ECAA referrals guide

Turkish European Community Association Agreement (ECAA) businessperson entry clearance applications
Last updated 03 September 2009

This is internal guidance for use by entry clearance staff on the handling of visa applications made outside the United Kingdom (UK) from Turkish nationals under the ECAA agreement.. It is a live document under constant review and is for information only.

Entry Clearance Guidance - Recent updates

Guidance on referrals to the ECAA team

Introduction
Turkish nationals wishing to come to the UK to establish in business generally have the right to have their application considered against the businessperson requirements in force in 1973. This is because of the standstill clause contained in the ECAA with Turkey. HC509 were the Rules for Control On Entry in 1973. In some circumstances applicants may be excluded from taking the benefit of the standstill clause because of fraudulent or abusive behaviour.

Further guidance on the standstill clause, on assessing applications against the businessperson requirements in force in 1973 (including for entry clearance) and on what constitutes fraudulent or abusive behaviour can be found in IDIs Chapter 6 Section 6 on the UKBA website.

Below is instruction on accepting and referring entry clearance applications made under the standstill clause / businessperson requirements in force in 1973. Applications should be referred to the ECAA team in Immigration Group who will provide an assessment of the application for entry clearance staff to take into account in reaching a final decision.

The aim of this guide is to facilitate the referral of entry clearance applications to the ECAA team with minimum need for reverting to posts for further clarification and information. However, it is also very important that the ECAA team is able to assess applications based on all the information that is made available to the ECO. It is expected that the ECAA team will take into account any observations passed on by Post based on locally acquired knowledge and will revert to post wherever necessary for further information or clarification of the information already submitted.

Turkish ECAA business EC applications flowchart 


Biometrics
Applicants are required to provide biometric information in line with all other entry clearance applicants.

Fee
Applicants should not be charged for making an application under these provisions.

Entry on Proviso / CID
Post should enter applications on Proviso as normal.

Internal checks
Internal checks will be done at Post prior to referring the application. If any relevant information is identified the ECO will submit a short report with the referral form.

Documentation
In addition to core documents (passports, etc) applicants will, as a guide, need to provide as a minimum the following application-specific documentation. This is reflective of the minimum requirements in the 1973 Rules. All documents submitted must be originals:

• Business plan / statement of intention for business proposal including detailed explanation of what the business is and what the applicant’s involvement in it will be
• Projected turnover and profit that is realistic and justified and that will be sufficient to support the applicant and any dependants 
• Evidence of his/her own funds sufficient to fund the business proposal without recourse to any other type of employment. 
• If planning to purchase a business, full bank accounts for a minimum of 2 years immediately prior to the purchase. 
• If the applicant is planning to join an existing business, full bank accounts for a minimum of 2 years immediately prior to joining the business and a statement satisfactorily explaining the terms on which the applicant will join the business and how there is a genuine need for the applicant’s involvement in the business
  

In addition applicants will normally need to provide further documentation depending on the nature of the business. This could include educational qualifications, evidence of relevant previous experience, legal documents relating to business premises or partnership agreements.

However, applications should nonetheless be accepted even in the absence of any of the above documents and will be assessed on the basis of whatever information is submitted.

Document verification and other information
Documentation submitted must be verified for authenticity by in the usual way, prior to any referral to the ECAA team. Any verification reports, including forgery reports and supporting documents should be passed on to the ECAA team. This is to ensure that the ECAA team considers the application on the basis of all the information available to the entry clearance officer.

Applicants should be advised that documents must be in English, with certified translations where possible. Applicants should be told that documents not translated into English will not be taken into account when the application is assessed.  Applicants must submit copies of any original documents that they submit. The ECO must specify on the copies if they have seen any original documents.

In addition, any other information that comes to the attention of entry clearance staff that may affect the assessment of the application should be passed on to the ECAA team, via the ECAA email address,  including information arising from internal checks and from locally acquired knowledge.

Referring applications
Applications will need to be referred to the ECAA team on a proforma HO Referrals form using the designated HO referrals mailbox. See Referrals / Deferrals (RDF)

All documents and applications should be sent to the UK by diplomatic bag for forwarding on to the ECAA team. Only photocopied documents should be sent by the ECO. Where necessary, written confirmation that originals have been seen and verified should be provided to the ECAA team e.g. passports, marriage certificates, birth certificates, etc. Faxed applications can be sent under the most exceptional circumstances.

When the application arrives with the ECAA team the ECAA team should immediately record the case on the “Entry Clearance Referrals Log“ in the shared drive. The case should be entered on CID in the usual way.

Interviewing applicants
It is anticipated that in some cases to clarify aspects of the application interviews will be necessary. An  applicant may be invited to attend an interview at post in order to assess an application further.

If the ECAA team require further information to assess an application, they should go to the ECAA caseworker for advice.  A list of agreed questions should then be forwarded  to post.

If an applicant is to be interviewed before a referral, the interview notes should be included with the application. If an applicant is interviewed after a referral, the interview notes should be emailed to the ECAA email address with the relevant post reference number for action.

Applicants who will be excluded from taking the benefit of the standstill clause and the 1973 Immigration Rules – and to whom the Current Rules will apply

Guidance on what constitutes a fraudulent / abusive application is available in Immigration Directorate Instructions (IDIs) Chapter 6 Section 6.

When an application is considered to be based on fraudulent or abusive activity the ECAA team will suggest a refusal wording explaining why the applicant is excluded from taking the benefit of the standstill clause and, if it is the case, why the application fails under the current Rules.

After referring to guidance in Section 2 of the IDIs and the ECO is satisfied that the application is fraudulent or abusive it should be refused. If unsure, the ECO can refer to the ECAA team  for further investigations. 

Dependants
Guidance on who qualifies as a dependant is available in IDIs Chapter 6 Section 6 (see section 3.6 and annex D).

Applications submitted with the principal application should be referred to the ECAA team so that they all can be dealt with together.

Applications made by dependants, subsequent to a principal application being granted entry clearance or leave to enter or remain can be assessed at Post using the guidance in IDIs Chapter 6 Section 6 and with reference to the ECAA team as necessary.

Decisions
Upon receipt, of all applications, the ECAA team will aim to assess within 3 months.

Once the ECAA team have completed their assessment of an application, Post will be informed of the outcome via email to the ECO. This will include the post reference details, consideration notes, where appropriate, suggested refusal wordings, and other reasons for their decisions. ECOs may need to copy and paste these wordings on to Proviso and refusal notices.

Once the ECAA team have completed their assessment a Home Office File (HOF) will be raised and all copies of case documents, CID records and correspondence with Post placed on it. The HOF should be sent to lay by.

Endorsement
Applicants should have their visa endorsed with ‘ECAA - BUSINESS’ and granted leave to enter for 1 year on code 2.

Dependant applications should be endorsed with ‘To Join Partner’, ‘To accompany partner, ‘To join parent(s) or ‘To accompany parent(s)’ and granted leave for a period in line with the principal applicant on code 1.

Refusals
Any applications that stand to be refused must be agreed by the Entry Clearance Manager (ECM).

Appeal rights will vary between applications depending on the basis of refusal. This will determine whether a GV51(LRA) or GV51(FRA) is the appropriate form to use. Please refer to paragraph 33 - 34 below for further guidance.

If excluded from taking the benefit of the standstill clause but not met the ‘standstill clause’ nor the rules

If the applicant has been excluded from taking the benefit of the standstill clause the sections on the GV51(LRA) should be completed as follows.

The relevant Immigration Rules
“You have applied for entry clearance to the United Kingdom in order to establish a business under the Turkey – European Community Association Agreement. This contains a ‘standstill clause’ which means that the UK may not impose conditions on entry for business applicants less favourable than were in force when the Agreement came into force for the UK in 1973. The relevant provisions are in HC509 but any application under these provisions presupposes a right to take the benefit of the standstill clause.“

The Entry Clearance Officer’s decision
“I am not satisfied that you are entitled to take the benefit of the standstill clause contained in the Agreement. As a result, you are only eligible to apply under the current Immigration Rules (HC395) paragraph 245H-245K in the Tier 1 (Entrepreneur) category. This decision was made on the merits of this application.“

The Entry Clearance Officer’s reasons and supporting evidence

{The assessment provided by the ECAA team may be copied and pasted here} if the ECO is satisfied that the application should be refused.

If refused under the 1973 Rules
If the applicant has been refused under the 1973 Rules the sections should be completed as follows:
 
The relevant Immigration Rules
“You have applied for entry clearance to the United Kingdom in order to establish a business under the Turkey – European Community Association Agreement. This contains a ‘standstill clause’ which means that the UK may not impose conditions on entry for business applicants less favourable than were in force when the Agreement came into force for the UK in 1973. I have therefore assessed your application against the business provisions in force in 1973. These provide that I must be satisfied that a person seeking entry clearance to the United Kingdom for these purposes meets one of the following set of requirements:

If joining an established business, that he will be bringing money of his own to put into the business; that he will be able to bear his share of the liabilities; that his share of the profits will be sufficient to support him and his dependant; will be actively concerned in the running of the business; and that there is a genuine need for his services and investment.  The audited accounts of the business for previous years will require to be produced, in order to establish the precise financial position.  An entry clearance will not be issued where it appears that the proposed partnership or directorship amounts to disguised employment or where it seems likely that, to obtain a livelihood, the applicant will have to supplement his business activities by employment for which a work permit is required.

If establishing a new business in the United Kingdom on his own account, that he will be bringing into the country sufficient funds to establish a business that can realistically be expected to support him and any dependants without recourse to employment for which a work permit is required. ”

The Entry Clearance Officer’s decision
“I am not satisfied that you meet the terms of the business provisions in force in 1973. This decision was made on the merits of this application. However, if you have made a previous application this may also have been considered.”

The Entry Clearance Officer’s reasons and supporting evidence
{The assessment provided by the ECAA team may be copied and pasted here.} if the ECO is satisfied that the application should be refused.

Rights of appeal
Applications which have been assessed under the PBS Tier 1 (Entrepreneur) will be entitled to an Administrative review. A GV51(LRA) should be issued.

Applications which have been assessed under the 1973 Rules will attract a full right of appeal, unless section 88 of the NIA Act 2002 applies. A GV51(FRA) should be issued, unless section 88 applies.

If an appeal is submitted ECOs should refer to Appeals (APL) for further guidance.