Preliminary reference from the Court of Appeal to the Court of Justice of the European Union under Art. 267 TFEU on the question of whether a Turkish national who enters the UK lawfully but establishes a business in breach of his conditions of stay is precluded by the ‘abuse of rights’ principle under EU law from relying on the standstill clause in the EEC – Turkey Association Agreement (known as the ‘Ankara Agreement’) when he subsequently applies for further leave to remain in the UK on the basis of the business which he has established.
Following a hearing in Luxembourg on 9th February 2011, the CJEU (in agreement with Advocate-General Kokott) concluded that, because a standstill clause does not confer any substantive immigration rights but only determines the applicable law (by precluding the imposition of any new restrictions on the immigration rules which EU Member States apply to Turkish citizens), the concept of abuse of rights does not apply to it.
The case is important not only in relation to the interpretation of the Ankara Agreement but also for its wider implications for the application of the ‘abuse of rights’ principle in EU law generally.
Charles Banner appeared before the CJEU for the AIRE Centre (led by Simon Cox of Doughty Street Chambers and instructed by Bindmans LLP), whose written and oral submissions were accepted by AG Kokott and the CJEU.