ECAA1- Turkish employed to PR - Unusual case-please advise

[serr]

Hi all

I need some advice around ECAA1-Turkish employed and indefinite leave to remain. It is a bit of an unusual case and any help from gurus,experienced people and people in the same situation is much appreciated.

Let me give you my immigration history first before going into specifics.

September 2005- September 2007- student visa
September 2007- September 2008- international graduates scheme.
September 2008- September 2009- Tier 1 (post study work)
September 2009-September 2011- Turkish Employed (ECAA1- first indent)
September 2011-September 2012- Turkish Employed (ECAA1- second indent)


Now my current leave runs out in Sep- 2012 and I still have the right to extend it on Turkish Employed (ECAA1-third indent) because I am still employed and you can extend ECAA1 as long as you are employed.

My question is around the indefinite leave to remain application and making plans going forward. According to the immigration rules around ECAA1, it doesn’t lead to indefinite leave to remain, obviously the option of applying after completing 10 years of long residence remains open, which will be complete September 2015. However I have spoken to a solicitor recently and he reckons I have got the opportunity to apply for indefinite leave to remain now because I have been working full time since around February 2008 (I have also been working on and off since Sep-2005). Although the guidance for ECAA clearly states that this category doesn’t lead to indefinite leave to remain-

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

settlement (page 6), the solicitor thinks this is a violation of European law and Turkish workers cannot be working to different rules if their leave is under the European law, which ECAA1 is. His argument is that just like European workers that have the right to permanent residence here after 5 years of employment, a Turkish worker in employment for the same amount of time also should be entitled to indefinite leave to remain (I think this time period was 4 years with 1976 European law). At the same time, he thinks this has never been done before meaning there is no real example of the same situation being successful.

I know that every EU country has the right to implement EU laws slightly differently according to their conditions/choice. I am just wondering if I have got a real chance here of applying and being successful before my current leave runs out in Sep-12? He advised that I can apply without an application form because an application form is not compulsory for leave under EU regulations and also without passport, etc, but just with a letter stating his arguments and understanding of law giving examples to the actual law. I also will still have the right to extend my current leave if it fails. If it fails, it apparently goes straight to high court because there is no right to appeal, but again he thinks I have got a very strong case and chance of getting it at least with a high court ruling.

Can any experienced member, guru, people in the same situation comment on my chances of being successful with this case please? If it works, I will be able to get indefinite leave to remain in Sep 12 instead of Sep 15 waiting to complete the 10 years long residence.

Many thanks for reading and I appreciate any comments/ideas and advice.

Serr

[geriatrix]

ILR is granted under UK immigration law, where EC regulations and Turkish law do not apply.
Whether not granting PR (granted under EU directives) to migrants under this category is a violation of EU law, it must be challenged within the purview of EC regulations.
Turkish law cannot dictate UK immigration rules or policy.

See also 34-34D.


IMHO ....

[serr]

thanks sushdmehta for your reply.

i didnt mean this has got anything to do with the Turkish law but only the EC regulations.

i suppose the solicitor meant I may have a chance PR under EC regulations rather than ILR. i will confirm that with him. do you think this case has a chance for PR under EC regulations?

Also, 34-34D doesnt clearly state what to do where there is no application form for the specific leave in question. Which line are you referring to exactly?

Many thanks

[geriatrix]

ILR is different from PR in the sense that the former is subject to UK immigration law and the latter subject to EU directives. Your post refers to and asks about ILR, so the link to the relevant UK immigration rules relating to specified forms and fees was provided.

Moving this topic to EEA forum.

[serr]

can anyone help please with some comments on this case being successful?

many thanks

[mcovet]

it does seem complicated and you would definitely need to consult more than one specialist and pay money for it, barristers normally charge a lot, but good ones know what they're talking about.

In my personal view, you are getting at possible discrimination against the Turks. However, discrimination on the grounds of nationality is prohibited, as far as I know, only within the Member States. As Turkey is not within EU, it will be difficult to argue this point. Further, if the agreement does not specifically lead to settlement, it will be very difficult to argue and introduce it via the back door, and thus allow indirect and additional settlement route in already oversaturated workers' environment.

Also, just looking at your dates, it's Sep 2013 when you will have worked for 5 years and not 2012?

Anyway, you will have to give us more info on why your solicitor thinks this will work as it will be quite expensive for you to follow the whole process and lengthy as well, not smth you wanna do lightly without having a solicitor/barrister give you at least 80% chance of success, which is impossible in such test cases.

just to add, you should get one point clear, as sushdmehta said. ILR is a purely domestic situation and as the guidance is CLEAR on this ECAA route not leading to ILR you have to turn to EU law.

What your solicitor is implying is the EU law, namely several routes to settlement, but more importantly Directive 2004/38. As I said above, I don't think that Turkish nationals can be demanding equal treatment to EU nationals as this would defeat the objective of freedom of movement. Turks have no such right in EU and thus by discriminating against them, the basis of founding the European Union (four pillars of freedom of movement, capital, peeple and services) will not be affected in the slightest.

I understand your desire to settle in the UK, but I would urgently look for alternative ways and not waste too much time and money here.

the genius solicitor has probably no in-depth knowledge, otherwise he would have done solid research or at least some research to found his ideas on.

[serr]

thank you for your comments.

i think (although i am not 100% on this) the solicitior's argument is that because PR is a status gained through EU directives, it cannot discriminate between citizens of different countries and all should be subject to same rights. also bear in mind that ECAA2 Turkish businesspersons route leads to ILR after 4 years, which ECAA1 - Turkish Employed doesn't. Isnt this odd in your view? Also, ECAA2 leads to ILR as specified on the application form not PR- like all others through EU directives lead to. I find this odd as well. Do you know if this is implemented the same way in other EU countries as in Turkish Employed and businesspersons are subject to different rules in terms of settlement? This may be a good point to argue if its different elsewhere in the EU.

I think the differences between these 2 rules are the solicitor's main arguments as well. I will see him soon and confirm what he is exactly founding his arguments on. I will post here.

I have been working since i came here in sep 2005 but I am not sure working as a student counts or not here? but i have been working non-stop full time since around feb 2008, if they take when i switched to a work visa from being student-then around sep 2007.

you are right in saying that i shouldnt spend a lot of time and money on smth that isnt worth it and wouldnt go anywhere but i also wouldnt want to miss this opportunity if would really work. i am just weighing my chances with this now. hopefully will go somewhere.

many thanks for the discussion looking forward to hearing back from all.
[/quote]

[thsths]

the solicitor thinks this is a violation of European law and Turkish workers cannot be working to different rules if their leave is under the European law, which ECAA1 is.

I am not convinced that is correct. Even within the EU there can be differences in the application of law, although generally once leave is granted discrimination between European citizenships is no longer allowed. They key problem with this argument is that you do not have a European citizenship.

If this goes to court, I would assume that it could take quite some time - the UKBA will not give in easily in this area. So if you have a lot of money to spend on legal fees, feel free to go ahead. It could also take years to reach a final judgement.

It should certainly be a lot easier if you just wait for the ten year residence point.

PS: It is a bit strange that just about any other work visa category leads to PR or ILR after 5 years, but ECAA1 does not. But that is an irregularity in the UK law, and quite difficult to fight.

[serr]

thanks,

I am aware it may take a long time if it goes to court.

Do you know if this is implemented the same way in other EU countries as in Turkish Employed and businesspersons are subject to different rules in terms of settlement? This may be a good point to argue if its different elsewhere in the EU.

does anyone know how this is implemented elsewhere in the EU as i think it may be a good battling ground-if other EU countries grant settlement for Turkish employed citizens. But then again, would this mean the UK has the implement it the same way and grant settlement?

[gudubet55]

Hello,
I am dealing with a similiar issue.
After having worked 2.5years under Tier2 I switched my visa into ECAA1 six months ago without knowing the limitations on the UK settlement. Recently I got a new job and I am applying to extend my stay under Tier2 again for my new job. Apparently it is not possible because I don't hold currently a Tier2. ECAA1 seems to be the only visa that I can get without leaving the UK and applying from Turkey.
In that scenario, I won't be able to apply for indefinite leave to remain in 2015 even though I will have worked for 6 years continously! I have spoken to a solicitor about the situation. He first suggested me to apply for Tier2 again or switch it my current ECAA1 to another type visa which can lead to indefinite leave to remain. According to him, there is no way that I will be granted indefinite leave to remain with ECAA1.

[serr]

Hello,
I am dealing with a similiar issue.
After having worked 2.5years under Tier2 I switched my visa into ECAA1 six months ago without knowing the limitations on the UK settlement. Recently I got a new job and I am applying to extend my stay under Tier2 again for my new job. Apparently it is not possible because I don't hold currently a Tier2. ECAA1 seems to be the only visa that I can get without leaving the UK and applying from Turkey.
In that scenario, I won't be able to apply for indefinite leave to remain in 2015 even though I will have worked for 6 years continously! I have spoken to a solicitor about the situation. He first suggested me to apply for Tier2 again or switch it my current ECAA1 to another type visa which can lead to indefinite leave to remain. According to him, there is no way that I will be granted indefinite leave to remain with ECAA1.

hi

i know exactly what you mean!i guess you should have never switched to ECAA1 because it looks like it is problematic leading to ILR. I recommend you switch to Tier2 if possible outside of the UK.

The solicitor seems to think it ECAA1 might lead to ILR but I havent spoken to him about the details of how that may be possible. I will post an update here when i do.

best of luck.

[erenmuratemre86]

I m not an expert but since '' rule is a rule in the uk" i do not reckon you have a chance of getting ILR since it states that ECAA1 does not lead to permanent settlement. If i were you I would not spend my money on this awkward situation.

I have one quick question. Can you switch into ECAA1 if you are PSW holder ? And when you applying,do you need to obtain a biometric residence thingy first or u get this once you have applied

Thanks
Ery

[serr]

I m not an expert but since '' rule is a rule in the uk" i do not reckon you have a chance of getting ILR since it states that ECAA1 does not lead to permanent settlement. If i were you I would not spend my money on this awkward situation.

I have one quick question. Can you switch into ECAA1 if you are PSW holder ? And when you applying,do you need to obtain a biometric residence thingy first or u get this once you have applied

Thanks
Ery

you can switch to ECAA1 as long as you have been working for the same employer for one year regardless of your current permit. and if you have never had a brp, you will be contacted by HO once you post your application to go and provide brp details- it is part of your application process...

[serr]

I am not convinced that is correct. Even within the EU there can be differences in the application of law, although generally once leave is granted discrimination between European citizenships is no longer allowed. They key problem with this argument is that you do not have a European citizenship.

I am not sure if I get this right: discrimination between eu citizens is no longer allowed once leave is granted. EU citizens dont need leave stay/work in the UK. Can you clarify what you mean?

If this goes to court, I would assume that it could take quite some time - the UKBA will not give in easily in this area. So if you have a lot of money to spend on legal fees, feel free to go ahead. It could also take years to reach a final judgement.

I have seen the solicitor again and he is quite confident that this will not go to court and be resolved at judicial review stage if it is refused in the first instance. His argument is based on the standstill clause below

Article 7 of Decision 2/76 clearly provides that:

''The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers legally resident and employed in their territory".

and

Article 10(1) of Decision 1/80 further reminds us that Turkish workers should be treated the same as EC workers

His argument here is that any EU citizen is eligible for permanent residence after 5 years of work/stay in the UK, and if Turkish are to be treated the same, they should be eligible for ILR.

I did get these quotes from

http://www.turkishweekly.net/article/22 ... tml#_ftn57

Now the way I will apply is that I will make an extension application as normal but attach a covering letter asking for ILR referencing the law as above. Most likely HO will just grant the extension but not ILR and send my passport back, afterwards I will make and application through the solicitor having secured the extension beforehand- hopefully will have nothing to lose. If this is again refused, there is the judicial review stage before it goes to high court. This is where the solicitor think HO will agree ILR because of the fact that if it goes to High court and I win, it will be published and binding to all other cases. But if HO agree at judicial review stage, they wont risk the outcome being binding to all other cases.

Please can gurus/experienced people comment whether this is a good way to play this. Would applying for an extension initially and attaching a covering letter asking for ILR would at all jeopardise my getting even the extension; or in fact anything you think doesn't make sense here.

Looking forward to responses,
many thanks

[Ged]

You were asking me about my progress. You have an interesting case yourself. What did you do at the end? Did you challenge ECAA1- Turkish rule?

[serr]

Hi

All of my story is above if you read it- basically I have applied in Sep12 for my ECAA Turkish Employed extension but also attaching a covering letter with all the references you see in the trail above requesting ILR- my covering letter was ignored and I only got another extension. In the meantime this solicitor mentioned above is in the high court process with someone else with the same situation as me- apparently-

Also, the solicitor found out that someone else in the same situation has obtained ILR through ECAA Turkish Employed in the past but not as far as going to the high court- therefore this case cannot be referenced by others. I would think UKBA would want to settle quietly (like in this example) and grant ILR in some cases and rather than going to high court and losing there, because the case then will be applicable to everyone in the same situation. It has gone to high court in the solicitor’s case now.

So, I am in contact with the solicitor and he will let me know the outcome of the high court.

I am not sure if I can /should do anything else but wait for the outcome of the high court which I have got no indication of how long it will take- apparently it can take months.

Any comments welcome.
S

[Ged]

Hi

All of my story is above if you read it- basically I have applied in Sep12 for my ECAA Turkish Employed extension but also attaching a covering letter with all the references you see in the trail above requesting ILR- my covering letter was ignored and I only got another extension. In the meantime this solicitor mentioned above is in the high court process with someone else with the same situation as me- apparently-

Also, the solicitor found out that someone else in the same situation has obtained ILR through ECAA Turkish Employed in the past but not as far as going to the high court- therefore this case cannot be referenced by others. I would think UKBA would want to settle quietly (like in this example) and grant ILR in some cases and rather than going to high court and losing there, because the case then will be applicable to everyone in the same situation. It has gone to high court in the solicitor’s case now.

So, I am in contact with the solicitor and he will let me know the outcome of the high court.

I am not sure if I can /should do anything else but wait for the outcome of the high court which I have got no indication of how long it will take- apparently it can take months.

Any comments welcome.
S

Thanks for the update. I was interested in your story basically because my ongoing ILR application based on 10 years do not have a fail-safe option if it goes wrong. My current Tier 1 leave will end very soon so if ILR gets rejected I need a plan B. As a plan B, I am considering to apply for ECAA in case the ILR gets refused. However, as you are well aware, ECAA can be a dead end immigration category so your case is very important for other Turkish people in this forum. If you can get a ILR out of ECAA, this might be life changing option for many other people.

[Obie]

That is quite extraordinary, because un 1973, there was no expectation for ILR, for workers covered by the single clause. It is interesting that a judge has found that a persob can qualify now. We shall wait and see how this goes.

[serr]

Yes, I am looking forward to hearing a positive outcome from the high court as well. I will post any updates here.

Also, there is someone else in the same situation considering applying in person in one the PEOs with SET(O) and ticking ‘Other purposes/reasons not covered by other application forms’ and constructing a case with a covering letter and hoping for the best. Do you have any comments regarding success applying this way and what should be included in the application form for a strong case? They will probably pass this onto a senior caseworker and he might use discretion and grant ILR- I am not sure…

Thanks for your comments.
S

[ITGraduate]

Hi There,

I'm too at a similar situation. Can you update the outcome of your case hearing?

Cheers

[serr]

hello,

sorry about the late response but i think you misunderstood- i havent made an ilr application but i know a solicitor who has done it for someone else i dont know. but i am in contact with this solicitor who will let me know the outcome. as far as i know it is still at high court waiting for a hearing or so. i will post here when i know.

what visa are you on now? are you exactly in the same situation as me?
an immigration history like i provided here would help.

[getlucky]

Hi Serr, I'm exactly in the same situation as you are. I would love to hear the outcome of the process your pursuing and I would very much appreciate if you could provide us with any updates on the process. Thanks and good luck!

[ITGraduate]

Hi All,

My wife applied for extension of ECAA 1 8 weeks ago. Biometric was given 5 weeks ago. still waiting.

Have flight tickets booked for June to travel

any advise on when we will get the passport back? Is tehre a number to call and ask for status

please help

Thanks

[serr]

The high court case will be heard mid may and i will post when i know the outcome...

[serr]

Hi All,

My wife applied for extension of ECAA 1 8 weeks ago. Biometric was given 5 weeks ago. still waiting.

Have flight tickets booked for June to travel

any advise on when we will get the passport back? Is tehre a number to call and ask for status

please help

Thanks

its very tight- my last extension took around 4 months to get back but i basically begged for my passport- i got my mp involved and so on. i suggest you do the same and start that process now, otherwise as far as i know they take at least 6 months to process ecaa applications now.

there is a direct number i have for the sheffield turkish team. try that..hopefully it still works. 0114 207 3374