Seven years after the High Court found the Home Office's approach to Turkish ECAA applicants procedurally unfair, the same failings are returning at the settlement stage. This piece sets out the refusal patterns emerging in 2026, why they sit uneasily with Karagul, Ozmen and the Home Office's own evidential flexibility policy, and what representatives can do about it.
Most of the ECAA refusals I see in 2026 are not about missing documents. They are about judgement: a caseworker's conclusion that a business the Home Office has accepted at every previous extension was, on reflection, never genuine.
The route closed to new applicants at the end of 2020, but thousands of Turkish businesspeople remain on it, working towards indefinite leave to remain under Appendix ECAA Settlement. The Home Office guidance requires five years' continuous residence, a business still being run and viable throughout the qualifying period, English and Life in the UK, and no refusal under Part Suitability. It also tells decision makers that applicants need not provide every listed type of evidence and that the evidence must be considered in the round. In practice, that last instruction is where decisions are going wrong.
The Standard Was Set in Karagul and Ozmen
In R (Karagul) v SSHD [2019] EWHC 3208 (Admin), four Turkish applicants were refused because the Secretary of State was not satisfied they genuinely intended to establish in business. Administrative review offered no route to answer what was, in substance, an allegation of bad faith. The High Court held that the refusals breached common law procedural fairness.
In R (Ozmen) v SSHD [2023] EWCA Civ 1366, the Court of Appeal quashed the refusal of a mobile barber's application. The decision maker relied on a 75 minute bus journey to one prospective customer, a figure that reflected temporary Covid timetables rather than the usual 30 minutes, and did not engage with the applicant's evidence on the point. The administrative reviewer declined to consider the correction and the Upper Tribunal did not identify the error. The court described the original decision as superficial, and held that rejecting an application on one weak item when the wider evidence supported it was irrational.
A genuineness finding is, in substance, a finding of bad faith. Karagul requires that the applicant hears it before it is made.
Ozmen also carries a caution. The court held that the refusal turned on viability, not genuineness, so no interview was required, and it recognised the Secretary of State's wide margin of appreciation on the predictive question of viability. It also acknowledged that the guidance's dual use of "credibility" risks misleading decision makers. That ambiguity is now doing real work: refusals that read as findings on genuineness are framed as viability or credibility assessments, and the procedural protections that should follow a genuineness concern fall away.
Genuineness Reassessed at Settlement
At Point B Legal we reviewed a sample of over 45 recent ECAA extension and settlement refusals. A genuineness finding sat behind roughly three quarters of them, and it was frequently applied afresh at settlement to a business accepted at every previous grant. The Home Office is entitled to assess each application on its merits. But where the same business, run by the same person, has been accepted four or five times, a conclusion that it was never genuine calls for an explanation of what has changed. In the refusals I have seen, that explanation is usually absent.
The supporting grounds follow a recognisable pattern. About two thirds of the refusals criticised invoices or the payment trail: invoices that could not be matched to credits, repeated service descriptions at different prices, or payments through personal accounts. Around half relied on online presence, often a lapsed website or a recently registered domain, with little weight given to businesses that trade by referral within the Turkish community. Around two in five cited cash and "untraceable funds", and a similar proportion relied on connected companies or related party transactions that the applicant had not identified.
About a third engaged what might be called the disguised employment reading. In our sample, a single customer at around 40% of income was enough for a caseworker to suggest the applicant was in substance an employee. Those cases are answerable on the facts: the applicant raised the invoices and set the fees, no PAYE was operated, there was no contract of employment, and the applicant worked for others at the same time. But they have to be answered in the application, because the realistic remedy after refusal is usually a fresh one.
Viability and drawings featured in about a quarter, and continuous residence in about one in six. One applicant was refused because of a gap in section 3C leave created by an earlier refusal. A delayed or wrongly decided application can generate a fresh refusal ground of its own.
Where Evidential Flexibility Should Bite
Around one in ten refusals in the sample made no adverse finding on the business at all. They rested on procedure. In one, replacement documents were supplied after the originals were said to be illegible, and the application was refused the same day on the ground that the replacements were also illegible, with no further opportunity. In another, the refusal recorded a failure to respond to a request that the representative had answered in time. A third applicant was given days, rather than the standard fourteen, to seek administrative review.
The Home Office's Evidential Flexibility guidance (version 12.0, June 2026) applies to all routes other than Appendix FM, Part 11 protection claims and Appendix Victims of Domestic Abuse. ECAA is therefore within scope. Caseworkers should normally give an applicant the opportunity to provide evidence that appears to have been omitted, that needs clarifying or verifying, or that the applicant holds or could obtain, and must not refuse because a specific document was not requested. In R (Ganeshamoorthy) v SSHD [2025] UKUT 229 (IAC), discussed by Free Movement, the Upper Tribunal confirmed the duty and held that evidence which should have been requested can be admitted on administrative review.
A refusal for illegibility issued on the day the replacements arrive is not a judgement on the business. It is a failure to apply the Home Office's own policy.
The policy does not apply where false documents or deception are suspected, and the Home Office may say that genuineness refusals fall into that category. If so, the Karagul point is sharper, not weaker: an allegation that comes close to deception is precisely the kind that fairness requires to be put to the applicant before a decision is made.
Delay, Administrative Review and Earned Settlement
None of this is new. In 2022 Migrants' Rights Network reported ECAA applicants waiting up to two years against a six month service standard, with cases labelled "complex" without explanation. Over 65% of respondents reported financial difficulty or business losses, and 91% said the wait seriously affected their mental health. The same complaints are being made in 2026. Following a community meeting in April 2026 and subsequent engagement with the Home Office, three additional decision makers were assigned to ECAA settlement casework. Throughput has improved in some cases; decision quality, on the evidence above, has not.
The remedies have also been thinner than they should have been. When Appendix Administrative Review was restructured in 2024, ECAA settlement was left out, and the Home Office has since accepted it was "omitted in error". Statement of Changes HC 259 restored administrative review for ECAA settlement refusals from 3 August 2026. Those refused in the interim had no administrative review at all.
The backdrop is earned settlement. Asked in Parliament whether the five year period would be kept for legacy ECAA holders, the Home Office said in a written answer of 26 February 2026 that the UK no longer owes Turkish nationals preferential treatment under the ECAA, and that any exemptions or transitional measures for those already on a settlement pathway were still being considered. As of early October 2026 the final policy has not been published. The question the Court of Appeal left open in R (Alliance of Turkish Businesspeople) v SSHD [2020] EWCA Civ 553, whether transitional provision for those already in the scheme was practicable, is about to become live again.
What Representatives Can Do Now
Because most refusals on this route are judgement calls, the application has to carry the argument. The cover letter should answer every question a caseworker could ask before it is asked: a written account of the business in the client's own voice, every invoice matched to a credit and every unmatched credit explained, cash trading addressed head on, connected parties identified before the caseworker finds them, and any concentration of income answered on the employment indicators. Absences should be calculated on a rolling twelve month basis and section 3C leave traced through any earlier refusal.
After submission, every Home Office request should be answered in writing, in time, with proof of sending. Where documents are resupplied for illegibility, the covering email should expressly invoke the evidential flexibility policy and request a further opportunity if needed, so the point is preserved for administrative review. Where an application has been outstanding well beyond six months, a pre-action letter frequently produces a response when ordinary chasers have not.
What Needs to Change
No new law is needed. The Home Office should put genuineness concerns to applicants before refusing, as Karagul requires; confirm that evidential flexibility applies to ECAA and apply it; refrain from reopening genuineness at settlement absent new evidence; publish ECAA processing times, refusal rates and administrative review outcomes; and confirm, before earned settlement takes effect, that those already on the route will be assessed on the terms they entered on.