Many reasons like desires to have better living standards, the difference of income distribution between the Northern and Southern countries, economical problems, famine, regional and civil wars, political and ethnic oppressions, cause people to migrate from their homelands to more advanced countries. Being witnessed in every part of the world, these movements are shifted towards using illegal means, in parallel with tighter migration and asylum policies of target countries. Those who cannot reach those countries legally, but not accepting any limitation in their voyage towards "hope" increasingly started to use organized crime groups to reach those regions. These illegal organizations not only help transporting illegal migrants where they want, but also turn some of them into "sex slaves" or servants.

Parallel with the growth in numbers, human trading and migrant trafficking has started to become one of the important issues in the international area, especially for European governments. Human trading and migrant trafficking, as versions of international organized crime, seriously violate the sovereign rights of countries. European countries, while trying to control the erratic and increasing migration movements targeted their continent, face increasing volumes in smuggling networks partly due to their preventive border controls. By developing palliative precautions like border controls and increasing the border security, EU countries actually caused people escaping from oppression and poverty to be depending on organized crime groups. This situation has driven EU into a vicious circle on the way of combating against the illegal migration.

When policies for combating illegal migration are thoroughly observed, it can be seen that the main purpose is to keep refugees in the neighbouring countries (buffer states) to their home country where they faced with oppression. Although comprehensive approaches about migrant-producing countries mention issues like overwhelming instability, inefficient governments and the violation of rights, these main causes of migration are overlooked when discussing the long-term solutions applicable to the migrants. There is no systematically proposal for the resettlement of refugees in the EU today. The final target of precautions like the visa policies, readmission treaties, and sanctions related to transporting and the airline liaison officers are to create the famous “Fortress of Europe” and to keep refugees and migrants out. Surely, as the establishment of “Fortress of Europe” is only possible by forming a buffer zone around the EU, with regard to the functionality of EU policies, Turkey’s importance actually come on the scene at this point.

By the signing of the Accession Partnership on November 8, 2000, being a transit country on illegal migration routes toward the EU, Turkey is demanded to harmonize its policy of asylum and migration to the EU's policies. Within this frame, the main issues have been lifting the geographical limitation that was put with the 1951 Geneva Convention, harmonizing border controls and visa policies and signing readmission treaties with EU members. In the National Program accepted by the Council of Ministers on 19th March 2001, Turkey proclaimed that it undertook the demands of the EU listed in the Accession Partnership Document. However, Turkey made lifting the geographical limitation clause contingent on guaranteeing the prevention of massive migration and that EU members will share the burden that Turkey will have to undertake. This precondition raised some criticisms and questions from the EU.

On the other hand, even though it is clear that while Turkey’s acceptance and implementation of EU demands can improve the preservation of refugee rights, as Turkey infringed the principle of returning by some of its applications; it is obvious that there will be also some negative appearing. In this respect, it is essential that the targets shown in the National Program have to be realized and suitable measures should be taken by long-term policies.
    

1. Illegal Migration in the EU

a. Definitions of Human Smuggling and Trafficking

        Human trading and migrant smuggling form two types of illegal migration. There are no internationally accepted definitions of these terms and they substitute each other despite the difference. However, the difference between these two terms is clearly brought up in the UN Convention on Combating Transnational Organized Crime in December 2001 and the two attached protocols on trading and smuggling.

According to the Annex Protocol: Smuggling of migrants means "the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident". Human trading (Trafficking in persons) means "the recruitment, transportation, transfer, harbouring or receipt of persons by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation".[2]

As it is understood from these definitions, in smuggling, the assistance on border passing, whereas in trafficking, the exploitation of weakness of persons is the basic matter.[3]

The aim of human trading is the exploitation of human beings for criminal purposes. In particular, the inclusion of humans into criminal acts in target countries is a part of these phenomena. Really, smuggled people in return for the high price of smuggling and the usury of travel costs are exploited by traders for illegal labouring, pick-pocketing, prostitution, drug smuggling, and child pornography.[4] Illegal human traders and smugglers target different groups of people according their purpose, but due to their highly exploitable weak nature, women and children are more vulnerable to trafficking.

b. Causes of Illegal Migration into the EU

In general, the basic causes for immigration are the affluence difference in the country of origin and the target country and the way it is perceived[5] Factors such as the growing income gap between the North and South, rapid population booms, ethnic conflicts, the image of wealthy-West, low living standards push people to other countries to pursue a better life.[6] Developed countries respond to human movements by putting quotas on migration, restrictions on visas and residential permissions, increasing border controls, and signing readmission treaties on migration. However, these policies maintained and implemented by developed countries do not deter people and lead them to find more secretive ways for migrating. Moreover, illegal migration and these secret routes of migration are more and more used under the control of criminals who are well organized in human trading and smuggling.[7] Knowing the existence of such crime groups, people for whom it is impossible or very difficult to leave the country they unhappily live, started to think about to make a “journey to hope”, and some of them have already tried once.

The project of free movement of persons, goods and services in a Single Market proposed by the Single European Act of EU/EEC surely caused an increase in human trading and smuggling. The Schengen Treaty signed in 1985 and 1990 and became a part of the EU framework in 1997 with the Amsterdam Treaty removed the borders between 13 participating states. Removal of borders and border controls became a favourable situation for illegal migrants to enter into the Schengen area and reach their target state without facing any difficulty. What is more, the removal of internal borders between member states made it absolutely necessary to protect and control the external borders of the EU more intensely. This resulted in restrictions and limitations in visas and asylum policies, which made migrants more vulnerable to crime groups operating in human trading and smuggling.

Another factor which causes an increase in human trading and smuggling in the EU is fines for this crime to be much lower than the benefits that the organized criminals gain from this offence. In many of the EU states, the punishments for these acts are not more than 2 years of imprisonment and mostly minimum punishment is applied; in many instances punishments are in fines. In Holland for example, human trading was not even a crime until 1994.[8] Thus, this situation in the EU has been an attractive factor for organized crime networks who watch out carefully their risk-benefit balance.

Another pull factor of developed Western countries is the chained migration. Migrants who had already went and settled in the Western countries invite and provoke their relatives and friends in their country of origin to come as well. Those who already settled in the Western countries, in time achieved residential permissions and citizenship, even though they may have entered illegally. This type of residential permission and citizenship encourages people in the country of origin to also migrate these target countries.[9]

Another point that has to be stated among the reasons for illegal migration is the necessity of cheap labour in developed countries. Being target countries, all of Western states are highly industrialized with high levels of social welfare. However, labour force costs high in these countries. The demand of reduction in labour costs which appeared due to the pressures of global competition, especially in agriculture and service sectors, is another triggering factor for illegal migration. Besides, declining rate of European population increases the need for labour. Based on a report presented by J. P. Chevenement, the French Minister of Internal Affairs, to the European Council of Ministers in 2000, until the year 2050, Europe’s population will fall down to 628 million from 729 million. In the same period, world population will increase to 9 billion from 6 billion.[10] This fact is also mentioned in the Commission’s Social Situation Report 2002. According to Report Europe needs immigrations to secure sustainable labour market and pension system. In other words immigration should not be looked at as a problem, rather as a solution to problems.[11]

c. The Impact of the Demographical Structure of the EU on Migration and a Comparison with the Demographical Structure of Turkey

i.Demographic Distribution According to the Age Groups

It is clear from the demographical structures of European states that all kinds of labour, whether it is cheap, expensive, skilled or unskilled have become a necessity. EU states have to pull emigrants in order to fill this gap. The gradually increasing and aging population of the EU has made Europe dependent on foreign labour.

Table 1: Demographic Distribution of the EU (15) Based on Age Groups[12]

As seen from the figures on Table 1, population of children below 15 fall down to 63.4 million in 2000 from 77.4 million in 1980. It is estimated that by 2020, it will decrease down to 49.4 million. The situation is not far different for the 15-24 age group. The youth population has been gradually decreasing from 56 million in 1980 to 46.8 million in 2000 and if the same decreasing rate will continue, it will decrease down to 38.9 million by 2020. In contrast, the 50-64 age groups show an opposite tendency. In 1980, there were 55.3 million people over 50 however in 2000, it reached 65.7 million, and in 2020, at an increasing rate it will reach 85 million. While the 65-79 age group consists of the elderly population was consisted of 40 million people in 1980, reached 47.3 million in 2000, and with a steep increase, it will rise up to 59.7 million in 2020. The age group of 80 and over has shown a similar increase and reached 13.9 million in 2000 from 8.5 million in 1980. Until 2020, it will double in number and will reach 24.8 million.

Table 2: Age Groups in Percentages in the EU (15)

Table 2 indicates demographical distribution in percentages. In a 40-year-period, age groups below 15 and 15-24 age groups decline seriously. A serious increase can be observed in the age groups between 65 - 79, and 80 and over.

ii.Distribution Among Three Age Groups (0-25, Middle Age Group, 50+)

The increasingly aging population of the EU can be more clearly seen by distributing the ages into three groups. Although in 1980, 133.4 million of the whole population of 346.6 million (38%) was comprised of youth who are 25 and younger, this number has gone down to 110.2 million (29%) in 2000, despite the 30 million increase in the total amount of population. It is estimated that in 2020, the population of the youth will be 88.3 million. As seen from Table 3, it is equal to 23% of the whole population a rate which is very low when it is compared to Turkey. As can be seen from Tables 5 and 6, the percentage of this age group is 35% for Turkey.

Table 3: Percentage Distribution of 3 Age Groups for the Years 1980-2000-2020 in the EU

Ages between 25-49 which is taken as the middle age group, was recorded as 116.7 million in 1980. This number has reached 139.3 million in 2000, but it is assumed that it will tend to decline and get closer to the 1980 figures in 2020.

For the ages 50 and over, a very dramatic change appears from 1980 until 2020. Being 104.5 in 1980, the number of this age group has reached 126.9 million by 2000. However, the real increase will occur in the following 20 years. This age group in EU-15 is estimated to increase 44 million until 2020 and will reach a number of 169,5 million in total. Therefore, as seen from Table 3, 45 % of total EU population (377.5 million) will be composed of people over 50.

Results of these tables and the demographical structure of the EU are important from three main aspects. First, they show the urgent need for foreign labour force in the EU. Being one of the greatest economical powers of the world, EU has to obtain the necessary labour force from outside the Union to be able to maintain the same level of production. However, skilled labour is not an easily obtainable source in the short run. The EU should plan ahead its needs by 2020 and urgently make the necessary investments (i.e. education) for the future. If the skilled labour will not be provided through organized systems (like the Green Card given by the USA) by the EU, as on one hand, 500.000 emigrants who illegally entered into the member countries will not satisfy the need of skilled labour force of the EU, they, on the other hand, will make the problem even more complicated.

Secondly, the problems that the EU will face because of the congestion that will occur in the retirement systems of member countries, will force EU into an insoluble situation. The number of premium payers will fall down; in contrast, the number of people being paid from the retirement systems will rise. This situation inevitably necessitates new premium payers to be pulled into the system.

Thirdly and lastly, is the social and economic problems that will be caused by the eldest segment of the EU. Reaching about 25 million by the year 2020, the population of the 80 and over will be doubled from 2000 to 2020. Assuming that many of these people will be in need of special care, regarding this service, new employment fields must be created.

According to results obtained from the data given above, it is clear that the EU is dependent on young and productive human resources from abroad, and this dependency will continue to rise in the future. So, what sort of solution will EU offer for this problem? By blocking the legal entrance ways, will EU continue to encourage illegal migration, or will it produce more comprehensive and rational solutions?

iii.Characteristics and the Importance of Turkey’s Demographic Structure

From this point of view, Turkey’s membership to the EU is a great opportunity for the EU. Since all of the ten countries that became members of the EU in May 2004, and other candidates including Bulgaria and Romania, have very similar demographical structures to EU countries, and except Poland and Romania, since these countries have very low population, they cannot offer satisfactory solutions for the demographical problems of the EU.

Table 4: Demographic Distribution of Age Groups in Turkey[13]

When age groups in Turkey are considered in detail, it can be seen that the dynamic and productive population group who are between 25 and 49 will reach an amount of 31.3 million by 2020. Constituting the 40% of the total population, this number indicates clearly that Turkey will possess a very significant demographical richness by 2020. For the same year and the same age group, this rate stayed at 31.7% for the whole EU, a rate which is 6% lower than the rate in 2000. Whereas in Turkey, by 4% of an increase was recorded by 2000.

Table 5: Percentages of Age Groups in Turkey

When the rates of distribution of age groups in Turkey and the EU are compared (Table 2), it can be seen that very high percentages of Turkey’s population is composed of young and dynamic people. The age group between 0 - 14 represented 29.3 % of the population in 2000; it will constitute 20.5 % of the whole population in 2020. Despite this steep declining, when compared to the EU's average, it is obvious that this rate is still very high. In 1980, the percentage of the age group between 0 and 14 was 16% in the EU, and it will be 13% in 2020.

Table 6: Distribution of Three Age Groups in Turkey for the Years 1980, 2000, and 2020

As can be seen from Table 6, 75% of Turkey’s population will be under the age of 50 in 2020. The demographical distribution of people over 50 years of age in Turkey is significantly different than that of the EU. In 2020, 16% of total population will be at an age between 50 and 64. Only 9% of the population will be over 65. As shown on Table 2, the same group will represent the 23% of the whole population of the EU.

The EU will have the opportunity to cover the need of skilled labour force by admitting Turkey into the Union. As some critics claim, neither the greatness, nor the demographical characteristics of Turkey's population is not a threat against the EU, on the opposite, it is golden opportunity for the EU. When Turkey’s accession process starts, the EU will be able to find the appropriate human resources in the long run by appropriately planning and cooperating with Turkey. Presenting such legal solutions are much cheaper and more fitting to the principles of the EU than keep struggling against illegal migrants and refugees.

It is quite possible to say that by the full membership of Turkey, the demographical structure of the EU will be rejuvenated and on the contrary to the allegations, with its dynamic and youthful population, Turkey will never be a burden for the EU. At any rate, the EU has to secure its need of labour from outside the EU. With a history of 45 years of EU-Turkey relations and the familiarity between the societies, it is obvious that an integration and cooperation with Turkey is a economically and culturally more rational option than recruiting people from other geographies.

d. Dimensions of Illegal Migration

Migration from poor, less developed and unstable countries towards rich and opulent states is a phenomenon which carries on for centuries. In the recent years however, this problem folded and grown such a serious degree that leaves developed states in a huge ball of troubles. According to approximately given datas, the number of migrants which was 75 million in 1975 and was 120 million in 1990 and reached 150 million in 2000.

The biggest problem faced in measuring the dimensions of human trading and migrant smuggling is the secrecy at the crux of the problem.[14] The data existing today represents only the part of an iceberg seen above the water. At present, illegal migration is conducted in more clandestine ways, and it is estimated that for every illegal migrant captured there are two or three others enter countries.[15] Based on 2002 figures, it is approximated that the number of illegal migrants living in Germany is somewhere between 500.000 and 1.5 million (It is assumed that approximately 100.000 migrants are entering this country from the Polish and Czech borders every year). Again, the same figure for Holland is between 46.000 and 110.000 and is approximately 400.000 for in France.[16] John Widgren, the president of ICMPD, estimates that 500.000 migrants enter the EU by using illegal methods. Another estimate on Germany posits that 80% of migrants who seek refuge enter the country with the assistance of smugglers.[17]   

The profits in human trading and smuggling are extremely high and this makes the situation quite attractive for organized crime groups. According to ICMPD, taking into consideration that 100.000 to 220.000 migrants had entered the EU by using the “services” provided by human smugglers in 1993, the annual income of smuggling organizations in Europe vary between 100 million and 1.2 billion dollars.[18]  1996 estimates show that the total income of organized crime groups is 8 billion dollars. The reason why these numbers are too high is that smugglers demand exorbitant prices from illegal migrants. The cost of an illegal smuggling to a Western European state is between 2.000-5.000 dollars; the price is 35.000-40.000 for Chinese migrants.[19] In addition, an Iraqi illegal migrant has to pay 7.000 dollars in order to reach Germany by passing through Turkey, Macedonia, Albania, and Italy.[20]

As a result of the lack of reliable information on human trading and migrant smuggling and the recitation of the same numbers by officials, the data that exists today is highly repeated and uncontrolled.

As a result of the lack of reliable information on human trading and migrant smuggling and the recitation of the same numbers by officials, the data obtained today consisted of highly repeated and rounded figures.

Probably, most migrants who come to Central and Western Europe are brought by human traders and smugglers. In 1994, ICMPD stated that 15 to 30% of all migrants coming to the EU were brought by human traders and smugglers. Detailed information and proofs indicate that the percentage of asylum-seekers who use human traders is considerably high, and the main reason of this is the policies regarding European border practices. In 1999, illegal migrants who were captured near the German border constitute 29% of those who used illegal entry. In 1999, 77% of illegal migrants captured in the United Kingdom tried to enter the country secretly. Those who were captured sought asylum as well. For Britain, the rate of capturing illegal migrants is 72 %. Of course this number only depicts the number of ones who have been "caught". Hence, this number is far from reflecting the exact figure of asylum-seekers and the level of success that traffickers have finagled smuggling so far.[21]

On the other hand, as it is known that refugees and migrants in many EU countries are being able to submit valid travel licenses or visas, it is quite obvious that human traffickers are taking those official licenses back to re-use them for bringing other migrants. Based on the 1999 statistics, 86.118 out of 95.113 asylum applications in Germany were made from within the country, meaning that these people were already settled in Germany before their applications.[22] Taking into account the nationalities of asylum seekers and universal visa requirements, since it is impossible for those people to enter Germany by legal ways they most likely passed through other Schengen states and reached Germany. Consequently, it is quite logical to reach a conclusion that most of the asylum-seekers are brought into the EU either by human smugglers or, in some circumstances, by human traders.

e. Routes of Illegal Migration

For illegal migrants, countries around the EU comprise many transit-routes which lead to the EU region. However, these routes, when getting closer to the Schengen zone, are diverted towards some of the Central European countries. According to the Secretariat of the Budapest Group, these routes are as follows:

-Albania and “the Balkan Route” is the most popular one for human traders.

-Poland is a key transit country for “the Eastern Route”, a route which begins from Belarus and mostly used by Asian and African immigrants, and “the Southern Route”, which is preferred by Romanians and Balkans.

-For many migrants passing through Croatia and Slovenia, Hungary and Austria are important transit countries.

-Czech and Slovak republics are transit points for many migrants from the Middle East, Far East, and the republics of former Soviet Union.

-Turkey, Bulgaria and Romania are key transit countries for illegal migrants who use Albania, Hungary and Czech Republic to reach Western Europe.

-The “Blue Route” of the Mediterranean is used by traffickers bringing people from North Africa to Europe by using Greece, Italy, Spain and more recently Portugal.

-The smaller “Northern or the Baltic Route” passes over Moscow towards Baltic states and Scandinavia and finally reaches Europe.

Despite the fact that the EU is an arrival point for many trading and smuggling routes, the problem does not end in Europe. There are smuggling routes that pass from the UK, Germany, Netherlands, and France leading to some arrival points in North America. Moreover, there is an increase in trading women in the Balkan region. Poland, Czech Republic, and Hungary which became EU members in May 2004, have also become arrival points for many asylum-seekers.[23] 

2. EU Measures for Combating Against Illegal Migration and Protecting Refugees

a. What Does the Right of Asylum Mean in the EU?

The right of asylum is defined in the Draft Treaty Establishing a Constitution for Europe under Part II, The Charter of Fundamental Rights, in Articles 18 and 19. According to Article 18, “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Constitution. According to Article 19(2), “No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”

With the signing of the Amsterdam Treaty, European Union theoretically but, not practically bounded itself to the 1951 Geneva Convention and the 1967 Annex Protocol.[24] The same connection was stated in the Tampere Summit. Despite the important fact that the devotional statements of the EU member states participating in the Convention and the Protocol to be repeated also in “The Charter of Fundamental Rights”, the situation in the EU is far more different in practice.

In 1997, EU member states signed the Treaty of Amsterdam and brought additions to former EU treaties and devoted themselves to the creation of an “area of freedom, security and justice.” For the first time in EU history, it is decided to establish common standards for asylum based on cooperation and sharing the responsibilities and expenses. Freedom of movement, visa policy, asylum policy, rules on the passage from the EU borders, and migration policy were carried to the first pillar of the EU with the ratification of the Amsterdam Treaty on 1 May 1999. Discretion in these areas was left to the Union’s responsibility and Schengen Treaty was included in the EU Framework.

In October 1999, European leaders came together at the Tampere Summit in Finland in order to determine priorities and provide political support for the implementation of the Amsterdam Treaty and they declared their duty on the eminence of freedom based on human rights, democratic institutions, and rule of law. In the Summit decisions, highlighting their respect for the right of asylum, EU states promised to work on the creation of a common European asylum system in order to avoid extradition and complete and detailed implementation of the Geneva Convention in the EU. Thus, taking into account the necessity of combating illegal migration and providing guarantees for people who demand protection or want to reach the EU, common policies on asylum and migration will provide guarantees for asylum-seekers or for people trying to reach the EU.[25]

Although EU states has spent some efforts and took significant steps to reach the goals defined in Amsterdam and Tampere, contradicting to the promise of the EU leaders about providing "protection and guarantees for those who would like to arrive the EU region", measures taken or being taken to combat against migration have been unsuccessful and this diversely affected the movement of asylum seekers and migrants and asylum-seekers.

According to the 1951 Geneva Convention, and the 1967 Annex Protocol, every migrant, whatever means he/she used to enter the country, has the right to seek asylum and country under concern has the responsibility of non-refoulement. However, border policies and measures against illegal migration maintained by the EU have such negatively affected this fundamental human right in the EU that migrants cannot leave anymore the country where they are exposed to oppression and cruelty (conjectural refoulement).[26]

Really, the right of asylum in the EU has been greatly weakened by initiatives such as the readmission agreements, visa policies, safe third country rules, transporting responsibility, and airline liaison officers. Gradual increase in illegal migration in the EU and the EU’s efforts to keep migration under control have negatively affected the application of refugee protection in Europe and it became a great concern how to reconcile the international responsibilities of EU before asylum seekers with controlling the illegal immigration. Another point to be emphasized here is that the failure of the EU in balancing these two factors and its transformation into “Fortress Europe” has led refugees and migrants to approach and to be dependent on human traders and smugglers more than ever.

Illegal migration, together with human smuggling and migrant trafficking, became one of the most important topics in the Seville Summit. At the summit, it is decided that all decisions taken in the Tampere Summit, especially those about "establishing a region of freedom, security and justice", will be put into practice. The most interesting part of the decision in Seville Summit was as follows: “Measures taken in the short and medium term for the joint management of migration flows must strike a fair balance between, on the one hand, an integration policy for lawfully resident immigrants and an asylum policy complying with international conventions, principally the 1951 Geneva Convention, and, on the other, resolute action to combat illegal immigration and trafficking in human beings. [27]

Although it is a very important development for the right of asylum and its protection to be included in the Seville Summit, how these objectives will be put into practice is still a matter of debate. Until today, the main tendency has been to implement policies against illegal migration and human trading without presenting any legal alternatives, and consequently, to violate the right of protection, transportation and non-refoulement which was given to asylum seekers by the 1951 Geneva Convention. Even though protecting national sovereignty and territorial boundaries and for this purpose, taking necessary measurements is the most natural right of a state, this must never deprive the people who are in need of international protection from this right.

In order to make a more effective legal regulation about all these subjects, in Part III, Article 166 (3) (1) of the EU Constitution, EU decided to conduct a common policy on the asylum and temporary protection with regard to offering a suitable status to a third country citizen conforming to the non-refoulement rule  in the EU. This article also defines that the policies on migration should be in accordance with the 1951 Geneva Convention and the 1967 Annex Protocol. It is expected that the EU will be more constructive in these issues when the Constitution is put into effect.

b. Access to Protection for Refugees

“This freedom should not, however, be regarded as the exclusive preserve of the Union’s own citizens. Its very existence acts as a draw to many others world-wide who cannot enjoy the freedom Union citizens take for granted. It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. This in turn requires the Union to develop common policies on asylum and immigration, while taking into account the need for a consistent control of external borders to stop illegal immigration and to combat those who organize it and commit related international crimes. These common policies must be based on principles which are both clear to our own citizens and also offer guarantees to those who seek protection in or access to the European Union."[28] This statement taken from the Presidency Conclusions of Tampere Summit is interpreted by ECRE as “that people in need of international protection should be able to access the territory of the EU and have an opportunity to gain protection” and that “immigration control measures must be in full compliance with absolute respect of the right to claim asylum.”[29]

However, no development in attaining protection has occurred in the EU: The acceptance of a regulation in December 2000 for the establishment of a database in which the fingerprints of the refugees are kept (EURODAC), the acceptance of a common list of visa entries in March 2001, the mutual recognition of deportation decisions, and the acceptance of two important legal regulations regarding carriers sanctions (fines on airlines and shipping companies found to be carrying stowaways), combating against human smuggling and human trafficking, was mainly about keeping control over migration.

As the United Nations Higher Commission for Refugees (UNHCR) stated in January, 2001:

 "In UNHCR's view, the question of access to territory is key to a common asylum procedure and  a  uniform  status.  Having  the  best  asylum  procedure  and  the  most  generous  refugee status  is  of  no  use  unless  refugees  can  actually  gain  access  to  territory  and  admission  to procedures.    The  Tampere  European  Council's commitment  to  the  absolute  respect  of  the right  to  seek  asylum  cannot  be  fulfilled  so  long  as  the  European  Union maintains  an increasingly  tight  "migration  fence"  around  its  external  borders  without  putting  in  place adequate safeguards to mitigate the negative effects of migration control on people who need international protection." [30] Controlling illegal migration has become the main paradigm in Europe without taking how much refugees are influenced from the consequences into account. There is almost no legal ways left for refugees to reach the EU, therefore refugees have been forced to use more covert and dangerous ways as means for migration.

            Considering that some refugees will continue coming into the EU through illegal ways, still some new options can be presented by providing legal alternatives which may prevent at least some of the migrants to be dependent upon the human traders.

c. Visa Requirements

There is no such a thing called “a refugee visa” to obtain an access into the EU. Although some national embassies in abroad provide diplomatic protection according to the related condition,  the only regular route for refugees is applying for tourist, business, student or other types of visas. If the visa applicant is suspected as a potential refugee, his application is rejected and he is deprived of any legal entry.

States that are subject for visa restrictions are those that produce refugees and migrants. As a consequence, in March 2001, a common list of states was put forward, a regulation which required the citizens of these states to have a valid visa to enter into the EU territory. In March 1996, a similar treaty had been signed by the EU Council regarding the “Airport Transit Visa” and a general visa requirement was applied to major refugee-generating states such as Afghanistan, Sri Lanka, Zaire, Ghana, Iraq, Iran, Nigeria, Somalia and Ethiopia[31]

The enlargement of the EU’s visa regime was explicitly stated at the 1999 Tampere Summit:

"A common active policy on visas and false documents should be further developed, including closer co-operation between EU consulates in third countries and, where necessary, the establishment of common EU visa issuing offices."

In respect to this issue, to develop a common policy upon combating against illegal migration, the EU Commission submitted a proposal to the Council and the European Parliament in November 2001, about establishing a common visa policy and a European Visa Information System (VIS) which will harmonize the policies of member states regarding visa applications[32]

The application of visa restrictions upon all states that are the main sources of refugees is the most decisive mechanism to block the flow of refugees. However, these restrictions not only act as a barrier against potential refugees, but also deter many asylum-seekers from legal migration. This paved the way for an increase in dependency on illegal entry.

A second theoretical solution for regular migration may be the resettlement of refugees from refugee-generating countries to the target countries most of which are in the Western Europe, by UNHCR. However, the possibility of this type of resettlement is extremely limited for refugees. Only a few hundred refugees from Iraq, Somalia, Afghanistan, Sri Lanka and former-Yugoslavia were settled in a year by UNHCR programs. Except Sweden and Denmark, most of EU countries accept only a few refugees in this way. It should be noted that, at the beginning of the 1970s, as part of these programs, the UNHCR has settled more than 200.000 people a year. At present however, the total quota for this program has fallen below 27,000. For many refugees, there is no possibility of resettlement and a large gap is seen when these figures are compared to the number of asylum requests and the number of people who are defined as refugees.[33]

d. Temporary Protection Programs

The last path of legal migration of refugees into the Europe was appeared in two cases where European governments participated in temporary protection programs as a reaction to the crisis that was broke out in the Southeast Europe. Until 1995, nearly 700.000 people from former-Yugoslavia (mostly Bosnians), were kept under a temporary protection in Europe, especially in Germany. Again in 1999, within the humanitarian evacuating program, 92,000 refugees from Federal Republic of Yugoslavia, Macedonia, and Albania have been located in 29 countries most of which were in Europe. In both cases, the impermanence of this status was widely varied among the member states of the EU. In some countries both voluntary and obligatory returning-programs have been implemented.[34]

On 7 August 2001, a new directive on temporary protection (TP) was adopted. In this directive, a rational administrative policy was proposed to be applied in emergency cases of extraordinary mass migratory movements where individual status of refugees cannot be immediately determined, and to improve the mechanism of admission into the European territory. The instruction had some positive features such as providing reasonable standards of rights for people benefiting from temporary protection, special provisions especially for vulnerable, unprotected groups, the establishment of a solidarity mechanism, and guarantees for access to the asylum determination procedure. On the other hand however, it falls behind the acceptable standards in some areas. For instance, visa controls and other restrictions will not be removed even during extraordinary emergency situations (except humanitarian evacuation programs). Also, there is no guarantee of freedom of movement and no right of appeal against the withdrawal or refusal of the temporary protection in cases when a person seeks asylum.

It is concerned that the temporary protection might be used in cases where the granting of  refugee status or any other form of international protection is the more appropriate response. If temporary protection is used too much freely and people who would otherwise be granted refugee status are either prevented or discouraged from seeking asylum, the 1951 Geneva Convention on Refugees will be seriously violated. On the other hand, as the acceptance of the TP directive reflects the efforts of the member states of the EU in forming a system to share the responsibility of protecting refugees at times of mass influx of refugees, it is welcomed as a positive step in refugee protection. [35]   

            This brief analysis of visa regimes, resettlement schemes, and temporary protection supplies us adequate evidence showing that there is no legal option for most of the refugees who would like to seek asylum from the EU countries.

e. Extra-territorial Immigration Controlling Applications

In addition to the visa policy, there are more mechanisms that exist in the EU in order to control the flaw of migrants. Illegal migrants and asylum-seekers are also physically kept out of the EU territory by means of heat detectors, border guards with night-vision equipment, high speed patrol boats, and X-ray scanners and movement detectors.[36] In the last few years, border controls have been expanded to outer regions of the EU. In 1987, with the initiatives of the USA, Canada, and Australia, “carrier's responsibility” has been put into effect by some EU countries. In addition to police supervision and readmission fines, this application requires the carriers (airlines and shipping companies) to pay a certain amount of sanction for every passenger came with false documents or visa. The UK, Belgium and Germany were the first countries to put these fines into action in a period when asylum demands have seriously increased. In 1990, carriers’ liability became a condition according to the Article 26 of Schengen Treaty. In order not to pay sanctions, carriers have taken a series of effective precautions. Apart from the training program which was proposed by Governments and the International Air Transportation Agency (IATA) related to the determination of forged passports and visas, some EU countries have implemented some special regulations. For instance, in January 1998, 46 carrier companies conducting business in 163 operation points around the world have been registered into the UK’s AGC (Approved Gate Check) scheme which removes the sanctions with the condition of routinely controlling passengers by the airport personnel before boarding.[37] To be able to avoid any sanction, airline companies applied even further practices which caused some passengers to face with complete discrimination and some others to be rejected although they had regularly prepared documents in some transit points. During the first two years of the practice in the UK, because of the carrier’s liability threat, many refugees landed to Heathrow Airport coming from Sri Lanka and Turkey have been rejected and sent back. Unfortunately, it is known that in case of shipping companies, the ships' crew causes some deaths to avoid the carrier’s sanctions.[38] Together with the visa policy, the carrier’s liability caused potential refugees to be forced to bear the restraining conditions of the country they live in or to fall into the hands of human smugglers or illegal human traders, since the airline companies and other carriers reject passengers without valid travel documents.

The latest development in pre-embarkation checks is the air liaison officers who were started to serve in 1996. These officers are migration stuff who is sent to embassies, consulates of the member states and airport personnel to give advice on the validity of some travel documents. At present, the UK, Denmark, Germany and Holland are applying this type of projects and they work in close cooperation in main transit points such as Istanbul Airport. It is impossible to calculate the rate of possible irregular migrants who seek asylum after they reach Europe and the rate of those who obtain the refugee status explained in the Treaty. However, the handbooks used by airport officials do not contain any information about governmental action reports, refugee protection or other issues of human rights. The attention is mainly paid upon strict border checks conducted against irregular migration and upon collecting information which support the measures taken against the strategic trade. These kinds of policies may prevent refugees from leaving their source country or sometimes the neighbouring country where they do not feel fully safe. This situation can be regarded simply as conjectural refoulement.

Extra-territorial border controls applied by the EU countries have brought anxieties about refugee protection and wider human rights issues into the agenda. Logically, the expansion of border controls into outer regions should also bring along the responsibility of accepting asylum applications on the member states and official representatives in foreign countries. This may be difficult in practice. However, the expansion of border controls to outer regions requires to be re-evaluated in respects of legitimacy, democracy, and refugee protection[39]

f. Regional Containment

As a reaction to the increasing number of Kurdish and other Iraqi refugees, in January 1998, the Council of Europe accepted an “action plan on the influx of migrants from Iraq and the neighbouring region”[40] Most of these people were clearly acquired refugee status even by the refugee identification standards of the EU members. However, at the root of this plan, rather than actively providing accession into the EU, lay the idea to keep as many refugees as possible in the region (for instance, in a safe haven in Northern Iraq, and if this fails, in Turkey or Jordan). Regional protection is not really an inauspicious term. Instead, it has been the fact for many refugees. At that time, by UNHCR and ECRE expressed their concerns about providing financial resources, and maintaining active contact on training staff with source and transit countries and the overemphasis put on measures aimed at combating illegal immigration such as the effective application of the Joint Position on pre-frontier assistance and training assignments in relation to countries of origin and transit’; the extension of the Airline Liaison programme within transit countries in the region and the ‘exchange of officials by mutual agreement’. Very little attention was paid on how reception conditions could be improved in countries such as Turkey, or what assistance might be given to the refugees were incurring huge financial and humanitarian risks in order to claim asylum within the European Union.[41]

In the following two years after the adoption of the Action Plan, concentrating especially upon Turkey, considerable amount of actions has been observed towards immediate implementation of measures. In fact, it was clear that EU members were interested in Istanbul not just for being a hub for illegal migration of Iraqis, but also for its transitory position for migrants coming from Iran, Sri Lanka, Bangladesh, Pakistan, and Egypt. The Turkish authorities had provided the EU with a list of technical and technological requirements to be used in the prevention of illegal immigration, including “assistance in the construction of reception centres for those refugees held in Turkey pending their return to their country of origin, but for whom return could give rise to considerable difficulties.” It should be noted at this point that as Turkey has made a geographical reservation relating to Article 1B of the 1951 Convention, and so all non-European refugees have no right of claiming asylum in Turkey. The Odysseus programme, adopted by the Justice and Home Affairs Council on 19 March 1998, has been used to finance a range of training and technical support programmes for senior Turkish police officers. Regional meetings focusing on the transit routes used by Iraqi and other ‘illegal immigrants’ have been held by CIREFI, involving representatives of Central and Eastern European States. In 2000, Turkey joined CIREFI which examines illegal migration in the candidates and member states of the EU and participated in information exchange system in 2001.

The Iraqi Action Plan and the subsequent co-operation that followed with transit countries in the region has acted as the blue-print for the 5 Action Plans that have so far emerged from the High Level Working Group. A second ‘Iraq Action Plan’ made suggestions to augment the ongoing work.

 g. Burden-Sharing Policies

Readmission treaties are key to any programme of regional containment to work. There are many such agreements between Western European countries and non European countries of origin, the vast majority being bilateral. These agreements are valued by western countries when there are significant numbers of nationals, third country nationals, stateless persons with no legal right to remain (including rejected asylum-seekers) who are residing illegally on its territory.

Significantly Governments also see such agreements as a pre-emptive measure to those who might attempt to enter or stay illegally as well as having a deterrent effect on potential irregular arrivals. There is no reference to the non-refoulement or obligations under the 1951 Refugee Convention in any of these agreements, nor is reference made in a ‘specimen bilateral re-admission agreement’ produced by the EU in 1994 for guidance to Member States".[42]

          Following its own survey in 1993, UNHCR has taken the view that such agreements most often operate informally, often with no notification or indication that the individual is an asylum seeker requiring access to procedures. This concept of ‘Safe Third Country’ has been searchingly questioned in subsequent research by ECRE (1993), Amnesty International (1993), and then again by the U.S. Committee for Refugees in 1997. All studies point to the real dangers of refoulement as asylum-seekers are passed back down the chain as ‘illegal immigrants for removal’.[43]

Readmission Treaties have not traditionally been drafted to respect the particular situation of asylum-seekers and as such will usually be inadequate vehicles through which to effect this return. Most important, they have not been framed to ensure protection against refoulement, by, for example, including guarantees of access to asylum procedures in the third country. In UNHCR’s view, these classical bilateral readmission agreements should not be used to return asylum-seekers, even where this is technically possible.[44]

Furthermore, the EU is planning to sign multilateral treaties with the countries (in addition to key transit countries like Turkey, Pakistan, India, and the Russian Federation) under discussion in the Action Plans of High Level Working Group. At the moment, there are more than 100 treaties creating “buffer zones.” The most significant of these treaties is the one signed between Germany and Poland on 7 May 1993. From 1993 to 1996, 120 million DM was spent on financing material and equipment along Poland’s western border and creating a Polish administrative system for refugees and deportation. Poland’s western borders and on the creation of a system for the administration of refugees in Poland. Now, German authorities focus to the East, to strengthen Polish borders with Ukraine and Belarus.

It is essential to indicate that none of these agreements have any criteria for dealing with refugees or asylum-seekers as opposed to illegal migrants in general. Germany regards all of its neighbours, including Poland and the Czech Republic, as ‘safe places’ to return refugees interdicted at the border. So if the German authorities can ascertain the country through which the refugee passed, they will be returned to claim asylum there. However of the 9,655 people who were deported to Poland by German border guards in 1996, only 1,696 claimed asylum in Poland upon re-entry. 1,453 of those bounced back to Poland were subsequently deported from Poland to its eastern neighbours or directly back to countries of origin mostly within 48 hours of being arrested.[45] The concern voiced by agencies such as the UNHCR or the European Council on Refugees and Exiles (ECRE) is that the ‘domino effect’ of chain removals can result in refoulement, when the refugee gets no opportunity to claim asylum at all and end up back in their original country or region of persecution.

There is no sense between States as to how to define the concept of ‘safe’ when applying ‘safe third country’ policies in Europe, nor do European States apply the same criteria for denying access to asylum procedures on ‘safe third country’ grounds. With regard to the principle of ‘burden-sharing’, the ‘safe third country’ notion operates entirely on the basis of countries’ geographical location in relation to asylum seeker movements and travel routes, and does not imply any element of equity or fair distribution of asylum seekers. A major concern is that present ‘third safe country’ practices largely result in shifting the burden of asylum seekers and refugees from West to East, without taking into consideration the substantial strain which this places on the still fragile asylum institutions of countries in central and eastern Europe.[46]

The Executive Committee of UNHCR has continuously emphasised how they consider international solidarity and burden-sharing as key to the protection of refugees and the resolution of refugee problems. In recent years many examples have been seen of regional and international burden-sharing. However, in principle, international solidarity and burden-sharing should not be seen as a prerequisite for meeting fundamental protection obligations (Annual theme paper of UNHCR). Any burden-sharing arrangement must also ensure respect for the fundamental principles of refugee protection including asylum, non-refoulement and family unity.

According to UNHCR ‘the most successful burden-sharing arrangements are those which are not limited exclusively to countries from the region’ as the effect of regional burden-sharing arrangements can mean an inequitable sharing of responsibility. In this case, EU members signed many readmission agreements with non-members.

According to the Dublin Convention signed on June 15 1990, the country which is liable to evaluate the applications of asylum-seekers was determined as the first country from which the asylum-seeker entered the EU territory. This situation creates unfair consequences with respect to burden-sharing because of the disproportionate hardship it lays on eastern and southern countries that have long naval and land borders. If asylum-seekers are allowed to submit their applications wherever they want, it would provide a fairer distribution of burden which is now accumulated upon eastern and southern European countries.[47]

In the Article 189, Part III of the EU Constitution, it is stated that all liabilities related to border checks, refugees and migration, including all financial consequences, will be determined in a way abiding the principle of fair burden sharing among member states. If necessary, decrees upon practicing this principle will be included in the activities of the Union. That is, in any decision taken by EU institutions regarding asylum, how the financial responsibility will be distributed among the liable countries will also be determined.

Burden-sharing has also a great importance for Turkey. Because it cannot be expected Turkey to deal with huge problems merely by its limited financial sources. However, in the above-mentioned Article 189, the issue of burden-sharing is considered only in respect to member states. To also include candidate countries in the scope of burden-sharing will be more just in solving the problem.

It will be informative to discuss here about the expenditure took on by Turkey for combating against illegal migration. All costs of deporting, providing shelter and supplying victuals of illegal migrants and foreign criminals during their detention are paid by the state of Turkey.

            According to the Article 22 of the Law on the Residence and Travel of Foreigners in Turkey (Code 5683), “...Deportees themselves are liable to pay all costs of deportation. Persons who are lack of any facility to pay the costs, will be deported by using the State sources.” Also, the Article 23 states that “persons whose deportation is decided, but could not leave Turkey because they could not issue their passports or for any other reason, are obliged to reside in places indicated by the Ministry of Internal Affairs”. In Turkey, by law, all provisioning, room and boarding and travel costs of illegal migrants who cannot leave the country with their own means, are paid by the state.

            The expenditures spent during the combat against illegal migration are indicated below:

Table 7: Costs for the Transportation, Provisioning, and Accommodation of Illegal Migrants[48]

Source: General-Directorate of Security

Graph 1: Costs for the Transportation, Provisioning, and Accommodation of Illegal Migrants[50]

Source: General-Directorate of Security

            As it can be seen from Table 1 and Graph 1, the amount of expenses spent in the last five years is approximately 1.9 trillion TL for transportation and 1.3 trillion TL for provisioning and accommodation. Expenses that were covered by local authorities and security forces from their own resources are not included in these figures; members of security forces contribute from their own salaries to help those people just for the sake of humanity. When other expenditures met by local funds and donors are also taken into consideration, it will be clearly seen how immense the loss from the national income. This explicitly denotes the absolute necessity of including the candidate states in the issues of burden-sharing.[51]