Upper Tribunal Rules Settlement of Turkish Nationals and Families Excluded from Stand-Still Clause under Ankara Agreement

Introduction

The case Aydogdu, R (on the application of) v. Secretary of State for the Home Department ([2017] UKUT 167 (IAC)) examines the intersection of the Ankara Agreement and the UK's Immigration Rules concerning the settlement of Turkish nationals and their family members. This judgment, delivered by the Upper Tribunal (Immigration and Asylum Chamber) on March 20, 2017, addresses whether the settlement status of Turkish nationals under the Ankara Agreement falls within the scope of the "stand-still clause" in Article 41(1) of the Ankara Agreement’s Additional Protocol.

Summary of the Judgment

The Upper Tribunal held that the settlement of Turkish nationals and their family members in the UK does not fall within the scope of the "stand-still clause" outlined in Article 41(1) of the Ankara Agreement Additional Protocol. Consequently, the status of settlement (indefinite leave to remain) cannot derive from the Ankara Agreement or its Additional Protocol. The Tribunal further determined that once a Turkish national has been granted settlement in the UK, their rights, along with those of their family members, are no longer connected to the Ankara Agreement but are instead grounded in their settled status.

Analysis

Precedents Cited

The judgment extensively references several key European Court of Justice (CJEU) cases that interpret the Ankara Agreement and the Additional Protocol's "stand-still clause." Notably:

Sahin [Case C-242/06]: Established that the stand-still clause prohibits new measures that impose more restrictive conditions on Turkish nationals than those applied to Community nationals.
Genc [Case C-561/14]: Clarified that legislative changes making family reunification more difficult could constitute a new restriction under the stand-still clause.
Demirkan [Case C-221/11]: Articulated that the stand-still clause applies when conditions of entry and residence affect the economic activities of Turkish nationals.
Abatay and Sahin [Joined Cases C-317/01 and C-369/01]: Differentiated between the rights related to employment and those related to settlement, indicating that settlement falls outside the stand-still clause's protection.
Dogan [Case C-138/13]: Highlighted that family reunification is essential for the integration and economic activity of Turkish nationals, and restrictions in this area could violate the stand-still clause.
R (Buer) v Secretary of State for the Home Department [2014] EWCA Civ 1109: Emphasized that settlement does not fall under Article 13 of the Ankara Agreement, reinforcing that indefinite leave to remain is not covered by the stand-still clause.

These precedents collectively influenced the Tribunal's decision by outlining the boundaries of the stand-still clause and clarifying that settlement status does not impede the exercise of economic rights under the Ankara Agreement.

Legal Reasoning

The Tribunal conducted a thorough analysis of both the Ankara Agreement and the UK's Immigration Rules. A key aspect of the legal reasoning was determining whether the grant of settlement to Turkish nationals and their dependents can be considered a "new restriction" under the stand-still clause.

Key Points:

Scope of the Stand-Still Clause: The Tribunal interpreted Article 41(1) of the Additional Protocol, concluding that settlement is not integral to the exercise of the freedom of establishment under Article 13 of the Ankara Agreement. Therefore, settlement does not constitute a new restriction under the stand-still clause.
Effect of Settlement: Once a Turkish national acquires settlement, their rights, along with those of their family members, are derived from their settled status rather than the Ankara Agreement.
Consistency with EU Law: The decision aligns with broader EU principles of non-discrimination and parity, ensuring that Turkish nationals are not granted superior rights compared to EU nationals.

The Tribunal emphasized that the "stand-still clause" is designed to prevent new restrictions that would impede the freedom of establishment. Since settlement is a higher status than mere establishment, it falls outside the protective scope of the clause.

Impact

This judgment has significant implications for future cases involving the settlement of Turkish nationals under the Ankara Agreement:

Clarification of Legal Boundaries: It clearly delineates the limits of the stand-still clause, establishing that settlement is not covered, thereby providing clarity for both applicants and the Home Office.
Influence on Immigration Policy: The decision may inform future rule-making and policy adjustments by the Home Office, ensuring alignment with judicial interpretations.
Precedent for Similar Cases: Other Turkish nationals seeking settlement will reference this judgment to argue that their settlement does not fall under the stand-still clause.
Protection of Family Life: While settlement is not covered, the judgment underscores the importance of family reunification as essential for the economic and social integration of Turkish nationals.

Overall, the judgment reinforces existing legal frameworks while providing a nuanced understanding of the intersection between settlement status and the Ankara Agreement.

Complex Concepts Simplified

Stand-Still Clause

The "stand-still clause" in the Ankara Agreement's Additional Protocol aims to prevent EU Member States from introducing new restrictions that would impede the freedom of establishment and provision of services by Turkish nationals. Essentially, it "stands still" existing rights without allowing for additional limitations.

Freedom of Establishment

This refers to the right of individuals to set up and manage businesses in another EU Member State under the principles outlined in the Ankara Agreement. It encompasses activities like starting a company, taking a position as a self-employed person, or setting up a subsidiary.

Indefinite Leave to Remain (Settlement)

Settlement, or Indefinite Leave to Remain (ILR), grants a person the right to live and work in the UK without any time restrictions. It is a higher status than temporary or limited leave to remain and provides protections similar to those of British nationals, except for holding a passport.

Article 8 ECHR

Article 8 of the European Convention on Human Rights protects the right to respect for private and family life. In immigration cases, it can be invoked to argue against decisions that would unjustly interfere with an individual's family relationships.

Conclusion

The Upper Tribunal's decision in Aydogdu v. Secretary of State for the Home Department provides a clear delineation of the scope of the stand-still clause under the Ankara Agreement's Additional Protocol. By determining that the settlement of Turkish nationals and their family members does not fall within the stand-still clause, the Tribunal reinforces the separation between economic rights under the Ankara Agreement and immigration statuses granted under domestic law.

This judgment not only clarifies the legal landscape for Turkish nationals seeking settlement in the UK but also ensures that immigration policies remain consistent with overarching EU principles of non-discrimination and parity. The ruling supports the notion that higher immigration statuses, such as settlement, are managed independently of the economic freedoms initially granted under international agreements like the Ankara Agreement.

In essence, the judgment upholds the principle that settlement statuses are distinct from establishment rights, providing essential guidance for future cases and contributing to the coherent application of immigration law in alignment with international agreements.