Hacer Aydogdu, R (on the application of) v The Secretary of State for the Home Department

The standstill clause in Article 41(1) of the Ankara Agreement Additional Protocol protects conditions of entry and residence only where they are necessary for, or a corollary of, the effective exercise of freedom of establishment. Family reunification may satisfy that connection where a restriction makes economic activity difficult or impossible.

Settlement is different. Limited leave for a Turkish businessperson and family members will ordinarily suffice. Indefinite leave to remain is neither a prerequisite nor a corollary of establishment, and later restrictions on settlement are therefore outside the standstill clause. Once the economically active Turkish national has settlement, that person’s and the family’s rights derive from that domestic status, rather than the Ankara arrangements.

The applicant, a Turkish national, entered the United Kingdom as the spouse of a Turkish businessperson admitted under the Ankara Agreement. Her husband subsequently obtained indefinite leave to remain. The Secretary of State refused the applicant’s and their child’s applications for indefinite leave to remain under the 1973 Immigration Rules, relying on a two-year cohabitation requirement.

The Secretary of State accepted during the judicial review that this basis of refusal was legally erroneous. She contended, however, that settlement was not protected by the standstill clause and that current Immigration Rules applied. The Tribunal therefore determined the wider issue whether refusal of settlement to the dependant of a Turkish national exercising establishment rights could fall within Article 41(1) of the Additional Protocol.

1. The impugned refusal was quashed. The Secretary of State accepted that the decision had been made under the wrong Immigration Rules. The applicant was entitled to a quashing order.

2. The Tribunal nevertheless determined the wider issue because a lawful decision remained to be made and a ruling would give useful guidance on an issue affecting other cases. The circumstances justified completion of the judicial review: R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450.

3. Family reunification can be protected by a standstill clause where restrictions upon it may frustrate a Turkish national’s ability to undertake stable economic activity. However, the governing inquiry is whether the residence status in question is necessary for, or is a corollary of, the economic freedom. The Tribunal applied the approach in Demirkan and R (Buer) v Secretary of State for the Home Department [2014] EWCA Civ 1109.

4. Indefinite leave to remain is the highest domestic immigration status, but it is not required to enable a Turkish businessperson to establish and operate a business in the United Kingdom. In all but exceptional cases, limited leave for the businessperson and family members sufficiently enables the exercise and enjoyment of establishment rights. Settlement is therefore neither a prerequisite nor a corollary of freedom of establishment.

5. Accordingly, settlement for Turkish businesspersons and their family members does not fall within Article 41(1) of the Additional Protocol. Article 59 reinforced that conclusion, since the Ankara arrangements could not confer rights more favourable than those available to EU nationals and their family members.

6. Further, once a Turkish national who formerly exercised Ankara rights has acquired settlement, that person’s rights, and the contingent rights of family members, derive from settlement rather than the Ankara Agreement or its Additional Protocol. The Article 8 and child-welfare issues consequently did not require determination. A declaration was made to those effects. The Secretary of State was ordered to pay the applicant’s reasonable costs.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s refusal dated 23 September 2015. The refusal was quashed, and declarations were made concerning Article 41(1) of the Ankara Agreement Additional Protocol.
• Administrative review: The applicant unsuccessfully pursued administrative review before commencing judicial review.