Does the Home Office’s current attitude towards the Ankara Agreement signal its extinction?
There are unprecedented delays in decision-making on applications submitted at Turkish visa application centres. Whilst refusals of Ankara Agreement applications grow steadily, high net worth applicants in Tier 1 Investor and Entrepreneur categories face excessive delays in obtaining decisions.
The Association Agreement Council Regulations promote the continuous and balanced strengthening of trade and economic relations between the EU and Turkey. One of the Articles of the Additional Protocol, which is an integral part of the Agreement, states that there should be no restrictions on the freedom of establishment and the freedom to provide services.
Whilst there are certain general provisions about entry to the UK under domestic Immigration Rules, the policy guidance contains substantial requirements. The guidance gives advice about the requirements to be met and what types of documents should be submitted with the entry clearance application. However, there is no definitive list of either.
The Home Office seems to be refusing applications ‘as it sees fit’. The most common refusal grounds include:
- Lack of research into the proposed market
- Assessment of financial projections
- Ability to demonstrate a gap in the UK market and need for the proposed services
- Intention to establish the proposed business is not genuine
The guidance confirms that there is no formal requirement to provide a business plan. However, the Home Office will readily refuse an application without one, claiming that failure to submit one undermines the credibility of the proposed business.
Our clients, however, continue to enjoy successful applications as a result of skilled preparation and professional guidance.
It has become quite demanding to please the Home Office. It is essential to do quality preparation for the application. In addition to the guidance, we use our experience which is worth more than the published document.
The application process for entry clearance is very slow at the moment. There is no premium service available for Ankara applications. The only additional service on offer is passport return whilst the application is under consideration.
Communication with the Home Office is not always fruitful. Although applicants can pay an additional fee for a phone call or email to the Home Office, replies are generic, without a prospect of reasonable communication.
Recent decisions on applications for indefinite leave to remain by Turkish nationals demonstrate that there is no guarantee that all the hard work put into growing the business or the leave to remain established under the Ankara Agreement, will lead to settlement.
A recent decision indicates the direction that the Home Office is heading. In this case, the wife was allowed to enter the UK on grounds of her marriage to the main applicant, who established himself in the UK under the Ankara Agreement. But she was not able to apply for indefinite leave to remain in line with her husband. This was not a question of proving the genuine relationship, but simply applying the restrictions imposed by the guidance.
Right to appeal
Since then, the Home Office’s stance on settlement applications by family members and their right to appeal has been challenged in further cases. Any judicial review applications raising appeal rights issues have been stayed under a blanket order, until the Court of Appeal makes a decision.
The future of the Ankara Agreement
The Home Office gives no indication about the future of the Agreement. It is reasonable to expect that the Regulations which govern Ankara Agreement applications would be transposed into the domestic Immigration Rules as would happen with all EEA Regulations. This might mean that Turkish business persons will have to apply under the Tier 1 Entrepreneur category which, amongst others, imposes the financial requirement of investing at least £200,000 of their own capital in a UK business.
But we hope that both governments would work out a separate agreement which would allow continuation of the current arrangements, or would alter the requirements only to a minimum.
We anticipate an improvement in services by the UK Visas & Immigration and the Home Office. The service is improving in the UK, and we have high hopes for the services to recover at Turkish application centres.
Home Office officials promise business as usual to Turkish applicants, but only whilst UK negotiates its way out of the EU. We are yet to see what procedure will be in place after March 2019.
Tier 1 Investors
The delay also affects applications submitted under the rules governing the Tier 1 category. Whilst there is an option to purchase a priority service, there is also a disclaimer that meeting the decision deadline is not guaranteed.
It seems that applicants who purchase the priority service, which promises to put their application ahead of the queue, have their own queue which is parallel with the standard service applications. The deterioration of service is pertinent not only to Turkish nationals, but to all applicants (e.g. from Iran).
 R(on the application of Aydogu) v Secretary of State for the Home Department (Ankara Agreement-family members-settlement)  UKUT 00167 (IAC)
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.