Strategic Litigation Before the Turkish Constitutional Court Against the EU-Turkey Statement: Addressing an Accountability Gap Through National Courts

The externalisation of migration controls has become a dominant strategy of Global North states to restrict access to their territories and asylum systems. The EU-Turkey Statement, signed on March 18, 2016, is a prominent example of the EU's externalisation of migration policies. Over seven years of its implementation, this agreement has led to widespread deportation decisions without meaningful access to international protection and poor reception conditions in both Turkey and Greece. Yet, the Statement has largely escaped the scrutiny of EU institutions and regional mechanisms, creating a significant accountability gap. There is no doubt that EU member states have intentionally exploited ‘grey areas’ where the international refugee protection laws appear insufficiently clear or enforceable. In response to this gap, national courts have become an important avenue for individuals, particularly refugees and asylum seekers, to challenge the consequences of the EU-Turkey Statement. A recent lawsuit in the Netherlands against the Dutch government, which held the EU Presidency when the EU-Turkey Statement was signed, highlights the growing importance of strategic litigation. These cases illustrate how the national legal system can address the accountability gap when international mechanisms fall short. Most strategic litigation cases focus on national courts, with local NGOs playing a crucial role in supporting the rights of refugees. This study explores how potential strategic litigation through the individual application procedure before the Turkish Constitutional Court (TCC) can challenge the EU-Turkey Statement and its impact on the fundamental rights of refugees, particularly concerning violations of the right to life, the prohibition of torture, inhuman or degrading treatment, the right to respect for private and family life, and the right to liberty and security. Since the implementation of the EU-Turkey Statement, individuals under temporary or international protection, as well as asylum seekers, have increasingly relied on strategic litigation before the TCC to assert their rights. However, the EU-Turkey Statement has not yet been brought before the TCC for rights violations. For such an application, the applicant must demonstrate that the alleged rights violation directly stems from the Statement. Additionally, the TCC’s previous rulings on asylum and migration issues could be crucial in establishing this link and strengthening the claim. This article first analyses the TCC’s precedents in migration-related litigation from March 18, 2016, to November 1, 2024. Using the TCC’s official online search tool, the database provides a comprehensive overview of the scope, nature, and outcomes of migration cases brought before the TCC. After a debt analysis of the TCC's jurisprudence within the last seven years, and establishing a link with the individual applicant’s claim, this article explores the potential outcomes of the strategic litigation and its implications for individual applicants, the Turkish government, and EU member states. This research provides valuable insights into how national courts can address the broader consequences of externalized migration policies and uphold international refugee protection standards.