09 Jul 2017 Cyprus, Turkey and the four freedoms

One of the issues on the table at the Conference on Cyprus in Crans Montana these past two weeks has been the rights of Turkish citizens in Cyprus.

This has typically been described as Turkey wanting the ‘four freedoms’ (freedom of movement of goods, services, capital and labour).

Turkey’s specific request is that Turkish nationals should enjoy the same rights in Cyprus as Greek nationals.

Are non-EU nationals an EU or national competence?

Greek Cypriots have argued that giving equal rights to Turkish nationals will somehow make a united Cyprus a second-class member state, since no other country gives freedom of movement to Turkey.

Let us take a look at what the EU law on third-country nationals says. Article 79(1) on the Treaty of the Functioning of the European Union says “The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.”

However, this paragraph is more about practical ways of handling immigration than decisions on who can and cannot come to the country.

That is dealt with in Article 79(5): “This Article [meaning Article 79] shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.”

In other words, the decision on whether non-EU nationals of certain countries can come and live or work in an EU member state is not an EU competence; it is entirely up to that EU member state to decide.

This is why, for example, the UK allows Commonwealth citizens aged between 17 and 30 to come for a two-year ‘working holiday’ – something that does not exist in other EU member states.

A united Cyprus will, therefore, be able to make its own decisions about how many Turkish nationals come live and work in Cyprus.

Accrued rights

Another issue that people have expressed concern about is whether Turkish nationals living in Cyprus would be able to acquire rights over time, including being allowed to claim citizenship of a united Cyprus.

However, citizenship is also a national competence. The second declaration in the Treaty on the European Union makes it clear that questions of citizenship are entirely in member state hands: “the question whether an individual possesses the nationality of a Member State shall be settled solely by reference to the national law of the Member State concerned”.

Now, it is possible (and I am guessing here) that the EU might have some competence if a united Cyprus makes it harder for Turkish nationals to gain citizenship than, say, Russian citizens. But since the EU was prepared to allow limits even on Turkish residents in 2004, one can assume it will allow deviations here, too.

Another potential concern for other EU countries is whether Turkish citizens will end up acquiring rights to move en masse to other EU countries. Again, EU law suggests this would not be the case.

The Long Term Residents Directive allows non-EU nationals to acquire some rights after five years under certain conditions. If they have a “adequate resources”, health insurance and do not “constitute a threat to public policy or public security”, then they can work, have the right to access education and vocational training, core social protection and assistance, and goods and services.

The EU’s website on these issues says that they “also benefit from the possibility, under certain conditions, to move from one EU State to another”. I have not been able to find those conditions in full and they are currently the subject of case law. But as the website notes, Denmark, Ireland and UK already have opt-outs on this area. Other countries might decide to request an opt-out too. But that will be a choice for them, not Cyprus.

In sum, decisions on the rights of non-EU citizens is a national competence, not an EU one, so granting the same rights to Turkish nationals as Greek nationals would make no difference to the ‘status’ of a united Cyprus.

Restricting residency?

Where there would arguably be a difference is if the negotiators repeat the Annan Plan restrictions on residency in Cyprus for both Greek and Turkish nationals.

Article 3 of the EU Draft Act of Adaption, annexed to the Annan Plan, essentially allowed the number of Greek or Turkish nationals to be limited to 5% in a particular constituent state for 19 years, with a review thereafter. Therefore, if the number of Turkish nationals in the Turkish Cypriot constituent state exceeded 5% of the citizens of that Turkish Cypriot constituent state, they could be restricted “on a non-discriminatory basis”. The same applied to Greek nationals in the Greek Cypriot constituent state.

I do not know if this idea came up in the negotiations. But what we do know from official statements is that the Annan-style notion of restricting the residence of Cypriot nationals has been abandoned, so maybe the same applied to Greek and Turkish nationals, too.

Even if it was not abandoned, I believe the restrictions on residency would be unnecessary and potentially bad for the economy. In 2011, the Republic of Cyprus census showed that Greek citizens accounted for 3.5% of the population in the southern part of the island. That has probably already risen to 5% as a result of the long-running crisis in Greece.

At the same time, the rebuilding of Varosha will need a lot of labour. Some of the best construction workers are Turkish. There is also a lot of Turkish capital these days looking for a stable investment environment. We don’t want to turn that away.

As the united Cyprus economy ebbs and flows, so, too, will workers from Greece and Turkey. Since the EU has no right to force a united Cyprus to provide them with citizenship, we should probably let the market do its work.

By Fiona Mullen, Director, Sapienta Economics Ltd