It is now well established that Turkey is no longer only a sending country but also a transit country and even a receiving country nowadays, as far as in­ter­na­tio­­nal migration is con­cerned.[1] Thus, Turkey has become subject to all types of mi­gration pressures from across the world due to its bridging position over the East-West and North-South routes. Thus, a brief analysis of recent migration pressures on Turkey shall highlight the types of issues and the challenges that Tur­key is facing in respect of international migration. This of course causes many concerns on the side of Turkish policy and law makers within the national con­text and has given rise to developments in various areas of migration law and practice.

Similarly, the justice and home affairs issues have also begun to attract in­crea­sing importance in recent years in the external relations of the EU due to the enlargement process as well as increasing migratory pressures. Further, with the inclusion of migration, asylum and border control issues of Title IV under the First Pillar, the EU is now keen to develop a common migration and asylum po­licy and has also set up a number of goals for the candidate countries, which also include propositions in relation to migration issues at large.

On the other hand, the achievement of the membership of the EU occupies a cen­tral and leading role for Turkey in its efforts for reshaping its legal and in­sti­tu­tional structure. For the EU too, developing ever closer relationship with Tur­key has always been a priority, though final negotiation process of Turkish mem­bership still proves to be an issue needing to be resolved hopefully at the end of 2004.

Turkey's EU membership ambitions have also created a momentum and a re­solution on the side of policy and law makers in Turkey to improve its mi­gra­tion law and system in line with the EU acquis. This tendency has im­pli­ca­tions over different areas of the Turkish mi­gration law and practice: from general mi­gra­tion issues such as visa policies, work per­mits, expulsion pro­cedures, read­mis­sion agreements and so on, to developments under asy­lum law and pro­ce­dures. Further, in recent years, protection and management of ex­ternal bor­ders of the EU and protection of the internal market from illegal mi­gration and trans­bor­der crimes have attained great significance from the EU perspective.

The current paper thus searches for how Turkish migration law and system has responded to the migration pressures that Turkey is facing and particularly how Turkey has already reacted and/or envisages to react to such pressures with a view to develop its migration law and system in line with the expectations of the EU.[2]

There are a number of headings under which relevant issues are discussed. The paper firstly concentrates how the instruments of citizenship law have been used as a response to the challenges posed by migration pressures. Secondly, the paper discusses how the EU ac­ces­sion process has influenced the Turkish visa and readmission policies. Thirdly, the pa­per fo­cuses on how the new for­eign work permit scheme has been formed mainly under pres­sure from for­eign il­legal employment, and to what extent the prospect of the EU mem­bership as well as the privileged position of the EU nationals have been taken into ac­count.

The Turkish accession process has further accelerated the developments of le­gislative and institutional reforms especially in the area of migration, asylum, bor­ders as well as combating illegal migration with a view to align Turkish law and practices with the EU acquis. Thus, the second part of the paper looks at the im­plications of the prospective legislative and institutional reforms under each ca­tegory.

Citizenship Policy

This section considers how the instruments of citizenship policy have been used to respond to the challenges posed by recent migratory pressures on Turkey. As a matter of fact, Turkish policy makers have traditionally taken into account the flow and eventually settlement of Turkish migrants especially in Europe in the formation of its citizenship policy.[3] Thus, Turkish citizenship policy has mainly developed in response to population movements away from Turkey rather than towards it. Hence, the changes in nationality law are to be found in provisions relating to loss of nationality rather those relating to acquisition.

In recent years, however, the population movements towards Turkey have al­so begun to influence the formation of Turkish citizenship policy and the change in citizenship law. Turkey has thus eventually reacted to migration pres­sures towards the country by means of amendments in its citizenship law. Within this context, it must be noted that Article 5 of the Turkish Nationality Act has been recently amended. It will be recalled that Article 5 regulates the ac­qui­sition of Turkish nationality upon marriage. According to ex-Article 5, a for­eign woman marrying a Turkish man automatically (ipso facto) acquired Tur­kish nationality, in the event that the woman duly notified the authorities or that she was a stateless person or that she lost her nationality upon marriage.

Thus, under ex-Article 5, the foreign woman marrying a Turkish man ac­quired Tur­kish nationality automatically upon making a declaration or sending a notification to ac­quire Tur­kish nationality if she so wished. The acquisition of na­tionality under this procedure was not subject to the approval of any au­tho­ri­ty. A great number of women have acquired Turkish nationality in the past years using the opportunity given by this Article.

However, there was serious concern on the part of policy and law makers that many foreign women have, in actual fact, acquired Turkish nationality by con­cluding marriages of convenience (paper marriages) and misused the rights and facilities given by the Turkish nationality, as they later on get divorce de­ci­sions.[4]

There is no provision of Turkish law, which prohibits or makes absolutely null the marriages of convenience (false marriages). The concept of marriage of con­venience is neither envisaged by the Turkish Civil Code, nor is there a me­cha­nism in Turkish nationality law to prevent the effects of such marriage in terms of the acquisition of nationality.[5] "The contract of marriage cannot be annulled in Turkey on the basis of simulation whatever the aims of the marriage might be."[6]

Because of this, it was thought essential to amend the law for the purposes of both preventing the corruption of the institution of marriage and of ensuring gen­der equality. Under the present version of Article 5, the acquisition of ci­ti­zen­ship by way of marriage is re-regulated on the basis of gender equality and ac­quisition under this procedure will no longer be an automatic process and will be subject to a number of conditions.[7] Thus, the nationality acquisition of for­eig­ners marrying Turkish nationals shall be subject to the same procedure with­out any discrimination as to sex. In order to acquire Turkish nationality on the ba­sis of marriage, the marriage must have existed at least for three years and the coup­les must de facto live together, and the marriage must be continuing.

The legal reasoning used for amending Article 5 expressly states that foreign women entering Turkey carry on their illegal activities such as prostitution by mis­­using the marriage institution. Since the simple acquisition of Turkish na­tio­na­­lity by way of marriage is considered by the Turkish policy makers to be a de­velopment, which causes a great concern, it is thought that migration de­mand and pressure within this context must be regulated and prevented.
This amendment may certainly be considered as an instrument of combating hu­­man trafficking and of especially women. Although it will not in itself pre­vent the whole problem but certainly reduce it to some extent. Obviously, the un­derlying concern behind this policy response is more to do with domestic pub­lic policy considerations rather than any EU accession prospect. Never­the­less, there exists here a measure of citizenship policy, which is also in line with the policy of the EU in terms of reducing the potential for women trafficking.

Visa and Readmission Policies

Visa and Readmission Policies

In principle, under Turkish foreigners law, any foreigner wishing to enter the country must obtain a visa from the respective official Turkish representative office abroad (Article 5 of the Passport Act). However, it is also possible to issue "sticker" type of visa at borders for the nationals of certain (mainly de­veloped) countries under this Article 5. There are currently some 35 coun­tries whose nationals are entitled to be issued such sticker visas at borders.[8]

There are further visa exemptions for certain categories of foreigners, which either derive from domestic laws or bilateral or multilateral agreements, to which Turkey is a party.[9] In addition to statutory visa exemptions (see, for in­stance, Article 5 and 6 of the Passport Act), some provisions of the Passport Act au­thorise the Council of Ministers to take measures in the field of foreign entry in­to the country, including of course imposing and lifting visas (Articles 9-11 of the Passport Act).

In particular, Article 10 of the Passport Act empowers the Council of Mi­nis­ters to declare unilateral visa exemption. The Council of Ministers had recourse to this power in the past in relation to a number of countries. Six Middle East coun­­tries and Greece were among the countries that enjoyed such exemptions.[10] Other visa exemptions are also recognised on the basis of reciprocal rights deri­ving from international agreements (mainly bilateral visa agreements).

Within the context of the above legislative framework, Turkish visa policy has developed over the years in response to a number of strategic, social, eco­no­mi­cal and cultural factors. In recent years, however, the EU accession process has been the main influential factor in the development of the Turkish visa po­li­cy. Turkey has made considerable progress in the process of harmonization with the EU visa regime as envisaged by the 2001 National Program[11]. For in­stance, visa requirements have been imposed to 6 Gulf countries on 1 Sep­tem­ber 2002.[12] In addition to this, visa requirements for a further 13 countries have al­so been introduced as of May-July 2003.[13] It is confirmed that Turkey has har­monized its visa policy with the EU negative visa list by 75% as of May 2003 and further plans to introduce visa requirements for the remaining coun­tries on the Negative List by the end of the year 2004.[14]

It is also envisaged that high security visa etiquette in conformity with the ICAO and EU standards shall be used, as visa etiquette currently being used by the Turkish officials do not meet the requirements of the EU security stan­dards.[15] The quality of visa labels as well as other documents and means of de­tec­ting falsified documents are acknowledged to be of great importance to combat illegal migration as well as human trafficking.[16] It is also acknowledged that issuance of sticker visas at borders shall be gradually abolished, as no such prac­tice exists under the Schengen system.[17] Finally, a timetable for the align­ment of Turkish legislation with the EU in relation to visas has been listed for each category in the 2003 National Program.[18]

Further, the foreigners (women) working in the areas of employment where­by they might be subject to human trafficking (mainly in the enter­tain­ment sec­tor) will have to obtain the so-called employment visa (a special entry visa for em­­ployment purposes) from the Turkish consulates abroad each time they are en­­tering the country.[19] Further, each time they want to renew their residence per­­mit, they have to go back to their countries and return later on by obtaining new employment visas from the Turkish representative offices abroad.[20] Fur­ther, a list of instructions have also been prepared for foreigners working in the en­tertainment sector in the course of processing their work visa and work per­mit requests to prevent them from being subjected to human trafficking.[21]

On the other hand, Turkey has committed itself to conclude readmission agree­ments with its neighboring countries and the countries of origin. The of­fi­­cial policy is stated to be sig­ning readmission agreements first with the neigh­­boring countries in the East and then with other eastern countries ad­ja­cent to the neighbors and finally with the neighboring coun­tries in the wes­tern bor­ders.[22] In this direction, Turkey has signed readmission agree­ments with Sy­­ria (10 September 2001), Greece (8 November 2001), Kyrgyzystan (6 May 2003) and Romania and is conducting negotiations with Bulgaria, Uz­be­kis­tan, Li­bya and Ukraine and has further proposed readmission agree­ments to 22 coun­­tries of origin.[23]

Turkey also implements an effective readmission policy compatible with in­ter­­national laws and practices:[24] Turkey readmits its own nationals in accor­dance with its Constitution and Passport law. In accordance with Article 23 of the Turkish Constitution, "Turkish citizens cannot be deported and cannot be de­­nied the right to enter Turkey". Article 3 of the Passport Act guarantees that in­dividuals arriving at Turkish borders claiming Turkish citizenship shall be gran­ted entry into Turkey when their nationality are confirmed. In accordance with ICAO rules, Turkey also readmits nationals of third countries having been de­­parted from the Turkish territory who have been expelled from another coun­try.[25] Turkey also readmits those illegal third country nationals having been ex­pelled from another country who have valid Turkish residence permits in Tur­key.
To sum up, in the field of visa policy and practice, Turkey is rapidly res­pon­ding to adapt to the EU Negative Visa list and at the same time elaborating its vi­sa practice with that of the EU Common Consular Instruction. In relation to read­mission practice, it certainly follows and implements norms compatible with international laws and practices and seeks to convince other countries to con­clude readmission agreements.

New Work Permit Scheme for Foreigners

Employment related rights of foreigners in Turkey have been under severe cri­ti­cism over the past years. This is mainly due to the fact that the rules relating to foreign employment are scattered around different laws in pieces and that some of the laws include elements of the worries of the past. These criticisms have re­sul­ted in a new law. The "Act on Foreign Work Permits" entered into force on 6 Sep­tember 2003.[26]

The Ministry of Labor and Social Security is assigned a central role and the main au­tho­ri­ty to issue work permits for foreigners in Turkey.[27] The law in­crea­ses legal employment op­por­tunities for foreigners in Turkey, by permitting their work under limited, unlimited or independent work permits as well as ex­cep­tio­nal work permits. The Ministry of Labor and Social Security is authorized to is­sue all forms of work permits for foreigners to ensure better management and con­­trol over the process. The law aims at providing legal protection for for­eigners against exploitation in labor markets and extending legal and ad­mi­nis­tra­tive safeguards to private services.

As a matter of fact, the new law on foreign work permits is not a direct out­put of the Turkish EU accession process but nevertheless been partly af­fec­ted by the perspective of the EU membership process. This can be easily dis­cerned from some of the articles of the Act. It is interesting to note the efforts of the Tur­kish policy and law makers in attempting to set up a work permit scheme which also takes into account some aspects of the Turkish-EU relations as well as the EU law.

The new law makes the employment of the foreigners subject to permission and establishes the principles relating to processing work permits (Article 1 of the Act on Foreign Work Permits (AFWP)). There are certain categories of for­eigners who are or may be excluded from the scope of the law on foreign work per­mits (Article 2 of AFWP). One of these categories consists of foreigners who may be exempted from work permit requirement of the law on the basis of the principles of the EU law. Thus, the law has taken into account the pros­pec­tive membership of Turkey with the EU and envisaged the exclusion of the na­tio­nals of the Member States from the work permit requirement in advance when circumstances arise with Turkey joining the EU.
Laws of particularly EU Member States have been taken into account in draf­ting the new law on foreign work permits. The arrangements are intended to cre­ate a stable labor supply and demand in the country. Further, the status and pro­gress of labor market and changes in sectoral and economic conjuncture re­gar­ding employment shall be considered as evaluation criteria when issuing de­fi­nite work permits. Thus, there are four types of work permits available under the law:[28] "definite work permit" (Article 5), "indefinite work permit" (Article 6), "independent work permit" (Article 7) and "exceptional work permit" (Ar­tic­le 8).

Definite work permit shall be issued for a period of one year maximum to work in a certain undertaking and a certain job, depending on the period of re­si­dence permit and the period of contract or job of the foreigner, considering the sta­tus and progress of labor market, and changes in sectoral and economic con­junc­ture regarding employment. This period may be extended up to three and six years under certain conditions. Further, spouse and children ac­com­pa­ny­ing a for­eigner coming to Turkey for employment are entitled to definite work per­mit, provided that they have resided with that foreigner for at least five years law­fully and uninterruptedly.
Those foreigners who have lawfully and uninterruptedly resided in Turkey for at least eight years and lawfully employed for six years in total are entitled to indefinite work permit without considering the status of labor market and pro­gress in labor world, and without limiting with any particular undertaking, pro­fession, civil or geographical region.

Independent work permit may be issued to the foreigners who would work in­dependently, provided that they have lawfully and uninterruptedly resided in Tur­key for at least five years.

Certain categories of foreigners are entitled to receive exceptional work per­mit and therefore subject to a more flexible work permit not being obliged to the time limits established by the work permit scheme. Among such many ca­te­go­ries, it is important to note that those foreigners who are EU Member State ci­ti­zens and their non-Member State citizen spouses and children are also en­titled to receive exceptional work permits.

The new law on foreign work permits further allows certain categories of works such as domestic works or some other manual works to be taken up by foreign workers. The new law has abolished the famous (in fact unpopular) Law No. 2007, which had restricted many manual works based on man power only to Turkish nationals and therefore excluding foreigners from the legal labor mar­ket. This may reduce the number of foreign illegal employment in certain sec­tors of activity and further limit the risk of their being subject to ex­ploi­ta­tion. On the other hand, the new law brings heavy fines and sanctions to crack on foreign illegal employment, which might also constitute an effective mea­sure to combat illegal migration and especially human smuggling and traf­ficking (see Articles 20-21).

Legislative and Institutional Reforms on Migration and Asylum

Within the framework of Turkish accession process and alignment with the EU ac­quis and best practices, Turkey is reviewing its legislative, institutional struc­ture and practices concerning migration, asylum and borders. Three separate stra­­tegy papers have been prepared as a result of the findings of working groups un­der the so-called Task Force, which in a sense reflect the official approach and standing at the policy level. On the other hand, a time table for legislative align­ment and institutional structuring as well as the planned finance needs have been specified in detail in the 2003 National Program in the field of EU align­­ment and capacity building on migration, asylum and borders.[29]

Within the context of the Task Force, a strategy paper on migration has also been formulated by the working group on migration setting out the priorities and strategies to be followed in the area of migration with a view to align the Tur­kish legislative and institutional structure in line with the EU. In addition to many policy level statements of good intention in relation to various aspects of mi­gration, it is important to note that the strategy paper on migration spe­ci­fi­cally talks about the establishment of an administrative structure of a civil na­ture to be operating in the field of migration. The aim of setting up a new or­ga­nisation is to strengthen the institutional capacity on migration.

This institution shall have the power and responsibilities in respect of many as­pects of migration. It shall process applications from legal migrants wishing to come or stay in Turkey; execute expulsions; run return programs; deal with in­tegration programs; collect and assess data on migration and conduct in­ter­na­tio­nal data exchange. It is viewed possible in the strategy paper on migration to set up this organisation under the same structure with the administrative body dealing with asylum requests and determining refugee status. A more concrete plan on how to organise this institution across the country shall become clearer as a result of the enforcement of "the project for the action plan on setting out migration and asylum strategy in Turkey".

In addition to this organisation on migration, the strategy paper on migration also foresees the necessity to work towards establishing a "Higher Board of Ex­per­tise". This prospective "Higher Board of Expertise" will both secure the ad­mi­nistrative supervision of migration management and protect the rights of for­eig­ners and take critical decisions in relation to migration management. The said Board of Expertise will be worked out to cover both migration manage­ment and asylum or refugee issues.

The strategy paper on asylum sets out the basic principles, strategy and prio­ri­ties to be followed by Turkey for the alignment works with the EU acquis. The strategy paper on asylum envisages the continuation of EU alignment works and establishment of a board of expertise to be operating in the field of asy­lum (administrative structure and its powers and responsibilities). The board of expertise foreseen by the strategy paper on asylum shall be set up under the Higher Board of Expertise mentioned above responsible for migration ma­nage­ment in general. In this way, it is aimed that the procedures for refugee status de­termination be systematised and social support and shelter facilities given to re­cognised refugees be improved.

The strategy paper recognises that those foreigners arriving at borders must be given the actual rights to request asylum in the course of taking measures for bor­der protection and combating illegal migration and that no time limitation will be imposed on asylum requests. It is also envisaged that an accelerated pro­ce­dure shall be set up for certain categories of asylum seekers such as those ha­ving no identity documents or coming through a safe-third country or those ha­ving no sound ground of being subject to persecution.

The strategy paper on asylum places a special importance to the issue of "bur­den sharing" in the area of formation and implementation of the asylum stra­tegy. The strategy paper foresees the establishment of a dialog with the EU and Member States on the issue of burden sharing to be resulted from the pos­sible lifting of the geographical limitation and implementation of the EU ac­quis on asylum. According to the official policy, the burden sharing will in­clude set­ting up new administrative structures and reception centres for asylum see­kers as well as other financial and technical aid for the settlement in part of re­fu­­gees to other European countries. Besides, the strategy paper stresses that Tur­key understands the issue of burden sharing, in addition to all others, as in­clu­ding the burdens being shared by the EU countries which result from the re­fu­gees included within the procedure.

Migration and asylum are two different but inter-linked concepts. Therefore, le­­gislative and institutional reforms are jointly formulated to some extent. A twin­­ning project has been prepared dealing with both migration and asylum is­sues as foreseen by the respective strategy papers mentioned above. The overall ob­jective of the twinning project is to align Turkey's asylum and mi­gra­tion le­gis­lation and practice with the corresponding elements in the EU acquis, aiming at an overall strategy in the area of asylum and migration. The pur­pose of the pro­ject is to support the development of an action plan, to be rea­lised in an en­larged part by the provision of EU funds, to implement Tur­key's asylum and migration strategy in line with EU legislation and the im­prove­ment of the ope­ra­tional and administrative (coordination, human re­sour­ces, equipment) ca­pa­ci­ty of the agencies responsible for management and im­plementation of Turkish asy­lum and migration policy.

One of the objectives of the project is to draft a complete action plan. A com­­plete action plan will set out the legislative alignment, institutional reforms, trai­­ning, infrastructure, and equipment necessary to implement the asylum and mi­­gration strategy. In particular the action plan should set out priorities for the most immediate investments required, which will form the basis for pro­gram­ming further EU pre-accession assistance in 2004 and beyond.

Another objective is, drawing on the ongoing work on the above mentioned ac­tion plan, to elaborate detailed project proposals and technical specifications in agreement with the beneficiary institutions. A third objective is to increase the understanding of the EU acquis on asylum and migration among Turkish of­fi­cials. A fourth objective is dissemination of the strategy to all the agencies in­volved in its implementation. Training of HQ's and operational staff in the stra­te­gy to be followed by Turkey in the area of asylum and migration and in the field of training of trainers methodology to disseminate the national action plan by the end of 2004 .

Within the framework of Turkish accession process and alignment with the EU ac­quis and best practices, Turkey is reviewing its legislative, institutional struc­ture and practices concerning migration, asylum and borders. Three separate stra­­tegy papers have been prepared as a result of the findings of working groups un­der the so-called Task Force, which in a sense reflect the official approach and standing at the policy level. On the other hand, a time table for legislative align­ment and institutional structuring as well as the planned finance needs have been specified in detail in the 2003 National Program in the field of EU align­­ment and capacity building on migration, asylum and borders.[29]

Within the context of the Task Force, a strategy paper on migration has also been formulated by the working group on migration setting out the priorities and strategies to be followed in the area of migration with a view to align the Tur­kish legislative and institutional structure in line with the EU. In addition to many policy level statements of good intention in relation to various aspects of mi­gration, it is important to note that the strategy paper on migration spe­ci­fi­cally talks about the establishment of an administrative structure of a civil na­ture to be operating in the field of migration. The aim of setting up a new or­ga­nisation is to strengthen the institutional capacity on migration.

This institution shall have the power and responsibilities in respect of many as­pects of migration. It shall process applications from legal migrants wishing to come or stay in Turkey; execute expulsions; run return programs; deal with in­tegration programs; collect and assess data on migration and conduct in­ter­na­tio­nal data exchange. It is viewed possible in the strategy paper on migration to set up this organisation under the same structure with the administrative body dealing with asylum requests and determining refugee status. A more concrete plan on how to organise this institution across the country shall become clearer as a result of the enforcement of "the project for the action plan on setting out migration and asylum strategy in Turkey".

In addition to this organisation on migration, the strategy paper on migration also foresees the necessity to work towards establishing a "Higher Board of Ex­per­tise". This prospective "Higher Board of Expertise" will both secure the ad­mi­nistrative supervision of migration management and protect the rights of for­eig­ners and take critical decisions in relation to migration management. The said Board of Expertise will be worked out to cover both migration manage­ment and asylum or refugee issues.

The strategy paper on asylum sets out the basic principles, strategy and prio­ri­ties to be followed by Turkey for the alignment works with the EU acquis. The strategy paper on asylum envisages the continuation of EU alignment works and establishment of a board of expertise to be operating in the field of asy­lum (administrative structure and its powers and responsibilities). The board of expertise foreseen by the strategy paper on asylum shall be set up under the Higher Board of Expertise mentioned above responsible for migration ma­nage­ment in general. In this way, it is aimed that the procedures for refugee status de­termination be systematised and social support and shelter facilities given to re­cognised refugees be improved.

The strategy paper recognises that those foreigners arriving at borders must be given the actual rights to request asylum in the course of taking measures for bor­der protection and combating illegal migration and that no time limitation will be imposed on asylum requests. It is also envisaged that an accelerated pro­ce­dure shall be set up for certain categories of asylum seekers such as those ha­ving no identity documents or coming through a safe-third country or those ha­ving no sound ground of being subject to persecution.

The strategy paper on asylum places a special importance to the issue of "bur­den sharing" in the area of formation and implementation of the asylum stra­tegy. The strategy paper foresees the establishment of a dialog with the EU and Member States on the issue of burden sharing to be resulted from the pos­sible lifting of the geographical limitation and implementation of the EU ac­quis on asylum. According to the official policy, the burden sharing will in­clude set­ting up new administrative structures and reception centres for asylum see­kers as well as other financial and technical aid for the settlement in part of re­fu­­gees to other European countries. Besides, the strategy paper stresses that Tur­key understands the issue of burden sharing, in addition to all others, as in­clu­ding the burdens being shared by the EU countries which result from the re­fu­gees included within the procedure.

Migration and asylum are two different but inter-linked concepts. Therefore, le­­gislative and institutional reforms are jointly formulated to some extent. A twin­­ning project has been prepared dealing with both migration and asylum is­sues as foreseen by the respective strategy papers mentioned above. The overall ob­jective of the twinning project is to align Turkey's asylum and mi­gra­tion le­gis­lation and practice with the corresponding elements in the EU acquis, aiming at an overall strategy in the area of asylum and migration. The pur­pose of the pro­ject is to support the development of an action plan, to be rea­lised in an en­larged part by the provision of EU funds, to implement Tur­key's asylum and migration strategy in line with EU legislation and the im­prove­ment of the ope­ra­tional and administrative (coordination, human re­sour­ces, equipment) ca­pa­ci­ty of the agencies responsible for management and im­plementation of Turkish asy­lum and migration policy.

One of the objectives of the project is to draft a complete action plan. A com­­plete action plan will set out the legislative alignment, institutional reforms, trai­­ning, infrastructure, and equipment necessary to implement the asylum and mi­­gration strategy. In particular the action plan should set out priorities for the most immediate investments required, which will form the basis for pro­gram­ming further EU pre-accession assistance in 2004 and beyond.

Another objective is, drawing on the ongoing work on the above mentioned ac­tion plan, to elaborate detailed project proposals and technical specifications in agreement with the beneficiary institutions. A third objective is to increase the understanding of the EU acquis on asylum and migration among Turkish of­fi­cials. A fourth objective is dissemination of the strategy to all the agencies in­volved in its implementation. Training of HQ's and operational staff in the stra­te­gy to be followed by Turkey in the area of asylum and migration and in the field of training of trainers methodology to disseminate the national action plan by the end of 2004 .

Border Management

Different border management systems are applied in different countries across the world. In many states, powers for border management are scattered among different authorities, which make it the difficult to secure co-operation in terms of controlling borders even within a national context. Management of border con­trol and border security are currently under the responsibility of various go­vern­mental institutions in Turkey. Directorate of Security General, Gen­dar­me­rie, Commandership of Coastal Guards, which are established under the struc­ture of the Ministry of Interior as well as Land Forces Command and Marine Forces Command under the Head of General Staff, and Customs Under-sec­re­tary are the main bodies responsible for border management at present time.

Such a border management system has been criticised by the EU in the Pro­gress Report for 2001. Therefore, an integrated border management project has been prepared and submitted to the European Commission following the ob­ser­va­tions of the respective government institutions. A strategy paper for external bor­ders has been drafted and submitted to the EU Commission, which received a positive response from the EU side.

Integrated border management project and the strategy paper on external bor­ders are now placed within the revised Accession Partnership Document. Fur­ther, it is now included within the 2003 National Programme prepared by the Council of Ministers and published in the Official Gazette.[30] The Progress Re­port for 2003 mentions this as a positive sign of progress in the respective field. All the respective institutions (including the Head of General Staff) have con­firmed that all the border controls including border checks and physical se­cu­rity of border must be executed by one single, civil and professional border po­lice organisation in line with the EU acquis on border control (see Strategy Pa­per).

The strategy paper on external borders prepared by the Task Force refers to the establishment of a "General Directorate of Border Security", which will have full responsibility and competence for all border management issues. In line with the views put forward by the strategy paper on external borders, a twin­ning project has been prepared within the context of 2002 Turkey-EU Fi­nan­cial Co-operation Program to form an action plan for the realisation of an in­te­grated border management strategy for Turkey.

The overall objective of the "integrated border management" project is to align Turkey's new border management strategy with the corresponding ele­ments in the EU acquis. This will entail the development of a border manage­ment strategy in alignment with the acquis and will strengthen Turkey's ad­mi­nis­trative capacity to adopt and implement the EU acquis in respect of border ma­nagement. The target is to develop and implement a strategy for Border Manage­ment in Turkey.

There are specific targets of the integrated border management project. First of all, an action plan is to be prepared by support in part through the provision of EU funds. The action plan will set out the legislative alignment, institutional re­forms, training and physical infrastructure and equipment necessary to im­plement the border management strategy. Detailed project proposals and tech­nical specifications will be elaborated for the above purpose. The plan will list the priorities for the most immediate investments required which will form the basis of programming for future EU financial assistance in 2004 and be­yond. The Action Plan will need to be agreed by the relevant decision makers within the Turkish Government.

Another objective of the integrated border management project is to increase the understanding of the EU acquis and Schengen best practices among Turkish of­ficials. Within this context, recommendations will be made to improve the ope­rational capacity (co-ordination, human resources and so on) of the various agen­cies responsible for integrated border management system.

The dissemination of the approved strategy to all of the agencies involved in the implementation process is another objective. Thus, adequate number of staffs (operational and HQ) will be trained in the agreed strategy to be im­ple­men­ted by Turkey in the area of an integrated border management system.
The EU acquis including the decisions of the European Council at Tampere and Schengen acquis envisages that management and control of all the borders be carried out by a single institution centrally organised, civil and professional. The EU regards such integrated border management as best practice on border ma­nagement and urges candidate countries to adopt this system. If the ob­jec­tives and targets foreseen by the integrated border management project are rea­li­sed, all the borders (land, sea and air) and border gates of Turkey shall be ma­naged and controlled by "Border Police" or "General Directorate of Border Se­cu­rity".

Combating Illegal Migration and Human Trafficking

Similar to the commitments in the field of migration, asylum and external bor­ders, Turkey has also undertaken to proceed to the adoption and implementation of the EU legislation and best practices for combating illegal migration.[31] On the other hand, independent from the developments within the context of the ac­cession process, Turkey has been particularly active in the area of combating il­le­gal migration, particularly human smuggling and trafficking in human beings.
Certain level of progress has been accomplished especially in combating il­le­gal migration and human trafficking. Illegal migration poses a serious threat for Turkey with long land and sea borders situated at the cross-roads of Asia, Middle East and Europe. It is confirmed that more than 100.000 illegal migrants bound for Europe are apprehended annually in Turkey in recent years, but the trend of illegal migration via Turkey has shown a decrease and migration flows have been diverted away to other international routes in 2002 and 2003.[32]

Preventive measures taken by the Turkish Coast Guard have seriously hin­dered the illegal departure of boats and vessels from Turkish ports to the Ae­gean and Mediterranean Seas. The number of boats/vessels carrying illegal mi­grants and reaching EU countries was 19 in 2000. This number dropped to 9 in 2001 and to 2 in 2002. In 2003, no boat/vessel of the kind reached the EU coun­tries.[33]

Reforms on the fight against human trafficking and illegal migration have also been carried out within ongoing judicial and legal reform process. In ad­di­tion to major international instruments dealing with "white slave trade" and "traf­ficking in women and children", Turkey is a party to the Convention on the Rights of the Child and further ratified the Optional Protocol to the Convention on the Rights of the Child on 9 May 2002.
In Palermo, on 13 December 2000, Turkey was among the initial signatories of the UN Convention against Trans National Organised Crime and of its two ad­di­tional Protocols: Palermo Protocol Against Migrant Smuggling and Pa­ler­mo Protocol Against Trafficking, especially of women and children. The na­tio­nal parliament approved all these instruments on 18 March 2003. By adopting these international instruments Turkey has clearly indicated its political will and de­termination to combat trafficking in human beings in co-operation with the world community

In fulfilment of the provisions of the UN Conventions against Trans Na­tio­nal Organised Crime and its additional protocols, Article 201 of the Penal Code as well as the Law On Combating Benefits-Oriented Criminal Organi­sa­tions were amended on 3 August 2002. The amendments made in the Penal Code in con­­formity with the Palermo Protocols have introduced the definition of "hu­man smuggling" and "trafficking in human beings" into the Turkish legal system as punishable offences. The respective provisions of Article 201/a-b pre­scribe heavy penalties for smugglers and traffickers, including 5 to 20 years of im­­prisonment. These two separate but interrelated crimes have now been fully addressed by the Penal Code. It is reported that under Article 201/b (human traf­ficking) of the Turkish Penal Code, 14 legal proceedings have been trans­ferred to the last quarter of 2003.[34]
In addition to legislative measures, Turkey supports almost all the inter­na­tio­nal efforts aimed at combating trafficking in human beings and actively par­ti­ci­pates in activities of the OSCE, the Council of Europe and the Stability Pact Task Force on Trafficking in Human Beings. IOM, ICMPD, SECI and EURO­POL are other main co-operation partners of Turkey in this area. Turkey is offering bilateral co-operation initiatives to the main countries of origin, whose na­tionals target Turkey in search of better standards of living and become vul­ne­rable to exploitation of organized trafficking networks (ex: Azerbaijan and Uk­raine).

A number of training programs and academic activities have been planned and conducted by different public institutions in order to raise awareness among the officials on combating migrant smuggling and trafficking in human beings, in­­volving officials from the security forces, judges and prosecutors as well as per­­sons from NGOs and the Media in 2002-2003.[35]
A National Task Force on Trafficking was formed and a National Action Plan on Combating Trafficking was adopted in March 2003. A Commission-Tur­key working group devoted to examining the issue of trafficking in human beings in fact found that Turkish legislation on trafficking was largely aligned with the acquis.

Further, a Twinning Project on "Strengthening Institutions in the Fight against Trafficking in Human Beings" has been developed under the EU 2003 Pre-accession Financial Assistance Program starting from the third quarter of 2004 with Germany the twining partner. The overall objective of the project is to meet the minimum standards for the elimination of trafficking in human beings and strengthen the institutions dealing with trafficking.

Conclusion

Turkey is evidently under the challenge of all sorts of pressures due to its unique position in relation to international migratory movements. Moreover, Tur­­key is increasingly becoming a target country itself not only being an im­mi­grant sending country anymore. Turkey is at the same time expected to move to­wards aligning its legal and administrative structures in accordance with the norms and standards of the EU acquis on migration management.
The issues highlighted in the paper clearly show that Turkish legal and in­sti­tu­tional systems have naturally responded to the change in the nature of mi­gra­tion as it relates to Turkey under its own set of circumstances. The recent amend­ments in the nationality law and the new work permit scheme for for­eigners are good implications of such a natural trend. One could also see some sort of an inherent inclination towards taking into account the prospective Tur­kish membership of the EU in the development of Turkish law as it relates to foreign employment. In respect of visa and readmission policies, Turkey seems to be moving faster than it is supposed to be doing so far especially when adop­ting to the EU visa list.

Turkey has displayed readiness to undertake future reforms in the field of mi­gration, asylum and border management as well as to tackle issues of illegal mi­gration. It has certainly made more specific commitments in different areas of migration management in the form of twining mechanism with the relevant mem­ber states of the EU.

It is obvious that some of these prospective reforms are still at the very early stages of their implementation and the progress depends very much on the de­gree and extent of co-operation of national institutions. The possible opening of the negotiation process with Turkey at the end of this year will be a very positive sign and pushing factor for the type of reforms that have been men­tio­ned above coming into reality.

Turkey is evidently under the challenge of all sorts of pressures due to its unique position in relation to international migratory movements. Moreover, Tur­­key is increasingly becoming a target country itself not only being an im­mi­grant sending country anymore. Turkey is at the same time expected to move to­wards aligning its legal and administrative structures in accordance with the norms and standards of the EU acquis on migration management.
The issues highlighted in the paper clearly show that Turkish legal and in­sti­tu­tional systems have naturally responded to the change in the nature of mi­gra­tion as it relates to Turkey under its own set of circumstances. The recent amend­ments in the nationality law and the new work permit scheme for for­eigners are good implications of such a natural trend. One could also see some sort of an inherent inclination towards taking into account the prospective Tur­kish membership of the EU in the development of Turkish law as it relates to foreign employment. In respect of visa and readmission policies, Turkey seems to be moving faster than it is supposed to be doing so far especially when adop­ting to the EU visa list.

Turkey has displayed readiness to undertake future reforms in the field of mi­gration, asylum and border management as well as to tackle issues of illegal mi­gration. It has certainly made more specific commitments in different areas of migration management in the form of twining mechanism with the relevant mem­ber states of the EU.

It is obvious that some of these prospective reforms are still at the very early stages of their implementation and the progress depends very much on the de­gree and extent of co-operation of national institutions. The possible opening of the negotiation process with Turkey at the end of this year will be a very positive sign and pushing factor for the type of reforms that have been men­tio­ned above coming into reality.

References

Çiçekli, B. (2003): Yabancilar ve Polis: Polisin Görev ve Yetkileri Çerçevesinde Ya­bancıların Hukuki Durumu [Foreigners and the Police: Powers and Du­ties of the Police within the context of Foreigners Law], Ankara: Seckin.

Çiçekli, B. (2004): Yabancıların Çalışma İzinleri (Foreign Work Permits), An­ka­ra: TISK.

Erdem, B. (1999-2000): Türk Vatandaşlık Hukukundaki Cinsiyet Farkından Do­ğan Eşitsizlik Sonucunda Türk Vatandaşı Erkekle Evlenen Yabancı Ka­dının Ya­rattığı Sorunlar [Problems Created by Foreign Woman Marrying Turkish Man as a Result of Gender Discrimination in the Turkish Nationality Law], in: Milletlerarası Hukuk ve Milletlerarası Özel Hukuk Bülteni (MHB), Year 19-20, No. 1-2, pp. 293-312.

The 2001 Turkish National Plan for the Adoption of the EU Acquis accepted by the Council of Ministers on 24 March 2001.

The 2003 Turkish National Plan for the Adoption of the EU Acquis (2003 Tur­kish National Plan), (the Decision of the Council of Ministers of 23.06.2003) (O.G. 24.07.2003 - 25178 (duplicate))
Türk Vatandaşlığı Kanununda Değişiklik Yapılmasına İlişkin Kanun Tasarısı ve İç­işleri Komisyonu Ra­poru, (28.03.2002, Esas No: 1/958, Karar No: 29, Dö­nem 21, Yasama Yılı: 4 TBMM S. Sayısı: 844), at www.tbmm.gov.tr
www.mfa.gov.tr/grupa/ac/acb/IllegalMigration.htm (consulted at 16.04.2004) (last updated February 2004).
www.mfa.gov.tr/grupa/ac/acb/TraffickinginHumanBeings.htm (consulted at 16.04.2004 (last updated February 2004)

The 2003 Turkish National Plan for the Adoption of the EU Acquis (2003 Tur­kish National Plan), (the Decision of the Council of Ministers of 23.06.2003) (O.G. 24.07.2003 - 25178 (duplicate))
Türk Vatandaşlığı Kanununda Değişiklik Yapılmasına İlişkin Kanun Tasarısı ve İç­işleri Komisyonu Ra­poru, (28.03.2002, Esas No: 1/958, Karar No: 29, Dö­nem 21, Yasama Yılı: 4 TBMM S. Sayısı: 844), at www.tbmm.gov.tr
www.mfa.gov.tr/grupa/ac/acb/IllegalMigration.htm (consulted at 16.04.2004) (last updated February 2004).
www.mfa.gov.tr/grupa/ac/acb/TraffickinginHumanBeings.htm (consulted at 16.04.2004 (last updated February 2004)