Leiden Law Blog

EU-Turkey deal: good on paper, bad in practice

Posted on by Peter Rodrigues in Private Law
EU-Turkey deal: good on paper, bad in practice

On 18 March 2016, the European Council and the Turkish government concluded an agreement with respect to the influx of migrants from Turkey to Greece. The goals of the agreement are to break the business model of smugglers and to offer migrants an alternative to putting their lives at risk. The agreement consists of nine Action Points. In this blog, I will discuss only the first Action Point.

The first Action Point states that all new irregular migrants crossing from Turkey to the Greek islands will be returned to Turkey as from 20 March 2016. This seems to be in violation of EU Asylum Law, because of the lack of an individual determination of the claim, legal representation, appeal and the prohibitions of collective expulsion and non-refoulement. The latter  is the prohibition to return (“refouler”) a refugee to the frontiers of territories where his life or freedom would be threatened. Last but not least, Turkey cannot be considered a safe third country.

However, it is mentioned in the agreement that the return of migrants to Turkey will be in full accordance with European and international law. It is stated that there will be no collective expulsions and that the prohibition of non-refoulement will be respected. Migrants arriving on the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive and in cooperation with UNHCR. Consequently, according to the text of the first Action Point, the application of the agreement will be in accordance with the Refugee Convention and European Asylum Law.   

This statement is remarkable taking into account the jurisprudence about the Dublin Regulation. This Regulation makes the first Member State of asylum application or entrance responsible for the determination. The European Court of Human Rights (ECtHR) in the case of M.S.S. v. Belgium and Greece, and the Court of Justice of the European Union (ECJ) in the case of N.S., both conclude that EU Member States may not return asylum seekers to Greece because the Geek asylum procedure is not in accordance with human rights standards. According to the ECtHR, the applicant in M.S.S. faced a real risk of being  deported from Greece to Turkey and from Turkey to Afghanistan, without any consideration of his asylum claim. The ECJ concluded in the case of N.S. that there are systemic failures in the Greek asylum procedure and in the reception conditions of asylum seekers. These conclusions were repeated by the ECtHR in autumn 2015. Considering  the increased influx of asylum seekers to Greece, it is highly unlikely that the Greek asylum system is currently in accordance with EU asylum law.

To be qualified as a safe third country, the Asylum Procedures Directive requires the ratification and compliance of the Refugee Convention without a geographic limitation. Turkey has implemented the geographic limitation and therefore only European asylum seekers are eligible for asylum in Turkey. Furthermore, there are indications that Turkey does not respect the prohibition of refoulement. On 26 March 2016, Amnesty International reported that 27 asylum seekers were picked up by the Turkish coastguard and deported to Afghanistan. Turkey declared they returned voluntarily. Amnesty reported other infringements of refugee law afterwards.  

The Turkish Law on Foreigners and International Protection provides for a status of ‘conditional refugee’ for non-Europeans, with temporary protection and no access to the labour market. In January 2016, Turkey introduced new regulations for Syrians. Even assuming that these regulations are now in place and applied in practice, they do not apply to Iraqi and Afghan asylum seekers. The regulations are a violation of the principle of non-discrimination.

Solving a problem involves more than writing down a solution. The European Courts are looking at the real situation of the country concerned; a pro forma regulation will not be good enough. The UNHCR has ceased operations at Greek detention centres, because the camps are detention centres and not a place for people applying for asylum. Humanitarian organisation Save the children has voiced concern about the situation. It is considering a lawsuit against the EU, because of a violation of the Convention of the Rights of the Child. The goals of the EU deal are fine, the text of the deal is in accordance with the law, but fact finding should have prevented the early enforcement of the agreement, because its application is currently not in accordance with human rights standards. 

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