The policy to migrants; a way to not

The major nation in the continuing migration
crisis facing the EU has been Turkey, accommodating over 2.7 million Syrian
refugees1. Being a
key country of transit for those seeking international protection in Europe,
throughout 2015 and 2016, 160,5102 refugees
arrived in Greece from Turkey, inevitably leading to a steep increase in the
number of asylum claims. In 2016 alone 50963 people
died crossing the Mediterranean in this fashion and as such politicians of
Europe on 18th March 2016 signed the EU-Turkey agreement to return
those deemed “inadmissible” back to Turkey once claiming asylum in the EU. The
motives behind this agreement were not purely based on these losses however.
Faced with vast numbers of asylum seekers and an ever increasing proportion of
the public exasperated with liberal policies, politicians concerned over their
own domestic futures created the deal as a deterrence policy to migrants; a way
to not solve the issue but keep the it at bay. In many ways, nearly 2 years on
from it’s conception, the agreement combined with the closing of the Balkan
route, has deterred many from making this crossing. The deal has been somewhat
of a balancing act, being based upon the ideas of ‘first country of asylum’ and
‘safe third country’ held in the Asylum Procedures Directive4. These
will be examined in detail along with Greek asylum appeal committee decisions
and the decision in the cases of NF,NG and NM v European Council5. The
practical reality, this paper will discuss, is that of circumventing breaches
of international law by the EU and despite a frequent lack of human rights
protection at the hands of an overwhelmed Turkish government, the deal can
dubiously comply with refugee laws.   

The agreement between the EU and Turkey is one
of the largest scale attempts to govern the current emergency. The two main
aims of the deal are to close down a viable route for smugglers and deter those
trying to enter the EU by irregular means. As a part of the agreement, both
sides settled on several main points that must be achieved these being that all
irregular migrants, transiting from Turkey to Greece after the enactment date
of 20 March 2016 should be sent back to Turkey, complying with the Asylum
Procedures Directive and international law. Crucially, for each individual sent
back to Turkey, another Syrian asylum seeker would be allowed to settle within
the EU. For Turkey to cope with the sheer number of refugees, the European
Union gave €3 billion under the Facility for Refugees and upon the funds having
been used, a further €3 billion more would be provided by the start of 2019.
The first payment of €3 billion was intended to aid in improving the development
and humanitarian needs of refugees in Turkey as well as alleviating the
pressures on the communities hosting them. Measures would also be taken to
avoid new migration routes opening between Turkey and the EU. Furthermore,
Turkish citizens would enjoy visa liberalisation for travel within the Schengen
area.6

The key area of
the agreement that allows it to comply with international law and can provide
it some legitimacy is also the area of most contention. To return an asylum
seeker due to their application being ‘inadmissible’, the individual must have
been rejected either on the grounds that Turkey is a ‘safe third country’ or as
a nation they transited through, it qualifies as a ‘first country of asylum’.
Each must be examined in turn; looking at the idea that Turkey qualifies as a
safe third country, refugees must be given access to asylum procedures abiding
by EU law and international legal principles. Firstly, the definition of a
‘safe third country is in Article 38(1) of the Asylum Procedures Directive7.
It sets out that 1) life and liberty shall not be threatened on account of nationality,
religion, race, membership of a particular social group or political opinion; 2) there
shall be no risk of serious harm, 3) the principle of non-refoulement8
shall be adhered to; and 4) it should be possible the individual can claim
refugee status, receiving protection under the principles of the Geneva
Convention.9

 

For Greece to deem migrants inadmissible,
Article 38(2) outlines rules that must be adopted into national law. On a case
by case basis the safety of a third country should be established to determine
if the applicant’s individual situation may qualify them for further protection
from expulsion. Additionally, there should be the ability for an applicant to
appeal their asylum decision on the grounds of applying the safe third country
criteria to their circumstances that may place them at risk of harm. A more
pressing issue that has been faced, has been the ability of the Greek
government to handle the number of asylum claims and appeals. Despite
assistance from the EASO, the agreement “places a disproportionate burden on
Greece’s shoulders, while relieving other countries from the need to confront a
pan-European, if not global, crisis”10.
To provide some context for the numbers of migrants, before the EU-Turkey
agreement, Greece could process up to 1500 applications a month. When compared
to the 230,00011
people that arrived in the country in the first three months of 2016, the
numbers seem insurmountable. While the numbers have reduced to an average of 49
people per day12,
the backlog has created horrific conditions in detention centres.

 

The practical concerns aside, Turkey must qualify as a safe third
country for the deal to conform with the Asylum Procedures Directive. Firstly, Turkey
has ratified the 1951 Geneva Convention and its 1967 Protocol, however it
restricts the rights of non-European migrants by placing a geographical
restriction. This creates an initial hurdle for asylum seekers as only
individuals from European nation states receive the full protection of the
Geneva Convention. Furthermore, Syrians, due to the sheer number of people of
this nationality in Turkey, were initially accepted as ‘guests’, only later
gaining recognition under a temporary protection scheme13
The rationale for this scheme was to accommodate refugees until they can return
to back to Syria upon the ending of conflict. Therefore, Syrian nationals are
permitted to remain within Turkey yet have limited prospects of full
assimilation. When compared to the rights of asylum seekers EU states provide,
there are major short comings in the ability of Syrian’s to gain employment as
well as availability of education14
where of 50 children interviewed, on average they had lost 2 years of
schooling. Ultimately, refugees sent back to Turkey have not received the full
protection of the Geneva Convention and as a result, it could be argued that
the key criteria of Article 38(1) for protection ‘in accordance’ with its
provisions cannot be fulfilled.

 

Academics however, vary in opinion as to whether a state must fully
ratify the Convention. Steven Peers argues that during the drafting of the Convention,
attempts by states to make different types of protection for refugees other
than the Convention status trigger the clauses were unsuccessful. As a result
he states that “the ordinary meaning of the words ‘in accordance with’ in
English is ‘in compliance with'”15
and therefore it is impossible to gain refugee status in accordance with the Convention
if they do not fully apply it. Alternatively, a different position can be
taken, similar to that of the European Commission. The Asylum Procedure
Directive creates two categories and distinguishes between them. Under Article
39(2)(a) for a country to be deemed as a super safe third country they must
fully accept and ratify the terms of the Convention along with it’s 1967
Protocol, which automatically excludes Turkey, owing to it’s geographic
limitation. Article 38(1)(e) instructing that countries must only act ‘in
accordance’ to the Convention can be said to not require complete ratification
as this phrase’s ordinary meaning can be “to obey a rule”16.
As Daniel Thym suggests, the EU, having not fully ratified the Convention, is
only bound to it by Article 78(1) TFEU17
and international custom. The EU does have to act ‘in accordance with’ the
clauses and it could be argued Turkey is obliged to do so as well as it
ratifies most of the Convention, thus allowing this criteria for a safe third
country to be fulfilled.

 

With governments potentially able to
argue Turkey acts ‘in accordance with’ the Geneva Convention, the other
criteria for a ‘safe third country’ determine if the overall agreement operates
within the law. Upon arriving in Turkey, migrants have to deal with difficult
conditions that can put them at risk of serious harm. Notably, Turkey possesses
a dubious record of dealing with refugees. Judicial authorities in the town of
Askale uncovered asylum applications unlawfully being denied without proper
investigation, inhumane conditions in holding cells and minors being left in
isolation18.
Non-governmental organisations have further reported risks of significant harm
such as torture and unlawful detention19 for
refugees of all nationalities in Turkey. This, compounded with ECtHR decisions
like SA v Turkey20
for example, highlight conditions that even when looked at for each individuals
circumstance, create a significant probability for harm.

 

The principle of non-refoulement is yet
another element of the Asylum Procedures Directive and an obligation Turkish
authorities must uphold, having ratified this part of the 1951 Convention. Under
Article 33 a state is prevented from returning an individual to a place they
would be at risk of suffering harm, persecution or torture. Despite this, claims
from Amnesty International and other NGO’s have said that Turkey has frequently
violated this principle. As many as 100 Syrian refugees a day from January
201621
have been expelled from the country many being minors or the most vulnerable.
This in turn could qualify as collective expulsions breaching Article 4
Protocol 4 of the ECHR22.   

 

Consequently, Turkey in many ways fails the criteria that must be met to
categorise it as a safe third country. To this end, Greek asylum appeals
committees in 390 out of 393 decisions, prevented the application of the
EU-Turkey deal on the grounds Turkey is unsafe.23
What could be deemed as unlawful however, are the new decisions from the change
in structure to these committees in favour of the state, which since
implementation have upheld applicants inadmissibility on this ground in all 20
cases heard. The pressure of the migrant crisis on the resources of the Greek government
has in some ways forced their hand into applying the agreement on a ground that
can be argued to be against international law.

 

The second of the two legal grounds in the Asylum Procedures Directive
for judging an asylum claim as inadmissible can however be read to legally
uphold the agreement. Article 33(2)(b) states that where, in this case, Turkey
is shown to be the ‘first country of asylum’ for an asylum seeker, Article 35
of the same Directive provides two conditions for rejection: “a) the applicant has been
recognized in that country as a refugee and he or she will be readmitted and
can still avail himself/herself of that protection” and b) the applicant
otherwise enjoys sufficient protection in that country, including benefiting
from the principle of non-refoulement”24 It is also outlined that states may use the criteria for
a safe third country when answering these questions and can argue that for
their situation falls outside the principles held in the provisions.

 

First examining Article 35(a), the applicant must be recognised as a
refugee within Turkey. By not fully ratifying the Geneva Convention, it could
be argued that Syrian asylum seekers do not qualify for the definition of a
refugee as Turkey maintains it’s geographical limitation to protection. However,
the definition of a refugee utilised in the Articles does not explicitly need
ratification as it is expressed in Article 2 of the same Directive. An
individual must simply be persecuted for reasons outlined within the Convention
and any country can extend this level of protection. Consequently, if Turkey
accepts individuals as refugees on similar grounds to that of Article 2 which
it may choose to do, Member states are complying with refugee law when
declaring applications inadmissible on this ground. It is in this manner that
governments of the EU are aware of the poor conditions and potential human
rights abuses upon return to Turkey and are able to continue the agreement by
lying just within the scope of EU Directives.  

 

The second part of Article 35, part b, has also been used to maintain
the legality of the deal. In principle, refugees in Turkey can fall under three
heads of protection, subsidiary protection, conditional refugees, defined as
asylum seekers under the Geneva Convention but not deemed as such because of
Turkey’s geographical limitation and temporary protection specifically for
Syrian refugees25.
The level of protection each of these categories provides varies greatly; in
all cases being less than that of a refugee strictly defined by the Geneva
Convention. It flows from this that in order for a state to be a ‘first country
of asylum’, individuals must receive ‘sufficient’ protection, the meaning of
which is clarified within Article 35. Two points of referral are provided. The
rule of non-refoulement must be adhered to and as such Turkey is obliged to
uphold it having enshrined the principle in national law under Article 4 of the
Law on Foreigners and International Protection26.
Despite this commitment, Turkey has frequently expelled refugees as previously
discussed, making it clear that refugees may be placed at significant risk if
returned under the agreement. In many ways it is ethically wrong of EU nation
states to return an asylum seeker to conditions less than the standards held by
their own countries and to a state with known human rights abuses. At the same
time, the agreement falls within the scope of Article 35(b) as each application
can be determined on an individual basis. Each claim is evaluated on whether an
applicant would receive ‘sufficient’ protection’ leaving the decision with
asylum committees, mostly in Greece, under pressure to reduce the number of
migrants.

 

The other point of referral is that nations can use the criteria for a
‘safe third country’ set out in Article 38(1) to determine if Turkey is a
‘first country of asylum’. The position reached previously was that overall,
Turkey cannot meet most of the criteria to regard it as such. The logical
conclusion from this would be that it should fail the provision. Fortunately
for the agreement, Member states are not bound to use the ‘safe third country’
criteria as it merely acts as a guideline. Therefore what has been done in
implementing the deal is governments have turned a blind eye to this fact,
justifying the agreement on individual case assessments set out in Article
35(b).        

 

The
legality of the agreement has in fact been brought before the Court of Justice
of the European Union (CJEU) in the case of NF, NG, 27NM v
European Council where three asylum seekers claimed the the EU- Turkey deal was
unlawful as it infringed upon the principle of non-refoulement and of
protection from collective expulsion. In delivering its verdict, the court
neatly side-stepped addressing the main elements of their case. Paragraph 27 of
the judgement summarises their position that the agreement was; “the fruit of an international dialogue
between the Member States and the Republic of Turkey and — in the light
of its content and of the intention of its authors — was not intended to
produce legally binding effects nor constitute an agreement or a treaty”28.
During the time of drafting, the EU facilitated and acted largely as a party to
the agreement, including “this new relation with Turkey in the broad context of
Ankara’s path towards EU membership”29.
Despite this, the court held that they possessed no jurisdiction to address
such a matter and therefore did not specify if the deal was legally binding or
in fact legal under international law. The court orders make holding to account
parties to the making of the agreement much harder when institutions involved
all claim not to have been. In effect, this is a significant challenge to the
transparency of decision making in the EU and “means that extra-Treaty decision-making can effectively evaded the
Lisbon Treaty democratic rule of law framework, including EU parliamentary
scrutiny and judicial review”30.
It appears that so crucial is the survival of this arrangement to governments
across the EU, that they will circumvent critical principles, look past human
rights abuses and essentially remove their accountability.

Overall, the deal between the EU Member
states and Turkey, is an arrangement devised keep at bay a logistical and
political career orientated crisis. Europe simply cannot handle the number of
people needing international protection due to practical, financial and even
cultural constraints. In a time of increased securitisation of Europe, the rise
of right wing agendas and Islamophobia fuelled by recent terrorist incidents
and a frequently sensationalist media; it places huge pressures on politicians
to adjust their policies accordingly. As such, the EU- Turkey agreement, it is
submitted, complies with international and human rights law but with
significant issues and underlying tensions. Member states can and have applied
Article 35(b) by looking at case-by-case circumstances to determine if a risk
of refoulement exists. As was seen with the new Greek asylum appeals
committees, states need to reduce numbers of migrants can then be more easily
achieved. Until the conflict that is creating the main ‘push factor’ towards
Europe is solved, the EU-Turkey deal is likely to remain in place, it’s
relative ability to conform to international law and the sheer level of
deterrence it provides making it a crucial piece in political agendas.  

1 UNHCR, ‘Refugees/Migrants Emergency Response
Mediterranean’ (Operational Portal Refugee Situations, 2017)
accessed 12 January
2018

2 ibid

3 ibid

4 Council
of the European Union, Directive
2013/32/EU, on common procedures
for granting and withdrawing international protection (recast), 29 June 2013,
OJ L. 180/60–180/95

5 Orders of the General Court in
Cases T-192/16, T-193/16 and T-257/16 NF,
NG and NM v European Council 2017

 

6 “EU Turkey
statement 18 March 2016” (European Council, 2016)
(accessed on 12 January 2018)

7 Council
of the European Union, Directive
2013/32/EU Art 38(1), OJ L.
180/60–180/95

8 Convention Relating
to the Status of Refugees 1951, Article 33

9 Legal Considerations on the Return of Asylum Seekers and Refugees from
Greece to Turkey as Part of the EU–Turkey Cooperation in Tackling the Migration
Crisis under the Safe Third Country and First Country of Asylum Concept UNHCR
2017 Int J Refugee Law (2017) 29 (3): 498

10 Silvia
Colombo, “Slouching Towards Ankara: The EU Turkey Migration Deal” (Council of
Councils, 29 April 2016) < https://www.cfr.org/councilofcouncils/global_memos/p37825> accessed
11 January 2018

11 ibid

12 European
Commission, Managing the Refugee Crisis: Commission reports on progress made in
the implementation of the EU-Turkey Statement (Com press release IP-16-2181,
2016)

13 Aida Asylum
Information Database, Country Report Turkey (ECRE, December 2015)

accessed 13th January 2018

14 “When I Picture My Future, I See Nothing” Barriers to Education
for Syrian Refugee Children in Turkey (Human Rights Watch, November 2015)

accessed 13 January 2018

15 Steve Peers
and Emanuela Roman, “The EU, Turkey and the Refugee Crisis: What could possibly
go wrong” (EU Law Analysis, 5 February 2016)

accessed 12 January 2018.

16 Daniel Thym,
“Why the EU-Turkey Deal is Legal and a Step in the Right Direction”
(Verfassungsblog, 9 March 2016)

accessed on the 11th January 2018

17 Consolidated
version of the Treaty on the Functioning of the European Union 2008 C 115/0,
Article 78

18 Orcun Ulusoy, “Turkey as a safe
third country” (University of Oxford, Faculty of Law, 2016) < https://www.lay.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/03/turkey-safe-third>
accessed on the 10th January 2018

19 Amnesty International
“Europe’s Gatekeeper: Unlawful Detention and Deportation of Refugees from Turkey”
(Research paper, EUR 44/3022/2015)

20 SA v Turkey,
ECHR (2015) 74535/10

21 Amnesty International, “Turkey: Illegal mass returns of Syrian
refugees expose fatal flaws in EU-Turkey deal”(April 2016)< https://www.amnesty.org/en/press-releases/2016/04/turkey-illegal-mass-returns-of-syrian-refugees- expose-fatal-flaws-in-eu-turkey-deal/.> accessed 12th January 2018

22 Convention for the Protection of
Human Rights and Fundamental Freedoms (European Convention on Human Rights, as
amended) (ECHR) Article 4 Protocol 4

23 Marian Gkliati, “The EU-Turkey Deal and the Safe Third Country
Concept before the Greek Asylum Appeals Committees” 2017 Movements journal
Vol 3, issue 2

24 Council
of the European Union, Directive
2013/32/EU, Article 35

25 Asylum
Information Database, “Asylum Information Database Country Report – Turkey” (AIDA Report, 18 May 2015),
p. 65 < http://www.asylumineurope.org/sites/default/files/report-download/aida_turkey_final.pdf>
accessed on the 11th January 2018

26 Law on
Foreigners and International Protection 2013, Law No. 6458, Article 4

27 Cases T-192/16, T-193/16 and
T-257/16, NF, NG, NM v European Council 2017

28 ibid para 27

29 Carmelo Danisi, “Taking the ‘Union’
out of ‘EU’: The EU-Turkey Statement on the Syrian Refugee Crisis as an
Agreement Between States under International Law” (EJIL: Talk!, 20 April 2017)

accessed on the 13th January 2018

30 Sergio
Carrera, Leonhard de Hertog and Marco Stefan, “It wasn’t me: The Luxembourg
Court Orders on the EU-Turkey Refugee Deal” (CEPS Policy Insights, April 2017)
accessed on 14
January 2018