Steve Peers
Recent legal debates have arisen concerning the proposed EU/Turkey agreement on refugees. While general points were discussed last month, a leaked draft of the final deal necessitates a closer examination before the finalizing summit.
The agreement, framed as an EU-Turkey statement, builds upon the March 7, 2016, statement with added elements. It is crucial to note that as a statement, it won’t be legally binding, requiring no formal EU or national approval beyond the summit’s endorsement. However, specific elements like new Greek, Turkish, and EU laws, as well as the implementation of the EU/Turkey readmission agreement, will necessitate approval or case-by-case implementation.
The March 7 EU/Turkey statement remains relevant, outlining the return of all new irregular migrants arriving in Greece from Turkey back to Turkey with EU-covered costs, a one-for-one resettlement of Syrians from Turkey by the EU for every Syrian readmitted by Turkey, the goal of lifting short-term visa requirements for Turkey by June 2016, expedited spending of the existing €3 billion in EU and Member State funds for Syrian refugees in Turkey, a decision on additional funding, preparation for opening new chapters in Turkey’s EU accession process, and collaboration towards a de facto safe zone in Syria. The statement also included commitments on restoring Schengen, but these are unaffected by the new draft.
Regarding EU accession, it’s important to remember that only one chapter out of 35 has been closed in a decade. A commitment to prepare for opening chapters doesn’t equate to closing them or guarantee their opening, as any Member State can still object. Negotiating chapters takes years, and Turkish accession faces political hurdles, needing national government and parliament approval in every Member State, and potentially referendums in some.
Returns to Turkey: This temporary measure aims to end suffering and restore order. Migrants on the Greek islands will be registered, and asylum applications will undergo processing by Greek authorities under Directive 2013/32/EU. Migrants not seeking asylum or whose applications are deemed unfounded or inadmissible according to the directive will be returned to Turkey. Returned migrants will receive protection following international refugee treatment standards and the non-refoulement principle.
a) The temporary nature of the measure requires further definition. The EU’s asylum procedure directive will apply to those reaching the Greek islands, including its waters, as legally mandated. It remains unclear what is planned for those intercepted before reaching Greek territory or waters.
For migrants not seeking asylum, the key question is whether they will have a genuine opportunity to apply, as required by the directive and the European Court of Human Rights (ECHR) case law. If not, returning them to Turkey is possible, subject to the EU Returns Directive. Greek authorities handling applications imply the closure of the Western Balkans route. The EU’s decisions on relocating asylum-seekers from Greece and Italy remain applicable, but only cover a minority of arrivals and are poorly implemented.
An “unfounded” application signifies rejection based on merit, while “inadmissible” means rejection not on merit but on grounds such as Turkey being a “first country of asylum” or a “safe third country.” Whether Turkey qualifies as either is debatable, particularly the latter, leading to the next point.
c) The commitments to treatment in Turkey aim to align with EU rules in the Procedures Directive. This defines a “safe third country” as one where individuals are not threatened based on race, religion, nationality, social group, or political opinion, echoing the Geneva Convention on refugee status. It also stipulates no risk of serious harm (death penalty, torture, etc.), no transfer to another unsafe country (non-refoulement and ECHR case law), and the right to seek and, if granted, receive refugee status and protection in line with the Geneva Convention.
The last point is debatable, as Turkey doesn’t apply the Geneva Convention to non-Europeans. While some argue for equivalent standards in practice, this interpretation is disputed, and whether Turkey meets those standards is questionable. NGOs also highlight the risk of mistreatment of refugees within Turkey. Although Turkey may return individuals to unsafe countries, the March 7 deal proposes a “safe zone” in Syria. The feasibility and safety of such a zone remain uncertain and contingent upon future events. To address these concerns, the Procedures Directive allows asylum-seekers to argue against the safety of the third country based on their circumstances, making the assessment of such arguments critical.
The potential for fast-tracking these cases is crucial. While the Procedures Directive allows fast-tracking in specific situations, it doesn’t explicitly include “safe third country” cases. While these cases might be faster to decide without merit examination, it’s unclear if the lists are exhaustive. If Greece supports a broader interpretation, these clauses’ application will be pivotal. Without fast-tracking, returns to Turkey will take longer. Special “border procedures” are possible but lack fast-tracking provisions for applications. Additionally, fast-track and border procedures cannot be applied to “vulnerable” applicants or unaccompanied minors.
Interestingly, the general human rights situation in Turkey, like freedom of expression, isn’t directly relevant to returning refugees or migrants unless it impacts their safety. However, it’s relevant for a different reason: the Commission’s separate proposal designates Turkey as a “safe country of origin.” This proposal, aimed at simplifying the rejection of asylum claims by Turkish citizens, is considered untenable given Turkey’s human rights record and recent events. However, this proposal is separate from the current deal.
Resettlement on a 1-for-1 basis: Syrians who haven’t entered the EU irregularly will be prioritized. The EU will initially honor commitments from the July 22, 2015, Council meeting, with further resettlement needs addressed within the September 22, 2015, relocation decision’s limits and distribution. If returns exceed these commitments, the agreement will be reviewed.
The “1-for-1” exchange of irregular migrants for resettled Syrians, while controversial, doesn’t inherently raise legal concerns. Resettlement, though common, isn’t a binding legal obligation. The legality of returning individuals to Turkey and any potential trade-offs must be assessed independently. However, the moral implications of a de facto “trade in human misery” are undeniable.
Member States retain the right to prioritize resettlement based on their criteria, intending to deter unsafe journeys orchestrated by smugglers. The effectiveness of this strategy hinges on the number of potential resettlements, addressed in point b). This refers to the remaining 23,000 individuals the EU pledged to resettle from non-EU nations last year and potentially an additional 18,000 initially intended for relocation from Hungary, which ultimately refused. These figures are dwarfed by the estimated 2 million-plus Syrians in Turkey. Point c) only mandates a deal review if these initial, modest numbers are reached. Notably, Hungary, having made no prior commitments, wouldn’t be obligated to accept any individuals under this deal. The decision to resettle remains with each country. While Hungary resists interference in its migration decisions, it has no say in the resettlement decisions of other states.
New illegal migration routes: Turkey will take necessary steps to prevent new illegal migration routes from Turkey into the EU.
This addresses Bulgarian concerns about the Black Sea becoming a new entry route. If individuals reach Bulgarian territory or waters, EU asylum laws would apply, just as they do for Greece.
Voluntary Humanitarian Admission Scheme: Once irregular crossings between Turkey and the EU cease, the Voluntary Humanitarian Admission Scheme will become active, with EU Member States contributing voluntarily.
This scheme, detailed in a December Commission Recommendation, won’t be implemented until irregular crossings stop, a seemingly unrealistic expectation. However, the Commission paper suggests substantial reductions as a possible trigger.
Financial Assistance: The EU and Turkey will expedite the disbursement of the initial €3 billion and secure funding for additional projects by March’s end. The EU will decide on an additional sum for the Turkey Refugee Facility covering a specific period.
Negotiations continue regarding the additional funds from the EU and its Member States. Contrary to assumptions, this money isn’t freely given to Turkey but is legally designated for projects assisting Syrian refugees. The Commission paper details the spending plan, starting with a contract to provide food aid to over 700,000 Syrians. Monitoring is crucial to ensure these funds are used as intended.
Conclusions
This draft addresses two major legal concerns surrounding the March 7 “deal.” It clarifies the application of EU asylum laws to those reaching Greece (with reservations about interceptions in Greek waters) and mandates Turkey to meet relevant standards for returns. The key issue lies in the practical implementation of these commitments.
Asylum-seekers challenging these practices can primarily do so through Greek courts, which can refer EU asylum law questions to the Court of Justice of the European Union (CJEU). Alternatively, after exhausting Greek legal avenues, they can appeal to the European Court of Human Rights.
Since the “deal” itself isn’t legally binding, it can’t be challenged directly. However, its individual elements are binding and subject to legal challenges. The European Parliament or a Member State could challenge one specific element – the decision on the EU’s position on the EU/Turkey readmission treaty – at the CJEU. While this wouldn’t directly impact the Greece/Turkey readmission deal, any CJEU ruling would hold significant weight for the latter by analogy.
Barnard & Peers: chapter 26
JHA4: chapter I:5
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