One Step Forward, Two Steps Back: Legal Arguments on the Visa-Free Travel of Turkish Citizens to the EU/ AB-Turkiye Geri Kabul Anlasmasi v. Ortaklik Hukuku?

• Author: Bilgin, A. Asli
• Position: Report

Introduction

The new Title V of the Treaty on the Functioning of the European Union (TFEU) concerning the Area of Freedom, Security and Justice grants to the European Union (EU) competence to regulate the conditions of entry, residence and movement of third-country nationals in the territory of the Member States. This competence, acquired through the Amsterdam Treaty, is outlined by Article 67 (2) TFEU, which opens the "General Provisions" of Title V and says that the EU "[...] shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals." This provision shows a clear link between external relations, immigration and asylum policies. (1)

An extremely significant aspect of the external relations in the field of immigration is nowadays represented by the readmission agreements. They aim to counteract illegal immigration by providing obligations for mutual cooperation between the EU and third countries for the return of unlawful residents. (2) These agreements often include technical and financial assistance to carry out border controls in third countries. They are also often associated with the provisions for obtaining visas, seen as a kind of reward for those States that actively cooperate in the containment of migratory flows to the EU.

The purpose of this paper, in particular, after a general overview of the readmission agreements and the facilitations of the issuance of visas linked to them, is to examine the treatment of Turkish citizens regarding visas, in order to demonstrate whether the right of visa-free travel in EU Member States would be a favour due to the signing, in 2013, of the EU-Turkey Readmission Agreement, or is an acquired right already stemming from the EU-Turkey Association Law (Ankara Agreement of 1963, Additional Protocol of 1970 and Association Council Decision No. 1/80) by virtue of the standstill clauses enshrined in these acts as to the freedom of establishment, the freedom to provide services and the exercise of access to employment.

Readmission Law and Visa Requirements

Readmission Agreements in General and the Facilitation of Visa Procedures

The readmission agreements are international agreements with which a third country undertakes to readmit people (mainly its own citizens but also, under certain conditions, nationals of other countries and stateless persons who are passing through its territory) who are unlawful residents in an EU Member State.

The conclusion of readmission agreements, previously conferred by Article 63 (3) (b) of the Treaty establishing the European Community (TEC), (3) finds now an explicit legal basis in Article 79 (3) TFEU. It is about a shared competence, as is also apparent from Protocol 23 annexed to the Treaty on the European Union (TEU) and the TFEU on external relations of the Member States with regard to the crossing of external borders, according to which "the provisions on the measures on the crossing of external borders included in Article 77(2)(b) of the Treaty on the Functioning of the European Union shall be without prejudice to the competence of Member States to negotiate or conclude agreements with third countries as long as they respect Union law and other relevant international agreements."

It is thus to be ruled out that there is an exclusive competence of the EU to conclude international agreements on this subject. (4) To date, 17 readmission agreements have been concluded: 11 of them before, and 6 after, the entry into force of the Lisbon Treaty. In addition, readmission clauses are usually included in agreements with third countries that have a broader scope. So far, the EU has entered into readmission agreements with many States and autonomous territories. (5) Some of the readmission agreements (6) have been also combined with the conclusion, between 2006 and 2013, of agreements on the facilitation of the issuance of visas. (7) Thus, in the cases concerned, both types of instruments are specular and constitute a unitary regulatory framework.

The purpose of these agreements, currently adopted under Article 77 (2) (a) TFEU, in conjunction with Article 218 (6) (a) TFEU, is to send back the unlawful residents to the country of transit in accordance with the readmission agreement in exchange for first facilitating then if the conditions are fulfilled abolishing the visa procedures set forth the citizens of the signatory of the agreement. The facilitation consists, inter alia, in the reduction of the period of time for taking a decision on visa applications; (8) in a reduced fee for processing both single- entry and multiple-entry visas applications for third-country nationals; and for the waiver of such fees for some categories of persons. (9) The documents to be presented to show the purpose of the journey are simplified. (10) The agreements also provide for simplified criteria for issuing multiple-entry visas with a term of validity of 5 years or one year. (11)

In the years following the signing of their respective agreements on the facilitation of visa procedures, Albania, Bosnia and Herzegovina, Georgia, the former Yugoslav Republic of Macedonia, Moldova, Montenegro, Serbia and Ukraine have been included in Annex II of Council Regulation (EC) 539/2001 of 15 March 2001, listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. (12) Actually, as will be seen below, these States are therefore among the countries whose nationals do not need to have a visa when crossing the external borders of EU Member States for stays of no more than 90 days in any 180-day period. (13)

The EU-Turkey Readmission Agreement of 2013

The Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorization, signed at Ankara on 16 December 2013, approved on behalf of the EU by Council Decision 2014/252/EU of 14 April 2014 and entered into force on 1 October 2014, (14) has concluded a long negotiating process lasting more than seven years and represents a significant step forward. (15)

The EU-Turkey Readmission Agreement is relevant in many ways and seems to be the most important tool for cooperation between EU and Turkey in order to cope with the migrant flow. (16) Turkey is in fact considered to be a key country in the fight against irregular migration, since a large number of people entering the EU illegally come from Turkey. The EU, therefore, held for a long time that the conclusion of this Agreement was a priority. Turkey, in spite of its growing geopolitical importance, obviously put its demands on the negotiating table. In particular, its requests focused on the issue of visas for the entry of Turkish citizens into the Schengen area.

The main objective of the EU-Turkey Readmission Agreement is to establish, on the basis of reciprocity, procedures for the rapid and orderly readmission, by each side, of the persons having entered, or are residing on, the territory of the other side in an irregular manner. The Agreement includes provisions related both to the readmission of the nationals of the EU Member States and Turkey, and to the readmission of any other person (including third-country nationals and stateless persons) that entered into, or stayed on, the territory of either side, directly arriving from the territory of the other side. The provisions of the Agreement related to the readmission of nationals of the two sides, and those related to the readmission of stateless persons and nationals from third countries with which Turkey has concluded bilateral treaties or arrangements on readmission, entered directly into force on 1 October 2014; (17) the provisions related to the readmission of any other third-country national or stateless person, instead, are applicable from 1 June 2016, (18) in accordance with the provisions of the EU-Turkey Statements approved by the Meetings of Heads of State or Government with Turkey, held in Brussels on 29 November 2015 and on 18 March 2016. (19)

Besides Articles 3 and 5 of the Agreement which provide, symmetrically, for both Turkey and EU Member States obligations regarding the readmission of their own nationals, Articles 4 and 6, guarantee the counterpart's commitment to readmit, in some cases, third- country nationals or stateless persons who hold, at the time of submission of the readmission application, a valid visa issued by Turkey entering the territory of a EU Member State directly from the territory of Turkey, and vice versa; or a residence permit issued by Turkey, illegally and directly entered the territory of the EU Member State after having stayed on, or transited through, the territory of Turkey, and vice versa. (20)

It should be pointed out that there might be difficulties with the full and effective implementation of the EU-Turkey Readmission Agreement for political and legal reasons. As to the political dimension, the connections between the Readmission Agreement and the 'visa-free regime' for Turkish citizens, between the readmission obligation of third-country nationals and stateless persons 'in law' and 'in fact', and between expenses and financial assistance related to the Agreement itself should be taken into account. As to the legal dimension, the correlation between the Readmission Agreement and removal process, and the correlation between the ordinary readmission procedure and the accelerated readmission procedure, because of their relationship with the human rights and asylum law obligations, should be taken into account. (21) In this respect, the connection between the EU-Turkey Readmission Agreement and the attainment of a visa-free regime for Turkish citizens (being the EU prepared to 'concede' the visa exemption to Turkey in order to...