Assc. Prof. Dr. Bulent Cicekli printable version send your friend

Ankara Association Agreement of 1963 and its components have put Turkish migrants in a more favourable position than most of the other non-EU migrants. This has created a sort of ‘intermediate' legal regime applicable for Turkish immigrants across the EU. The developments under EU law within the context of Turkish-EU Association Law have proved to be the main source of progress as far as the legal integration of Turkish migrants is concerned.

The paper first of all begins to consider the Ankara Agreement of 1963 and its components as well as their implications for the legal integration of Turkish immigrants in the EU in general. In more detail, it focuses on the analysis of the case law of the ECJ with respect to Turkish immigrants deriving from the Turkish-EU Association Law. The legal integration of Turkish immigrants within this context is considered under a number of headings. Legal integration of Turkish immigrants arriving for employment purposes (workers and self-employed persons) and legal integration of family members are the main issues discussed. The paper also considers the legal integration of migrants in terms of their social rights and guarantees available against expulsions deriving from this legal regime.

1. Ankara Agreement and its implications

Upon Turkey's application of membership to the European Community (EC) on 31 July 1959, the EC adopted a cautious stand over Turkey's inclusion in the EC. As a kind of compromise, Turkey and the EC signed the Ankara Agreement establishing an Association with the Community on 12 September 1963.[1] The Ankara Agreement contained three periods, consisting of a preparatory stage followed by transitional and final stages, through which association between Turkey and the EC would proceed (Article 2(3)). The Agreement envisages the progressive, gradual establishment of closer economic links between Turkey and the EC with the intention of facilitating eventual membership of Turkey. Article 28 of the Agreement states this clearly:

"As soon as the operation of this Agreement has advanced far enough to justify envisaging full acceptance by Turkey of the obligations arising out of the Treaty establishing the Community, the Contracting Parties shall examine the possibility of the accession of Turkey to the Community".
The Agreement established a Council of Association to act within the powers conferred upon it by the Agreement in order to ensure the implementation and the progressive development of the Association (Article 6 of the Agreement), and laid out the procedure under which it will operate (Articles 22-27).

According to Article 12 of the Agreement, the contracting parties agreed to be guided by Articles 48 (now Article 39), 49 (now Article 40) and 50 (now Article 41) of the EC Treaty for the purpose of progressively securing freedom of movement for workers between the Community and Turkey.

"The Contracting Parties agree to be guided by Articles 48, 49 and 50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement for workers between them."

Similar provisions exist in Article 13 of the Agreement for the purpose of abolishing restrictions on freedom of establishment; and in Article 14 of the Agreement for the purpose of abolishing restrictions on freedom to provide services between the Community and Turkey. This guidance envisaged by Articles 12-14 has had a significant influence on the ECJ's approach to interpreting the scope of instruments of Association Law, especially where the arrangements are silent on definitions and explanations of various key phrases in the texts.[2]

In 1970, an Additional Protocol[3] was negotiated setting a timetable for the gradual establishment of freedom of movement for Turkish workers, for the dismantling of quantitative restrictions and for the elimination of customs duties starting in 1973, with a view to aligning the Turkish customs tariff to the Common Customs Tariff (CCT). The Additional Protocol, which came into effect on 1 January 1973, lays down in Article 36 that:

"Freedom of movement for workers between Member States of the Community and Turkey shall be secured by progressive stages in accordance with the principles set out in Article 12 of the Agreement of Association between the end of the twelfth and the twenty-second year after the entry into force of that Agreement. The Council of Association shall decide on the rules necessary to that end."

This would mean that free movement of workers is to be secured by progressive stages between 1 December 1976 (12th year) and 30 November 1986 (22nd year). The actual concept of free movement of workers has still to be defined, the parties being guided by Articles 48, 49 and 50 of the Treaty of Rome. Implementation of free movement is not considered to be self-executing, as it is for the Council of Association to decide on the rules necessary to achieve it.[4] The ECJ also ruled in Demirel[5] that Article 12 of the Agreement and Article 36 of the Additional Protocol serve essentially to set out a programme and are not sufficiently precise and unconditional to be capable of governing directly the movement of workers.

The EC countries, on the other hand, had already taken decisions to stop further recruitment of foreign workers, including Turks, as a response to the staggering unemployment problems which were expected to worsen as a result of the energy crisis in the early 1970s. Therefore, the free movement of Turkish workers was too ambitious an aim to achieve as far as the EU was concerned. The result was some improvement in the rights of existing Turkish migrant workers under the development of the Association Agreement by the Association Council in 1976 and 1980 with a view to secure their integration into the host Member States. The Association Council has to date adopted three important decisions on the rights of Turkish migrant workers, details of which are discussed further below, namely Decisions 2/76[6], 1/80[7] and 3/80.[8]

In 1985, Turkey was arguably allowed to press for freedom of movement for Turkish workers under Article 36 of the Additional Protocol in conjunction with 12 of the Agreement.[9] However, Turkey has made freedom of movement of Turkish workers part of its membership application instead of pursuing freedom of movement as part of the Association Agreement (CFTS 1993: 85). In fact, concern about the increasing number of Turkish immigrants (notably in Germany) has been an important factor both in the non-implementation of the freedom of movement provisions and in the non-acceptance of Turkey's membership application to the EU. As a matter of fact, Article 36 of the Additional Protocol in accordance with Article 12 of the Ankara Agreement have not been implemented, as these provisions were not considered to be self-executing by the EU.

The latest progress in Turkish-EU relations within the context of Ankara Association Agreement came with the entry into force of the Full Customs Union in January 1996. The Association Council, in its decision on 6 March 1995, finalised the entry into force of the Full Customs Union with effect from 1 January 1996 between the EU and Turkey. The Customs Union has basically removed all barriers to trade between the EU and Turkey, enhancing the free movement of goods, and obliges Turkey to adopt similar international trade policies as the EU. But, significantly, it does not include freedom of movement for persons.

With the entry into force of the Customs Union, barriers to freedom of movement of goods are to be removed, but not of persons. This will inevitably put Turkish citizens and entrepreneurs in jeopardy because of, to say the least, already too strict application of admission requirements in the EU, i.e. visa regulations. This will, of course, have an adverse effect on the full implementation and proper functioning of the Customs Union.

The absence of further developments on the issue of full Turkish EU membership so far and the tardy implementation of freedom of movement provisions for Turkish nationals in the EU, without doubt, points to a clearly negative political reaction by the member states of the EU. It is abundantly clear that the fear of a possible inflow of Turkish workers to the EU continues is to be influential within this context. In fact, the absence of developments in the political field has not necessarily worsened the legal position of Turkish immigrants in the EU, but it has certainly not much improved their legal integration either.

Leaving aside any speculation on the Turkish candidacy and membership process, which may of course have implications for the free movement and integration of Turkish immigrants, attention is given here to the full implementation of the existing instruments of the Turkey-EU Association Law.

The Ankara Agreement, the Additional Protocol and the three decisions of the Association Council (2/76, 1/80 and 3/80)[10] established in accordance with the provisions of the Agreement, provided the legal framework under which various issues concerning the integration of Turkish immigrants have been discussed. It is important to note at this stage that the Ankara Agreement of 1963 is an international agreement of a mixed nature concluded by the European Community and its Member States jointly on one side and Turkey on the other side. This means that the subject matter of the Agreement lies part within the legal competence of the European Communities and part with the Member States.[11]

Therefore, it has been the ECJ, which has played a significant role in establishing and developing individual rights applicable to Turkish immigrants deriving from the afore-mentioned instruments. The ECJ has thus considered the application of various provisions of these instruments in relation to Turkish immigrants in a quite significant number of cases up to now, namely Demirel,[12] Sevince,[13] Kuş,[14] Eroğlu,[15] Bozkurt,[16] Taflan-Met,[17] Tetik,[18] Kadiman,[19] Eker,[20] Suat-Kol,[21] Günaydın,[22] Ertanır,[23] Akman,[24] Birden,[25] Sürül,[26] Nazlı,[27] Koçak-Örs,[28] Ergat,[29] Savaş,[30] Eyüp,[31] Kurz,[32] Wählergruppe,[33] and Abatay.[34] Increasing importance is now being given in the literature to the legal implications of the Ankara Agreement and its components, confirming that there remain unresolved questions concerning the exact scope of the application of these provisions.[35]

The Association Council decisions give little detail on how the rights afforded to Turkish workers in the Community are to be executed. The full meaning of these Decisions was unknown until the ECJ began to deliver its judgements in the cases mentioned above. The case law of the ECJ provides that the agreements and acts adopted for their implementation are, so far as the Community law is concerned, an act of one of its institutions within the context of Article 177 (1) (b) of the Treaty (now Article 234) and that their provisions form an integral part of the Community law from their coming into force.[36] Therefore, it has accepted jurisdiction to give preliminary rulings regarding the interpretation of such provisions.[37]

The Court has thus begun to interpret the provisions of the Agreement, the Protocol and the Decisions so as to show the interplay between national rules and EU law, by making differentiation between rights which are precise and conditional and those rights which are not directly applicable. The fact that the Association Agreement may be mixed or require further implementation at national level has not been a deterrent from the Court's point of view asserting jurisdiction on the basis of Article 234 (ex 177) EC.[38]

The ECJ has consistently stated that the Agreement and the Decisions of the Association Council are a part of the Community legal order and that the provisions of these instruments are directly applicable, where the provision contains a clear, precise and unconditional obligation, regard being had to the wording, purpose and nature of the instrument itself.[39]

2. Analysis of the Case Law of the ECJ on Turkish Immigrants

Under the EU law, the rights of non-EU nationals (including Turkish nationals) to entry, residence, work, social security benefits, education and other social and tax advantages are based either on their relationship with EU nationals or firms (derivative rights) or on their status as a national of a country with which the Community has concluded an international agreement (direct rights) (see Weiler 1992: 71-72). The attitude of the ECJ varies widely depending on which of these grounds is invoked due to the fact that the former ground is related to the freedom of movement within the Community, while the latter ground concerns the Community's external relations (Alexander 1992: 63). Because of the fundamental nature of this distinction, we are not dealing with the rights and benefits that a Turkish national may derive from his/her relationship with an EU national or from a work for a firm. In fact a large number of regulations and directives grant certain rights to members of the family of EU nationals irrespective of their own nationality. For example, in Gül,[40] the ECJ affirmed that:

"The spouse of a worker who is a national of a member-state to whom Article 11 of Regulation 1612/68 applies is entitled to be treated in the same way as a national of the host member-state with regard to access, as an employed person, to the medical profession and the practice of that profession whether his qualifications are recognised under the legislation of the host-member state alone or pursuant to Directive 75/363".

The EU law differs from other instruments of international law in that decisions, agreements and acts of the institutions of the Community are directly applicable in the Member States. Of course, not all provisions of directly applicable international law are capable of direct effect.[41] When a provision of EU law is directly effective, domestic courts are under an obligation not only to apply it, but to do so in priority over any conflicting provisions of national law according to the principle of primacy of EU law.[42] Therefore, EU law has priority over national laws in the areas in which they apply.

Under the EU law, where a right deriving from an agreement is found to be directly enforceable by the ECJ (direct effect), it is part of the acquis communautaire and must be applied by the Community's national courts. Furthermore, if it appears to a national court that a national provision does not comply with community law, the court is under an obligation to apply Community law and if necessary grant interim relief while the opinion of the ECJ is being asked.[43]

Despite the jurisprudence of the ECJ clarifying the treatment of third country nationals having an advantageous legal status close to nationals of Members States, a comprehensive and exclusive Community competence in this area still remains to be unresolved. A dichotomy was developed over the years by the Member States, by explicitly recognising, on the one hand, the requirement of much closer consultation and co-operation at Community level in the implementation of national migration policies vis-à-vis third countries (Ketelsen 1992: 44). On the other hand, Member States always underlined that matters relating to the access, residence and employment of migrant workers from third countries fall under the jurisdiction of the governments of the Member States and nothing shall stop them to take measures to control immigration form third countries (Ketelsen 1992: 44).

In sharp contrast to a comprehensive legal regime and catalogue of rights applicable nationals of the Member States of the EU, there exists no coherent body of EU law setting out the rights and status to third country nationals residing in the Union. Despite the third country nationals (including Turks) constituting a significant portion of the Union's total population, their residence has traditionally been perceived by the EU Member States as an issue falling outside the Union's perspective of furthering European integration.[44]

Until recently, the issue of third country nationals treatment has been considered as policy area subject to the jurisdiction of the "host" individual nation state. Member States have considered that political and legal questions on third country nationals residence should be resolved at national level alone and thus supranational dimension of third country nationals residence within the Union has been underplayed. The whole issue of legal integration of third country nationals is taken as a subject for political discussion and negotiation within the context of the external relations of the Union.

This stance has not changed to a significant extent, despite some proposal in relation the inclusion of third country nationals within the context of intra-European freedom of movement or within the scope the EU citizenship. Therefore, the integration of third country nationals residence status has been principally developed so far within the context of international agreements concluded with various countries. An analysis of the new developments on the further integration of the EU and the EC Treaty as well as accompanying first pillar legislation on third country nationals reveals that the third country nationals residents may not necessarily be granted inter-State mobility rights or other Community rights on the same basis as that currently applicable to migrants of Member States.[45] Thus, the legal integration of the third country nationals first to the national territory of the Member States and then into the Union only after naturalisation in a Member State describes the current policy best.

2.1 Legal Integration for Employment Purposes

Access of Turkish immigrant workers to the territory and labour market of the EU and its implications are among the most important issues that need to be discussed within the context of the Association Law. It is clear that no right of free movement (initial admission) to the EU countries exists in relation to Turkish workers deriving from the association arrangements, unlike for migrant workers from member states. The ECJ has consistently confirmed that individual Member States of the EU retain exclusive control over whether to admit an individual and under what terms into their respective territories.[46] One can speak of rights of residence and continued employment only when a Turkish worker is already lawfully present and employed in a Member State. The access to the territory and to the labour market of a member state is governed by the national rules so far as the nationals of non-member countries are concerned.[47]

Further, it is obvious that Turkish nationals and their family members permitted to reside in an EU Member State are not granted any rights of free movement between Member State of the EU.[48] Thus, a decision of a Member State to permit the entry and stay of a Turkish national creates no immigration obligation on another Member State. As a matter of fact, Article 1(1) of Regulation 1612/68 makes it clear that only nationals of Member States "shall be entitled to take up and carry on a wage paid occupation in the territory of another Member State". Nevertheless, the view had been expressed as early as 1970s that the Treaty would be best advanced by permitting free movement of labour regardless of nationality (Böhning 1973: 81). Further, the European Commission expressed, on many occasions, its wish to extend the EU single market to give genuine free movement for all legal residents to cross national boundaries to seek work.[49] More recently, it has been proposed that a definition of a EU citizenship not only based on a member state's nationality but also on the notion of residence should be adopted.[50] This envisages that any third country national who is resident in the EU should be entitled to apply for EU citizenship and all rights pertaining to it.

The current position of Turkish workers regarding employment and free movement is stated in Article 6(1) of Association Council Decision 1/80 which provides that:

"Subject to Article 7 on free access to employment for members of his family, a Turkish worker duly registered as belonging to the labour force of a Member State:
·         shall be entitled in that Member State, after one year's legal employment, to the renewal of his permit to work for the same employer, if a job is available;
·         shall be entitled in that Member State, after three years of legal employment and subject to the priority given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment services of that Member State, for the same occupation;
·         shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment".

It must be emphasised at this point that Article 6(1) of Decision 1/80 falls short of providing the right to remain for Turkish workers, after having been employed in a member state in the absence of any express provision. The residence protection afforded to Member States' migrant workers and self-employed under Regulation 1251/70[51] and Directive 75/34[52] has not been expressly transformed into any of the Association Council Decisions. Therefore, the ECJ has supported the arguments of the governments involved that the results of any permanent incapacity of Turkish workers for work are governed exclusively by the national law of the member state concerned, as far as their right of residence is concerned.[53] This appears to prove the importance given to the concept of employment, which is inherent in the Decisions of the Association Council and the Agreement.

The procedures for applying Article 6(1) "shall be those established under national rules" (Article 6(3) of Decision 1/80). The paragraph confers clearly no discretion as to whether or not to apply the rights. Rather it imposes a positive obligation to establish national rules to ensure that Article 6 rights are enjoyed by Turkish workers within a Member State. A worker with a secure and stable position in the labour force also has a right to extension of his work and residence permit in the circumstances described above (Article 6(1)).

2.1.1   Definition of a ‘Turkish worker'

Since Article 6 of Decision 1 /80 enumerates a number of guarantees in relation to access to employment of a "Turkish worker", it is important in the first place to establish how a Turkish worker is to be defined. No definition of a Turkish worker is provided nevertheless either in the instruments of the Association Agreement or in the case law of the ECJ. It may well be argued however that the definition of a Turkish worker must follow the Community definition in order to secure uniform application of law, taking into account the implications of the Agreement, the Protocol, the Decisions of the Association Council and the jurisprudence of the ECJ on Turkish workers. Furthermore, we can rely on established ECJ case law under the situation arising from Article 6(1) of Decision 1/80 as Article 6 rights are held to be directly applicable.

Although the reference made by Article 12 of the Agreement to Articles 48, 49 and 50 of the EC Treaty is held to be ‘in the nature of a guideline',[54] and therefore not being directly applicable, one should not forget however that the Agreement was founded on the desire to facilitate the accession of Turkey to the Community (Article 28 of the Agreement), a point which was also taken on board by the ECJ. Article 10(1) of Decision 1/80 further reminds us that Turkish workers should be treated the same as EC workers:

"The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish Workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and community workers."

Turkish workers of course do not fully fall to be treated in just the same way as Community workers:[55] the requirements governing their entry into a Member State are determined by national law alone, not being affected by the Decision. Their right of residence is restricted to the Member State in which they work. The right to renewal of their work permits and to free access to any paid employment is strictly subject to a number of conditions, particularly concerning periods of time (see in detail Kemper 1995).

Further, the ECJ appears to be making a differentiation between the right to employment and the right to remain in a member state, in terms of seeking guidance for the meaning and scope of the term ‘worker' from Community law. On the one hand, the ECJ finds it essential to transpose, so far as possible, the principles enshrined in Articles 48, 49 and 50 of the Treaty to Turkish workers in order to ensure compliance with the objective of the Decision 1/80, namely moving towards securing freedom of movement for Turkish workers.[56] On the other hand, the Court is of the view that the rules applicable to Community workers under Article 48 cannot simply be transposed to Turkish workers, as far as the right to remain is concerned.[57]

Concerning the definition of workers within the context of Article 48 of the Treaty, the ECJ has held that it is a matter for Community law and not for national law in order to "avoid as far as possible variations between member-states".[58] This definition of workers includes workers who are only employed part-time and whose remuneration may therefore be below the guaranteed minimum wage level for that sector or below the nationally recognised minimum subsistence level.[59] The important criterion is that the work must be genuine, whatever the motive is, and not so minimal that it does not constitute an economic activity at all.[60]

In Lawrie-Blum,[61] the definition of worker is provided in accordance with the objective criteria which distinguish the employment relationship by reference to the rights and duties of the worker. According to the criteria, the essential feature of an employment relationship is regarded to be that a person performs services for and under the direction of another in return for which he receives remuneration for a certain period of time.[62] The definition of worker, here, is extended to apply to trainees and apprentices if they perform work for an employer for pay, even though they are under supervision and the work is preparation for a qualifying exam.[63]

This interpretation has also been reaffirmed in Eroğlu, concerning a Turkish graduate of a German university. In the absence of anything to indicate a restrictive interpretation, the concept of worker within the meaning of the Agreement cannot be interpreted very differently from the Community meaning of workers.[64] Thus, the definition of the notion of worker would not exclude from its scope of application a worker who is undergoing an apprenticeship or another kind of training[65] and thus Ms Eroğlu was held to have satisfied the criteria of being a ‘worker' when she was a trainee.

Further, in Tetik, the ECJ again relied on its case law in respect of Article 39 EC in order to hold that a Turkish seaman, who had voluntarily discharged himself from employment as a mariner after completing over four years' continuous work with the same German employer so that he could seek work on the German land, remained a "worker" for the purposes of Article 6(1) of Decision 1/80.[66]

2.1.2   ‘Legal Employment'

As Article 6(1) of Decision 1/80 reiterates ‘legal employment' a number of times and makes this a condition to the rights it confers on Turkish workers, it is necessary to discuss the various implications of ‘legal employment'. Nothing in the Agreement or in Article 6 or in the case law differentiates between different methods of the initial acquisition of lawful access to the labour market. The original reason for admission to an EU country should not affect the position of a Turkish national who is legally resident and employed in an EC country. The legality of employment must be determined in the light of the legislation of the receiving state governing the conditions under which the Turkish worker entered the national territory and is employed there.[67]

In Bozkurt, the ECJ held that, in order to ascertain whether a Turkish worker employed as an international lorry-driver belongs to the legitimate labour force of a member state for the purpose of Article 6(1) of Decision 1/80,

"It is for the national court to determine whether the applicant's employment relationship retained a sufficiently close link with the territory of the Member State, and, in so doing, to take account, in particular, of the place where he was hired, the territory on which the paid employment is based and the applicable national legislation in the field of employment and social security law."[68]

In Sevince, the expression ‘legal employment' did not cover the period in which Mr. Sevince was able to remain employed in the Netherlands merely by virtue of the suspensive effect of his appeal against the refusal to renew his work permit. Within the meaning of Article 2(1)(b) of Decision No 2/76 and Article 6(1), third indent, of Decision 1/80, the term ‘legal employment' does not include the situation of a Turkish worker authorised to engage in employment for such time as the effect of a decision refusing him a right of residence, against which he has made an appeal which has been dismissed, is suspended.[69]

The ECJ, in Kuş, being concerned with the effect of divorce on Mr. Kuş' right to renewal of his work permit, found that Mr Kuş was entitled to rely directly on Article 6(1) to obtain an extension of his permit to work for the same employer after one year's legal employment, notwithstanding the fact that he had first been given entry to Germany by virtue of his marriage, which had been dissolved by the time the decision on his renewal application was made.[70] Thus, the original purposes here would not be relevant (see Nachbaur 1995). Although Mr. Kuş was found to have acquired an entitlement under the first indent of Article 6 based on working for the same employer for more than one year, the Court also held that he had not gained entitlement under the third indent of Article 6(1) because the four year qualifying period could not include a period

"where he engaged in that employment on the basis of a right of residence which was recognised only by virtue of national rules authorising residence in the host country pending the procedure for the grant of a residence permit".[71]

The legality of employment, within the meaning of the third indent of Article 6(1) of Decision 1/80, presupposes a stable and secure situation as a member of the labour force.[72] Advocate General held in Eroğlu that "a stable and secure situation on the labour market does not exclude temporary or provisional employment so long as it is legal".[73] Accordingly, temporary or provisional employment should not be considered as lying outside the scope of ‘a stable and secure' situation, which naturally includes a trainee.

The Court has further confirmed that as long as a Turkish worker has a valid work permit, this will preclude Member States from undermining his/her residence status for purely economic reasons during the validity of the permit, subject to the individual's status as a member of the labour force being stable and secure in the first place.[74] A person's status is not stable or secure, for instance, if he/she is appealing against a deportation order on the grounds of having allegedly deceive immigration authorities as to the genuine nature of a marital relaitonship to gain entry into the country or against a refusal to extend a residence permit where the person had not been issued with a work permit prior to the appeal.[75]

It appears that, for the time being, it is a matter of jurisprudential speculation how the period of legal employment is calculated (see Wornham 1994: 12-13, Kemper 1995: 116-117). It has been suggested that the period of a year may start at any time, even including an illegal stay, but that the worker must have a stable and secure position in the labour force on the final day. Periods of employment accumulated while an appeal is pending will not be counted towards the period of legal employment unless the appeal is successful.[76]

For the purposes of calculating legal employment, Article 6(2) stipulates that annual holidays and "short" absences due to sickness and other absences due to accidents at work and maternity shall be treated as part of legal employment. On the other hand, involuntary unemployment and "long absences" due to sickness will not be treated as legal employment but shall not affect the rights acquired as the result of the preceding period of employment.[77]

Voluntary unemployment is therefore not addressed in the relevant instruments. However, in Bozkurt,[78] the ECJ has upheld the argument that Article 6(2) of Decision 1/80 refers only to temporary absences which would not as a rule affect the worker's subsequent participation in working life. Thus, where there is a break in employment, the right of residence can subsist only if that break is of limited duration.[79] On the other hand, if a worker becomes involuntarily or voluntarily unemployed before completing one year's lawful employment, he may not be entitled to renewal of his work permit (see Wornham 1994: 14).

In Bozkurt, the ECJ has clarified the meaning of ‘belonging to the legitimate labour force' and ‘legal employment', stipulating what sort of absences from work will not be counted as periods of legal employment. The ECJ, unlike the European Commission, does not support the claim of Mr. Bozkurt that a period of permanent incapacity for work, resulting from an accident at work, must be treated in the same way as permanent legal employment, which implies the existence of a right of residence for the person concerned.[80] Therefore, the Court does not accept the argument that there exist a right to remain for the Turkish immigrant workers in the employment rights catalogue contained in Decision 1 /80.

According to the ECJ, Article 6 of Decision 1/80 only covers the situation of Turkish workers who are working or are temporarily incapacitated for work.[81] It, therefore, does not cover the situation of a Turkish worker who has definitely ceased to belong to the labour market force of a Member State because he has reached retirement age or has become totally or permanently incapacitated for work.[82]

The ECJ further ruled in Bozkurt[83] that the existence of ‘legal employment' within the meaning of Article 6(1) of Decision 1/80 can be established in the case of a Turkish worker even if he is not required under the national legislation concerned to hold a work permit or a residence permit granted by the authorities in the receiving state to carry out his work.

The ECJ also decided in Tetik[84] that Article 6(1) of Decision 1/80 and in particular the right of Turks to free access to the labour market after four years lawful employment includes a Turkish worker who has voluntarily left his employment. Thus, according to the Court, a Turkish worker must be able, for a reasonable period, to seek effectively new employment in the host Member State and must have corresponding right of residence during that period.

The ECJ has also begun to develop some guidelines on the effects of temporary lapses in employment. The Court has for instance held in Nazlı that the fact of a Turkish worker having been detained in custody over a year in connecton with drug trafficiking offences did not have the effect of deregistering him from the labour force under Article 6(1). The Court stated that his detention pending trial would not effect a forfeiture of employment rights under Article 6(1), as long as the break from work was of temporary nature and the worker concerned found employment within a "reasonable period of time" subsequent to the period of unemployment.[85]

The Court has held in Tetik[86] that the third indent of Article 6(1) of Decision 1/80 included the right of workers to resign their posts and have a "reasonable period" of time to seek alternative employment. The ECJ has adopted a similar flexible approach in relaiton to employment rights of family members under Article 7. The Court has ruled that an absence of a year from the hıst Member State's territory did not effect a termination of employment rights in relaiton to  Turkish worker's son, who had otherwise been living in Germany over fifteen years.[87]

The case law of the ECJ further reveals that the entitlement to the rights under the arrangements flow from the association instruments themselves, not being dependent upon any prior formal administrative documents issued by the Member States in connection with work or residence. The Court therefore held in Ertanır that where a Member State issued a work or residence permit with retroactive effect to cover periods in respect of which a Turkish migrant worker had initially failed to apply within the relevant time as prescribed in national law, these periods would nevertheless be considered to be periods of "legal employment".

Entitlements to the rights enshrined in the three indents of Article 6(1) of Decision 1/80 is therefore subject only to the condition that the Turkish worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment.[88] It has been rightly observed that the performance of work under legal conditions promotes integration of Turkish nationals in the Member State.[89]

2.1.3   Renewing Residence Permits and Employment

The various rights of Turkish nationals deriving from the provisions contained in Article 6(1) of Decision 1/80 should be accepted as the most important rights gained so far under the Ankara Agreement. This is firmly affirmed by the landmark decision of Kuş, which held with certainty that Turkish nationals working in EU member states have rights under Community law to an extension of their leave to remain and permission to take up employment.

The first indent of Article 6(1) provides for renewal of the Turkish worker's work permit after one year's legal employment for the same employer ‘if a job is available'. The first question directed in Eroğlu by the national court is whether the first indent of Article 6(1) of Decision 1/80 would apply to a Turkish worker who was legally employed for one year by one employer and then worked for another employer and is now seeking the renewal of his permit to take up paid employment with the first employer. The Advocate General pointed out that applying for the renewal of Ms Eroğlu's work permit to continue a job for her former employer did not constitute an extension of the same employment and therefore was not covered by the first indent of Article 6(1).[90] This was rather a change of employment which was subject to stricter conditions in accordance with the second indent of Article 6(1) of Decision 1/80: three years of legal employment and subject to the priority to be given to workers of the Member States of the Community. Accordingly, the ECJ ruled that Ms Eroğlu was unable to benefit from the right stemming from the first indent of Article 6(1) (first paragraph of the ruling).

It is arguable whether Turkish nationals would necessarily have to continue in the ‘same employment'. The second indent of Article 6(1) of Decision 1/80 provides that the Turkish national may apply for a position in ‘the same occupation' with a different employer after three years of lawful employment, subject to priority being given to EC nationals. The third indent of Article 6(1) provides that after four years of legal employment the Turkish worker "shall enjoy free access in that Member State to any paid employment". Free access to the labour market, as provided here, must be applied through national rules (Article 6(3) of Decision 1/80).

Only in the second indent of Article 6(1), the condition that employment priority is to be given to EC nationals is made concerning the right of Turkish workers to take employment with an employer of their own choice and in the same occupation after three years of legal employment. Therefore, the right to renewal of a work permit with the same employer after one year's legal employment or the right to take paid employment of own choice after four years' legal employment are not impaired in any way by this provision which is specific to the second indent of Article 6(1) (see Wornham, 1994, p. 16)

It is further suggested that change of employer in contravention of the provisions of Decision 1/80 does not constitute legal employment within the meaning of that Decision (Kemper 1995:116). The Court has held that Article 6(1) must be interpreted as meaning that a Turkish worker does not acquire a right to maintain his salaried activity with an employer until after a year's regular, uninterrupted employment with the same employer. Thus, the extension of a Turkish worker's residence permit in the host Member State under the first indent of Article 6(1) is subject to the Turkish worker having been legally employed continuously for one year with the same employer.[91]

Decision 1/80 is confined to regulating the right of access to employment of the Turkish worker, without mentioning the right of residence. Nevertheless, the ECJ held that these two aspects of a situation are so closely interrelated that recognising the right of a Turkish worker in regard to employment necessarily implies the existence of a right of residence for that person, since otherwise the right of access to the labour market and the right to work as an employed person would be deprived of any effect.[92] Thus, the existence of employment rights necessarily implies the recognition of a right of residence for the person concerned.[93]

The has further confirmed that as long as the Turkish migrant worker has objectively and lawfully met the conditions specified in Article 6(1), he/she is entitled in principle to the rights contained in that provision, despite the fact that he/she was admitted originally into the host country in some other capacity, such as a family member[94] or as a temporary worker.[95] Even if the individual migrant fails to fulfil the conditions stipulated by the Member State necessary for continuation of lawful residence such as continuation of marriage or continued cohabitation with a spouse, Member States will be barred from denying the possibility of continued residence so long as the individual has already fulfilled the requisite criteria set out in one of the indents of Article 6(1) of Decision 1/80.[96]

The Court has further consistently held that a Turkish worker who have worked in a Member State over four years and become unemployed does not forfeit, as a result of not working for a certain period, the rights conferred on him directly by the third indent of Article 6(1) and may claim there an extension of his residence authorisation for the purposes of free access to any paid employment of his choice not only by responding to job offers but also by seeking a new job over a reasonable period.[97]

2.1.4   Standstill clauses

There are three important standstill clauses under the association arrangements constituting further guarantees in relation to stopping new restrictions becoming applicable for Turkish immigrants, which might be brought forward in the national laws of the Member States. An important standstill clause exists in relation to new restrictions on the right of establishment and the freedom to provide services made available with the entry into force of the Additional Protocol (Article 41(1)). This is further considered below in relation to the self-employed Turkish migrants.

There are two other standstill clauses available under Article 7 of Decision No 2/76 and Article 13 of Decision No 1/80 considered to be of direct effect.[98] They contain standstill clauses for new restrictions on the access to employment on behalf of workers having legal right of residence and employment within the territory of the contracting states. Article 7 of Decision 2/76 clearly provides that:

"The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers legally resident and employed in their territory".

The conditions under which Turkish workers lawfully resident and working in an EU Member State can get a work permit, can not be made more difficult than was the case on 20th October 1976 when Decision 2/76 came into force in accordance with Article 7 of Decision No. 2/76. Therefore, the rules, which applied in 1976, are the rules, which should apply now in respect of work permits to Turkish workers lawfully working in the EU Member States. This rule of direct effect was not affected either by the fact that the decisions envisaged the adoption of implementing measures, nor the non-publication of these decisions, nor certain narrow safeguard clauses.[99]    

Article 13 of Decision 1/80 extends this provision to members of (the workers') families legally resident and employed in their respective territories. Article 13 states that:

"The Member States of the Community and Turkey may not introduce new restrictions on the conditions of access to employment applicable to workers and members of their family legally resident an employed in their respective territories."

With this extension, the standstill clause in Article 13 has become applicable both for migrant workers and members of their families and therefore the case law on Article 13 has of more significance. Direct effect of Article 13 of Decision 1/80 as well as that of Article 41(1) of the Additional Protocol (also see below) is clear from the case law of the ECJ. The ECJ has held that those provisions lay down, clearly, precisely and unconditionally, unequivocal standstill clauses, which contain an obligation entered into by the contracting parties which amounts in law to a duty not to act.[100]

Thus, Article 13 of Decision 1/80 may be relied on by Turkish nationals in the Member State concerned to prevent the application of inconsistent rules, which prohibits the introduction of new restrictions on the freedom of movement for workers.[101] Article 13 therefore prevents Member States from applying to Turkish nationals legally present on their territory less favourable treatment as regards access to first employment that that applicable at the time of the entry into force of Decision 1/80.[102] The Court has nevertheless held that although the Turkish drivers at issue are in Germany in a lawful position as regards employment, they are not present in that State for long enough periods to allow them to be integrated in Germany as a host Member State. Thus, Article 13 is applicable to Turkish nationals only if their residence in the territory of the host Member State is not only lawful but for a sufficient period to allow them progressively to become integrated there.

2.2 Legal Integration of Turkish Self-employed

The rights granted to individuals under the association instruments refer almost exclusively to the field of employment. In relation to self-employment, Turkish nationals have neither a right of establishment nor a freedom to provide services. Therefore, it was never clear to what extent migrants from third countries might enjoy the benefits, which accrue to the EU migrants in respect of the freedom of establishment and freedom to provide services for self-employed persons.

On the other hand, when individual Member States decide to facilitate entry of Turkish nationals for the purposes of self-employment, certain legal consequences arise as a result of association instruments. The creation of a freedom of establishment and freedom to provide services commensurate with that existing under the EC Treaty's self-employment provisions are envisaged under Articles 13-14 of the Association Agreement but never implemented.

Article 13 of the Association Agreement makes reference to the provisions of the EC treaty for the freedom of establishment for self-employed people by providing that:

"The Contracting Parties agree to be guided by Articles 52 to 56 and Article 58 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom of establishment between them".

Article 14 of the Association Agreement makes reference to the provisions of the EC treaty for the freedom to provide to services for self-employed people by providing that:

"The Contracting Parties agree to be guided by Articles 55, 56 and Article 58 to 65 of the Treaty establishing the Community for the purpose of abolishing restrictions on freedom to provide services between them".

The position of the Turkish self-employed appears to be less clear than that of Turkish workers. Nevertheless, a significant guarantee is available in the form of a standstill clause similar to Article 7 of Decision 2/76 and Article 13 of Decision 1/80 discussed earlier. Article 41(1) of the Additional Protocol provides that "the Contracting Parties shall refrain from introducing between themselves any new restrictions on the freedom of establishment and the freedom to provide services".

As pointed out earlier, the ECJ had rejected the argument in Demirel that Article 36 of the Additional Protocol became directly effective after the elapse of the time for the realisation of the freedom of movement for Turkish workers, on the ground that its operative force remains subject to a decision of the EEC-Turkish Association Council to implement freedom of movement. A Turkish national's first admission to the territory of a Member State is as a rule governed exclusively by that State's own domestic law.[103] Nevertheless, the Protocol does contain at least some provisions, which are sufficiently clear, precise and unconditional to be directly effective.

The Court has consistently confirmed that the standstill clause in relation to freedom of establishment and provision of services contained in Article 41(1) of the Additional Protocol is directly effective.[104] The standstill clause in Article 41(1) of the Additional Protocol precludes a Member State from adopting any new measure having the object or effect of making the establishment and, as a corollary, the residence of a Turkish national in its territory subject to stricter conditions than those which applied at the time when the Additional Protocol entered into force with regard to the Member State concerned.[105] Given the fact that Article 41(1) applies both to the right of establishment and to the freedom to provide services, the same interpretation must also apply as regards that later freedom.

The ECJ has held that the standstill clause in Article 41(1) may be relied on by an undertaking established in Turkey which is lawfully providing services in a Member State and by the Turkish drivers employed by such an undertaking; however, it may not be relied on to that end by an undertaking established in a Member State where those using the services are established in the same Member State (as in the circumstances of the present case).[106] Finally, the Court has found that the German legislation of 1996 entails restrictions on the freedom to provide services, but it is for the national court to determine whether those restrictions are new.[107]

Further, the general prohibition of discrimination on grounds of nationality contained in Article 9 of the Ankara Association Agreement may also have some impact on the legal integration of the Turkish self-employed. Article 9 of the Agreement provides that:

"The Contracting Parties recognise that within the scope of this Agreement and without prejudice to any special provisions which may be laid down pursuant to Article 8, any discrimination on grounds of nationality shall be prohibited in accordance with the principle laid down in Article 7 of the Treaty establishing the Community."

As a matter of fact, the remit of the prohibition of discrimination is made subject to its application being "within the scope of this Agreement". Therefore, clarification may be needed from the ECJ as to whether the absence of any specific non-discrimination clause contained in the association instruments with respect to self-employment means that Article 9 cannot apply to the field of establishment or services. In any case, self-employment clearly falls within the scope of the Ankara Agreement and exclusion of Article 9 from the self-employment field would not be convincing, taking into account Articles 13-14 of the Agreement and the provisions of Article 41-42 of the Additional Protocol.

2.3 Legal Integration of Turkish Family Members

In addition to employment rights, the Additional Protocol and Decision 1/80 make specific provisions for family members of Turkish migrant workers. In fact, Turkish workers and their families cannot directly rely on the Ankara Agreement and other instruments to gain entry to the EU labour market or that of any Member State. This would mean that the instruments do not include any rights to family reunion, in contrast with the situation applicable to nationals of European Economic Area and Swiss migrants.[108] The admission of the family members of Turkish migrants remains, largely, within the domain of the national jurisdictions of the respective countries.

However, the relevant instruments do provide certain rights within a Member State to those Turkish workers and their families who have been admitted under national regulations to live and work in that state. First of all, Article 39(3) of the Additional Protocol requires Member States to pay family allowances to those family members residing with the Turkish worker, and, by virtue of the effect of Article 9 of the Ankara Agreement, these must be paid on a national treatment basis. Further, the standstill clause in Article 13 of Decision 1/80 provides guarantees against new restrictions on the conditions of access to employment of workers' families legally resident and employed in their respective territories.

Much more importantly, Article 7 of Decision 1/80 complementing the guarantees in Article 6 grants family members residing with the worker tiered rights of access to the labour market of the host Member State. Article 7 of Decision 1/80 specifically states that:

"The members of the family of a Turkish worker duly registered as belonging to the labour force of a member state, who have been authorised to join him:
·         shall be entitled - subject to priority to be given to workers of Member States of the Community - to respond to any offer of employment after they have been legally resident for at least three years in that Member State;
·         shall enjoy free access to any paid employment of their choice provided they have been legally resident there for at least five years.
Children of Turkish workers who have completed a course of vocational training in the host country may respond to any offer of employment there, irrespective of the length of time they have been resident in that Member State, provided one of their parents has been legally employed in the Member State concerned for at least three years".

It must be argued at this point that when it is possible to rely on both Article 6 and 7 of Decision 1/80, the provisions of these articles should be applied cumulatively (Kemper 1995: 115). Further, the ECJ has held that residence rights are implicitly guaranteed for the purposes of enabling family members to exercise such rights.[109] The Court has developed the principle that, subsequent to the initial decision made by the host Member State permitting entry for the purposes of work and/or family reunion, issues of residence and conditions of stay are subject to the conditions contained under the association arrangements.[110]

No definition of family members is provided in any of the relevant instruments. It would appear that Member States also retain ultimate control over the scope of definition of family members wishing to reside with the migrant worker. However, guidance may be sought from Article 10 of Regulation 1612/68, which defines the family members of a worker as:

(a) his spouse and their descendants who are under the age of 21 years or are dependants;

(b) dependent relatives in the ascending line of the worker and his spouse.

By virtue of Article 6(1) of Decision 1/80, a child who has worked for a year may be entitled to his or her own work and residence permit. If this criterion is not fulfilled due to a change in law after 1980, he or she can rely on the standstill clause in Article 13 of Decision 1/80.

In Eroğlu, concerning the rights of a Turkish graduate of a German university, one of the two questions being directed by the German Administrative Court to the ECJ was whether a Turkish national satisfying the conditions of Article 7(2) can demand the renewal of her residence permit.[111] The A-G maintained that Ms. Eroğlu, as the daughter of a Turkish worker duly registered as belonging to the regular workforce of a member state since 1976, and having accomplished vocational training in a certain field in a member state, had the right, under the terms of Article 7, second paragraph of Decision 1/80, to "respond to any offer of employment in the same Member State" and to obtain the extension of her residence permit.[112]

As a matter of fact, her residence permit was issued for the purpose of being able to follow a university course, and not within the framework of family reunification. The ECJ asserted that the right to respond to any offer of employment within the bounds of Article 7(2) of Decision 1/80 for children of Turkish workers who have completed a course of vocational training in the host country is not subject to any condition concerning the ground on which a right to enter and to stay was originally granted.[113] The fact that that right had not been granted within the framework of family reunification but on educational grounds does not deprive the child of a Turkish worker who satisfies the requirements of Article 7(2) of the enjoyment of the rights conferred thereunder.[114]

The main question put forward by the German Administrative Court in Demirel was whether the expression ‘freedom of movement' in the Ankara Association Agreement of 1963 was to be understood as giving Turkish workers the right to bring children and spouses to live with them. The ECJ, without directly responding to the question, declared that Article 12 of the Agreement and Article 36 of the Protocol "essentially serve to set out a programme and are not sufficiently precise and unconditional to be capable of governing directly the movement of workers".[115] The ECJ further stated that there is at present time no provision of Community law defining the conditions of family reunification of Turkish workers lawfully settled in the Community.[116]

The ECJ has further held that Decision 1/80 prohibits any further restrictions on the conditions governing access to employment with regard to Turkish workers who are duly integrated in the labour force of a member-state.[117] Therefore, it is not possible, the Court said, to infer from Article 7 of the Agreement a prohibition on the introduction of further restrictions on family reunification as no decision of that kind was adopted in the sphere of family reunification.[118]

It is also clear that the courts of all the Member States of the Community must comply with the ECHR insofar as it relates to Community law upon ratification of the Treaty. In Demirel, the ECJ ruled that Article 8 of the ECHR, which protects right to family life, has no effect on the reply to the question of direct applicability of Article 12 and 36 of the Protocol, read in conjunction with Article 7.[119] Thus, under the circumstances of the case in question, the ECJ held that the Court does not have jurisdiction to determine whether the national rules at issue on family reunification are compatible with the principles enshrined in Article 8 of the ECHR.[120]

In Kadıman, the Court held that, in order for a spouse to be entitled to exercise his/her rights to access to the labour market by virtue of first indent of Article 7, there must be shown to have been "continuous cohabitation" between spouse and Turkish migrant worker during the period of the first three years' residence.[121] If the three years' residence had elapsed, she would have been able to rely on the employment right contained in the first indent of Article 7 of Decision 1/80. The ECJ denied that periods of non-cohabitation could be deemed periods of "legal residence" under Article 7. Because, Member States had a legitimate concern to prevent any undermining of the principle of family unity and to stop the risk of paper marriages being used to facilitate illegal immigration.[122]

The approach of the Court differentiating between the family reunion rights of Turkish immigrants and those of Members States' migrants has been criticised and found to be inconsistent with the existing case law on family reunion matters and human rights commitments.[123] Construction of differing degrees of family reunion protection based on grounds of nationality conflicts with the principles set out by the ECHR in relation to human rights guarantees of family life under Article 8 and non-discrimination under Article 14 of the ECHR.[124]

The Court has taken a different stance in relation to a more recent case. The ECJ has held that the period of cohabitation in Germany between a Turkish worker and his spouse, which was continuous despite the fact that the couple had divorced and subsequently remarried, should count in its entirety for the purposes of calculating entitlements in respect of family member rights under Article 7 of Decision 1/80.[125]

2.4 Legal Integration of Turkish Immigrants In Terms of Social Rights

It is clear that the arrangements for Turkish migrant workers and members of their families under the association instruments provide less legal protection compared nationals of Member States. First of all, free access to the host labour market is only granted after a substantial period of time under Articles 6 and 7 of Decision 1/80. Further, they are in principle subject to "Community worker priority" policy as long as they have not fulfilled certain conditions under Articles 6 and 7. The ECJ has recently confirmed in Akman[126] that children who have completed a course of vocational training within a host Member State are not subject to the policy of preferential access to Community workers. Moreover, there is no coherent policy on the right to remain in the Host State in respect of ex-employees and their families.

On the other hand, Article 9 of Decisions 1/80 grants Turkish children legally residing with parents who have at some time been legally employed in the host Member State equal treatment in respect of entry qualification requirements to general education, apprenticeship and vocational training. The same Article goes on to state that these children "may" be eligible in that Member State to benefit from the "advantages provided for under the national legislation in this area". This may probably cover issues such as access to educational grants and tuition fee waivers, which may not have direct effect in view of large discretion given to Member States.

Article 10(1) of Decision 1/80 provides that:

"The Member States of the Community shall as regards remuneration and other conditions of work grant Turkish workers duly registered as belonging to their labour forces treatment involving no discrimination on the basis of nationality between them and Community workers".

The ECJ has held that this provision must be recognised as having direct effect in the Member States, since, far from being purely programmatic in nature, it establishes in the field of working conditions and remuneration, a clear and unconditional principle which is sufficiently practical to be applied by national courts and is therefore capable of directly governing the legal situation of individuals.[127]

The question has been posed in Wählergruppe[128] in relation to the meaning of "other conditions of work" and especially as to whether other conditions of work encompass the right to stand as a candidate in elections to the bodies legally representing the interests of workers. The ECJ has concluded that Article 10(1) precludes the application of national legislation which excludes Turkish workers duly registered as belonging to the labour force of the host Member State from eligibility for election to the general assembly of a body representing and the interest of workers, such as the chambers of workers in Austria.[129]

Article 37 of the Additional Protocol and Article 10 of Decision 1/80 only require non-discrimination in respect of working conditions and pay. Therefore, it might be thought that Turkish employees are not expressly secured equal treatment in relation to dismissal from employment, unlike some other migrant categories in the EU. In addition, Turkish workers are not eligible to take advantage of the catalogue of employment rights listed in Regulation 1612/68, as applicable to the nationals of Member States. In particular, there is no right to claim the same "social advantages" as those afforded to host nationals and family members in pursuant of Article 7(2) of the Regulation 1612/68.

As far as social security measures are concerned, Article 39 of the Additional Protocol envisaged that the Council of Association shall adopt social security measures for workers of Turkish nationality "moving within the Community", as well as for their families residing in the Community. The second paragraph of the same Article further provided that periods of insurance or employment completed in individual Member States, but not in Turkey, in respect of old-age pensions, death benefits and invalidity pensions, and also as regards the provision of health services for workers and their families residing in the Community, shall be aggregated. Thus the aim of Article 39(2) is to aggregate the periods of social security insurance cover acquired by a Turkish worker in more than one EU country, and excluding periods in Turkey.

In pursuance of and in order to implement Article 39 of the Protocol, the Association Council has adopted Decision 3/80, which provides Turkish immigrants in the Member States of the Community with a framework regulation as far as their social security rights are concerned. Decision 3/80 of the Association Council secures concrete rights in respect of social security benefits for Turkish workers, often by making specific references to its EU counterpart Regulations 1408/71 and 574/72. The Decision applies to Turkish workers who are or have been subject to the legislation of one or more Member States, members of their families resident in the Community and the survivors of such workers (Article 2).

Article 3 of Decision 3/80 implements Article 39 of the Additional Protocol by guaranteeing equal treatment for Turkish workers and their families. The Article provides that Turkish immigrants should be subject to the same obligations and enjoy the same benefits as nationals of that member state concerning certain social security benefits. Accordingly, Article 4 of Decision 3/80 provides that the following benefits must be available to Turkish workers and their families: sickness and maternity benefits, invalidity benefits, old-age benefit, survivors' benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits and family benefits.

This list of benefits is identical to that of Regulation 1408/71, in fact, as each benefit set out in the Decision is defined by reference to 1408/71. The Decision must give rise to rights directly enforceable in each Member State by Turkish workers; they must also be interpreted in the same way as the Community Regulation. Thus a Turkish worker must have equal access to these benefits as Community nationals.

Although Decision 3/80 contains no specific details in relation to the timing of its entry into force, the ECJ has confirmed that it has binding effects as from the time when it was agreed, namely 19 September 1980.[130] In Taflan-Met, the Court was asked to comment on the effects of Decision 3/80 in relation to the principle of aggregation introduced in respect of social security claims as a result of employment in more than one Member State. In fact, it is clear from the text that the relevant provisions (article 12 and 13) contained in Decision 3/80 on invalidity and survivors' pensions were intended to adopt the principles of non-discrimination and aggregation employed by Regulation 1408/71. Nevertheless, the Court refused to accept that either provision is directly effective, given the failure by the Council to have adopted a specific implementing measure similar to the Regulation 574/72 as required by Regulation 1408/71.

More recently, however, the ECJ has confirmed that not all the provisions of Decision 3/80 are devoid of direct effect. The Court, thus, confirmed in Sürül that the prohibition of discrimination contained in Article 3(1) of Decision 3/80 in relation to social security for migrant workers and their families is directly effective, as it requires no further implementation at national level in order to be enforced. The judgement has ensured that rules on access to and amounts of social security benefits are applied to host nationals and Turkish workers and their families on an equivalent footing. Unlike the equal treatment clauses of third country agreements in respect of social security measures such as those with countries of the Maghreb, Article 3(1) does not require recognition of acquired social security rights or status in other EU Member States or Turkey.

2.5 Appeal Rights and Safeguards against Expulsion

According to the case law of the ECJ, Turkish workers who are refused leave to remain to carry on with their employment after one year's lawful employment can appeal against the refusal. However, such a person will not be regarded ‘legally resident' until after the successful outcome of the appeal.[131] Appeal rights therefore have a suspensive effect so far as accumulating a period of qualifying employment is concerned. The appellant is allowed to ‘reside and work on an essentially provisional basis' while an appeal is pending.[132] This suspensive effect ensures that Turkish nationals cannot obtain work or residence rights merely by virtue of the length of the member-state's appeal process. The aim, as explained in Kuş, is to prevent a Turkish worker to misuse the appeal process of the Member states.[133]

Article 14 of Decision 1/80, whose wording is the same as in respect of the expulsion of EC workers exercising free movement rights in another member state (Article 39(3) EC (ex-Article of 48(3)) and Article 46 EC), limits the expulsion of Turkish workers to grounds of ‘public policy, public security and public health'. However, it seems that periods of activity of a Turkish worker who is in possession of a right of residence and employment on the basis of a false declaration cannot be regarded as being the character of ‘regular employment'.[134] Thus, such Turkish workers cannot rely on Article 14 against expulsion.

The ECJ has interpreted the power to expel on these grounds extremely narrowly for EU workers. According to the case law of the ECJ, there must be "a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society" in order to expel on grounds of public policy.[135] It is rightly argued that the same interpretation may apply to the expulsion of Turkish workers as the same wording appears in Article 14 of 1/80 and Article 48(3) EC (Guild, 1992: 9-10, Cremer 1995). Nevertheless, the existence of identical wording in Community provisions and an agreement does not mean that they must necessarily be interpreted in the same way in accordance with the jurisprudence of the ECJ.[136] Therefore, regard must also be had to the purpose and intention of the Agreement.

As we saw, the ultimate purpose of the Agreement is to achieve the accession of Turkey to the Community through preparatory, transitional and final stages. Although neither this ultimate purpose nor freedom of movement for Turkish workers in the Community has been achieved as envisaged by Article 36 of the Additional Protocol, the purpose of the Agreement is still to lead to accession. Accordingly, the interpretation of identical provisions cannot be differentiated on the basis of purpose. Thus, the fact that political will has been lacking cannot be a reason for the court to comply with the interpretation of that Agreement in accordance with its stated purpose (Guild 1992: 10).

Therefore, while the admission of Turkish workers to the respective territory is regulated by the national laws of Member States, once they are admitted to a member state and have gained lawful employment, the provisions of the Agreement and its subsidiary legislation apply and must be interpreted by the courts in accordance with the objects of the Agreement. The German Land Court of Nordrhein-Westfalen held that public policy, public health and national security must be interpreted in the same way for Turkish workers as EU nationals.[137] Therefore, a Turkish worker working lawfully in an EU State cannot be expelled any more easily than an EU worker exercising freedom of movement, according to the German Court.

The ECJ has interpreted the public policy exception narrowly. Therefore, the failure of EU workers to complete national legal formalities concerning, inter alia, residence cannot constitute an infringement of public order or public security and does not of itself justify expulsion.[138] Guild (1992a: 10) argues that if this reasoning can be applied to the Association Agreement, then, where a Turkish worker has been lawfully resident and had lawful access to the labour market but fails to take steps to renew or extend that permission, expulsion could not be justified for that reason alone, as "expiry of a residence permit of a Community national only has the effect of depriving the holder of written proof of his right of residence, which in fact continues to exist unaltered, because the person concerned may require this document of proof to be extended or renewed."[139] However, this does not apply where a Turkish worker has never had lawful access to the territory and labour market, as the conditions for freedom of movement have not been achieved. Further, as Turkish workers are eligible for the benefits detailed in Article 4 of Decision 3/80, renewal of their leave to remain cannot be refused on the ground that they claimed these benefits and hence failed to maintain and accommodate themselves without recourse to public funds (Wornham 1994: 26).

The recent case of law of the ECJ strongly suggests that the Court is keen to interpret ‘public policy, public security and public health' derogation similar to those in relation to migrant workers of the Member States under Article 39(3) and 46 EC. The ECJ recently held in Nazlı[140] that a decision to expel a Turkish migrant worker as part of a general deterrence strategy connected with public policy on crime was not in conformity with Article 14 of Decision 1/80. The Court in line with its case law in respect of migrant workers of the Member States, instead, confirmed that the personal conduct of the individual concerned must constitute a present threat to the requirements of public policy in order for expulsion to be considered as a possibility.[141]           

3. Conclusion

The underlying philosophy of the immigration policies of the EU member states and the community in general has been, up to now, that third country immigrants are a category of people that can not expect (or do not deserve) the same treatment as EU-citizens and be treated as fellow-country-men. Accordingly, the member states have been rather slow even to incorporate and implement the additional rights and legal safeguards resulting from various instruments concerning Turkish migrants in the EU. For the present time, the legal regime that this paper sought to outline provides significant additional remedies in protecting the rights of Turkish immigrant workers and members of their families in the EU, particularly within the context of the Association law.

The commitment contained in the Ankara Agreement that the Contracting parties are to be guided by the EC Treaty's provisions on the free movement of the employed and self-employed in realising the aims of the association relationship proves to be a significant factor and assistance given to the ECJ with its task of interpreting the scope and meaning of the association arrangements.[142] Therefore, the Court has drawn from its case law on the freedom of movement of persons deriving from the EC Treaty by way of analogy when interpreting and constructing open-textured concepts in the association arrangements.

The Court has mainly adopted a substantive approach as opposed to a formalistic one and applied a dynamic (functional) method of interpretation. However, the Court has from time to time issued unpredictable judgements.[143] This has been caused by the difficulty of the Court in trying to reconcile two major competing interests: the legitimate expectations of Turkish residents in the Union being able to derive a more comprehensive range of integration rights from the association  instruments and those of the Member States being able to retain as much residual sovereignty as possible over third country national migration issues.[144]

However, the reluctance of the member states to recognise Community competence in matters concerning third-country nationals remains as a handicap on the way to develop further the rights of resident Turkish immigrants. This reluctancy has significant implications for two possible areas of progress within the framework of the Ankara Association Agreement and its Council of Association. The first area of progress is within the context of social security rights of Turkish immigrants, as regulated by Decision No 3/80, which often refers to the corresponding Community documents. The ECJ had earlier concluded that even though some of its provisions are clear and precise, Decision No 3/80 cannot be applied so long as the Council has not adopted supplementary implementing measures.[145] The Court had recalled that on 8 February 1983, the Commission had submitted a proposal for a Council Regulation implementing Decision 3/80 within the EEC, which had not yet been adopted by the Council,[146] despite a more recent judgement recognising direct effect of the non-discrimination clause in Article 3(1) of Decision 3/80.

More importantly, another possible area of development or rather a significant deficiency of the Ankara Agreement and its components is that most of the rights provided to Turkish immigrants by these documents are made subject to the requirement of actual legal employment. These documents do not afford independent residence rights within the EU law, but leave the issue exclusively to the national law of the Member State concerned. There have not been any documents regulating the rights of Turkish workers to remain in the territory of a member state after having been employed in that member state, corresponding to the rights of EU workers, as regulated by Article 48(3)(d) of the Treaty and Commission Regulation (EEC) No 1251/70 of 29 June 1970.[147]

On the other hand, the legal developments envisaged in the Union in respect of third country nationals in general may also help the integration process of Turkish immigrants. First of all, the recently adopted EU Charter on Human Rights may have such potential. Article 45(2) of the EU Charter on Human Rights envisages the possibility that movement and residence right "may be granted, in accordance with the [EC] Treaty, to nationals of third countries legally resident in the territory of a Member State".[148] Further, the European Council, at Tampere, calls for the third country nationals who are in possession of a long-term residence permit from a Member State to be "granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens; e.g. the right to reside, receive education, and work as an employee or self-employed person, as well as the principle of discrimination vis-à-vis the citizens of the State of residence."[149] Thus, integration of third country nationals through national Member States is again a preferred option similar to the approach taken in relation to Turkish immigrants.

More recently, a new directive on the long-term resident status of third country nationals in the EU is on the verge of being adopted by the Council of Ministers of the EU.[150] On 5 June 2003, the ministers of justice and home affairs of the EU Member States agreed on a draft directive designed to grant an EU status of long term resident to third country nationals who have legally resided for five years in the territory of a Member State. The new EU status will enable third country nationals to enjoy a legal status comparable to that of citizens of the member states. It will also allow the person concerned to move from one member state to another under certain conditions, maintaining the rights and benefits granted in the first member state without being required to go through all the procedures that new immigrants are subject to. Another directve is also being prepared by the European Commission on the extension of the long-term resident status to refugees and persons enjoying subsidiary protection.

The implementation of the Decisions of the Association Council by the ECJ over the years has proved that the developments under the EU law have remained and will remain the main source of progress, as far as the rights of Turkish immigrants are concerned, in the absence of any such progress under national laws. One significant counter effect of such positive developments is, perhaps, the danger that member states are now not much eager to enlarge the scope of the rights granted to Turkish immigrants under the above-mentioned legal frameworks. Thus, the operation of the case law of the ECJ is likely to implement those areas of the Agreement and its components, which are not subject, in their implementation or effects, to the adoption of any subsequent measure.

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