“The aim of this Agreement is to provide the continuous and balanced strengthening of trade and economic relations between the Parties, while taking full account of the need to ensure an accelerated development of the Turkish economy and to improve the level of employment and the living conditions of the Turkish people.”
“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
“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.”
“The wife and children under 18 …. of a person admitted to the United Kingdom to take or seek employment, or as a business man, a person of independent means or a self-employed person, should be given leave to enter for the period of his authorised stay ….”
“A person who is admitted in the first instance for a limited period and who has remained here for four years in approved employment or as a businessman or a self-employed person or a person of independent means, may have the time limit on his stay removed unless there are grounds for maintaining it. Applications for removal of the time limit are to be considered in the light of all the relevant circumstances, including those set out in paragraph 4. Once the time limit is removed no further permission from the Home Office or the Department of Employment is needed to engage in any kind of business or employment. Applications for variation of leave to enter with a view to settlement may also be received from people originally admitted as, for example, visitors; but permission has to be limited to close relatives of people already accepted for settlement. Particulars are set out in paragraphs 37-44 of the Rules for Control on Entry dated October 1972 (HC 509).”
“DECISION SUMMARY – Your application is refused under paragraph 41 of HC 510 which outlines the business requirements under the Immigration Rules in force in 1973 …. The Secretary of State is not satisfied that you have been living in the United Kingdom with your sponsor for a period of at least two years …. Paragraph 72 of the “Business Applications under the Turkish EC Association Agreement” guidance states: ‘The Applicant and the Turkish ECAA business person have been living in the UK in a relationship similar to marriage or civil partnership for a period of at least two years.’”
“As the Secretary of State has explained and acknowledged in her Detailed Grounds of Defence, her position … is contradicted by the position set out in the ECAA Guidance which seeks to treat applications for ILR from Turkish business persons on the basis of HC 510 …. and by the fact that the Applicant’s husband’s application for ILR was in fact considered (and granted) under paragraph 28 thereof …. Further, the Applicant’s own application for ILR was considered under HC 510 – albeit in conjunction with the provisions of the ECAA Guidance … The Applicant did not satisfy [the] requirement [of two years’ cohabitation in the United Kingdom] …. However, having considered the position with some care, the Secretary of State’s position is that settlement is not caught by the stand-still provision [in the Ankara Agreement] . ... Accordingly, both the Applicant’s husband’s and her own application for ILR should – on this basis – have been considered under the Immigration Rules. Under the relevant Rules, the qualifying period for the grant of ILR is five years’ residence. The Applicant does not satisfy this requirement …. It is in the interests of certainty and clarity that the Secretary of State seeks a definitive ruling from the Court on this question of principle before seeking to recast her guidance and position to reflect the correct legal position (as confirmed by the Court).”
“While the Home Office position is that settlement for Turkish business persons and their dependents does not fall to be considered under HC 510, it has previously allowed indefinite leave to remain (‘ILR’) to be obtained under the 1973 Rules.”
“… The relevant applicable rules pertaining at present would mean that Turkish nationals seeking settlement should apply to switch into one of the settlement routes such as the Family Rules within the current Immigration Rules. The Family Rules route would only lead to ILR after completion of five years with the applicant needing to meet all the relevant criteria for leave throughout the qualifying period.”
“In summary, an application for ILR made under the current Family Rules would have been refused under paragraphs E.ILRP. 1.2 … 1.3 …. 1.4 …. 1.5 and … 1.6.”
“Should the Home Office position on the limitations of the stand still clause be upheld, we may consider creating a new route enable dependents of those ECAA business persons with ILR to secure further ECAA leave to remain.”
“The sponsor has established a successful business … in the United Kingdom and cannot leave his business without detriment to the business and provisions for the Claimant. It is submitted that this is a further prohibited frustration of the objects of the [Ankara Agreement] …. and seeks to deprive the second Claimant [sic], who is less than a year old, of either his father’s care or the cessation of the family’s income which provides for his care.”
“It is also settled case law that the stand-still clause enacted in Article 13 prohibits generally the introduction of any new measure having the object or effect of making the exercise by a Turkish national in its territory of the freedom of movement for workers subject to more restrictive conditions than those which applied …”
“In that regard, it is necessary to bear in mind that the Court has previously held that legislation which makes family reunification more difficult, by tightening the conditions of first admission to the territory of the Member State concerned by spouses of Turkish nationals in relation to those conditions applicable when the Additional Protocol entered into force, constitutes a ‘new restriction’, within the meaning of Article 41(1) of the Additional Protocol, on the exercise of the freedom of establishment by those Turkish nationals (judgment in Dogan, C-138/13, EU:C:2014:2066, paragraph 36).”
“That is the case since the decision of a Turkish national to establish himself in a Member State in order there to exercise a stable economic activity could be negatively affected where the legislation of that Member State makes family reunification difficult or impossible, so that that national could, as the case may be, find himself obliged to choose between his activity in the Member State concerned and his family life in Turkey (see, to that effect, judgment in Dogan, C-138/13, EU:C:2014:2066, paragraph 35).”
“A national measure such as that at issue in the main proceedings, making family reunification between a Turkish worker residing lawfully in the Member State concerned and his minor child subject to the condition that the latter have, or have the possibility of establishing, sufficient ties with Denmark to enable him successfully to integrate, when the child concerned and his other parent reside in the State of origin or in another State, and the application for family reunification is made more than two years from the date on which the parent residing in the Member State concerned obtained a permanent residence permit or a residence permit with a possibility of permanent residence constitutes a ‘new restriction’, within the meaning of Article 13 of Decision 1/80 of the Association Council …………. Such a restriction is not justified.”
“Consequently, irrespective of whether freedom of establishment or freedom to provide services is invoked, it is only where the activity in question is the corollary of the exercise of an economic activity that the ‘stand still’ clause may relate to the conditions of entry and residence of Turkish nationals within the territory of the Member States.”
“… a Turkish national who is already lawfully employed in a Member State no longer needs the protection of a stand-still clause as regards access to employment, as such access has already been allowed and the person concerned subsequently enjoys, for the rest of his career in the host Member State, the rights which Article 6 of that decision expressly confers on him. On the other hand, the stand-still requirement as regards conditions of access to employment is intended to ensure that the national authorities refrain from taking measures likely to compromise the achievement of the objective of Decision No 1/80, which is to allow freedom of movement for workers, even if, initially, with a view to the gradual introduction of that freedom, existing national restrictions as regards access to employment may be retained …”
“In that regard, it must be noted that the Court has held that family reunification constitutes an essential way of making possible the family life of Turkish workers who belong to the labour force of the Member States, and contributes both to improving the quality of their stay and to their integration in those Member States (see judgment in Dülger, C-451/11, EU:C:2012:504, paragraph 42).”
“The decision of a Turkish national to establish himself in a Member State in order to exercise there a stable economic activity could be negatively affected where the legislation of that Member State makes family reunification difficult or impossible, so that that national could, as the case may be, find himself obliged to choose between his activity in the Member State concerned and his family life in Turkey.”
“The reason why Article 13 has been held to apply to residence even though it does not contain any express mention of residence is that residence is a corollary of employment: without a right of residence there can be no effective access to employment. This has been brought out clearly in relation to Article 6(1), which is likewise silent as to residence but has been held to imply a right of residence. Thus inCase C-237/91 , Kus v Landeshauptstadt Wiesbaden [1992] I-6807, referring back toCase C-192/89 , Sevince v Staatssecretaris Van Justitie[1990] ECR I-3461 , the Court said this at paragraphs 29-30: “It also held, in that judgment, in the context of the third indent of Article 6(1) of Decision No 1/80 that even though that provision governs the situation of the Turkish worker only with respect to employment and not to the right of residence, those two aspects of the personal situation of a Turkish worker are closely linked and that, by granting to such a worker, after a specified period of legal employment in the Member State, access to any paid employment of his choice, the provision in question necessarily implies – since otherwise the right granted by it to the Turkish worker would be deprived of any effect – the existence, at least at that time, of a right of residence for the person concerned …. The same is also true as regards the first indent of Article 6(1) of Decision No 1/80, since without a right of residence the grant to the Turkish worker, after one year's legal employment, of the right to renewal of his permit to work for the same employer would likewise be deprived of effect.”
“The focus in that passage is on a right of residence in order to render effective the right of access to work, which is very different from a right to settlement or permanent residence. The same reasoning ought to apply to Article 13. In the case of Article 13, moreover, the point is underlined by the limited scope of the article, discussed above. If the article is not intended to protect those who are already integrated into the labour force of the host Member State but is intended to apply only to those who do not yet qualify for rights under Article 6(1), its concern must be with residence up to the point where rights are acquired under Article 6(1) , not with longer-term residence or settlement.”
“The close relationship between residence and employment is further illustrated by Bozkurt (see paragraph 33 above). One of the questions in that case was whether Article 6(1) entitled the applicant to remain in the territory of the host Member State following an accident at work which rendered him permanently incapacitated for work. The Court of Justice answered that question in the negative, stating at paragraphs 39-40 of the judgment: “It follows that Article 6 of Decision No 1/80 covers the situation of Turkish workers who are working or are temporarily incapacitated for work. It does not, on the other hand, cover the situation of a Turkish worker who has definitively ceased to belong to the labour force of a Member State because he has, for example, reached retirement age or, as in the present case, become totally and permanently incapacitated for work.”