13 March 2012
Dear friends of ESI,
Every year, hundreds of thousands of Turks queue in front of EU consulates, spending time and money in exchange for a chance to travel to the EU. In 2010, their number was 625,000. Often they receive a single-entry visa valid for only a few days. Sometimes they are denied entry outright.
The visa barrier erected around both the 26-country Schengen zone and the United Kingdom and Ireland is a source of intense frustration for Turkish citizens and officials. They are right to feel wronged: Turkey is the only EU candidate country without a visa-free travel regime with the EU. Even Moldova and Ukraine, which have yet to receive any promise of membership, participate in an EU visa liberalisation process. Other eastern neighbours are expected to follow suit. There are even discussions about visa-free travel for Russians. Mexicans, Brazilians, Guatemalans, Israelis and Malaysians can also all travel to the EU without a visa.
In 2008 the EU launched a visa liberalisation process for five Western Balkans states. Each received a "visa roadmap" which listed close to 50 specific and demanding conditions. The EU closely monitored progress at every step, sending many fact-finding missions to the field. But Balkan leaders had also received a clear promise that they would be treated fairly. They were. When they fulfilled the EU's conditions (ranging from passport security to improved border control to intensified police cooperation with the EU) in 2009 and 2010, the visa requirement was lifted.
While Turks see Serbs, Albanians and Bosnians travel to the EU without a visa, the EU has refused to offer them even the perspective of a visa liberalisation process. At a February 2011 meeting, EU interior ministers only put an inconsequential "dialogue on visa, mobility and migration" on the table. A closed meeting of an EU working group on migration and frontiers (SCIFA) in February 2012 showed that the mood of the main EU member states has not changed since.
Many EU interior ministers believe that they stand no chance of convincing their electorates that visa-free travel for Turks is a safe bet. What if tens of thousands of Turks abuse visa-free travel, overstay and even take up illegal work? What if thousands apply for political asylum? Isn't visa liberalisation for Turks a reckless concession?
However, there are three major problems with the EU's current policy. First, it violates the EU's own legal commitments. Second, it undermines the bloc's vital security interests. Finally, it is based on mistaken assumptions. The EU's current visa policy towards Turkey is unsustainable, and the time to revise it is now.
A stream of court rulings
EU working groups often ignore that, when it comes to the visa issue, Turkish citizens already have legal rights inside the EU. In fact, these have already been upheld by no less an authority than the European Court of Justice, as well as many national courts. A stream of recent rulings has confirmed the Turks' right to travel to a number of EU member states, including Germany and the Netherlands, for up to three months without a visa. What flows from this is the conclusion that the current Schengen visa requirement, and the EU regulation on which it is based, are illegal.
They need a visa: how much longer?
Few EU interior ministers will have heard about a court decision in the case of a Turkish national arrested by the German federal police at the country's border with the Czech Republic in August 2009. Even though the man had entered Germany without a visa in order to buy a car, a local court in the city of Cham ordered his immediate release, noting that as a Turkish national he could "rely on visa-free travel according to the so-called standstill clause." This refers to a protocol to the 1963 Association Agreement between the then EEC and Turkey, which states that both sides "shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services." When the protocol entered into force in January 1973, 11 of today's EU member states did not have a visa requirement for Turkish nationals. There is also consistent jurisprudence by the European Court of Justice (Gambelli 2003, paragraph 55) holding the view that in EU law the freedom to provide services covers persons providing services as well as persons receiving them.
In the past few years, European courts have often been called upon to defend the rights of Turkish citizens under this protocol. In February 2009 the European Court of Justice ruled that Turkish truck drivers Mehmet Soysal and Ibrahim Savatli, as service providers, did not need a visa to enter Germany. In 2009, Candan Erdogan, a businesswoman travelling from Los Angeles to Istanbul via Munich, missed her connecting flight. When German police did not allow her to leave the airport, she pressed charges and a court in Munich ruled in February 2011 that she "is permitted to enter the Federal Republic of Germany for a period of up to three months to receive services, especially for tourism purposes, without a residence permit and without a visa." In November 2010, a Turkish tourist entering Germany from Poland without a visa was arrested for illegal immigration and sent to prison. A court in Hannover ruled in January 2011 that the man had to be set free, as he had not broken any laws. In February 2011 a pregnant Turkish woman was arrested in Bad Reichenhall after entering Germany from Austria. The regional court in Traunstein ordered the police to release her and to allow her to stay in Germany as a tourist for up to three months.
The authors of a June 2011 study by the scientific research service of the German Bundestag concluded that recent court decisions "have finally clarified that Turkish nationals may enter federal territory without a visa and reside there without a residence permit as long as they do not take up employment (passive freedom of services). Especially tourists are expected to benefit from this situation." The case of Leyla Demirkan, which is now dealt with by the European Court of Justice, is likely to make the same point even more clearly when it issues its ruling. Leyla Demirkan is a Turkish teenager who wanted to visit her sick stepfather, a German national who was hospitalised, and her (Turkish) mother in Stuttgart in 2007, and was denied a visa by Germany.
Why Greece, Bulgaria and the EU need Turkey
While the legal ramifications render the EU's current visa policy unsustainable, the security interests of the EU make it irrational. Today, the EU needs Turkey's full support in order to solve a range of burning problems of the Schengen zone, including illegal migration, the future of Greece in Schengen and the question of Schengen membership for Bulgaria and Romania.
The most pressing issue for the Schengen area is to secure Greece's border with Turkey. Last year, more than 61,000 illegal migrants were detected at the Turkish-Greek border. Human rights groups have repeatedly pointed to a major humanitarian crisis in Greece. The Justice and Home Affairs Council on 8 March mentioned that "Greece has experienced difficulties respecting the European minimum standards for receiving asylum applicants and examining their applications. This is linked to particular migratory pressure, particularly coming from Turkey."
Frontex, the EU's border agency, faces an enormous challenge. Left unresolved, the mass wave of migration may soon put Greek membership in the Schengen area at risk. Fears have also emerged that Bulgaria's and Romania's entry into Schengen could make it even easier for illegal migrants to fan out to the rest of the EU since both countries border Turkey.
The ratification and implementation of a readmission agreement between the EU and Turkey, on which EU interior ministers insist, will do little to allay the migration problem unless combined with other efforts by Turkey preventing illegal migrants from reaching Greek territory. A Greek-Turkish readmission agreement has already been in force since 2002. It has done very little to change the dynamic of illegal migration, and there is no reason to believe that an agreement with the EU would be any different.
They need Turkish support: Frontex at Greek border
For Turkey to reform its border regime, work closely with Frontex and invest more resources into exit controls requires effort, good will and trust. Frontex officials told us that they are certain that serious Turkish efforts could quickly translate into a dramatic fall in illegal migration. However, Turkish officials make it clear that such cooperation requires being treated fairly by the EU on the issue of visa liberalisation. Turkey has, after all, many difficult borders which demand attention and resources.
What about European fears about the consequences of visa liberalisation? Most of the illegal migrants who are crossing into Greece are Afghanis, Algerians and Somalis – but no Turks. In recent years more Turks have left Germany in search of opportunities back home than the other way around. The prospect of large-scale Turkish migration to the EU is misplaced, as many recent studies have also shown.
A visa liberalisation roadmap for Turkey now
All this points towards an obvious conclusion. The European Commission should immediately offer Turkey a visa liberalisation roadmap similar to the one offered to EU candidate Macedonia and other Western Balkan states in 2008. In doing so it should not hide behind member states. This also does not require any decision by member states and could happen even before Cyprus takes over the EU presidency this summer.
Turkish officials should embark on a tour of European capitals explaining to their counterparts that a visa roadmap, and improved practical cooperation along the Greek-Turkish border, is in the interest of both sides. They should also stress sotto voce that an orderly visa liberalisation process is a better alternative to a scenario whereby visa-free travel is eventually imposed on EU member states by their own courts.
In exchange for a roadmap, Turkey should sign the readmission agreement with the EU whose content has already been negotiated, but which, by itself, will in any case change very little for either side. More importantly, Turkey should begin working with Frontex to reduce illegal migration into Greece. Here progress could be immediate and would be measurable.
Progress towards visa liberalisation for Turkish citizens would create a win-win situation. Reforms necessitated by the roadmap process would improve the human rights situation in Turkey. The situation of illegal aliens, for one, would benefit from changes to Turkey's asylum system. Increased Turkish cooperation with Frontex would help Greece remain in Schengen and allow Bulgaria and Romania to join without further delay. EU-Turkey relations would improve. Visa-free travel would also be good for Turkish students and businesspeople, and tourism from Turkey could provide a boost to European economies, especially Greece.
Such a breakthrough would also send a powerful signal to Turkish officials and citizens that EU politicians actually mean it when they talk about respect for the rule of law, for court decisions and for international commitments. Such a signal is needed today. It is, in the end, a simple matter of common interests.
To find out more about this issue in the coming months, please bookmark the special ESI website section on EU-Turkey and visa issues.
With the support of Mercator Stiftung ESI also organised an event in Berlin recently, where Otto Schily, former German minister of Interior and member of the ESI Schengen White List advisory board called on German politicians, and his party, the SPD, to support visa liberalisation for Turkish citizens.