Tyranny of visa rules ´illegal´

The European Union’s visa system for Turkish citizens is illegal, but there is still an unwillingness by politicians in EU member states to accept this and implement recent court rulings, according to a Netherlands-based academic.

“We can certainly say the visa requirement [for Turkish citizens to enter EU member states] is illegal, but cannot be sure whether the border authorities will accept this,” said Piet Jan Slot, a law professor at Leiden University in the Netherlands, at a press conference Wednesday in Istanbul organized by the Economic Development Foundation, or İKV. Noting the existing related case law, Slot said courts at a national member state level and European ones have already disclosed their opinion on the illegality of visa requirements by EU countries for Turkish citizens.

”The courts usually are very clear, but governments are dragging their feet to adjust the legislation by all sorts of unorthodox legal reasoning,” he said.

There is a general lack of will by EU member states to implement court rulings regarding the removal of visa requirements for Turkish citizens, according to Slot, who said states could always put in play mechanisms that would help them keep this attitude. “Court decisions [regarding unlawfulness of visa requirement for Turkish citizen] may not be communicated to border police,” he said, adding that even when communication starts, states could prolong procedures for a long time.

Political parties ruling in European countries, such as Germany, the Netherlands, France, etc., are not interested in liberalizing visas with Turkey, although it is their legal obligation to do so, and they would rather prefer the situation as it is, according to Slot, who said even right wing parties that generally support visa liberalization with Turkey, like Christian Democrats, have started behaving extremely carefully, so that they do not lose votes to anti-immigration parties.

Courts defend Turkish citizens’ rights

Though not always successful, the European Court of Justice has established an essential jurisprudence regarding treatment of Turkish nationals across the EU. Of the most important case laws is the so-called “Soysal case,” where the court ruled on Feb. 19, 2009 that a Turkish citizen had the right to enter Germany without a visa in order to provide his services.

The court based its decision on a provision in the Ankara Agreement’s additional protocol, saying “... the Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services.” The court reasoned Germany did not apply visa requirements to Turkish citizens when the protocol was signed in 1973, thus such obstacles were unjustified and had to be removed.

Slot said a similar case was also opened in the Netherlands, after a Turkish citizen asked to enter the country claiming that he had come as a self-employed individual. The local court ruled in favor of him, but the Dutch government did not accept the ruling, thus the case is now being discussed in the Council of State, whose decision, expected to be ruled in September this year, will be determinant regarding the legality of visa requirements by Netherlands for Turkish service providers.

Even if the Dutch Council of State might rule for visa requirements to be inconsistent with related legislation, Turkish citizens have to make sure such a decision is communicated to border police for safe entry into the country without a visa, according to Slot, who said “[The court decision will be implemented when ] a written instruction is sent to the border police saying ‘from now on you can no longer require a visa for Turkish citizens’.”

Although there has been no case law regarding the rights of Turkish service recipients to move freely in the EU, Spot said past ECJ case law had ruled service recipients should enjoy the same rights as service providers in this regard, according to Slot. "Should Turkish service providers succeed to get their right to move freely [in the Union], Turkish service recipients, such as tourists, will also enjoy the same rights.