Steve Peers
The EU and Turkey have now reached an
agreement on refugee issues, which has aroused considerable legal and
political controversy. To examine the arguments about the deal, I present here
the main text with my legal assessment of each point annotated. This builds
upon my comments (together
with Emanuela Roman) first of all in general on the relevant points last month,
and then secondly on the leaked draft
text of the final deal earlier this week (I have reused here some
of the latter analysis where relevant). The agreement should be read alongside
the EU summit conclusions, as well as the Commission communication on
the deal. It incorporates the March 7
EU/Turkey statement which addressed the same issues in less
detail.
The text of the deal is underlined below.
The sections in bold have been added during negotiations, and the sections in
strike-out have been removed. I have already discussed the legal status of the
deal in the prior post earlier this week: it’s a statement that is not subject
to approval or legal challenge as such; but its implementation in the form of
specific laws or their application to individual asylum-seekers can be
challenged.
1. All new irregular migrants crossing from Turkey into Greek islands as
from 20 March 2016 will be returned to Turkey. This will take place in full
compliance with EU and international law, thus excluding any kind of collective
expulsion. All migrants will be protected in accordance with the relevant international
standards and in respect of the principle of non-refoulement. It will be a temporary and
extraordinary measure which is necessary to end the human suffering and
restore public order, Migrants arriving in the Greek islands will be duly
registered and any application for asylum will be processed indvidually by the Greek authorities
in accordance with the Asylum Procedures
Directive 2013/32/EU, in
cooperation with UNHCR. Migrants not applying for asylum or whose
application has been found unfounded or inadmissible in accordance with
the said directive will be returned to Turkey, Turkey and Greece, assisted by EU institutions
and agencies, will take the necessary steps and agree any necessary bilateral
arrangements, including the presence of Turkish officials on Greek islands and
Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby
facilitate the smooth functioning of these arrangements. The costs of the
return operations of irregular migrants will be covered by the EU. Migrants having
been returned to Turkey will be protected in accordance with the international
standards concerning the treatment of refugees and respecting the principle of
non-refoulement.
The newly added first sentence is a
flagrant breach of EU and international law – but the rest of the paragraph then
completely contradicts it. To be frank, anyone with a legal qualification who
signed off on this first sentence should hang their head in shame. Returning ‘all’
persons who cross from Turkey to the Greek islands would contradict the ban on collective expulsion in the EU Charter
and the ECHR, as well as EU asylum legislation. However, it does appear from
the rest of the paragraph – including the newly added reference to non-refoulement (not sending people back
to unsafe countries) – that this is not really the intention.
As for the rest of point 1, the first
question is how ‘temporary’ this arrangement will be. Secondly, point 1 makes
clear that the EU’s asylum procedure
directive will apply to those who reach the Greek islands, as
legally required. Note that the text does not refer to Greek waters:
but the Directive explicitly applies to them too. It does not apply to
international or Turkish waters. It is not clear what is planned as regards
those intercepted before they reach the Greek islands.
As for ‘migrants not applying for
asylum’ the crucial question is whether they will be given an effective
opportunity to apply for asylum, as the Directive (and ECHR case law)
requires. If an irregular migrant does not apply for asylum then in principle
there is no legal obstacle to returning them to Turkey, subject to the
conditions set out in the EU’s Returns
Directive. Note that the Greek authorities will have to consider the
applications, which is a significant administrative burden; this implicitly
reiterates the closure of the route via the Western Balkans. The EU’s decisions
on relocation of asylum-seekers from Greece and Italy (discussed here)
will implicitly continue to apply, but they only commit to relocating a
minority of those who arrive in Greece, and they are barely being applied in practice.
If an application is ‘unfounded’ that
means it has been rejected on the merits. If it is ‘inadmissible’ that means it
has not been rejected on the merits, but on the grounds that
Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are
other grounds for inadmissibility, but they wouldn’t be relevant). The
Commission paper briefly suggests that Turkey could be a ‘first country of
asylum’ (for more analysis on that, see the prior blog post).
Most of the debate is on whether Turkey is a ‘safe third country’.
Is it? The commitments on treatment
in Turkey have been moved from this statement to the separate summit conclusions. Treatment in Turkey will need to match EU rules in the
procedures Directive, which define a ‘safe third country’ as a country where:
the people concerned do not have their life or liberty threatened on ground of
‘race, religion, nationality, membership of a particular social group or
political opinion’ (this test is taken from the Geneva Convention on refugee
status); there is ‘no risk of serious harm’ in the sense of the EU definition
of subsidiary protection (death penalty, torture et al, civilian risk in
wartime); the people concerned won’t be sent to another country
which is unsafe (the non-refoulement rule, referring
specifically to the Geneva Convention, plus the ban on removal to face torture
et al as laid down by ECHR case law); and ‘the possibility exists to request
refugee status and, if found to be a refugee, to receive protection in
accordance with the Geneva Convention’.
As set out in the previous blog
post, the last point is questionable because Turkey does not apply
the Geneva Convention to non-Europeans, and the best interpretation of this
requirement is that it must do so in order for the clause to apply. However,
this interpretation is not universally shared: the Commission, the Council,
Greece and some academics take the view that it is sufficient that Turkey
applies equivalent standards in practice. (Note that the Commission only
selectively quotes the Directive to make this argument). Even if this latter
interpretation is correct, whether Turkey does apply
equivalent standards in practice might itself be open to question.
Furthermore, again as discussed in
the previous post, many NGOs argue that refugees are not always safe from
mistreatment in Turkey itself, although no one argues that all of
them are mistreated there. Equally Turkey allegedly returns some people
(but clearly not all of them) to unsafe countries, and the deal
explicitly plans for a ‘safe zone’ in Syria. Such a zone is conceivable
in theory, but whether it would indeed be safe would have to be judged when and
if it happens; and it may become less (or more) safe in light of events. To
address these issues the procedures Directive says that the asylum-seeker must
be able to argue that ‘the third country is not safe in his or her particular
circumstances’. Everything will then turn on the assessment of an argument
along these lines.
A critical here is whether the case
can be fast-tracked. The procedures Directive contains lists of cases where the
administrative procedure can be fast-tracked, and where the appeal against a
negative decision to a court doesn’t automatically entitle an asylum-seeker to
stay. Note that those lists don’t refer to fast-tracking ‘safe third
country’ cases, although in practice it may be quicker to decide a case
without examining the merits. It is possibly arguable that the lists aren’t
exhaustive. If Greece wants to take this view, the interpretation of these
clauses will be crucial. If the cases can’t be fast-tracked, it will obviously
take longer to return people to Turkey in practice. Member States can set up
special ‘border procedures’, but there is no reference to fast-tracking applications
in this context. Furthermore, Member States can’t apply fast-track or border
procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply
border procedures to unaccompanied minors.
Odd as it might seem, the general state
of human rights in Turkey (for example, as regards freedom of expression) is
not directly legally relevant to returning refugees or other migrants there.
The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees
and migrants. However, the general state of human rights in Turkey is
relevant for a different reason: the Commission has separately
proposed that Turkey be designated a ‘safe country of origin’, so that any
refugee claims by Turkish citizens can be more easily rejected. I argued last
September that this proposal was untenable in light of the human rights record
of Turkey. In light of developments
since, I’ll update my assessment: the suggestion is now utterly
preposterous. But this proposal is not part of the deal.
2. For every
Syrian being returned to Turkey from Greek islands, another Syrian will be
resettled from Turkey to the EU taking into account the UN Vulnerability
Criteria. A mechanism will be established, with the assistance of the
Commission, EU agencies and other Member States, as well as the UNHCR, to
ensure that this principle will be implemented as from the same day the returns
start. On resettlement based on 1-for-l
principle: a) Priority will be given to migrants
Syrians who have not previously entered or tried to enter the EU irregularly, On the EU side, resettlement
under this mechanism will take place, in the first instance, by honouring the
commitments taken by Member States in the conclusions of Representatives of the
Governments of Member States meeting within the Council on 22/7/2015, of which
18.000 places for resettlement remain. Any further need for resettlement
will be carried out through a similar voluntary arrangement up to a limit of an
additional 54.000 persons. The Members of the European Council welcome the
Commission's intention to propose an amendment to the within the
limits and in accordance with the distribution set out in [relocation
decision of 22/9/2015 to allow for any resettlement commitment undertaken in the
framework of this arrangement to be offset from non-allocated places under the
decision. - non-allocated places]. Should these
arrangements not meet the objective of ending the irregular migration and the
number of returns come close to the numbers provided for above, this mechanism
will be reviewed. Should the number of returns exceed the numbers provided for
above, this mechanism will be discontinued. the number of
returns exceed the numbers provided for by these commitments, this agreement
will be subject to review.
The idea of a ‘1-for-1’ swap of
irregular migrants for resettled Syrians has been controversial, but does not
raise legal issues as such. Resettlement of people who need protection from the
countries they have fled to is common in practice, but is not a binding legal
obligation under international or EU law. The legality of return of people to
Turkey has to be judged separately (as discussed above) from the question of
whatever trade-offs might be made in return for this. However, I certainly
share the view of those who find a de facto ‘trade in human misery’ morally dubious.
The ethos of resettlement is humanitarian; to demand a pay-off for one’s humanitarian
actions contradicts their ethical foundations.
The final text makes clear that
resettlement will focus on the most vulnerable people. Note that if all resettlement
from now on takes place from Turkey, then no-one will be resettled by the EU from
Lebanon and Jordan, which also host large numbers of Syrian refugees. On the ‘low
priority’ cases, it is open to Member States to prioritise resettlement on
whatever criteria they like. Obviously the intention here is to deter people
from attempting unsafe journeys via smugglers; whether that would work depends
on the numbers who might be resettled.
Overall, the EU has not increased the
numbers of people that Member States are willing to accept: the first 18,000 are
the remainder of the 23,000 people that the EU committed to resettle from
non-EU countries last year, and the next 54,000 are the remainder of those who
were going to be relocated from Hungary, before that state rejected the idea
last September. However, unlike the mandatory quotas under the EU’s relocation
decision, these numbers will be voluntary. The final deal makes clear that the
maximum member of people who will be returned on this basis is 72,000: this
part of the deal ends once the number of returned irregular migrants hits that
number, or if the levels of irregular migration stop. In the latter case, the
EU will move to a voluntary humanitarian admission scheme, discussed below. In
the former case, it is not clear what will happen.
3) Turkey will take
any necessary measures to prevent new sea
or land routes for illegal migration opening from up out of Turkey and into to the EU, and will
cooperate with neighbouring states as well as the EU to this effect.
This refers to Bulgarian concerns
that people might try to cross the Black Sea as a new entry route. Of course,
if people do make to Bulgarian territory or waters, the EU asylum laws would
apply, as they do for Greece.
4) Once the
irregular crossings between Turkey and the EU have come to an end are ending,
or at least have been substantially and sustainably reduced, the
Voluntary Humanitarian Admission Scheme will be activated. EU Member
States will contribute on a voluntary basis to this scheme.
This scheme is set out in a
Commission Recommendation from December, as discussed in detail here.
Note that the text was amended to make clear that irregular crossings would not
have to stop entirely; that was an obvious fantasy.
5) The fulfilment of the visa liberalisation
roadmap will be accelerated vis-à-vis all participating Member States with a
view to lifting the visa requirements for Turkish citizens at the latest by the
end of June 2016, provided that all benchmarks have been met. To this end
Turkey will take the necessary steps to fulfil the remaining requirements to
allow the Commission to make, following the required assessment of compliance
with the benchmarks, an appropriate proposal by the end of April on the basis
of which the European Parliament and the Council can make a final decision.
This commitment is transposed from the
March 7 statement. The waiver of short-term visas only applies to the Schengen
States, and applies for stays of three months. Under the EU/Turkey readmission agreement,
Turkey will have to take back anyone who overstays. It will still be necessary
for Turkey to meet the relevant criteria, and for the EU Council (by qualified
majority vote) and the European Parliament to approve this change in EU law.
6) The EU, in close cooperation with and Turkey, will further speed up
the disbursement of the initially allocated 3 billion euros under the
Facility for Refugees in Turkey and ensure funding
of additional further projects
for persons under temporary protection identified with swift input from
Turkey before the end of March. A first list of concrete projects for refugees,
notably in the field of health, education, infrastructure, food and other
living costs, that can be swiftly financed from the Facility, will be jointly
identified within a week. Once these resources are about to be used to the
full, and provided the above commitments are met, Furthermore, the EU will mobilise decide on additional funding
for the Facility of an additional 3 billion euro up to the
end of 2018. [X] billion for the period [Y] for the Turkey
Refugee Facility.
The amount and timing of additional
money from the EU and its Member States was agreed during negotiations. Details
of the timing of disbursements and the nature of the spending projects have
also been added. Note that this money is not, as is widely assumed, simply
handed over to Turkey: legally speaking it can only be spent on projects that
assist the Syrian refugee population. The Commission paper sets out further
details of how the money will be spent, starting with a contract to provide
food aid to over 700,000 Syrians.
7) The EU and Turkey
welcomed the ongoing work on the upgrading of the Customs Union.
This refers to an
intention to extend the existing customs union to cover services and investment
issues.
8) The EU and Turkey
reconfirmed their commitment to re-energise the accession process as set out in
their joint statement of 29 November 2015. They welcomed the opening of Chapter
17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during
the Netherlands presidency. They welcomed that the Commission will put forward
a proposal to this effect in April. Preparatory work for the opening of other
Chapters will continue at an accelerated pace without prejudice to Member
States' positions in accordance with the existing rules.
Ultimately the EU and Turkey agreed to open only one new chapter
out of 35 which need to be agreed in order for Turkey to join the EU. Only one
chapter has been closed so far in a decade of negotiation. There is no
commitment to open or close any further chapters. Even if an accession deal is
ever negotiated, there are many legal and political obstacles in the way of it
being approved, as all Member States’ parliaments would have to agree.
9)
The EU and its Member States will work with Turkey in any joint endeavour to
improve humanitarian conditions inside Syria, in particular in certain areas
near the Turkish border which would allow for the local population and refugees
to live in areas which will be more safe.
This refers to an intention (as noted
above) to create a ‘safe zone’ within Syria. Whether this is viable or not
remains to be seen. If there is any dispute about its safety, then returning
Syrians to Turkey would be problematic if Turkey intends to send them further
on to the alleged safe zone.
Conclusions
Overall the final deal tries to
address the two main legal concerns about the March 7 ‘deal’. It makes clear
that the EU asylum laws will apply to those who reach Greece (subject to the
caveat about what happens to those intercepted in Greek waters), and that
Turkey will have to meet the relevant standards when taking people back. The
intention to ‘make the deal legal’ is clearly undermined by the extraordinary
statement that ‘all’ irregular migrants will be returned. The key legal
question will be how these commitments are implemented in practice.
The main legal route to challenging
what happens should be by asylum-seekers through the Greek courts. Those courts
could refer questions to the CJEU about EU asylum law (the CJEU could
fast-track its replies). Alternatively if the asylum-seekers have gone through
the entire Greek court system, or cannot effectively access the Greek system
they could complain to the European Court of Human Rights (which is separate
from the EU), and claim that there is a breach of the European Convention of Human
Rights. In practice, however, it may be that access to lawyers and courts is
more theoretical than real.
It is unfortunate, to say the least,
that the EU did not try to ensure beyond doubt that the deal was legal, by
putting in place some sort of effective monitoring of Turkish commitments as
regards the treatment of refugees and migrants, in particular asking Turkey to fully
apply the Geneva Convention to all refugees as a condition of the deal. After
all, the EU will now be meeting a significant proportion of the costs of
housing refugees in that country. It is even more disturbing that some Member
States want to arrange for expedited returns to Libya. Surely before too long, the
CJEU will asked to interpret the definition of ‘safe third country’ in EU
asylum law. That finding will be crucial in determining whether it really is legal
to return people to Serbia, Turkey, Libya and possibly other countries besides.
Barnard & Peers: chapter 26
JHA4: chapter I:5
Photo credit: www.parapolitika.gr
