R Hacer Aydogdu v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mccloskey J |
| Judgment Date | 08 March 2017 |
| Neutral Citation | [2017] UKUT 167 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 March 2017 |
[2017] UKUT 167 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Honourable Mr Justice McCloskey, President
Having considered all documents lodged, together with the oral and written submissions of the parties' representatives, Ms Peterson, of counsel, instructed by London Solicitors, on behalf of the Applicant and Ms Rhee QC, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 17 November 2016 and 14 January 2017.
R (on the application of Aydogdu) v Secretary of State for the Home Department (Ankara Agreement — family members — settlement)
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(I) The settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause” in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol;
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(II) Where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional Protocol.
By virtue of Council Regulation (EEC) 2760/72 (commonly known as the “Ankara Agreement”) and its Protocol, there are special arrangements and facilities for employed and self-employed Turkish nationals desirous of entering the EU for the purpose of working. This judicial review challenge raises certain questions relating to the construction and scope of this instrument, relating particularly to the operation of the soi-disant “standstill clause” as regards family members of self-employed Turkish nationals.
The Applicant and her spouse are both Turkish nationals. The Applicant's spouse, now aged 33 years, taking advantage of the Ankara Agreement, lawfully entered the United Kingdom pursuant to a grant of limited leave to remain dated 08 April 2011. On 08 October 2012 he was granted further leave to remain, extended to 08 April 2015. On 09 May 2013 the Applicant and her husband married in Turkey. On 23 September 2013 the Applicant was granted limited leave to enter the United Kingdom, in her capacity of spouse. On 04 February 2015 a son was born to the Applicant and her spouse in the United Kingdom.
It is convenient to tabulate the most salient dates and events in the history:
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(a) On 08 April 2011 the Applicant's spouse was granted leave to remain in the United Kingdom to establish himself in business under the Ankara Agreement. Pursuant thereto, he established a self-employed landscaping business.
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(b) On 08 October 2012, the Applicant's spouse was granted further leave to remain as a Turkish business person, extending to 08 April 2015.
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(c) On 09 May 2013, the Applicant and her spouse were married in Turkey.
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(d) On 23 September 2013 the Applicant was granted leave to enter and remain in the United Kingdom as the dependent family members of a Turkish business person under the Ankara Agreement, until 08 April 2015.
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(e) On 08 November 2013, the Applicant entered the United Kingdom.
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(f) On 04 February 2015 a son was born to the Applicant and her spouse.
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(g) On 18 August 2015 the Applicant's spouse was granted indefinite leave to remain in the United Kingdom.
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(h) On 23 September 2015 the applications of the Applicant and her son for indefinite leave to remain were refused.
In 1963 the Member States of the European Economic Community and the Republic of Turkey executed an agreement (the “ Ankara Agreement”) establishing an association between the EEC and Turkey. The principles on which the Agreement is based are rehearsed in Title 1. Article 2(1) explains the aim of the Agreement:
“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 basic objectives of the Ankara Agreement (and it's Protocol,( infra) were – and remain – the progressive fortification of trade and economic relations between Turkey and the EC, coupled with the establishment of a customs union in three phases. In the event, the timetable was not met and the final phase of the customs union was not achieved until 31 December 1995, via Decision Number 1/95 of the Association Council. Turkey's efforts to align its national legislation with that of the EC particularly in the fields of customs, trade policy, competition and the protection of intellectual, industrial and commercial property were continuing. Notwithstanding the not insignificant constitutional and legislative changes which have been adopted, the accession of Turkey to the EC has not materialised within the timescale originally envisaged or at all. There are substantial enduring concerns relating to state torture, freedom of expression, religious freedom and the rights of women and minorities. These are documented in official EU publications.
Chapters 1 and 2 of the Ankara Agreement contain provisions relating to the development of a customs union and trade in agricultural products. The provisions of the Agreement of most importance in the present context are arranged in Chapter 3 under the rubric of “Other Economic Provisions”. Articles 12 — 14 regulate, respectively, freedom of movement of workers, freedom of establishment and the right to provide services. Subject to certain unavoidable textual differences these provisions adopt the same language. Given the context of these proceedings, it suffices to reproduce 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. “
(Articles [59] – [63] and [65] – [81] are the updated TFEU provisions).
Thus the abolition of restrictions on the three aforementioned core freedoms was identified as one of the principal mechanisms designed to facilitate the promotion and development of trade and economic relations between the EEC and Turkey. The terminology “guided by” is striking. The Agreement did not purport to extend any of the three core Treaty freedoms to the Turkish population. Rather, the Treaty provisions in question were to act as touchstones, points of reference, in the operation of the Agreement. Their function was to steer, rather than mandate.
The so-called “stand-still clause” did not form part of the original Ankara Agreement. Rather, it was introduced via the Additional Protocol which was signed on 23 November 1970. The Protocol was based on the recognition that during the previous seven years Turkey had done enough to warrant progressing from the “preparatory” stage to the “transitional” (second) stage. It contains detailed chapters relating to free movement of goods, the elimination of quantitative restrictions and the Community's Common Agricultural Policy. These assorted chapters are followed by Title II which is entitled “Movement of Persons and Services”.
The first provision of Chapter II, entitled “Right of Establishment, Services and Transport” is Article 41(1), which provides:
“The Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”
Article 41 (2) notably, in making reference to Articles 13 and 14 of the Ankara Agreement employs the language of “ principles”. In doing so, it reiterates the objective of –
“…. The progressive abolition by the Contracting Parties, between themselves, are 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 this field and also the special economic and social circumstances of Turkey”.
Among the “General and Final Provisions” assembled in Title IV, Article 59 is deserving of attention:
“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.”
I shall make reference infra to Decision 1/80 of the Association Council, in particular Article 13 which is the “stand-still clause” relating to the discrete cohort of Turkish workers.
The United Kingdom, as noted in [1] above, became bound by the Ankara Agreement and Protocol pursuant to Council Regulation (EEC) 2760/72, which came into operation on 1 January 1973. This was one of the series of measures associated with the accession of the United Kingdom to the EU.
The exercise of gauging whether any “new” restrictions bearing on the specified “freedoms” have been introduced by the United Kingdom requires identification of the relevant restrictions in force at the material time viz 1973. These restrictions are contained in HC 509 and HC 510 of the Immigration Rules. Paragraph 35 of HC 509, which concerns “on entry” requirements, states with reference to “dependents” (as defined):
“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...
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