VISA PROBLEMS OF TURKISH STUDENTS AND ACADEMICIANS
IN LIGHT OF THE INTERNATIONAL LEGAL OBLIGATIONS
In this paper, we, The Netherlands Alumni Association of Turkey (NAATR), as a stakeholder, would like to flag up the problems that Turkish students and academicians, as visa applicants, regularly encounter not only inside Turkey, at embassies and consulates, but also outside Turkey, once they are in the Netherlands, in obtaining residence permit and/or visa extensions.
To begin with, we would like to respectfully draw your attention to particularities of EC/EU-Turkey Association Agreement (AA) dated 12 September 1963, Additional Protocol signed between the EU and Turkey, which came into force on 1 January 1973 and decisions of Association Council as well as related case-law of European Court of Justice (ECJ).
According to Art. 12 AA, the contracting parties agreed to be guided by Articles 48, 49 and 50 EC for the purpose of progressively securing freedom of movement for persons between them. Art. 36 of the Additional Protocol gives the Association Council exclusive powers to lay down detailed rules for the progressive attainment of freedom of movement for persons.
ECJ has set some significant ground rules for the relationship between the EU and Turkey in terms of free movement of services and freedom of settlement. It has been openly acknowledged that Article 41 of Additional Protocol has direct effect. According to the aforesaid Article, both sides shall not bring new restrictions on freedom of settlement and free movement of services.
As a result of this, member countries, with regard to freedom of settlement and free movement of services, shall not introduce and apply national measures (for Turkish nationals) that are more stringent and restrictive than those, which were applicable prior to the date, on which Additional Protocol came into force; therefore the national measures that are more favourable shall be applicable for Turkish nationals. (the so-called “Stillhalteklausel/Standstill clause”).
To put it differently, if a member country did not use to require visa for Turkish nationals at the time that the Additional Protocol came into effect, but did so later on, that particular member country can no longer consider such stringent and restrictive rules applicable for Turkish nationals concerning their freedom of settlement and free movement of services.
Additional Protocol was signed by the Netherlands together with other founding fathers of the European Community, namely Germany, France, Belgium, Italy and Luxembourg on 23 November 1970.
The reason we preferred to dwell also on the case-law is to unearth once again often-forgotten well-established fact: Non-Derogability. Non-derogability is, what ECJ calls, a “standstill clause”.
Only very recently, EU has accorded separate deals with four Balkan countries in order to facilitate visa requirements that are currently in place. Serbia is on her way to become the fifth country to sign such an agreement with the EU.
Explaining the reason for such deals coming into existence, MEP Doris Pack, German centre-right, says, “(W)e cannot ask them to behave in a European way if we do not give them a chance to come to the European Union and to speak with Europeans.”
The same is very much true for Ukrainians, who signed a visa facilitation agreement with the EU as well. However, it has no real impact on Ukrainian citizens, since visa costs revolves around €60, which is a substantial part of €200 average monthly wage, and even worse for students, who have very limited purchasing power.
Schengen visa stands as an insurmountable wall for students, academicians, artists, journalists and talented people to foster dialogue and intermingling, to encourage young people to better understand Europe and its values, to nip alienation and radicalisation in the bud, thus to create a common language and future between the communities.
In stark contrast with the parallels with Balkan countries and Ukraine, legal obligations emanating from international agreements between Turkey and then EC date back as far as to 1964 and are quite straightforward in terms of legality. This is merely because Turkey was given a perspective for full membership with Ankara Agreement. This was clearly attested in its case law by the European Court of Justice for several occasions.
Therefore, we are hereby kindly requesting that the Royal Dutch Government:
- Revisit the international agreements with Turkey and the decisions of Association Council,
- Re-scrutinise the case law of the ECJ regarding freedom of movement and freedom of settlement of Turkish citizens (Turkish passport-holders), and
- Take a position on this particular issue both within The Netherlands and the European Union.
1At the outset, we also would like to point out that NAATR is mindful of the problems, which are, of the same nature in general, faced by Dutch students and academicians before Turkish authorities both within the country and abroad.
2 Nikolaos Lavranos, Decisions of International Organizations in the European and Domestic Legal Orders of Selected EU Member States, Europa Law Publishing, Groningen, 2004.
3 So-called “Visa Facilitation and Readmission Agreement”, which provides simplified conditions for visas, including a waiving of a visa fee for a broad range of categories of citizens including students, sportsmen and women, cultural workers, journalists, people visiting family members living in the EU, people in need of medical treatment, economic operators working with EU companies etc.
4 Albania, Bosnia & Herzegovina, Macedonia, Montenegro.
5 Chairwoman of the European Parliament delegation for relations with the countries of south-east Europe.
8 This is, in fact, not the case for the association agreements the EC/EU have been a signatory to after Ankara Agreement, particularly those signed for Big Bang Enlargement.
