Upper Tribunal decision in the case of: EK (Ankara Agreement - 1972 Rules - construction) Turkey [2010] UKUT 425 (IAC)
This case held that the previous decision in the case of OT (Turkey) [2010] UKUT 330 (IAC) was incorrect. The case of OT held that a student could not switch into the business status or anyone other than a visitor.
This case concerned an au pair seeking to switch into the ECAA business category. The respondents were appealing against the decision of the First Tier Tribunal allowing the appellant’s appeal.
The appellants are Turkish nationals. The second appellant is the husband of the first and dependant on her claim. The first appellant arrived in the UK with leave to remain as an au-pair. She then applied for further leave to remain pursuant to the EC Turkey Association Agreement. Her application was successful and she began her business as a provider of domestic services (including cleaner, baby sister).
The appellants thereafter applied for indefinite leave to remain in the UK having accumulated 4 years in the Ankara Agreement capacity. With her application, the appellant submitted accounts of her business showing a gradual decrease in net profits over the three years. The application was subsequently refused on the basis that she could not maintain and accommodate herself and her spouse sufficiently whilst in the UK as a self-employed individual. The Secretary of State for the Home Department stated in their refusal that whilst the appellant showed a net profit, her expenses far exceeded her earnings and therefore, they were not satisfied that she could maintain and accommodate her husband and herself in the UK in accordance with the requirements of the immigration rules.
The Tribunal considered the terms of the 1973 Immigration Rules as a consequence of Article 41 of the Additional Protocol dated 1972 to the Ankara Agreement which provides that:
“1. The contracting parties shall refrain from introducing between themselves any new restrictions on the freedom of establishing and the freedom to provide services”. The leading case of Savas held that this provision was an unequivocal “stand still “clause prohibiting contracting parties from introducing new restrictions post the date of entry of the Additional Protocol.
The Upper Tribunal considered the Statement of Immigration Rules of Control after entry laid before the House of Commons on 23rd October 1972 HC 510. In particular, they considered paragraph 28 regarding settlement. This provides that those who have remained in the UK in accordance with the provisions of their leave as a business person or self employed person should be granted indefinite leave to remain after 4 years. This is subject to paragraph 4 which provides that regard will be had to the person’s personal circumstances (i.e. character, conduct, associations etc)
In this case, the appellants had not had any recourse to public funds and it appeared that they had not been in breach of any of the conditions of their leave to remain. There were no discretionary factors to indicate a refusal either.
The Upper Tribunal held that the First Tier Tribunal decision was correct. There was no requirement for the appellants to substantiate that in each year since the grant of leave, she had maintained herself and her spouse from the profits of the business. The contents of the Immigration Rules of 1972 were very different in this context from the present rules. Further, there was nothing in HC 510 precluding third party contributions to living expenses.
The Tribunal held that the case of OT (Turkey) would need to be revisited as the decision was wrong in light of Para 4 of the Rules which provides that leave can be granted to other categories of people (other than visitors) if appropriate. This was not considered in the case of OT.
Accordingly, the Upper Tribunal dismissed the respondents appeal finding that there was no error of law.
December 2010