Steve Peers* and Emanuela Roman,
University of Palermo and
Vrije Universiteit Amsterdam**
*Emanuela Roman wrote the sections on ‘safe third country’, ‘super-safe
third country’ and ‘first country of asylum’. Steve Peers wrote the rest of the
main text and the annexes.
The key non-EU country in the EU’s ongoing refugee crisis is Turkey: the
host of over 2 million Syrian
refugees, and a transit country for many asylum-seekers. An increasing number
of them have been making the journey from Turkey to the Greek islands, leading
to a significant rise in the number
of would-be asylum-seekers in the EU over the last year. Tragically, many have died making this crossing.
To address these issues, the EU and Turkey reached a deal in November with a number of
different elements. The main aim was to improve the position of Syrian refugees
in Turkey (reducing the ‘push’ factor which results in more people planning to
leave), and to return to Turkey those who did not need international
protection. But, according to the latest Frontex statistics, most of the people arriving from Turkey do need international protection: about 90% of those arriving in
Greece in December were from Syria, Iraq and Afghanistan, countries with high recognition rates for asylum
claims.
It follows that returning to Turkey only those who don’t need international protection would only make a small dent in
the numbers coming to the EU. Many politicians, in reaction to a portion of
public opinion, would like to reduce those numbers far more. So last week, a
further plan emerged: to return to Turkey those who do need international protection, on the grounds that they already had such protection in Turkey –
or if not, they should seek it there.
This would entail designating Turkey as a ‘safe third country’. The plan would
entail a nearly immediate return to Turkey of any would-be asylum-seekers who
reached the Greek islands.
The following analysis looks first of all at the main elements of the
overall EU/Turkey deal on the refugee crisis, then in more detail at the new
plan to return asylum-seekers to Turkey.
The EU/Turkey deal
The EU/Turkey deal contains concessions on both sides. The EU side has
agreed: the opening of another chapter in the EU/Turkey accession process, and
preparatory work by the Commission on further chapters; a proposal to lift
Schengen visa requirements for Turkey by October 2016, if Turkey meets the
requirements of the EU’s ‘roadmap’ on visa liberalisation; and a ‘Refugee
Facility for Turkey’, totalling of €3 billion for Turkey. Subsequently, the
Commission adopted a Recommendation
on an EU ‘humanitarian admission scheme’ of Syrian refugees from Turkey (discussed in detail by Laura
Robbins-Wright here).
In return, the Turkish side agreed: to readmit non-Turkish nationals to
its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees
in Turkey; and to prevent non-EU citizens from leaving.
There are also agreements in both sides’ mutual interest: to hold
regular summits (at least twice a year); and to ‘upgrade’ the EU/Turkey customs
union, to include services and investment, with negotiations to start before
the end of 2016.
Several elements of the deal should be clarified further. It’s sometimes
claimed that the deal has ‘fast-tracked’ Turkish
membership of the EU. This is clearly not the case. Turkey applied for EU
membership in 1987, and negotiation talks opened 18 years later, in 2005. In
the eleven years since, the EU and Turkey have agreed only one of the 35 ‘chapters’ of issues being
discussed in the negotiation. Before last year’s deal, they had opened another
13 chapters; the deal raised that number to 14. There is no date to open talks
on the remaining 20 chapters; the deal is expressly without prejudice to EU
Member States’ position on the planned ‘preparatory work’. Overall, the deal
means that the enlargement negotiations will now move at the pace of a turtle,
instead of a snail.
The prospect of Turkish accession to the EU also faces a number of
obstacles on the EU side: objections by many Member States (including possible
referendums), and misgivings by the European Parliament (which must approve
accession treaties). Nor would accession lead immediately to free movement of
Turkish citizens to the EU. Recent accession treaties have provided for waiting
periods of seven years before workers from the new Member States can move to
the older Member States, and the UK, which has a veto over accession treaties,
insists that future enlargements must provide for even longer waiting periods.
As for the visa waiver, it should be noted that it will apply to
(short-term) visas to visit the Schengen states. Therefore it will not ever apply
to the UK and Ireland; and does not yet apply to Romania, Bulgaria, Croatia or
Cyprus. It’s the EU’s usual practice to offer visa facilitation (fast-track
issue of visas, with reduced fees) and then a full visa waiver to neighbouring
States which have agreed a readmission treaty. As the text of the EU/Turkey
deal points out, that waiver is dependent in each case upon the third State
fulfilling a list of conditions set out by the EU (for the Commission’s most
recent report on Turkey meeting those conditions, see here).
It’s the readmission deal – the quid pro quo for the visa waiver – that
is central to the issue of the refugee crisis. The EU/Turkey readmission treaty has applied since October 2014. It applies to Turkish
citizens straight away, but Turkey (like many other states signing up to
readmission treaties) negotiated a delay before it applies to nationals of other countries. That’s a three year
delay, so it was due to expire in October 2017. However, in light of the perceived migration and refugee crisis, the EU
was not willing to wait that long until it called upon Turkey to accept
third-state citizens back onto its territory.
Finally, the ‘Refugee Facility for Turkey’ aims to reduce the ‘push’
factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which
Member States finally agreed to recently
– the Fund will assist refugees and host communities. No further details are
given.
Before we look at the substance of the law on returning people to
Turkey, it’s useful to make some general observations on EU policy in this
area. Some critics of EU asylum policy argue that it should be more like the
Australian policy. In fact, in some ways the EU is moving towards such a policy,
as we’ll see. But – leaving aside for a moment the desirability of the EU adopting an ‘Australian’ asylum policy –
there are legal, political, geographical and practical limits to doing so.
In a nutshell, Australia intercepts vessels of asylum-seekers on the
high seas (international waters) and arranges for the asylum-seekers to be
detained and their applications processed in other countries, which Australia
considers to be ‘safe’. Furthermore, Australia resettles confirmed refugees
directly from third countries (about 13,000 a year), as its contribution to
sharing the burdens of the countries which host those refugees (the large majority of refugees live in
developing countries).
There’s no legal obligation upon the countries which Australia considers
‘safe’ to take the asylum-seekers and process them. The UN Convention on
Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international
law framework for ‘safe third country’ rules, see discussion here). Even
if it did, some of the countries concerned haven’t ratified that treaty. So
Australia has to talk those countries into accepting the people concerned. They
won’t accept unless Australia pays most of the costs.
How does this compare with the EU? First of all, the numbers are hugely
different: 18,000 people arrived illegally by sea in Australia in 2012-13, whereas over a million potential asylum-seekers arrived in
the EU last year. We’re comparing apples and orchards
here. There are simply more people wanting to apply for protection in
closer vicinity to the EU, as compared to Australia, and the distance to travel
is shorter. Furthermore, there are no ‘high seas’ between Greece and Turkey, so
interception raises different legal issues. Once would-be asylum-seekers reach
Greek waters, EU law says they can apply for asylum, and Greece is also bound
by the European Convention on Human Rights (ECHR) as regards them.
That brings us to the next distinction. The Australian constitution has
weak human rights protection, and that country’s High Court has recently ruled in favour of the offshore
detention policy. In contrast, EU countries are governed by the case law of the
European Court of Human Rights (ECtHR), which is open to individual complaints
and can give binding rulings, often critical of national policies in this area.
While Australia has signed up to the International Covenant on Civil and
Political Rights (ICCPR), and allows individuals to make complaints to the United
Nations Committee which interprets that Covenant, the Committee’s rulings
aren’t binding. When the Committee rules against Australian policy on
asylum-seekers – which it often does – Australian politicians in effect throw
the ruling on the barbecue.
So given the large numbers concerned and the legal constraints, if the
EU wants non-EU countries to take back non-citizens of those countries who have
made their way to the EU, it needs to offer a lot to them to convince them to
do so. At first sight, it may seem overly generous for the EU to offer money to
Turkey, waive visa requirements and accelerate the accession process a little,
in order to secure Turkey’s cooperation as regards refugees and migrants. But
Turkey is under no obligation now to take back non-citizens or to restrain them
from leaving. Even after it agrees to accept returns of non-citizens to its
territory, it could end its obligations at any time by denouncing the
readmission agreement – if it is willing to accept the re-imposition of visa
requirements by the EU as a consequence. The financial assistance, if spent as intended, will also reduce the 'push' factor for migration of Syrian refugees towards the EU.
Returning people to Turkey
Turkish citizens
Turkey is already obliged to accept back its own citizens under the
readmission agreement with the EU. Turkish citizens in the EU might have rights
to stay under the EU’s immigration and asylum legislation, or under the
EU/Turkey association agreement. But they have no general right of free
movement to the EU, and there is no prospect of it being extended to them
before (or indeed well after) EU membership. So those Turkish citizens in the
EU without such a right to stay, including failed asylum-seekers, must be
returned.
It should be noted that the EU Commission has proposed to list Turkey as a ‘safe country of origin’ for asylum
purposes, meaning that asylum claims by Turks would be fast-tracked (but not
rejected automatically). This is a rather dubious suggestion (for the reasons
set out here), and it is not yet
known whether it will be accepted.
Non-Turkish citizens: Irregular
migrants
Turkey is not obliged to accept back any non-Turkish citizens until it
brings forward the relevant obligations in the EU/Turkey plan – as it has
agreed to do so. If someone has never applied for asylum, and has no other
ground to stay, EU Member States will then be able to return them to Turkey, if
the Member States can prove that the person was previously in Turkey. It should
be sufficient to show that the person concerned crossed from Turkey to a Greek
island.
This is equally the case for failed asylum-seekers, if the person
concerned has failed on the merits. In
other words, if the non-Turkish citizen has not convinced the Member State’s authorities
(or the courts on appeal) that he or she faced persecution or serious harm,
that person could be sent back to Turkey once that country extends the scope of
the readmission deal.
The more difficult question – which is the subject of the new plan – is whether
asylum-seekers who have come via Turkey can be rejected and returned to Turkey
on the grounds that their applications are inadmissible.
Let’s be clear what that means: those applications would not be rejected on the
basis that the person wasn’t a genuine
refugee, but that he or she either (a) could
have applied for protection in Turkey or (b) already had protection there. The former is the ‘safe third country’
concept; the latter is the ‘first country of asylum’ concept. There are
detailed definitions of each concept in EU law, in the Asylum Procedures Directive. We will consider those definitions in
turn.
Is Turkey a ‘safe third country’?
On Thursday 28 January 2016, Diederik Samsom, leader of the Dutch Labour
Party, announced in an interview with the newspaper De Volkskrant
(followed by an interview on the nightly TV programme Niewsuur) a Dutch proposal for a new plan to radically
reduce the number of migrants and asylum-seekers entering the EU from Turkey. The proposal was immediately baptised ‘the Samsom Plan’.
The plan would have the support of Dutch PM Mark Rutte and would also
receive support by a number of EU Member States, among which Germany, Austria
and Sweden. The idea is to offer Turkey the resettlement of 150,000 to 250,000
refugees per year from Turkey to the EU countries that voluntarily agree with
the plan. This resettlement would presumably be on the basis of the Commission
Recommendation on humanitarian admission from Turkey, referred to above. In
exchange for this, Turkey would have to accept the return of all migrants and
asylum-seekers who cross the Greek-Turkish border irregularly. According to Mr
Samson, these people would have to be very rapidly returned from Greece to
Turkey by ferry-boat, and it would be Turkey’s responsibility to deal with
their reception and asylum application.
This new plan is based on the assumption that Turkey can be considered a
‘safe third country’ – a non-EU country where an asylum-seeker can apply for
asylum and be granted access to asylum procedures and reception conditions in
line with international and EU law.
The Samsom Plan, however, does not seem to come from Mr Samsom’s mind.
The European Stability Initiative (ESI), a think tank specialised in Southeast
Europe, presented a very similar proposal in October 2015. The original plan,
based on the fundamental idea of considering Turkey a safe third
country, was called ‘Merkel Plan’, because initially Germany alone would have the
main role in the resettlement scheme with Turkey. The original plan was then
further developed (becoming ‘Merkel Plan 2.0’) and a ‘coalition of the willing’ (including
the Netherlands) was gathered around Germany. From October 2015 to January 2016
the ESI presented this proposal in different
countries across Europe,
but it was only following Mr Samsom’s interview, that the now renamed Samsom
Plan burst into the public debate.
What is the legal definition of a ‘safe third country’? Article 38(1) of
the Asylum Procedures Directive sets out a series of legal requirements that
need to be met in order for a third country to be considered ‘safe’ for asylum-seekers:
a)
life and
liberty shall not be threatened on account of race, religion, nationality,
membership of a particular social group or political opinion;
b)
there
shall be no risk of serious harm (consisting of: death penalty; torture or
unhuman or degrading treatment; or a serious threat to the applicant’s life due
to indiscriminate violence in situations of conflict, as defined by Article 15 of
the Qualification Directive, ie the concept of ‘subsidiary protection’);
c)
the
principle of non-refoulement (non-return
to an unsafe country) shall be respected; and
d)
the
possibility shall exist for the applicant to claim refugee status and to
receive protection in accordance with the Geneva Convention.
Article 38(2) establishes also several procedural guarantees. The safety
of a third country must be always assessed on a case-by-case basis in order to
check whether the notion is applicable to the particular circumstances of the
individual applicant concerned. Moreover, the applicant must be guaranteed the
right to challenge the application of the safe third country concept to his or
her case, based on the fact that that country may not be safe in his or her
particular circumstances. The question is whether an extremely rapid procedure
as the one envisaged by Mr Samsom, would allow for a case-by-case examination
of the individual circumstances of each asylum-seeker arriving in Greece from
Turkey.
A further, more practical, question concerns who would be responsible
for these procedures. Considering the difficulties faced by the Greek authorities
in managing the current migrant flow and the established deficiencies of the
Greek asylum system, it is hard to believe that the Greek authorities (despite
the assistance provided by Frontex and the European Asylum Support Office,
EASO) would be able to implement a systematic readmission plan as far-reaching as
the one foreseen by Mr Samsom. As mentioned above, such plan must indeed be
based on the individual consideration of each asylum application, otherwise it could
amount to a violation of the prohibition
of collective expulsions entailed in Article 4 Protocol 4 of the ECHR. Such
practice has been condemned by the European Court of Human Rights (ECtHR) in
the famous Hirsi case, where the Grand Chamber found Italian
authorities responsible for violating the ECHR, because they returned a group
of Eritrean and Somali migrants intercepted on the high seas back to Libya without
granting them the possibility to apply for asylum. The same rule obviously
applies to asylum-seekers who enter the territorial waters or land on the
territory of a Member State.
In addition, according to Article 46 of the Procedures Directive, asylum-seekers
have the right to refer to a national court the decision to consider their
application inadmissible pursuant to Article 33(2). They can stay on the
territory during their initial application, and apply to a court to stay during
this appeal. The Grand Chamber of the ECtHR unanimously confirmed in Hirsi (and reiterated in following case
law – see for instance, Sharifi and others v Italy and Greece
and Khlaifia and others v Italy) that
return is only possible after the asylum-seeker has been able to claim asylum
before a national authority, and to stay on the territory at least until the
first instance decision on the application was made. However, it is even more
doubtful that the accelerated procedure proposed by Samsom would allow for asylum-seekers
to challenge the decision to return them to Turkey in front of a judicial
authority and in the respect of all due procedural safeguards under the
Directive and the ECHR.
However, besides the procedural issues, the crucial question here is
more substantive: can Turkey be considered as a safe third country? Does Turkey
comply with the requirements established by the Procedures Directive?
First, Turkey ratified the 1951 Geneva Convention and its 1967 Protocol,
but maintains a geographical limitation for non-European asylum-seekers, thus recognising
refugees originating only from Europe (i.e. from countries which are members of
the Council of Europe). The geographical limitation provides the first barrier
to accessing asylum in the country. Moreover, Syrians represent a particular
case. They were at first received as ‘guests’ and then subject to a temporary
protection regime, formalised by a Regulation on Temporary
Protection only in October 2014 (for more details, see the updated AIDA Country Report on Turkey). The basic idea behind the temporary
protection regime is to host Syrians until the conflict is over and then possibly
let them return to their country of origin. As such, Syrians have a right to
reside in the country but are denied the prospect of a long-term legal
integration. They have access to limited rights compared to asylum-seekers in
the ‘normal’ procedure, in particular as concerns access to education for
children (on this point, see for instance, Human Rights Watch report) and access to employment. Although in January 2016, the Turkish government adopted a decision
aimed at ensuring that Syrians can enter the labour market, the effects of this
new regulation are yet to be seen in practice. Most importantly, Syrians in Turkey do not have access to refugee
protection in its full sense, as enshrined in the Geneva Convention. For the
reasons set out in more detail in the annex to this blog post, it is arguable
that the ‘safe third country’ clause can only be interpreted as applying to
countries which have ratified and fully apply the Geneva Convention.
Secondly, Turkey should respect the principle of non-refoulement, a prohibition on returning
a person to a place where he or she faces a risk of persecution, torture, or
inhuman or degrading treatment. However,
several reports suggest that Turkey has engaged in refoulement and push-back practices throughout the years 1990s and
2000s. In particular, in November and December 2015, Human Rights Watch and Amnesty International denounced an increase in deportations,
push-backs, arbitrary detentions and physical violence against asylum-seekers trying
to cross the Turkish southern border coming from Syria or Iraq, or trying to
enter Greece from Turkey, either by land or sea. This increase would coincide
with the period leading up to and after the signing of the above-mentioned EU/Turkey
deal.
Thirdly, in Turkey asylum-seekers and migrants in general, face a number
of obstacles which may increase their risk of serious harm. In particular,
Turkey has a record of treating asylum-seekers and refugees harshly in
detention: episodes of torture or inhuman or degrading treatment have been
reported by NGOs (Global Detention Project and Amnesty International among others) and condemned by the ECtHR in a
series of judgments (see for instance, Abdolkhani and Karimnia v Turkey and
the recent SA v Turkey, judgement of 15 December 2015). Furthermore,
with reference to serious harm due to indiscriminate violence in a situation of
conflict, the internal conflict between Turkey and the Kurdish rebels, which
has escalated during the last year, may pose threats to the lives of asylum-seekers
and refugees in the southeast of the country.
Therefore, it seems that Turkey does not fulfil many of the requirements
for designation as a safe third country under the Procedures Directive. Even
though the Samsom Plan does not mention this option, it seems now interesting
to consider whether a similar policy could theoretically be implemented based
on two different concepts entailed in the Procedures Directive, the concepts of
‘European safe third country’ and ‘first country of asylum’. The latter will be
examined more in detail.
Is Turkey a ‘super-safe’ third country?
This wasn’t
mentioned above, but the Asylum Procedures Directive also provides for a
special category of ‘European safe third country’, which has been dubbed
(sarcastically) the ‘super-safe’ third country concept. In this case, a Member
State could have ‘no, or no full’ consideration of an asylum application – as
foreseen by the Samsom Plan. The legal requirements for a country to be
considered a ‘European safe third country’ are set out in Article 39(2) of the
Directive:
a)
the ratification and full
implementation of the Geneva Convention without any geographical limitation;
b)
the existence of an asylum procedure
prescribed by law; and
c)
the ratification and full
implementation of the ECHR.
Even though
Turkey has in place an asylum procedure prescribed by law (Law on Foreigners and International
Protection adopted in
April 2013 is Turkey’s first-ever national legislation on asylum), is a party to the ECHR (even though one of the parties with the
highest number of condemnations by the ECtHR for violations of this treaty) and
has ratified the Geneva Convention, as mentioned above, it maintains a
geographical limitation to the application of the Geneva Convention, excluding
non-European asylum-seekers from the refugee status. For this reason Turkey
could not even be considered a ‘European safe third country’.
Could Turkey be considered a ‘first country of asylum’?
Could then the notion of ‘first country of asylum’ apply to Turkey?
Could asylum-seekers possibly be returned from Greece to Turkey based on the
fact that Turkey is their first country of asylum?
Article 33(2)(b) of the Procedures Directive foresees the possibility
for a Member State to deem an asylum application inadmissible if it considers a
non-EU country to be a first country of asylum for a particular applicant.
Article 35 establishes that a third country can be a first country of asylum in
two cases:
a)
if the
applicant has been recognised as a refugee in that country and can still avail
himself or herself of that protection; or
b)
if the
applicant otherwise enjoys sufficient protection in that country, including
benefiting from the principle of non-refoulement.
Article 35 further specifies that in applying this concept Member States
may take into account the legal requirements provided for by Article 38(1) - i.e.
those used to establish whether a country is a safe third country. It also
states that asylum-seekers ‘shall be allowed’ to argue that the principle
cannot apply to their particular circumstances. Furthermore, they also have the
right to appeal pursuant to Article 46 of the Procedures Directive (and stay on
the territory during the application and at least at the outset of the appeal),
as discussed above.
For the reasons set out in the annex to this blog post, option (a) arguably
refers only to obtaining status under the Geneva Convention. Therefore Turkey cannot
be considered a first country of asylum for a non-European asylum seeker, due
to its geographical limitation on that Convention. On the other hand, option (b)
might apply. In Turkey, indeed, non-European asylum seekers can, at least
theoretically, have access to an alternative form of protection: the so-called
‘conditional refugee status’ (for applicants who would qualify as refugees
under the Geneva Convention but who come from a non-European country) or the
EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers
originating from Syria have access to a different form of temporary protection.
These three alternative forms of protection differ in terms of the level
of rights their holders benefit from, which in all cases (and in particular in
the case of Syrians benefiting from temporary protection) is lesser than the
one recognised to ‘European refugees’ (for details on the content of these
three alternative forms of protection, see the AIDA Country Report on Turkey). The question is: could these forms of
protection be considered as ‘sufficient protection’? How can a Member State
establish when protection is ‘sufficient’?
Article 35 provides two reference points, one being strictly mandatory,
the other one being optional. The first one is the respect of the non-refoulement principle. Turkey is
formally bound to the principle of non-refoulement,
being a party to the ECHR and having incorporated the principle into Article 4
of its Law on Foreigners and International Protection as well as in Article 6
of its Temporary Protection Regulation. However, as mentioned above, the
country has a historical record of refoulement
practices and there are allegations of a recent intensification of push-backs
and deportations of Syrians and other asylum-seekers. Therefore, Turkey does
not seem to be fully compliant with the principle of non-refoulement in practice. But, in light
of the fact that each asylum application must be examined individually based on
the specific circumstances of the case, Member States might argue that the risk
of non-refoulement could be assessed
on a case-by-case basis in order to establish if that particular applicant enjoys
sufficient protection in Turkey.
The second reference point mentioned by Article 35 is Article 38(1). In
deciding whether a third country can be considered a first country of asylum,
Member States may apply the same criteria they use for determining whether that
country could be a safe third country. As discussed above, Turkey does not seem
to comply with most of the safe third country legal requirements and, on this
basis, it might be argued that in general it should not be considered a first
country of asylum. However, because this is a ‘may’ clause, Member States have no
obligation to apply Article 38(1) requirements to Article 35 cases and can
simply ignore the possible link between the two concepts.
Therefore, although the possible application of the concept of first
country of asylum to Turkey seems in general rather controversial, Member
States might apply it on an individual basis, based on option (b). However, if
they decide to do so, Member States’ authorities would have to conduct a
case-by-case assessment, taking into due consideration the particular
circumstances of each individual applicant in order to determine whether he or
she enjoys sufficient protection in Turkey and does not risk being refoulé(e). As discussed above, an
individual examination of all asylum claims (including the applicant’s right to
appeal against a negative decision) is incompatible with the extremely rapid
procedure and systematic readmission mechanism envisaged by the Samsom Plan.
A change in EU law?
The above discussion is based on current EU legislation. It is, of
course, possible in principle for the EU to amend that legislation via the
usual process, or arguably via means of an ‘emergency’ measure on asylum
pursuant to Article 78(3) TFEU. The previous use of Article 78(3), for a
‘relocation’ system, is being challenged by Hungary and Slovakia. (On
the latter challenge, see discussion here;
and on the general legal issues concerning that provision, see discussion here.) There might be some specific procedural
issues about the use of Article 78(3) to establish the Samsom Plan, but the
underlying issue is substantive: could EU law be changed (by either means) to
set up a ‘return ferries’ process?
The answer is clearly: No. All EU asylum measures are subject to the
general rules in Article 78(1) TFEU: ‘compliance with the principle of non-refoulement’, and acting ‘in
accordance with the Geneva Convention…and other relevant treaties’. Also, all
EU measures are subject to the EU Charter of Fundamental Rights, which must be
interpreted consistently with the ECHR (Article 52(3) of the Charter).
It must follow that at the very least, the ECHR case law minimum
standards discussed above must apply. So no revised EU law can provide for
return of people coming from Turkey without some proper individual consideration
of their claim that Turkey would not be a safe country for them; and there must
be a right to appeal and stay in the country at least until the first-instance
decision is made on this issue. To the extent that the Samsom Plan does not
respect this irreducible core of human rights protection, it would be illegal.
Conclusion
Although it is remarkable that Turkey adopted a new comprehensive
EU-inspired asylum legislation and is a state party to major human rights
conventions, such as the European Convention on Human Rights, the Refugee
Convention and the Convention against Torture, the way it has so far implemented
its international human rights obligations appears to be still faulty. In
particular, the right to asylum in Turkey cannot be considered as ‘fully
established’, especially because of the still largely dysfunctional asylum
system and the existing inequalities in access to protection and content of
protection, which at the present moment are affecting Syrian refugees in
particular.
For these reasons, the Samsom Plan proposing the systematic return of
all asylum seekers from Greece to Turkey in exchange for increased refugee
resettlement in Europe, appears to be not only very difficult to implement (due
to both legal and practical obstacles), but also based on the doubtful presumption
that Turkey may be (soon) considered a safe third country for refugees and
asylum-seekers.
Furthermore, it is unfortunate that the EU and Turkey did not agree to
fully apply the Geneva Convention for Turkey, and that there are no mechanisms
of accountability in place for the EU institutions to report either in general
upon Turkey’s compliance with international human rights standards or in
particular to explain exactly how the EU’s money is being spent.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: insidethegames.biz
**Emanuela Roman is a PhD
candidate in Human Rights at the University of Palermo and junior researcher at
the Forum of International and European Research on Immigration (FIERI). This
article was written during the period she is spending as a visiting researcher
at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section.
Emanuela would like to thank all her colleagues at the VU Migration Law
Section, in particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer and
Hemme Batijes for their precious comments and advise. The sole responsibility
for the content of this article lies with the authors.
Annex I
Interpreting the ‘safe third country’ clause in the Procedures Directive
As noted above, Article 38 of the Asylum Procedures Directive says that
in a safe third country it must be possible for the applicant ‘to request
refugee status and … to receive protection in accordance with the Geneva
Convention’. In my view, this can only refer to States which have ratified and
fully apply the Convention; therefore it cannot apply to Turkey. I am grateful
for a discussion with Daniel Thym on this issue – although I should note that
he holds the opposite opinion.
First of all, this interpretation is supported by the legislative
history of the text, which is set out in detail in Annex II. The original draft
in 2002 made expressly clear that the clause could apply even if a State had
not ratified the Convention. During negotiations that text was revised so that the
final wording states that it must be possible to get status ‘in accordance
with’ the Convention. Attempts by several Member States to make it clear that
alternative types of protection besides full Convention refugee status could also
trigger the clause were not successful.
Secondly, the ordinary meaning of the words ‘in accordance with’ in
English is ‘in compliance with’, although the other language versions are
equally valid. This is confirmed by the words ‘refugee status’: the full title
of the Geneva Convention is the ‘Convention on the Status of Refugees’. How can
one apply for ‘refugee status…in accordance with the Geneva Convention’ if the
state concerned has not ratified, or does not fully apply, the ‘[Geneva] Convention on the Status of
Refugees’? While the definitions clause refers to Member States as regards
the definitions of ‘refugee’ and ‘refugee status’, this logically cannot be
intended to apply to Article 38, since that Article only refers to applications
made in non-EU states.
Thirdly, the a contrario rule
supports this interpretation. Where the drafters of the Directive wanted to
refer to the possibility of applying for an alternative form of protection,
they did so expressly, as in Article 35(b) of the Directive. Admittedly Article
39, which refers more clearly to the geographical reservation of Turkey as a
(failed) condition for the ‘super-safe’ countries rule to apply, points in the
opposite direction. But to the extent that these two a contrario analyses simply cancel each other out, the
interpretation in line with the legislative history and ordinary meaning should
apply.
Similarly ‘recognised as a refugee’ under Article 35(a) of the Directive
should be interpreted to refer to the Convention refugee status, in the absence
of any indication that any alternative meaning is intended. However, Article 35(b)
does clearly provide for an alternative option of designating a state as a
‘first country of asylum’ due to the existence of other forms of protection.
Annex II: Legislative history of the ‘safe third country’ clause
Commission proposal,
2002: explicitly provides in an Annex that a ‘safe third country’ can be a
country which has not ratified the Geneva Convention
Council doc 6929/03
– a note indicates that the Council will start work looking at ‘safe’ country
concepts. This plan is soon dropped; the Council looks first at Arts 1-22
instead.
Council doc 7214/03
– Annex unchanged at this point, no MS comments
Council docs 10064/03
and 10456/03 – ditto
Council doc 10722/03
– minor amendment to annex to state that Cartagena declaration countries must
have a procedure compliant with the principles of the Geneva Convention
Council doc 11108/03
– no change
Council doc 11575/03
– annex shortened a little
Council doc 12281/03
– annex shortened significantly
Council doc 12734/03
– annex is simplified, but still provides for rules (same as in previous text)
on when a ‘safe third country’ can be a country which has not ratified the
Geneva Convention
Council doc 13369/03
– same text, but Germany now has a reservation linked to the ‘super-safe’
country clause, and Finland says the relevant clause could be deleted
Council doc 13901/03
– unchanged
Council doc 13902/03
– unchanged. The Presidency notes that delegations have inflexible positions on
these provisions.
Council doc 14020/03
– ditto
Council doc 14182/03
– issue sent to the Council
Council doc 14330/03
– text unchanged
Council doc 14686/03
– text unchanged. But Spain suggests deleting the annex and having a short
description of ‘safe third country’ in the main text, which is vague as to
whether the state in question must have ratified the Convention
Council doc 14686/03
add 1 – Presidency proposes to delete the annex and have a short description of
‘safe third country’ in the main text, which only mentions the Convention as
regards non-refoulement
Council doc 15153/03
– clause now in the main text, annex deleted. No change re Convention issue. DE
still has reservation linked to ‘super-safe’ clause
Council docs 15153/03
rev 1 and 2 – amended to refer to ‘request recognition and be granted
protection by that country or by the UNHCR as a refugee’. Spain wants to delete
‘as a refugee’. BE, NL and FI want to add express clause requiring ratification
of the Convention and/or observation
of the Convention. DE reservation is gone.
Council doc 15198/03
– unchanged
Council doc 15198/03
add 1 – UK wants to delete the whole sub-para
Council doc 6871/04
– redraft adds clause separate from main criteria for ‘safe third country’:
‘…Member States shall have regard to whether the third country has ratified the
Geneva Convention…’ when assessing the application of those criteria. The
clause in the main criteria now reads ‘request and be granted protection as a
refugee in that country’. This deletes the reference to the UNHCR and makes it
clear that it must be the country
which grants refugee status.
Council doc 6954/04
– unchanged, but UK joined by EL/ES/NL/AT want to add the words ‘or other forms
of international protection’ to the criteria
Council doc 7183/04
- unchanged, NL no longer supporting the UK position
Council doc 7184/04
- unchanged
Council doc 7184/1/04
– unchanged. UK and ES now want to change to ‘or another form of status which
otherwise offers sufficient protection’ to the criteria. This is similar to
final ‘first country of asylum’ clause.
Council doc 7484/04
– due to deadlock, Presidency proposes dropping clause on ‘request and be granted
protection as a refugee’ to get a deal.
Council doc 7729/04
– ditto
Council doc 8166/04
– redraft retains ‘request and be granted protection as a refugee’ clause,
drops requirement to take into account whether third State has ratified
Convention
Council doc 8158/04
– same text and reservation as in 7184/1/04
Council doc 8413/04
– text amended to read: ‘the possibility
exists to request refugee status and, if found to be a refugee, to receive
protection in accordance with the Geneva Convention’. UK and Spanish
proposal rejected – link to Geneva Convention in fact made explicit instead
Council doc 8415/04
– as before, except the UK seeks to amend to read ‘in accordance with the
principles of the Geneva Convention’. This is clearly rejected in the final
version.
