Visa Issue between EU and Türkiye

VISA ISSUE BETWEEN EU AND T RK YE Introduction Visa is one of the issues between European Union (EU) and . In this regard, the visa issue has mainly two sub-elements: Firstly, will a party require visa the substantive and procedural conditions of issuing that visa. The focus of this paper will be on the visa applied to Turkish citizens by the EU and/or Member States, but not vice versa,1 since the former seems to be the more problematic part of the visa issue.2 This paper will try to draw a general legal framework regarding the visa , focusing on visa applied to Turkish citizens issue between EU and by the EU and/or Member States. With this purpose in mind, the paper is divided into three parts. Firstly, there will be general remarks on visa and on . Secondly, the effects of EU visa issue between EU and association law and thirdly, the effects of EU visa liberalisation dialogue on this issue will be examined. I. General Remarks on Visa and on Visa Issue between European Union and 1 2 and To draw a general legal framework regarding the visa issue between EU Prof. Dr., Ankara University Faculty of Law, Department of European Union Law, ORCID: 0000-0002-6076-1368, Jean Monnet Chair (2019-2022), [email protected] For this, see Tuna Ertuna Lagrand, Immigration Law and Policy: The EU Acquis and Its Impact on the Turkish Legal Order (Erasmus Universiteit Rotterdam 2010) 172 181; K Groenendijk and E Guild, Visa Policy of Member States and The EU Towards Turkish Nationals after Soysal 53. which was prepared by World Bank and dated March 2014. It has a separate heading for l target should be to create a fair, secure and predictable visa regime for all Turkish citizens who would like to travel to Europe. This is part of the EU accession process and an important Emphasis added.) 48 be described as an authorization to enter (and/or stay in) a territory.3 Hence, statehood or sovereignty.4 Thus, in legal terms, for instance according to the case-law of European Court of Human Rights, which is an international court in the Europe region:5 as a matter of well-established international law and subject to its treaty obligations, a state has the right to control the entry of non-nationals into its territory At least two conclusions flow from this statement regarding the features sole requirement, but one of the requirements to enter a territory.6 In other words, having a visa may not automatically guarantee for a person to enter a territory.7 Secondly, a state has the right whether to impose a visa requirement on non-nationals, and to determine the substantive and procedural conditions of issuing a visa, but subject to international law in general, bilateral or multilateral treaties in particular.8 3 4 5 6 7 8 For other definitions, see Visa Policy within the European Union Structure (Springer 2005) 31. On the link of visas with sovereignty, see Pieter Boeles and others, European Migration Law (2nd edn, Intersentia 2014) 15; Erdenir (n 3) 544; Meloni (n 3) 7 ff. Abdulaziz, Cabales and Balkandali v United Kingdom [1985] European Court of Human Rights App. 9214/80, 9473/81 and 9474/81, A94 [67]. See, for instance, Regulation No 2016/399 (Schengen Borders Code) Article 6(1) titled as Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for thirdcountry nationals shall be the following: (a) they are in possession of a valid travel document entitling the holder to cross the border satisfying the following criteria: (b) they are in possession of a valid visa, if required pursuant to Council Regulation (EC) No 539/2001 (25), except where they hold a valid residence permit or a valid long-stay visa; (c) they justify the purpose and conditions of the intended stay, and they have sufficient means of subsistence, both for the duration of the intended stay and for the return to their country of origin or transit to a third country into which they are certain to be admitted, or are in a position to acquire such means lawfully; (d) they are not persons for whom an alert has been issued in the SIS for the purposes of refusing entry; (e) they are not considered to be a threat to public policy, internal security, public health or the international relations of any of the Member States, in particular where no alert has Emphasis added). Regarding this distinction, for instance see Boeles and others (n 4) 383 385; Erdenir (n 3) 544; Ertuna Lagrand (n 1) 38; Meloni (n 3) 36 37. On this point, see Boeles and others (n 4) 15. Moreover, the link of visas with sovereignty shows itself in suspension or denunciation clauses, for instance under agreements that are VISA ISSUE BETWEEN EU AND T RK YE 49 Moreover, it is also useful to make a distinction between visa types. Depending on duration, there may be short-term visas and long-term visas. For instance, a visa which covers 180-term visas.9 A visa which covers duration longer than short term visas may be deemed as long-term visas. Depending on purpose, there may be visas for the purposes of non-gainful activities and visas for the purposes of gainful activities. Not necessarily, but usually, short-term visas coincide with visas for the purposes of non-gainful activities and long-term visas coincide with visas for the purposes of gainful activities.10 Against this general setting, the visa issue between EU and may be generalised as follows:11 Regarding visa requirement in itself, i.e. being subject to a visa, it has two dimensions. Concerning short-term visas and/or visas for the purposes of non-gainful activities, generally then Member States 12 9 10 11 12 directly related to visas. In this regard, see Meloni (n 3) 35. See for instance Article 7 and 13 of European Agreement on Regulations governing the Movement of Persons between Member States of the Council of Europe. (See fn. 12.) See Article 14(5 and 6) of the Agreement between the European Union and the Republic of Azerbaijan on the facilitation of the issuance of visas [2014] OJ L 128/49. See Article 9(4 and 5) of the Agreement between the European Union and the Federative Republic of Brazil on short-stay visa waiver for holders of ordinary passports [2012] OJ L 255/4. See Regulation No 2016/399 (Schengen Borders Code) Article 6(1). 10 may be: (a) a travel visa valid for one or more entries, provided that neither the length of a continuous visit nor the total length of successive visits exceeds three months in any halfyear Emphasis added). On this finding / distinction, for instance see Erdenir (n 3) 556; Ertuna Lagrand (n 1) 39; Groenendijk and Guild (n 1) 43; Steve Peers, EU Justice and Home Affairs Law (3rd edn, Oxford University Press 2012) 254, fn. 131. Compare with Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie [2004] Court of Justice Case C327/02, ECR I-11055 [30]. Also see Groenendijk and Guild (n 1). Agreement on Regulations governing the Movement of Persons between Member States of Germany, Italy, Luxembourg, Netherlands, and Turkey are parties to this Agreement. I would like to highlight some Articles of this Agreement, to draw some conclusions from whatever their country of residence, may enter or leave the territory of another Party by all frontiers on presentation of one of the documents listed in the Appendix to this Agreement, which is an integral part thereof. 2. The facilities mentioned in paragraph 1 above shall be available only for visits of not more than three months' duration. duration or whenever the territory of another Party is entered for the purpose of pursuing a 50 For now, EU has been continuing this practice via its Visa-List Regulation13 and this competence area is harmonised14 by the forbid nationals of another Party whom it considers undesirable to enter or stay in its reserves the option, on grounds relating to ordre public, security or public health, to delay the entry into force of this Agreement or order the temporary suspension thereof in respect of all or some of the Lastly, according to Article 1 its own application of the Agreement by giving three months' notice to that effect to the Hence, this Agreement concerns short-term visas and/or visas for the purposes of nongainful activities and aims to lift in principle visas between parties. For the Agreement, see https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/025. Besides, also see Groenendijk and Guild (n 1) 24 26. I would like to have three remarks regarding this Agreement. Firstly, it is noted that Article however, it is hard to find (all) the legal instruments used for that purpose. (For such notes, for instance, see Meloni (n 3) 14.) Secondly, Article 7 of this Agreement lays down ordering temporary Agreement against Turkey become permanent, which appear legally questionable. (Nevertheless, I have not encountered a work finding this legal situation questionable. Some further commenting on it. For instance, see Peers (n 10) 246 247; Meloni (n 3) 14.) Thirdly, since this Agreement concerns short-term visas and/or visas for the purposes of non-gainful activities, which is an area harmonised by the EU via Visa-List Regulation, Article 351 of the TFEU may become applicable here for some of the Member States. In this regard, it seems that the possible outcome would be for the concerned Member States to terminate the Agreement in accordance with its Article 13, to eliminate the incompatibilities with the Treaties. before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of the Treaties. To the extent that such agreements are not compatible with the Treaties, the Member State or States concerned shall take all appropriate steps to eliminate the incompatibilities established. Member States shall, where necessary, assist each other to this end and shall, 13 See Regulation No 539/2001 Article 1(1) and Regulation No 2018/1806 Article 3(1). (Regulation No 539/2001 is repealed by Regulation No 2018/1806. Regulation No Regulation determines the third countries whose nationals are subject to, or exempt from, the visa requirement, on the basis of a case-by-case assessment of a variety of criteria relating, inter alia, to illegal immigration, public policy and security, economic benefit, in particular in terms of tourism and foreign trade, and the Union's external relations with the relevant third countries, including, in particular, considerations of human rights and 14 On the criticism related with the Visa-List Regulation, see Peers (n 10) 255 256. In this regard, for instance see Peers (n 10) 251. 51 VISA ISSUE BETWEEN EU AND T RK YE EU.15 Concerning long-term visas and/or visas for the purposes of gainful activities, Member States may have required / require this visa type from Turkish citizens. For now, generally this competence area is not harmonised16 by the EU.17 Regarding the substantive and procedural conditions of issuing a visa, one may easily assume that these have been probably changed over time. Besides, for short-term visas and/or visas for the purposes of non-gainful activities, EU harmonised this area with its Visa Code Regulation18; however, for long-term visas and/or visas for the purposes of gainful activities, EU have not generally harmonised this area. Finally, let me note again that these findings are just generalisations which are deemed as helpful in drawing a general legal framework, however, case-by-case review is required for full legal position of a Turkish citizen.19 ? To Hence, how might law affect the visa issue between EU and answer this question, in other words to draw a general legal framework 15 competence between EU and Member States. See Article 77(2/a) of the TFEU and Article 4(2/j) of the TFEU. The characteristics of shared competence can be found in Article 2(2) Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its 16 17 18 19 Peers (n 10) 226 294. In this regard, for instance see Boeles and others (n 4) 380; Sylvie Sarolea and Jean-Baptiste EU EU Immigration and Asylum Law and Policy (Odysseus Network), 11 February 2021) <http://eumigrationlawblog.eu/legal-migration-inthe-new-pact-modesty-or-unease-in-the-berlaymont/> accessed 25 March 2021. In th is a shared competence between EU and Member States. See Article 79(2/a) of the TFEU and Article 4(2/j) of the TFEU. For the characteristics of shared competence / the latter Article see fn. 15 Peers (n 10) 382 499. persons and services might be included. Depending on the level of integration on freedom of movement, these arrangements may have effects on long-term visas and/or visas for the purposes of gainful activities. See Article 217 of the TFEU. Peers (n 10) 394 395. Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L 243/1. According conditions for issuing visas for transit through or intended stays in the territory of the Member States not exceeding three months in any sixPeers (n 10) 246. 52 regarding the visa issue between EU and , the effects of EU EU visa liberalisation dialogue on this issue association law and will be examined, respectively.20 II. European Union Association Law EU association law21 foresees the possibility for free and the EU, which in turn movement of persons and services between might have effects on visa applied to Turkish citizens by the EU and/or Member States. Under association law, there is the possibility for the parties to achieve free movement of persons and services between themselves. Firstly, Article 12-14 of the Ankara Agreement lays out that the parties agree to be guided by relevant articles of the Founding Treaty (today TFEU) for the purpose of abolishing restrictions on freedom of movement for workers, of establishment and to provide services between them.22 Secondly, the Additional Protocol, which implements the transitional stage of association,23 has two articles 20 21 In this regard, also see A Asl lg n and Pierluigi Simone, One Step Forward, Two Steps Back: Legal Arguments on the Visa 95; Erdenir (n 3) 540 565. On Turkey EU association law, also see -EC Association Law and Recent Developments Regarding the Freedom of Establishment and Free Movement of Turkey-EC Association Law: Developments since Ankara Agreement 1963 (The Rights of EU Citizens in Turkey and of Turkish Citizens in The EU Countries) (Legal 42; Erdenir (n 3) 548 (eds), 2017) 117 Admission of Turkish Nationals into the Territory of a Member State within the Context of 1 441; 22 1621, 1621 of Free Movement of Persons: The Court as the Motor of EU19 European Law Journal 422, 422 442. ea 48, 49 and 50 the Treaty establishing the Community for the purpose of progressively 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of 55,56 and 58 to 65 of the Treaty establishing the Community for the purpose of abolishing 23 Article 1 of the Additional Protocol. VISA ISSUE BETWEEN EU AND T RK YE 53 building upon Article 12-14 of the Ankara Agreement. They empower the Council of Association to decide on the rules necessary to secure freedom of movement for workers between the parties between 1976 and 1986 on the one hand (Article 36),24 and to abolish the restrictions on freedom of establishment and on freedom to provide services between the parties on the other (Article 41(2)).25 In spite of this legal setting, the free movement of persons and services between the parties could not have been achieved.26 This means that, under current state of association law, the starting point is that Member States and/or EU has the right to govern the first admission to the territory of Member States of Turkish nationals.27 Nonetheless, there are standstill clauses in association law,28 which may have effects on the right to govern the first admission to the territory in general, and visas or visa conditions in particular. Briefly, standstill clauses prohibit the introduction of new restrictions on the relevant freedoms. Regarding freedom of movement for workers, there are two standstill clauses: one is at Article 7 of Association Council Decision No 2/76, the other is at Article 13 of Association Council Decision No 1/80. 29 According to the Article 7 of Association Counci the Community and may not introduce new restrictions on the 24 25 States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement. The Council of Association s accordance with the principles set out in Articles 13 and 14 of the Agreement of Association, determine the timetable and rules for the progressive abolition by the Contracting Parties, between themselves, of restrictions on freedom of establishment and on freedom to provide 26 27 28 29 In other words, if the free movement of persons and services between the parties were achieved, visa requirements would become non-applicable. In this regard, see / compare with Boeles and others (n 4) 380. In other words, if the freedom of movement for persons and services were achieved between the parties, this would mean inter alia that the visa requirement would be removed within their scope of application, i.e. for Turkish workers, self-employed (established) persons, (self-employed) service providers, service recipients and workforce of (self-employed) service providers. In this regard, see in Association L European Law and Policy 151, 151 193. ision is to apply in relation to any measure introduced by a Member State during the period from 20 December 1976 to 30 hauptstadt Stuttgart [2018] Court of Justice Case C-123/17, ECLI:EU:C:2018:632 [54]. 54 conditions of access to employment applicable to workers legally resident and tion may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their families legally resident and employed in their respectiv establishment and to provide services, according to Article 41(1) of the between themselves any new restrictions on the freedom of establishment and interpreted by the Court of Justice of the European Union (CJEU) in various cases, hence, all legal parameters of them have been clarified.30 Firstly, the material scope of the standstill clauses may be examined. In 31 rules they are quasi-procedural rules Hence, they are not substantive ratione temporis, which 32 the purposes of assessing the position of a [relevant] Turkis But as quasi-procedural rules, they cover any new restrictions on free movement procedural conditions governing the first admission to the territory of 33 [Member State Thus, they cover visa requirement in itself, i.e. being subject to a visa, on the one hand and the substantive and procedural conditions of issuing a visa, on the other.34 30 31 32 33 See, inter alia, The Queen, Veli Tum and Mehmet Dari v Secretary of State for the Home Department [2007] Court of Justice Case C-16/05, ECR I-7415; Mehmet Soysal and Ibrahim Savatli v Bundesrepublik Deutschland [2009] Court of Justice Case C-228/06, ECLI:EU:C:2009:101; European Commission v Kingdom of the Netherlands [2010] Court of Justice Case C-92/07, ECLI:EU:C:2010:228; Leyla Ecem Demirkan v Bundesrepublik Deutschland [2013] Court of Justice Case C-221/11, ECLI:EU:C:2013:583; C Demir v Staatssecretaris van Justitie [2013] Court of Justice Case C-225/12; Naime Dogan v (n 29). Bundesrepublik Deutschland [2014] Court of Justice Case C-138/13; For Article 41(1) of the Additional Protocol, see Tum and Dari (n 30) para 54. For Article 41(1) of the Additional Protocol, see Tum and Dari (n 30) para 55. For Article 41(1) of the Additional Protocol, see Tum and Dari (n 30) para 69. See also: principle, of the Member States to conduct their national immigration policy. The mere fact that, as from its entry into force, such a clause imposes on those States a duty not to act 34 does not mean that the very substance of their sovereign competence in respect of aliens Tum and Dari (n 30) para 58. On this finding, see Groenendijk and Guild (n 1) 20; Peers (n 10) 248. VISA ISSUE BETWEEN EU AND T RK YE 55 Secondly, the personal scope of the standstill clauses may be examined. In this regard, the standstill clauses can be invoked by Turkish workers,35 selfemployed persons either established36 or as service providers and workforce of service providers37. Hence, generally, there is the chance to object to the long-term visas and/or visas for the purposes of gainful activities via standstill clauses. Nevertheless, the standstill clauses cannot be invoked by Turkish service recipients. More specifically, in 2013 in Demirkan judgement the CJEU ruled that the s nationals who are the recipients of services to visit a Member State in order to 38 Hence, generally, there is no chance to object to the shortterm visas and/or visas for the purposes of non-gainful activities via standstill clauses,39 Thirdly, the temporal scope of the standstill clauses may be examined. In this regard, the standstill clauses prohibit the introduction, as from the entry into force of the relevant legal instrument regarding the Member State concerned, of any new restrictions on the relevant freedoms. 40 Article 7 of the Association Council Decision No 2/76 entered into force on 20 December 1976 (and replaced by the coming Decision in 30 November 1980)41 and Article 13 of the Association Council Decision No 1/80 entered into force in 1 December 1980.42 Article 41(1) of the Additional Protocol entered into force in 1 January 1973.43 Hence, these dates are valid for the first nine Member States, namely for Germany, France, Italy, Netherlands, Belgium, Luxembourg, United Kingdom (which withdrew from the EU), Ireland and Denmark. For other Member States, their date of accession to the EU is applicable.44 Against this, where a Member State applied a visa or a substantive or procedural condition of visa to a category of Turkish citizen when the relevant legal instrument entered into force for that State (and did not remove the visa or that substantive or procedural condition of visa later), 35 36 37 38 39 40 41 42 43 44 Demir (n 30) para 42. (n 30) para 31. Soysal and Savatli (n 30) para 46. Demirkan (n 30) para 63. On this finding, also see Peers (n 10) 247. For Article 41(1) of the Additional Protocol, see Tum and Dari (n 30) para 69. Article 1(2) and 13 of the Association Council Decision No 2/76. Article 16(1) of the Association Council Decision No 1/80. Article 63(2) of the Additional Protocol. In this regard, Peers noted that there have been no international agreements for other than the first nine Member States extending the Ankara Agreement and/or Additional Protocol to them. Nonetheless, CJEU and/or national courts have not questioned the applicability of Ankara Agreement and/or Additional Protocol to the Member States other than the first nine. See Peers (n 10) 246. On the contrary, Groenendijk and Guild noted that other than the first nine Member States were bound by Ankara Agreement and/or Additional Protocol from the date of accession, as a part of acquis communautaire. Groenendijk and Guild (n 1) 11. 56 it will not be regarded as a new restriction within the meaning of standstill clauses, thus will not be regarded as contrary to them. Fourthly, the substantive scope of the standstill clauses may be examined. In this regard, the standstill clauses prohibit in principle the introduction of any new restrictions on the relevant freedoms. Thus, it is possible for a new restriction to be justified by a legitimate aim, provided that principle of proportionality is also observed. More specifically, according to the CJEU a new restriction is prohibited, unless it is justified on grounds of public policy, public security or public health45 public interest, is suitable to achieve the legitimate objective pursued and does not 46 In this regard, for instance, the objective of effective management of migratory flows is also considered as an overriding reason in the public interest.47 Hence, provided that principle of proportionality is also observed, a Member State and/or EU may justify the introduction of a visa (or another measure which have similar effects as a visa) or a substantive or procedural condition of visa to a category of Turkish citizen, which will mean that there is no infringement of the standstill clauses.48 EU From the forgoing, it may be simply concluded that association law or the standstill clauses therein have effects, but limited, on . Next, the effects of EU visa the visa issue between EU and liberalisation dialogue on this issue will be examined. III. European Union Visa Liberalisation Dialogue EU visa liberalisation dialogue49 aims at lifting Schengen visa requirement for Turkish citizens and has a remarkably close link with the 45 46 47 48 49 Article 9 of the Association Council Decision No 2/76 and Article 14 of the Association Council Decision No 1/80. (n 29) para 72. (n 29) para 77. case, a national measure which requires a visa for the purpose of For instance, in the (n 29) para 71.). Next, the family reunification was regarded as a new restriction ( objective of effective management of migratory flows was considered as an overriding reason in the public interest ( (n 29) para 77.). The national measure was found suitable to achieve the legitimate objective pursued ( (n 29) para 79.). Besides, the Court obse in order to enter and reside in [a Member State] for the purposes of family reunification cannot in itself be regarded as disproportionate in relation to the objecti (n 29) para 80.). However, the Court also noted that the principle of proportionality also (n 29) paras 81 88.). In the end, it was left to the requires an individualised analysis ( national court to decide on whether the national measure goes beyond what is necessary in order to attain the legitimate objective pursued ( (n 29) para 89.). On Turkey EU visa liberalisation dialogue, also see Erdenir (n 3) 558 562. VISA ISSUE BETWEEN EU AND T RK YE 57 Readmission Agreement between EU and . This setting became a part of two political compromises due to migration crisis, hence, there is a default position, position on 29 October 2015 and position on 18 March 2016 and Commission monitoring in the meantime.50 The default position was very briefly as follows. and EU signed 51 EU visa the Readmission Agreement and initiated the liberalisation dialogue52 on 16 December 2013, simultaneously. In short, on ds a the one hand, Visa-Free Regime with dialogue.53 Under one of those benchmarks, effectively implement the EU readmission agreement in all its provisions 54 This refers, inter alia, to the obligation to readmit third-country nationals and stateless persons, which was to become applicable, as a rule, three years after the entry into force of the Readmission Agreement, i.e. 1 October 2017.55 On the other hand, EU would lift the visa requirement for Turkish citizens travelling to the Schengen area for a short term visit, when fulfils 72 requirements of the Roadmap, i.e. in 1 October 2017. Hence, EU visa liberalisation dialogue is about removing short-term visas and/or visas for the purposes of non-gainful activities, but not long-term visas and/or visas for the purposes of gainful activities. The position on 29 October 2015 can be summarised as follows. Due to e and EU Heads of migrant crisis, especially massive influx of Syrians, 50 51 In this regard, see -Turkey Readmission Agreement in the Wake of the UACES 46th Annual Conference (UACES 2016) <www.uaces.org>. On Turkey EU Readmission Agreement, see lysis of the EU- and Law 486, 486 52 53 54 55 21 86. For the mentioning of EU-Turkey Visa liberalisation dialogue, see <http://europa.eu/rapid/press-release_STATEMENT-14-285_en.htm>, accessed 10 August 2016. For the text of Roadmap towards a Visa-Free Regime with Turkey, see: <http://ec.europa.eu/dgs/home-affairs/what-is-new/news/news/docs/20131216roadmap_towards_the_visa-free_regime_with_turkey_en.pdf>, accessed 10 August 2016. See Roadmap towards a Visa-Free Regime with Turkey, fn. 53. (Emphasis added.) Article 24(3) of the Readmission Agreement. According to the same Article, there are two exceptions to this rule: (i) If Turkey have concluded bilateral treaties or arrangements on readmission with third countries, Turkey will readmit stateless persons and nationals from those third-countries as of 1 October 2014, (ii) existing bilateral readmission agreements between Turkey and individual Member States (for instance Greece) will continue to apply in their relevant parts, until this transitional period (three years) passes. 58 however, shortly before that, in 15 October 57 2015, EU and had agreed ad referenda 58 In short, according to this plan, which was later activated in 29 October 2015,59 inter alia, 56 Moreover, both sides agreed that Readmission Agreement will become fully applicable from June 2016; in return EU will lift the short term Schengen visa requirements for Turkish citizens by October 2016, once the requirements of the Roadmap are met.61 60 The position on 18 March 2016 can be summarised as follows. Due to and EU Heads of State or Government met continuing migrant crisis, 2016;62 however, shortly before that, in 7 March 2016, the EU Heads of State or Government, after meeting with statement.63 In short,64 into 65 Greek islands as from 20 March 2016 will be returned to According to the statement of 7 March 2016, this return will build on the readmission agreement and, from 1 June 2016, the Greece 56 57 58 59 60 61 62 63 64 <http://www.consilium.europa.eu/en/press/press-releases/2015/11/29-eu-turkey-meetingstatement/>, accessed 10 August 2016. For the text, see <http://europa.eu/rapid/press-release_MEMO-15-5860_en.htm>, accessed 10 August 2016. EU proposed to expand significantly its overall financial support and committed to provide support to Syrians under temporary protection and host communities in Turkey, as a part of -Turkey statement of 29 October 2015, fn. 56, pt. 6. EU-Turkey statement of 29 October 2015, fn. 56, pt. 7. Fn. 57. Compare with Article 24(3) of the RA. EU-Turkey statement of 29 October 2015, fn. 56, pt. 5. <http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/>, accessed 10 August 2016. <http://www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meetingstatement/>, accessed 10 August 2016. -Turkey statement of 18 March 2016, fn 62 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 -Turkey statement of 18 March 2016, fn 62 65 statement of 18 March 2016, fn 62, pt. 6. EU-Turkey statement of 18 March 2016, fn 62, pt. 1. -Turkey VISA ISSUE BETWEEN EU AND T RK YE 59 Readmission Agreement.66 In turn, EU will lift the short-term Schengen visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks in the Roadmap have been met.67 In the meantime, the Commission has been monitoring the progress in EU visa liberalisation dialogue and political compromises of 15 October 2015 and 18 March 2016. The Commission adopted third reports on in fulfilling the requirements of its visa liberalisation progress by roadmap, first in 20 October 2014,68 second in 4 March 201669 and third in 4 May 2016.70 Besides, the Commission adopted seven reports on the progress made in the implementation of the EUStatement of 18 March 2016: first in 20 April 2016,71 second in 15 June 2016,72 third in 28 September 2016,73 fourth in 8 December 2016,74 fifth in 2 March 2017,75 sixth in 13 June 201776 and 6 September 2017.77 Furthermore, the Commission has followed 66 67 68 69 70 71 72 73 74 75 76 77 Statement of the EU Heads of State or Government of 7 March 2016, pt. 3(d). EU-Turkey statement of 18 March 2016, fn 62, pt. 5. COM(2014) 646 final Report from the Commission to the European Parliament and the Council on progress by Turkey in fulfilling the requirements of its visa liberalisation roadmap. COM(2016) 140 final Report from the Commission to the European Parliament and the Council on Second Report on progress by Turkey in fulfilling the requirements of its visa liberalisation roadmap. COM(2016) 278 final Report from the Commission to the European Parliament and the Council on Third Report on progress by Turkey in fulfilling the requirements of its visa liberalisation roadmap. COM(2016) 231 final Communication from the Commission to the European Parliament, the European Council and the Council on First Report on the progress made in the implementation of the EU-Turkey Statement. COM(2016) 349 final Communication from the Commission to the European Parliament, the European Council and the Council on Second Report on the progress made in the implementation of the EU-Turkey Statement. COM(2016) 634 final Communication from the Commission to the European Parliament, the European Council and the Council on Third Report on the progress made in the implementation of the EU-Turkey Statement. COM(2016) 792 final Communication from the Commission to the European Parliament, the European Council and the Council on Fourth Report on the progress made in the implementation of the EU-Turkey Statement. COM(2017) 204 final Communication from the Commission to the European Parliament, the European Council and the Council on Fifth Report on the progress made in the implementation of the EU-Turkey Statement. COM(2017) 323 final Communication from the Commission to the European Parliament, the European Council and the Council on Sixth Report on the progress made in the implementation of the EU-Turkey Statement. COM(2017) 470 final Communication from the Commission to the European Parliament, the European Council and the Council on Seventh Report on the progress made in the implementation of the EU-Turkey Statement. 60 the progress via (Progress) Reports: For instance with the one in 17 78 April 2018, 29 May 201979 and 6 October 2020.80 EU visa liberalisation Against this, where are we now in dialogue? The deal was to lift the visa requirement for Turkish citizens travelling to the Schengen area for a short-term visit, by amending the Visa List Regulation, when fulfils 72 requirements of the Roadmap.81 This amendment is subject to ordinary legislative procedure,82 which means joint adoption by the European Parliament (in principle with a majority of the votes cast)83 and the Council (in principle with qualified majority)84 of a legislative act on a proposal from the Commission.85 In line with the political compromises of 15 October 2015 and 18 March 2016, on 4 May 2016, the Commission proposed an amendment to the this Regulation in order for Turkish citizens to travel to the Schengen area without a visa in the short term.86 However, the Commission also noted that there have been certain 78 79 80 81 SWD(2018) 153 final Commission Staff Working Document, Turkey 2018 Report, Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2018 Communication on EU Enlargement Policy, p. 48-49. SWD(2019) 220 final, Commission Staff Working Document, Turkey 2019 Report, Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2019 Communication on EU Enlargement Policy, p. 49. SWD(2020) 355 final Commission Staff Working Document, Turkey 2020 Report, Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2020 Communication on EU Enlargement Policy, p. 51. aim to fight irregular migration flows coming from Turkey to Greece via the Statement, will Yavuz (n 51) 507. Labour Market for the Third Country Nationals: The Case of Free Movement of the Workers 82 83 84 85 86 Dergisi 33, 48. This is a valid question and determination, which might also justify the view that, for the sake of legal certainty and/or to overcome this kind of a problem, the parties might have recourse to Visa Facilitation Agreement and/or Visa Waiver Agreement between themselves. See p. 12. Article 77(2) of TFEU. Article 231 of TFEU. Article 16(3) of TEU as amended by Lisbon Treaty. Nonetheless, Erdenir reminds that EU Member States may try to block the application of qualified majority in practice. Erdenir (n 3) 561. Article 289(1) of TFEU. COM(2016) 279 final, Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 539/2001 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 (Turkey). VISA ISSUE BETWEEN EU AND T RK YE 61 Roadmap benchmarks to be fulfilled. After then, no further progress has been made in this regard. For instance, according to the 2020 Report, has still to fulfil six benchmarks: (i) fight against corruption, (ii) judicial cooperation in criminal matters with all EU Member States, (iii) intensified cooperation with Europol, (iv) amendments to the data protection legislation, (v) amendments to the anti-terror legislation, (vi) implementation of the Readmission Agreement in all its provisions and towards all Member States.87 At this point, we may draw attention to some legal possibilities, while noting that their political feasibility will not be dealt in this paper.88 On the one hand, there are some legal possibilities with a bilateral character. In my view, for the sake of legal certainty, the parties might have recourse to Visa Facilitation Agreement and/or Visa Waiver Agreement between themselves.89 In this regard, a step-by-step approach might be useful in solving the visa issue. With a Visa Facilitation Agreement, the issuing of a visa might be facilitated, both substantively and procedurally, at least for certain categories of Turkish citizens.90 A Visa Waiver Agreement might follow that Agreement, and it might foresee a visa free regime either for holders of ordinary passports and/or for holders of diplomatic, service or official passports.91 87 88 89 90 91 SWD(2020) 355 final Commission Staff Working Document, Turkey 2020 Report, Accompanying the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2020 Communication on EU Enlargement Policy, p. 51. Furthermore, we may draw attention to some legal possibilities, even if Turkey will be put in the positive list under EU Visa List Regulation. In this regard, EU has some mechanisms to safeguard its own interests. Firstly, this Regulation foresees a reciprocity mechanism: Where a third country listed in the positive list applies a visa requirement for nationals of at least one Member State, a procedure will be triggered to preserve the reciprocity (Article 7 of the Regulation No 2018/1806). Secondly, this Regulation foresees a temporary suspension mechanism: Under certain circumstances, visa exemption for nationals of a third country listed in the positive list may be temporarily suspended (Article 8 of the Regulation No 2018/1806). Thirdly, there will be a new system to enter the EU, called as European Travel Information and Authorisation System (ETIAS). Generally, visa exempt third country nationals will be required to apply for a travel authorisation through the ETIAS system to enter the EU. See Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 [2018] OJ L 236/1. For more information on Visa Facilitation Agreement and/or Visa Waiver Agreement, see Peers (n 10) 288 293. For a list of EU Visa Facilitation Agreements, see https://ec.europa.eu/home-affairs/whatwe-do/policies/borders-and-visas/visa-policy_en For a list of EU Visa Waiver Agreements, see https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=LEGISSUM%3A4384449 62 On the other hand, there are some legal possibilities with an autonomous character. EU Visa Code (Regulation No 810/2009)92 was amended in 2019 by Regulation No 2019/1155.93 One of the amendments / additions, which entered into force on 2 February 2020, was the Article 25a titled as riefly, EU may facilitate visa conditions for third countries cooperating sufficiently on the readmission of irregular migrants and EU may tighten visa conditions for third countries cooperating insufficiently on the readmission of irregular migrants.94 Hence, in future, this Article has the potential to be used in relation .95 to Conclusion This paper tries to draw a general legal framework regarding the visa , focusing on visa applied to Turkish citizens issue between EU and by the EU and/or Member States. The conclusions drawn may be summarised as follows. On the one hand, regarding short-term visas and/or visas for the purposes EU visa liberalisation of non-gainful activities, this is subject to dialogue, which has still been ongoing. Nonetheless, for the sake of legal certainty, bilaterally, either visa facilitation and/or waiver agreements might be concluded between the parties, respectively to ease the substantive and procedural conditions of issuing a visa and to lift the short-term visa requirement applied to Turkish citizens.96 Moreover, autonomously, EU may facilitate or tighten visa conditions for on the basis of its cooperation level on the readmission of irregular migrants, under EU Visa Code. 92 93 94 95 96 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) [2009] OJ L 243/1. Regulation (EU) 2019/1155 of the European Parliament and of the Council of 20 June 2019 amending Regulation (EC) No 810/2009 establishing a Community Code on Visas (Visa Code) [2019] OJ L 188/25. On this clause, see Carrots and Sticks? EU Immigration EU Immigration and Asylum Law and Policy (Odysseus Network), 27 October 2020) <http://eumigrationlawblog.eu/negotiating-with-third-countries-under-the-new-pactcarrots-andots and Sticks: A Punitive Shift in the Reform of the Visa Code EU Immigration and Asylum Law and EU Immigration and Asylum Law and Policy (Odysseus Network), 5 September 2018) <http://eumigrationlawblog.eu/of-carrots-and-sticks-a-punitive-shift-in-the-reformof-the-visa-code/> accessed 25 March 2021. 508. On the non-applicability of visa facilitation and/or waiver agreements to long-term visas and/or visas for the purposes of gainful activities, see for instance Peers (n 10) 289, fn. 575. 63 VISA ISSUE BETWEEN EU AND T RK YE On the other hand, regarding long-term visas and/or visas for the EU association law. purposes of gainful activities, this is subject to In this regard, there are standstill clauses related to freedom of movement for workers, i.e. Article 7 of Association Council Decision No 2/76 and Article 13 of Association Council Decision No 1/80 and related to freedom of establishment and to provide services, i.e. Article 41(1) of the Additional Protocol. On a case-by-case basis, Turkish workers, self-employed persons either established or as service providers and workforce of service providers may rely on them against a visa requirement or substantive and procedural conditions of issuing a visa. Nonetheless, to be successful in this claim, that visa requirement or condition must be a new restriction on the relevant freedom, which cannot be justified by a legitimate aim, observing principle of proportionality. Moreover, the visa issue may be covered during the process on modernization of customs union,97 especially if this means deepening in free movement of persons and services between the parties. Bibliography (2019) 21 European Journal of Migration and Law 486. -EC Association Law and Recent Developments Regarding the Turkey-EC Association Law: Developments since Ankara Agreement 1963 (The Rights of EU Citizens in Turkey and of Turkish Citizens in The EU Countries) (Legal . B lg n AA and Simone P, One Step Forward, Two Steps Back: Legal Arguments on the Visa . Boeles P and others, European Migration Law (2nd edn, Intersentia 2014). 33. . 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