Court of Appeal confirms that Turkish business people do not benefit from settlement under 1973 immigration rules

Soner Kotuk v Entry Clearance Officer, Warsaw [2018] EWCA Civ 2850

In a judgment of 20 December the Court of Appeal confirmed that the “standstill clause” in the Additional Protocol to the EC-Turkey Association Agreement (“The Ankara Agreement”) did not apply to applications for indefinite leave to remain in the United Kingdom brought by Turkish business persons.

The Ankara Agreement was signed between the Republic of Turkey and the European Economic Community in 1963 with the intention of strengthening economic cooperation between the parties. To this end the Ankara Agreement included “economic provisions” by which the parties committed to be guided by relevant articles of the Treaty establishing the Community for the purposes of progressively securing freedom of movement for workers, abolishing restrictions on freedom of establishment, and abolishing restrictions on freedom to provide services. By an Additional Protocol signed in 1970, Turkey and the EEC agreed a so-called standstill clause whereby they would “refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.”

The Ankara Agreement and the Additional Protocol applied to the UK upon its accession to the EEC in 1973.

It was Mr Kotuk’s case that the effect of the standstill clause was that he was entitled to be treated under the immigration rules which were in force in 1973 as opposed to the stricter regime which now applies. Given that his wife, as a Turkish business person, had been granted indefinite leave to remain in the UK, it was his case that as her spouse he was entitled to enter the UK with a right to remain indefinitely (as he contended, would have been the case in 1973).

His application for judicial review was dismissed by the Upper Tribunal (Green J, as he then was). The Court of Appeal dismissed Mr Kotuk’s appeal, agreeing with the Secretary of State that the standstill clause was concerned with freedom of establishment and to provide services. It was not concerned with residence and did not prohibit member states from introducing new restrictions on residence. Therefore, Mr Kotuk’s application for leave to enter and remain in the UK was not to be treated under the Immigration Rules as they stood in 1973, but under the stricter rules regulating reunification of family members now in operation (R (Buer) v Secretary of State for the Home Department [2014] EWCA Civ 1109; [2015] 1 CMLR 3, applied).

David Mitchell, led by Deok Joo Rhee QC and instructed by the Government Legal Department, acted for the successful Respondent.