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Ipek Akay – The EU-Turkey Deal: Complicating Matters?

 By Ipek Akay (Graduate of Durham Law School, Durham University)

 

The EU-Turkey deal agreed on the 18th of March represents a major milestone for not just the EU Migration Crisis but also the relationship between EU and Turkey.

Key points of the deal are:

  • “All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.”
  • “For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria.”
  • “Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect.”
  • “The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met.”
  • “The EU and Turkey welcomed the ongoing work on the upgrading of the Customs Union.”
  • “The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency.”[i]

For Turkey the fourth, fifth and sixth of these points are arguably the most important since Turkey applied to join what was then the European Economic Community (EEC) as early as 1987. Turkey’s endeavours to join the EU, however, date even earlier than 1987. The first substantial agreement between Turkey and the EU is the EEC-Turkey Association Agreement of 1963, referred to as the Ankara Agreement. This Agreement aims to “promote the continuous and balanced strengthening of trade and economic relations between” the two parties and establishes the EEC-Turkey Association Council.

 

The current status of Turkish nationals in the EU

The Ankara Agreement and the subsequent Decisions by the EEC-Turkey Association Council give Turkish workers certain rights that a third country national does not have. For example, a Turkish worker can have access to any paid employment without acquiring a work permit from a Member State after four years of legal employment in that Member State, according to Decision 1/80 of the Association Council.[ii] However, it has to be noted that these rights should not be regarded as free movement rights because they are only triggered once a Turkish national has been employed in a Member State for a year. Furthermore, these rules are translated into the Member State’s immigration rules. For instance, the UK has the ‘Turkish Worker visa’, a type of visa that is less expensive and less cumbersome to obtain that the UK’s Tier 2 visa (work permit).

Another type of provision that distinguishes Turkish nationals from other third country nationals is the standstill clauses of the Decisions. These clauses prohibit Member States from introducing more cumbersome migration rules and, in effect, freeze the current status of Turkish nationals.

What makes the status of a Turkish national even more unique is the fact that the CJEU has interpreted the provisions of the Ankara Agreement and the subsequent Decisions flexibly. In fact, in the cases of Bozkurt[iii] and Ayaz[iv], the Court has made a conscious effort to give meaning to the rights of Turkish workers in line with the principles enshrined with the rights of the workers in the then EEC. For example, in the case of Ayaz, the Court referred to the Baumbast[v] case, whilst interpreting who qualifies as a ‘family member of a Turkish worker’.

This flexible approach has, however, somehow been hampered by the CJEU’s decision in Demirkan[vi], in which the Court refused to use the rights of EU workers as a direct comparison to the rights of Turkish nationals. It also argued that the Ankara Agreement pursues ‘purely economic objectives’.  This came as a surprise because the Preamble to the Ankara Agreement even mentions the ‘ever closer bond’ between two societies. It is also interesting to highlight that this wording is similar to the ‘ever closer union’ found in the TEU and the TFEU.

On the other hand, in the subsequent case, Dogan[vii], the standstill clause was applied by the Court to family members of Turkish workers. The CJEU found that the condition that family members of Turkish workers should demonstrate before they enter a Member State that they have acquired basic knowledge of the official language of that Member State breaches the EU law. This is particularly significant given that in Demirkan, the recipient of services could not invoke the standstill clause. The Court decided that the standstill clause on the freedom to provide services could not be applied to the passive reception of services, a tourist in this case. The discrepancy between these two cases is only an example to how fragmented the EU law on Turkish nationals is.

 

Visa liberalization roadmap

The visa liberalization roadmap, which was agreed between the EU and Turkey on 16th December 2013, aims to gradually prepare the two parties for a visa free regime between them. This roadmap is attached to the Readmission Agreement, with which Turkey is obliged to take back the third country nationals who illegally entered the EU through Turkey.

The recent EU-Turkey deal is significant in the way that places an earlier deadline for the visa liberalization to take place. According to the Statement by the EU Heads of State or Government on the 7th of March, Turkish nationals will be allowed to visit the Schengen border-free area (which excludes the UK) if the requirements (currently stands at 46 criteria) set by the EU are met on June 2016.

 

Conclusion

As it currently stands, the type of rights that Turkish nationals can claim is ambiguous. This stems from the fragmented pieces of agreements between the EU and Turkey, and their conflicting interpretation by the CJEU. If this visa liberalization deal is implemented, Turkish nationals will have access to travel within the Schengen area. Although it is not certain that this will affect how they are employed in the EU, what is certain is the fact that this will complicate the immigration rules already in place.

 


 

[i] EU-Turkey statement, 18 March 2016. http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/

[ii] Article 6(1) of the Decision 1/80.

[iii] Case C-434/93 Ahmet Bozkurt v Staatssecretaris van Justitie EU:C:1995:168.

[iv] Case C-275/02 Engin Ayaz v Land Baden-Württemberg EU:C:2004:570.

[v] Case C-413/99 Baumbast and R v Secretary of State for the Home Department EU:C:2002:493.

[vi] Case C-221/11 Leyla Ecem Demirkan v Bundesrepublik Deutschland EU:C:2013:583.

[vii] Case C-138/13 Naime Dogan v Bundesrepublik Deutschland EU:C:2014:2066.

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