The way to not solve the issue

The major non-EU 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

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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 can mean “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

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

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