreement?[23]At the outset, it is important to recognise that this is not a case about free movement of an EU national and his family within the EU. It concerns an Association Agreement with a prospective member country of the EU and is a document contemplating progressive recognition of free movement rights for citizens of that country without equating them to those of existing EU citizens. Whilst the Agreement forms part of the Community's legal order, it is of a different nature to the Treaties and other legislative instruments which confer rights upon EU citizens. By their very terms, the Agreement, the Additional Protocol and Council Decisions acknowledge the more limited nature of the entitlements of Turkish workers and others falling within their scope.[24]Mr Walsh does not, as such, argue that the appellant has a derived right to enter the UK. He could not do so. It is clear, as we stated above, that the Ankara Agreement confers no such right on a worker or, by extension, any family member. Unlike the case of EU nationals who wish to bring or be joined by their family members, the European Court of Justice has recognised that in the case of the families of Turkish workers, Member States have the right to control and regulate their entry (see, Kadiman , Ergat and also, R v SSHD ex parte Savas (Case C-37/98) above at [58]). Indeed, the Member States' control extends beyond entry until Article 6 (in the case of workers) or Article 7 (in the case of family members) of Decision 1/80 bites. Only at that point does the Turkish national acquire under the Agreement, certain rights in relation to access to employment and, by necessary implication, residence in order to exercise those rights. In Ergat , above at [42] the European Court of Justice stated:
"under Community law as it now stands, the Member States have retained the power to regulate both the entry into its territory of a member of the family of a Turkish worker and the conditions of his residence during the initial three-year period before he has a right to respond to any offer of employment."
[25]What Mr Walsh argues for is that the standstill clause in Article 13 binds, and therefore restricts, the Member States' ability to regulate and control entry to family members to those national rules in force on 20 December 1976. There is no mention of this limit on the Member States' powers in Ergat and, in our view, such a restriction is out of step with the European Court of Justice's recognition of the autonomous power of the Member States in regulating entry so clearly spelt out in Ergat .[26]Also, the appellant's claim simply does not sit well with the express provisions of Decision 1/80 which, as we have seen, contains a number of directly applicable provisions which deal specifically with the rights of family members of Turkish workers. As we have seen, it is noteworthy that the enumerated entitlements are all dependent upon the family member being lawfully resident in the Member State and, as we pointed out above, these rights are precise and circumscribed, for example in relation to employment the family member must have been lawfully resident for at least 3 years (Article 7). To interpret Article 13 as conferring a right to enter – albeit one limited to the terms of HC 81 – is, in our view, not justified given the careful and progressive manner in which rights under the generalised provisions of the Ankara Agreement have been given substance in concrete terms in the rules produced through the Association Council Decisions.[27]Turning to the wording of Article 13 itself, we find the strained interpretation that Mr Walsh requires us to give it to be too great for the words themselves to bear. The relevant phrase is " new restrictions on the conditions of access to employment ". This phrase naturally refers to the worker's ability to obtain employment – which is, of course, itself spelt out in some respects in Article 6 of Decision 1/80 which progressively increases his entitlement until after 4 years' lawful employment all barriers to employment are removed. In our view, Article 13 cannot be construed to confer rights of entry on particular terms upon the family members of Turkish workers. It is concerned solely with the worker's " conditions of access to employment ". This phrase clearly has reference to national rules about access to the labour market. It is not concerned with the circumstances under which the individual works. The absence of a UK resident family is not a "condition" relating to a person's "access to employment".[28]Mr Walsh referred us to the cases of Savas (above) and R (Tum) v SSHD [2004] EWCA Civ 788 . Both cases concern the standstill clause in Article 41(1) of the Additional Protocol concerned with the right of establishment in business or self-employment. The terms of the latter are different from the standstill clause with which we are concerned in the case of workers. In both decisions, the European Court of Justice and Court of Appeal respectively applied the standstill clause to the benefit of Turkish citizens in the UK who wished to remain and engage in business on the basis of the Immigration Rules in force at the date of the UK's accession to the EU. These cases do not, however, avail the appellant in the instant case. First, they are concerned with a differently worded standstill clause which prevented new restrictions on "the freedom of establishment". To apply the current, more restrictive Immigration Rules was patently such a restriction. The wording of Article 13 of Decision 1/80 is materially different referring, as we have seen, to "conditions of access to employment". For the reasons we have already given, we do not consider that these words can be interpreted to cover the appellant's situation. Secondly, and following on from this, both Savas and Tum were concerned with the Turkish citizen's position in the UK and who could rely upon his right of establishment in order for the standstill clause to bite. They were not concerned with family union and the admission to the UK of a Turkish national which, in our view, does not fall within the ambit of Article 13.[29]We acknowledge the European Court of Justice's commitment in this, and other, contexts to maintaining 'family unity' (see, e.g Kadiman v State of Bavaria (Case C-351/97) above). It may well be that if there were no provision in the Immigration Rules or elsewhere for family members to join the Turkish worker in the UK, then there might well be a difficulty and conflict with the EU jurisprudence. That, however, is not the case. Even seen through the benevolent eye of the European Court of Justice and its jurisprudence on free movement rights, the appellant has failed to make out his case. There are provisions in HC 395 for visits or, as in this case, settlement because the appellant's father has indefinite leave to remain. Likewise a family member is entitled to pray in aid Article 8 and his (or her) right to respect for private and family life. These are all provisions which an Entry Clearance Officer must consider. There is provision in English law therefore, in the words of the European Court of Justice in Kadiman , "to create conditions conducive to family unity in the host Member State" (above at [37]) for the family members of Turkish workers. It is no argument in favour of reading in a right through Article 13 of Decision 1/80, that in the instant case the appellant simply cannot fulfil the requirements of HC 395 and, as far as we are able to tell, has not specifically relied upon Article 8.[30]For these reasons, the Entry Clearance Officer was correct to apply paragraph 317 of HC 395 to the appellant as the relevant Immigration Rules in force at the date of his decision and was correct to refuse the application.[31]We would make one final observation in respect of this case. Even if we accepted Mr Walsh's argument, a family member's right to join a Turkish worker in the UK could not arise unless that individual was exercising his or her right under the Ankara Agreement. In this case, that would seem to mean a right under one of the three indents in Article 6. It is far from clear in this case that the appellant's father is doing so. Since 15 May 2003 he has had indefinite leave to remain and thus, at least from that date, there was no restriction on his ability to take or seek employment (IND letter dated 15 May 2003). In these circumstances, the appellant's father was not reliant upon the Ankara Agreement and the appellant could not, even if we accepted Mr Walsh's argument in principle, derive any rights from that agreement. Decision[32]There is no material error of law in the determination of the Adjudicator whose decision to dismiss the appeal must stand. PROFESSOR A GRUBB SENIOR IMMIGRATION

Cited in 3 later judgments