The EU Agreement with Turkey: Does it Jeopardize Refugees’ Rights?

On March 7, 2016, the European Union (EU) and Turkey drew up an agreement for cooperation with the aim of reducing the flow of migrants and refugees — mostly Syrian — crossing the Aegean Sea and taking the Balkan route to arrive in Europe. The EU-Turkey agreement does not fully respect the acquis communitaire (the body of rights and obligations that apply to all EU member states) or the international conventions regarding asylum. Thus, the agreement jeopardizes respect for the rights of refugees and undermines the Common European Asylum System.

Juridical analysis of the terms of the agreement reveals numerous contradictions with the founding principles of the EU and with the directives on asylum issued by the European Commission. This paper draws on an ongoing study by the authors to identify several problems related to the EU response to the massive flows of asylum seekers and its retreat from safeguarding the rights of refugees. The paper is envisioned as a note to a recently published paper in the Journal on Migration and Human Security on the impact of border externalization policies on the rights of asylum-seekers and other migrants.[1] The main points in this analysis follow.

The March 7 agreement established that:

1. All the migrants crossing from Turkey to the Greek islands as of March 20, 2016 will be returned to Turkey, including potential asylum seekers and the Syrian refugees among them; and
2. For every Syrian returned to Turkey, another Syrian will be resettled by an EU country.

Following identification, a migrant can submit an application for asylum on the Greek islands before being sent back. Asylum applications, in turn, are examined on an individual basis by the Greek authorities in conformity with Directive 2013/32/EU on Common Procedures for Granting and Withdrawing International Protection (recast) (the “recast Asylum Procedures Directive”) and with the support of the United Nations High Commissioner for Refugees (UNHCR). Those who do not apply for asylum or whose applications are considered inadmissible or unfounded will be returned to Turkey. For every Syrian returned to Turkey, another Syrian will be resettled in the European Union with an overall limit on resettlement placements of 72,000 for 2016. This agreement is considered a temporary, extraordinary measure and, once irregular crossings from Turkey to Greece come to an end or are appreciably reduced, the European states will implement a voluntary program of humanitarian admission of Syrians from Turkey. To secure Turkey’s cooperation in this initiative, Europe committed to the immediate disbursement of €3 billion to Turkey, and a further €3 billion up to the end of 2018.

The agreement violates the norms and principles contained in the acquis communitaire on asylum in a number of ways. As a consequence, many member states have privately raised objections to the agreement.

Collective expulsions and refoulement

The agreement requires the return of all irregular migrants crossing from Turkey to the Greek islands. This condition clashes with the prohibition of collective expulsions established in Article 4 of Protocol No. 4 of the European Convention on Human Rights (ECHR), and Article 19(1) of the EU Charter of Fundamental Rights (EUCFR). Moreover, there is the risk of violating the principle of non-refoulement, established by Article 33 of the 1951 Geneva Convention on the Status of Refugees (the “Refugee Convention”) and reaffirmed by Article 3 of the Refugee Convention, and Article 19(2) of the EUCFR, which establishes that no one can be expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture, or other inhuman or degrading treatment or punishment.

Principle of non-discrimination

The principle that for every Syrian returned to Turkey another Syrian will be resettled in Europe clashes with the fundamental principles of right to asylum and protection of human rights at the international and European level. In particular, it is inconsistent with the prohibition of discrimination established by Article 3 of the Refugee Convention, since it discriminates on the basis of nationality.

In fact, the agreement establishes that all asylum applicants be returned to Turkey, but that only the Syrians can be resettled in Europe. Consequently, all the other potential beneficiaries (e.g., Iraqis, Iranians, Pakistanis, Eritreans, Somalis) would be obliged to remain in Turkey, where the procedures are inadequate, the standards of protection insufficient, and where they cannot benefit from the financial assistance provided for by the European Union.

Procedural problems and application procedures

Another point concerns the legitimacy of the rapid decision by Greek authorities to return to Turkey persons deemed ineligible for international protection. The European regulations provide for expedited action, but only in particular circumstances.

The legal basis for rapid examination of the applications rests on the concept of a safe third country, as specified in Article 39(1) of the recast Asylum Procedures Directive:

1. Member States may provide that no, or no full, examination of the application for international protection and of the safety of the applicant in his or her particular circumstances as described in Chapter II shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2.

Thus it is essential to verify the norms that apply to safe third countries and whether Turkey satisfies them.

The concept of safe third country

A fundamental point in the European regulations is that a country is to be considered safe in relation to the subjective conditions of those submitting asylum applications.

Article 38 of the recast Asylum Procedures Directive, including paragraph 3 states, inter alia, that the competent authorities of a member state shall determine case-by-case how the concept of safety can be applied to a particular applicant in relation to a specific third country:

3.  The applicant shall be allowed to challenge the application of the concept of European safe third country on the grounds that the third country concerned is not safe in his or her particular circumstances.

This poses problems for the transfer to Turkey of Syrian asylum seekers of Kurdish origin, considering the poor treatment received by them in Turkey.[2] Article 39(2) of the recast Asylum Procedures Directive establishes that:

2. A third country can only be considered as a safe third country for the purposes of paragraph 1 where:

(a) it has ratified and observes the provisions of the Geneva Convention without any geographical limitations;

(b) it has in place an asylum procedure prescribed by law; and

(c) it has ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms and observes its provisions, including the standards relating to effective remedies

With regard to point (a), Turkey has ratified the Refugee Convention, but recognizes refugee status only in the case of those coming from a member country of the Council of Europe. However, its Law on Foreigners and International Protection in 2013 established the possibility of recognizing “conditional refugee” status for persons coming from non-European countries who are prepared to reside in the country only temporarily. Thus, it only partly meets the requirement in point (a).

As for point (b), it has been noted that Turkish reception facilities are inadequate and the minimum procedural guarantees insufficient, as documented by the European Court of Human Rights (ECtHR), December 15, 2015, in the case of S.A. v. Turkey, no. 74535/10.[3]

With regard to point (c), the Court found that Turkey violates fundamental human rights, including free speech, the right to free assembly, protection of personal data and of persons belonging to minorities.

In particular, the ECtHR found that appeals are not guaranteed in accordance with Article 39(3) of the recast Asylum Procedures Directive. It also found that Turkey violates Article 3 of the Refugee Convention in view of the material conditions of detention at the removal center in Kumkapı, including overcrowding, insufficient ventilation and natural light, lack of activities outside cells, and unhygienic conditions. In addition, the Turkish government has not offered sufficient proof to justify the length of detention. More specifically, according to the Court, the conditions of detention at the Kumkapı Removal Center caused the applicant distress beyond the unavoidable level of suffering inherent in detention and met the threshold of degrading treatment. The ECtHR established that there had been violation of Article 13 of the Refugee Convention, in conjunction with Article 3, due to the fact that the applicant had no legal means to complain of the conditions of detention at the Kumkapı Removal Centre.

Finally, Syrian applicants can only reside in the country temporarily and their rights are limited, above all with regard to access to education and work. Consequently, the protection of these particularly vulnerable migrants appears problematic, as documented by Human Rights Watch,[4] and also in view of the policy implemented by Turkey in relation to Kurds, many of whom come from parts of Syria. The fragility of the agreement was recently noted by an appeals tribunal in Lesbos, which opposed returning three Syrian citizens to Turkey. The tribunal observed that with temporary protection, Turkey would not be able to grant the Syrian refugees all the rights due to them according to the Refugee Convention.[5]

Finally, a delegation of members of the European Parliament visiting the reception centers at Edirne and Kirkarelı found the following rights violations:[6]

1. Persons deported from Greece had no opportunity to apply for asylum in Greece or in Turkey,
2. Refugees, including children, were held in detention, and
3. Greek and Bulgarian police refouled refugees to Turkey.

Points 1 and 2 explain why Turkey should not be considered a safe third country. Point 3 shows the improper enforcement of the agreement by some European states. Even if recent interpretations of the Court of Justice of the European Union (CJEU)[7] appear to legitimize some of the procedures described above, we observe that the Court did not enter into specifics about the effective “safety” of Turkey.

Other procedural inconsistencies

The treatment of Turkey as a safe country for rapid transfer of refugees also clashes with another European norm. Article 46(1) of the recast Asylum Procedures Directive provides the right to an effective appeal before a judge of an application for asylum that has been declared inadmissible, and it allows the migrant to remain in the territory of the member state pending the outcome of the appeal. Moreover, an appeal follows automatically if the ruling of inadmissibility is based on the concept of the safe third country.

This ruling limits the possibility for rapid transfer of a great number of refugees, and it is a significant cause of concern that political figures and government officials in a number of European countries are proposing abolition of the right to await the outcome of the appeal in the relevant country.

Some considerations

The agreement with Turkey violates humanitarian principles contained in the founding charters of the European Union and in the international conventions to which the charters refer. In particular, this agreement discriminates based on ethnicity, for example, with regard to Afghans, Pakistanis, Iraqis, and Eritreans, who, according to the terms of the agreement, cannot be resettled in Europe but must remain in Turkey where full protection is not provided. These refugees cannot apply for international protection.

In an attempt to make these violations legal, the agreement stretches the interpretation of the European directives on asylum, and in particular the recast Asylum Procedures Directive. It is debatable whether Turkey should be treated as a “safe third country” given its rapid, and in many cases summary, procedure for evaluating asylum applications. In fact, the agreement legitimizes some declarations of inadmissibility in a very short time, which leads to the forced return of asylum seekers in Turkey. Finally, interpretative controversies induce individual member states to back out of their obligations. In fact, the agreement is not functioning properly. Some European countries are exploiting the issues of legitimacy to evade the obligation to resettle refugees coming from Turkey. Thus there seems to be no chance of settling the 72,000 refugees in conformity with the provisions of the agreement, nor indeed of finding a criterion for distribution “on a voluntary basis.”

As a matter of fact, the agreement has led to expulsions to Turkey of “irregular” migrants composed of families (with mostly minors) and it will also cause the forcible return of Kurdish citizens, who will be subject to inhuman and degrading treatment. Europe does not wish to appear to engage in non-humanitarian practices. Thus, it relies upon Turkey to do its dirty work. Moreover, while working well for the “resettlement” of migrants in Turkey, the agreement is not working properly for resettlement in Europe. In practice, this amounts to a pushback, particularly for certain categories of Syrians. In short, this agreement violates the rights of refugees.

[1] Bill Frelick, Ian M. Kysel and Jennifer Podkul, “The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants,” Journal on Migration and Human Security 4 (2016): 190, https://cmsny.org/publications/jmhs-impact-of-externalization/.

[2] Turkey has long persecuted Kurdish people because of the claims for an independent state by this ethnic group.

[3] S.A. v. Turkey, no. 74535/10, December 15, 2015, ECHR 2015, http://hudoc.echr.coe.int/eng#{“fulltext”:[“001-159204”]}.

[4] “Turkey: Border Guards Kill and Injure Asylum Seekers,” Human Rights Watch, May 10, 2016, https://www.hrw.org/news/2016/05/10/turkey-border-guards-kill-and-injure-asylum-seekers.

[5] Apostolis Fotiadis, Helena Smith, and Patrick Kingsley, “Syrian Refugee Wins Appeal Against Forced Return to Turkey,” The Guardian, May 20, 2016, http://www.theguardian.com/world/2016/may/20/syrian-refugee-wins-appeal-against-forced-return-to-turkey?CMP=twt_gu.

[6] “What Merkel, Tusk and Timmermans Should Have Seen During Their Visit to Turkey,” GUE/NGL, May 3, 2016, http://www.guengl.eu/uploads/news-documents/GUENGL_report_Situation_of_refugees_since_EU-Turkey_deal_2016.05.10.pdf.

[7] Sentence C — 695/15 Mirza/Ingria, reaffirming that a member state of the European Union can send an asylum seeker back to a third country if it is considered “safe” according to the terms of Articles 38 and 39 of Directive 2013/32/EU. Case C-695/15 PPU, Shiraz Baig Mirza v. Bevándorlási és Állampolgársági Hivatal [2016], CJEU, http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d5de748c8328cc4b088da7a9be4c2d29bb.e34KaxiLc3eQc40LaxqMbN4OchyNe0?text=&docid=175167&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=937086.