Analyzing the legality of the EU Commission’s proposed withdrawal of preferential tariffs for third countries when cooperation on migrant returns ‘fails’--an unholy alliance of trade and migration?

 

 

Marion Panizzon, Senior Research Fellow, World Trade Institute, University of Bern*

 

*Privat-Docent, Dr. iur., LL.M., Senior Research Fellow, World Trade Institute, University of Bern and Legal Consultant, World Trade Advisors, Ltd. Geneva. I thank Dr. Alan Desmond, Leicester University for his thoughtful comments on several earlier drafts. I’m grateful to Dr. Christian Häberli, World Trade Institute, for his critical read of an earlier draft in light of current WTO law and practice.

 

Photo credit: NOAA, via Wikimedia commons

 

 

As a strategy to rebalance uneven negotiating positions, the ‘comprehensive approach’ defined in paragraph 11 of the Global Compact for Safe, Regular and Orderly Migration (GCM) sets the stage for rendering more attractive EU trade and EU external migration policy to third countries. However, the comprehensive approach, considered a component of ‘shared responsibility’ under the GCM is often confounded with conditionality, because both might, according to Hocquét 2023, expand the radius of migration policies, to areas outside its immediate realm. There are marked differences though, since conditionality establishes a  co-dependency between measures the EU wishes to implement, with areas of interest to the third country, being education, energy, natural resources, climate adjustment, public health (Peers 2016). Conversely, the comprehensive approach while based on mutuality, rather than reciprocity, ideally strives to create the win-win-win situations, in most cases, breaks down to integrating safe pathways with border management (Vitiello 2022)

 

In trade, ‘rights-based conditionality’ for obtaining trade preferences, has been criticized by academics (Hafner-Burton et al. 2019) and UNCTAD alike (Irish 2007), and materializes when preferential import duties are leveraged for securing the developing or least-developed country’s cooperation to fulfill an EU public good, including combatting narcotics trading, child labor and worker exploitation,  as well as the smuggling and trafficking. At the outset, the trade and development chapter inserted in the 1960s into the General Agreement on Tariffs and Trade (GATT) had empowered developing and least-developed countries to catch-up. One such avenue came in the shape of GSP developed under the auspices of the UNCTAD in 1968 and anchored by several temporary waivers into GATT, to protect infant industries thru non-reciprocal treatment (Michalopoulos 2020). Today, the expectation on trade preferences is that they fulfill non-trade policy objectives (NTPO), which is an attribution that distorts the original idea behind the GATT Art. XXIV and the subsequent Enabling Clause, permanently waiving the most-favored nation treatment otherwise due if a WTO Member lowers a tariff(ECDPM 2020).

 

Initiated in 2021, the EU Commission’s reform of Regulation EU 978/2012 Generalized System of Preferences (GSP) for developing and least-developed countries, proposes to expand by the area of migrant readmission, the cooperation the EU requires from beneficiary countries for exports from those countries to benefit from a lower or zero import duty on two-thirds of tariff lines under standard GSP, a zero duty on the same tariff lines, conditioned on the ratification of 27 conventions (GSP+) or a zero import duty on all products from LDCs except for arms and ammunition (Everything-but-Arms, EBA)  into the EU. Adding to the EU’s long list of incentives to buy origin countries’ approval for sending back their citizens in irregular stays in the EU, the Commission’s proposal, critically viewed by the EU Parliament, NGOs, and academics alike, would have complemented that listing by adding preferential trade initiatives to it. Inversely, the GSP Regulation, equally boasting an ever increasing to-do list of criteria countries need to fulfill in order to enjoy the preferences, has now been topped by the criteria of readmitting (irregular) migrants.

 

The legality of both the EU external migration system with the new addition of trade and the EU GSP regulation with its expansion to include migration policy, poses challenges of legality and practicability under WTO law, as academics and practitioners have analysed and this post discusses.

 

In its reform proposal of EU GSP Regulation 978/2012, the EU Commission suggest for the very first time, to interlace EU external migration policy, notably EU readmission agreements and cooperation on assisted and voluntary return to the EU’s GSP for the period of 2024-34. In particular the proposal foresees to up the ante of EU Regulation 978/2012 withdrawal of tariff preferences procedure by adding migrant readmissions as one benchmark to measure good governance, the former which is, alongside sustainable development and human rights one of the areas of cooperation which can conditionality rewards either positively or which is sanctioned off negatively, by the withdrawal or suspension of preference, ranging from visa relaxation, development cooperation or lowered import tariffs into the EU. As Grundler and Guild 2023 have observed, the negative conditionality (Sabourin and Jones 2023) which the Commission would like to see, is insofar not surprising, as EU member states have traditionally taken to constructs double binds, pitting legal pathways against migration control (Garcia-Andrade 2020:260) in bilateral migration agreements, with questionable outcome.

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Whereas the EU has inserted Art. 25(a), a readmission clause in its 2019 revision of the  Schengen Visa Code (Bisong 2019; Grundler and Guild 2023), the Commission’s activating the Union’s common commercial policy Art. 207 TFEU, to secure cooperation on readmissions, uses a new tool for the same purpose, yet without specifying the periodicity of review of third countries’ cooperation or lack thereof, as Art. 25a does. Several human rights organizations have remarked in response to the Commission’s proposal and the Council’s endorsement in 2022, that the insertion of migration, is shaky on more than one legal ground (Human Rights Watch, FIDH, ECRE).

 

Firstly, withdrawing the preferential tariff treatment, which LDC and developing countries obtain under one of the three pillars of the GSP, GSP+ and Everything-but-Arms (EBA) treatment might be unlawful under the WTO Appellate Body jurisprudence, as shown by DG External Policies’ Report on the proposed GSP reform (2022). In that WTO decision of 2004, the benefit of lower tariffs must be granted on a non-discriminatory basis to ‘similarly situated beneficiary countries’ and a clear link between the benefit granted and the ‘development objective’ be made. Hence, the idea of threatening a developing or least developed country with the withdrawal of a tariff preference, is not new, as Peers (2016) points out (534-537), but the EU Parliament in its criticism of the EU Commission’s proposed new EU GSP Regulation  had legitimate concern, that the EU would be creating the similar situation that had led the WTO Appellate Body ruling in EC-Tariff Preferences, to condemn it and which had put a stop to any selective imposition of trade preferences (Bartels 2003).

 

Up until this day, the Commission rewards countries of origin for cooperating on forced returns, border screening, information campaign, via visa relaxations for diplomatic staff, journalists, by facilitating remittances transfers and lowering costs, by a promise of better integration of third country nationals (Peers 2016). In so doing, the EU has treated different migrant origin countries, differently, yet, so far, without risking WTO incompatibility, since if visa, remittances or integration remain outside the scope of the WTO. The situation is different, given the recently suggested negative trade conditionality, contingent on withdrawing tariff preferences, when a readmission cannot take place. It implies that the Commission must define ‘objective’ benchmarks around readmission, for when that tariff treatment is to be removed in addition to treating similarily situated countries, identically.

 

Secondly, the EP during the 2022 inter-institutional trilogues between Council, Commission, ascertained that tying preferences to readmission of one’s own nationals, might be too far removed a conditionality. Recently, the EP’s international trade (INTA) committee on 19 September 2023 voted in favour of extending the current EU GSP scheme to 31 December 2027, which the Commission proposed to avoid the current GSP lapsing in light of the lack of agreement on the main proposal, until the Parliament and Council can agree on how to update that Regulation. Meanwhile, INTA has not further entered into discussions about circumscribing the exact legal scope triggering a potential tariff withdrawal, whether a non-implementation of an EU readmission agreement or of a bilateral readmission agreement must be shown, or whether the refusal to negotiate such an agreement in the first place is sufficient to trigger the clause, or, as the DG External Relations suggested, the non-compliance with international obligations under a EURA. Nonetheless, the Commission’s proposal currently stands at the brink of extinction. Yet, it seems timely to analyse its legality with WTO and international obligations, as a final vote, after EP elections, could overturn the INTA’s refusal to follow the Commission’s proposal.

 

In this blogpost, I discuss legality of the EU’s reform proposal under two WTO instruments, the Enabling Clause 1971, setting the legal basis for the Special and Differential Treatment of trade in goods from developing and least-developed WTO Members and the LDC Services Waiver 2011, to understand which out of the two takes origin country concerns seriously. In so doing, I draw on the discussion started by Vidigal (2023) and Tans (2023) about why the  Commission proposal conflicts with WTO rules. In so doing, I touch upon the number of preferential trade agreements (PTAs) which, similarily, have used a trade component as the quid-pro-quo for obtaining a partner’s cooperation on irregular migration. Since PTAs pit trade in services, and thus a form of legal pathways (as opposed to trade in goods) to return migration, within their chapters on the temporary movement of natural persons, the conditionality is more closely or directly contingent on people-on-the-move.

 

Consequently, the EU Commission were better advised to negotiate such openings of its services markets for service supplying natural persons, from countries of origin, within one of its deep and comprehensive free trade agreements (DCFTA) than to go freestyle by attempting to match migrant readmission with trade-in-goods. Not only are countries of origin deeply in need of docking onto the global services markets, but that linkage to readmission, at least in theory, appears to be an immediate one, since services is the only trade flow, hinging, for face-to-face delivery, directly on human factor mobility. Finally, there is in WTO law, a legal basis for enabling such one-way flows of natural persons from developing and least-developing countries (LDCs), without this asymmetric trade posing problem under the WTO GATS most-favored nation clause (MFN), as discussed below.

 

Aggregated conditionality as catalyst of informalizing EU migration cooperation

 

As Frasca (2023) and Desmond (2023) point out, soft law, in the EU external migration context, re-asserts EU sovereignty in instances, where a legally binding obligation on shaky grounds. The key catalyst to jumpstart the process turns out to be conditionality, whitewashed as the comprehensive approach, because it allows to create the traction that soft law lacks. Consequently, conditionality substitutes for a norm failing to deploy a legally binding effect, whether a country refuses to embrace the internationally binding quality of the duty to take back one’s own nationals or considers not being concerned by the duty to take back one’s own nationals. However, the role of conditionality when the EU deploys its armada of informalized migration arrangements, whether partnerships, technical readmission arrangements, standard operation procedures, dialogues still needs more research.

 

Under the New Pact on Migration and Asylum of 23 September 2020, conditionality was up for a supposedly ‘fresh start’ with the  Communication, Attracting Skills and Talents to the EU (27 April 2022), spearheading the Talent partnerships complementing EU mobility partnerships as a multidimensional response to the 18 EU readmission agreements (2023) and 6 arrangements, which regularly fail for non-reciprocally engaging with the sending country ‘s interests and needs (Moraru, Cornelisse and de Bruycker 2022).  Whereas the Commission was not yet breaking with positive conditionality driving much of the EU external migration policy, conditionality’s new focus on vocational and professional upskilling of trainees thru circular Talent Partnerships bears evidence that the Commission is on the lookout for new anchors by which to reinvigorate conditionality, and its EU external migration policy (Tsourdi, Zardo and Sayed 2023).

 

Whereas negative conditionality, which retributes a third country for its lack of cooperation on implementing EU migration policy, has prompted Ethiopia and Afghanistan to sign non-binding readmission declarations (SWP Berlin 2020), the threatened suspension of development aid, has never materialized. Speaking against negative conditionality, as the one the Commission proposes for trade preferences is that raising visa processing charges has not encouraged cooperation (Grundler and Guild 2023), nor is cutting development aid the appropriate penalty for a country such as Nigeria, where remittances are high and thus, installing of vocational training makes more of a difference (Nigeria-Switzerland Migration Partnership of 2011).

 

In 2021, against the background of arrivals by at-sea crossings and over the central route to Europe (ICMPD 2023) tripling, the Commission introduced a new feature to its palette of negative conditionality for non-cooperation over irregular migration. Under its Proposal for a revised GSP Regulation, COM(2021) 579 final for 2024-2034, the EU would now withdraw preferential trade benefits, either under the GSP+ (Generalized System of Preferences) granted to the seven EU beneficiaries (Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Philippines, Sri Lanka), or for least-developed countries (LDCs) under its Everything-but-Arms (EBA), if ‘beneficiary countries on migration and the readmission of rejected asylum seekers’ refuse to cooperate (Guild 2023 in this blogpost).

 

 

Along a well-trodden path—forerunners to identifying trade as leverage for incentivizing migrant returns

 

For the past decade or longer, EU Member States have sought to level the playing field over migration policy among North and West African countries of origin and transit, by proposing one-size-fits-all bilateral migration management, on the basis of Art. 79:5 TFEU in the shape of agreements linking legal pathways to cooperation on returns. France’s agreements on the joint management of migration flows and solidary development for example, stepped up labor admission quotas, or created the same new categories of admission, for all of the seven African countries willing to sign on to a readmission clause. The suggested EU GSP link to cooperation on migration, would run counter to precisely those efforts, that remove treating certain origin countries better than others, thus risking to re-install post-colonial privileges (Robertson 2017).

 

Another forerunner to the prospective trade and (return) migration linkage, is the EU Compact with Jordan which reduces tariffs to duty-free, quota-free exports (DFQF) for products manufactured in Jordan with 10% (first 2 years) and later on, 15% ‘refugee content’. For becoming eligible for this Everything-but-Arms (EBA) privilege, Jordan had to temporarily accept a least-developed country (LDC) status. Whereas Jordan was compensated for employing refugees, in an afterthought, the DFQF occurred with a view to reducing secondary onward movement of refugees to Europe (Lenner 2020). If the EU’s Jordan Compact targeted refugees and not migrants, it was critically received by scholars (Gordon 2021) and advocates of fair and ethical recruitment under ILO standards.

 

Tariff Reduction for Return Migrations? Criticism of the proposed EU GSP 2023-34

 

Trade preferences can be critical for the survival of a developing country on the global market, and their withdrawal carries ethical consequences, as discussed by Tans 2023. Questions about the legality of the EU GSP scheme under WTO law (ODI Report 2023) also arise. Firstly, for Tans, proposing to retract tariffs if migrant returns seem low (to the EU), is not immediate enough a link to human mobility (EP in-depth analysis of the Commission’s proposal of January 2022). In this line of thinking, the Commission would first need to open legal pathways for migrants under the temporary movement of persons, the so-called Mode 4, under an economic partnership agreement (EPA) before it could retract trade preferences in goods.

 

If we recall how Mode 4 GATS stands as the only format of international human mobility that is liberalised internationally, under the multilateral WTO/GATS (Chetail 2014), Mode 4 presents the very connection between trade and temporary migration that is missing from the EU’s proposal. Labelled ‘mode 4’ of Art. 1:2(d) GATS this temporary mobility is a sub-form of international migration. However, it is limited under an excruciatingly narrow definition, to a) temporary stay abroad, b) not entering the labor market (only the services) of the host country c) opened only under commitments by member states d) categories of persons are narrowly defined, often clustering in the highly-skilled segments (Trachtman 2009;). As (Tans in this blogpost) suggests, the EU conditionality working through Everything-but-Arms (EBA) and GSP+ should only apply to those nationals who move under the EU’s GATS mode 4 commitments, if they fail to return voluntarily at the end of their legal temporary stay.

 

Looking for Alternatives 1: Cotonou Convention’s Cooperation on Migrant Returns

 

To this day, the temporary, cross-border movement of natural persons, the so-called Mode 4 has been missing out of EU economic partnership agreements (EPA) with North African countries (Cottier and Shinghal 2021), such that threatening to withdraw tariff preferences under the EU GSP, or even suspending the cross-border mobility so as to penalize countries in North Africa for refusing to take back their own citizens in irregular stays abroad remains illusory. In addition, speaking against penalizing countries of origin for refusing to take back citizens, and thus, against applying the EU’s revised GSP, is Art. 74 on ‘return and readmission’ of the 15 April 2021 negotiated agreement text initialed by the EU and the ACPs chief negotiators -- a follow-up to the Cotonou agreement  -- restates Art. 5 Cotonou agreement with the exception of a return clause which is free from any conditionality—neither is there a negative consequence for failing to take back one’s nationals, nor are typical migrant host countries required to open their labor markets to potential migrant workers.

 

Looking for Alternatives 2: Preferential Trade Agreements and ‘Embedded’ Returns

 

Several economic partnership agreements (EPA) have been consolidating an emerging opinio juris of obliging the origin country to take back their own nationals, once these have terminated their temporary stay to supply a service abroad:  Japan’s EPAs with the Philippines (2008), Indonesia and Vietnam (2009) codify a return clause, which is linked to a services trade commitment. It spells out a requirement for the Filipino, Vietnamese nurses and caregivers to return home, who have failed Japan’s national board examination (NBE). Because this return clause applies solely to the closed-circuit of the categories of persons whose movement the EPA facilitates (Efendi at al. 2013; Naiki 2015), I label it ‘embedded return’. Japan’s EPA of 2019 with the EU, Annex 17 imposes a duty of cooperation on worker’s returns, even if it remains generic when compared to Japan’s EPA with the countries mentioned above. Unlike for what the EU Commission envisages with reforming its GSP regulation, Japan’s EPA carry no negative consequences if either Vietnam, Indonesia or the Philippines fail to cooperate on returns.

 

A Definitive ‘No’? Uncertain Legality of a Trade - Return Migration Linkage under WTO Law

 

As Carzaniga and Sharma 2022 note, WTO Members’ right to regulate emerges from Art. VI GATS. As such, there is a discretionary space under Art. VI, but not an unlimited one, which would permit biometric border surveillance and data collection at the border, under the condition that certain criteria, including transparency are met. However, such broad reading contrasts with the GATS Annex on the Temporary Movement of Natural Persons which stipulates that measures that regulate entry and stay remain under the sovereign right of WTO Members and fall outside the scope of the WTO. Under this narrow interpretation, any PTA linking return duties conditionally to the temporary movement of workers would, in theory, be in breach of the GATS Annex. To summarize, the EU Commission might be infringing WTO/GATS by proposing a GSP reform since the multilateral trade rules of the WTO/GATS Annex preclude a legal connection being made between migrants’ return and trade in services. Beyond the uncertain legality of the Commission’s proposed reform of Regulation EU 1083/2013, there are political economic reasons why arguing in favor of the reform would be bad judgment, discussed further below.

 

People-on-the-move and the ‘new’ EU GSP 2024-34: Moving to the GATS Services Waiver instead?

 

A key consideration speaking against using the revision of the EU GSP to manage the EU’s external migration policy, are the uncertain consequences for countries non-complying with the GSP+ or EBA? In general, countries subject to the GSP+, need to ratify the 27 international law conventions on good governance, labor and human rights, as well as environmental protection, for becoming eligible for the preferential tariff treatment. If the EU deems there is a failure to fully implement provisions of these 27 Conventions, it will normally suspend the preferential tariff and the country’s exports move back to the higher regular tariff (Cambodia in 2019). Now, if the EU considers a ‘failure to cooperate on return migration’ in the same rationale as the 27 Conventions, it conjures a questionable linearity between irregular migration and a non-existent international convention about protecting migrants’ rights. Naturally, the ILO Migrant Workers’ Convention could embody the 28th international convention countries of origin of migrants would be asked to sign to receive the tariff privilege, so as to create a closer lineage.

 

However, since no EU Member State has signed onto to it, this option falls out of question, even if thematically it would address the linkage the EU desires to build. If not the ICMWR, would the 7 GSP+ beneficiaries of the EU, which are Sri Lanka, Cap Verde, Pakistan, the Philippines, Kyrgysztan, in addition to ratifying the 27 UN Conventions be required to sign onto EU readmission agreements, or EU mobility partnerships or the UN anti-smuggling/trafficking protocols as the benchmark for obtaining the lower tariff? Would cooperating with a single EU Member State thru a bilateral readmission agreement be sufficient to hold off higher tariffs on cotton T’shirts or cocoa products or coffee? By the very act of withdrawing trade preferences, if the EU perceives efforts of reducing irregular migration as waning, becomes comparable to suspending tariff preferences from a beneficiary country where corruption starts to spread, narcotics are being produced or trafficked, labor standards are neglected, human trafficking and smuggling take place. In this logic, irregular migration becomes an act that is to be penalized and sanctioned, in the same order as narcotics trading, corrupting business practices or human trafficking and smuggling, which ethically and legally is a questionable nexus to make.

 

There are better ways to incentivize countries of origin to take back their citizens in unlawful stays abroad than to withdraw tariff preferences. One is to use the LDC Waiver of WTO/GATS whereby a host country increases sectoral labor market openings in services for nationals of a country of origin. This scheme has the advantage of closely matching with the EU Talent Partnerships, the former which are sending potential migrants for a training and upskilling to Europe. In concreto, the mechanism is the following: if the LDC cooperates with the EU on irregular migration, it shall obtain additional market access on mode 4 or mode 3 for its natural persons involved in service provision. Under this paradigm, unlike with for the GSP+/EBA, migration is neither treated as a criminal activity that needs to be contained. In fact, the EU is already testing an LDC Waiver type of model in its Skills Partnerships, which ‘buy professionals from an LDC to deliver services in Europe’ (WTO Council for Trade in Services, Webinar on LDC waiver 2-3 June 2021).

 

In preferring the LDC Waiver alternative to vamping up the GSP, the EU would make a strong statement that cross-border mobility, in the first instance, occurs for improving migrants’ wellbeing that it is ‘cooperative rather than punitive’ (FIDH 2023).

 

In addition, the EU GSP+/EBA reform, as proposed by the Commission, discredits its pilot projects on labor migration and skills partnerships, which already have incorporated a return obligation for all the trainees sent to an EU Member State for upskilling. Even if the contentious term of ‘return’, is replaced by the expression of a so-called ‘soft landing’ back home (Garcia Andrade 2020), these EU Talent Partnerships are anything but free from return obligations. Hence, to now enlist the GSP+/EBA scheme for securing even more returns, puts developing countries and LDCs at risk of an additional sanctioning mechanism (Bisong 2022).  

 

Exploring the ‘LDC Waiver’: Securing Cooperation on Returns by Providing Legal Pathways on Mode 4

 

Special and differential treatment (SDT) for the Global South under Art XIX GATS (OECD 2016) calls on  WTO Members to ‘give special priority’ when opening services markets to exports of LDCs.  On the basis of Art XIX, WTO Members took a Ministerial Conference decision on 17 December 2011 to install a LDC services waiver. Since WTO Members were not using it, LDCs were encouraged to make a collective request under the lead of Uganda, to indicate in which sectors of their services industries a waiver of the MFN and a removal of discriminatory barriers  to national treatment (including quotas, licensing requirements, authorization procedures, labor market tests or professional qualifications) could prove development-friendly. By 2015, 50 WTO Members had made offers, and at the Nairobi Ministerial Conference, a decision was adopted to prolong duration of the waiver until 2030.

 

Under the LDC waiver, the EU, US, Canada, Singapore offer ‘best Free Trade Agreement (FTA)-level’ or in 25% of cases above best FTA level, which is the only way for LDC service suppliers to enjoy a competitive advantage on the global services markets. The LDC waiver provides predictability to service traders who otherwise operate under high volatility, so that a sustainable services industry can grow in LDCs and is more in line with day-to-day reality of LDC economies, many of which are no longer export-based in terms of goods. Australia’s opening of warehouse services beyond the categories it has liberalized in the WTO is promising, while Switzerland opened insurance services to LDC providers with lower qualification/notification requirements.

 

Special and Differential Treatment (SDT) under the early years of GATT was limited to developing countries granted preferences amongst each other (1971) and later on, industrialized countries followed suit, when the GATT Enabling Clause L/4903 0f 1979 transformed the 10-year waivers  of the 1970s into permanent ones. In contrast, the LDC Services waiver, while based on the idea of SDT, requires countries, like the EU, to offer non-reciprocal market access in sectors or modes of services delivery of interest to the services exports of developing and least developed Members. Moreover, it is temporary without a clear scope for discretion over how much reciprocity the grant-giving country is prepared to offer. Such facts, including that SDT is generally considered more difficult to implement than trade facilitation (Elsig 2010), render the Commission proposal difficult to digest and even more treacherous to implement. On the upside, the causality of openings in all four modes of services supply or Mode 4 only, would make the case to embed international people-on-the-move and their forced returns within the Services Waiver more plausible, because the fourth mode of service delivery, the so-called Mode 4 of GATS is the only WTO entry point for the temporary movement of natural persons, which can involve migrants, including in irregular stays, depending on national immigration and labor legislation.

 

Conclusions

 

In this blogpost I put forward the case for subsuming a compensation mechanism for countries of origin taking back migrants in irregular stays under the LDC Services Waiver of the GATS, rather than under the 1971 GATT Enabling Clause legitimizing the sequence of EU GSP Regulations.

 

The EU Commission’s heralded ‘positive outcome’ for states cooperating on migrants’ return, appears to be a negative conditionality of withdrawing tariff duties. As such it is less attractive than pledging market access under the LDC Waiver, in more than one way. Firstly, sending countries are often serving as regional services hubs in construction, logistics, and production-related services or becoming global players in tourism and healthcare, such that benefitting from the LDC Waiver, if cooperating on return migration with the EU, resonates with the Global South’s evolution from export-based manufacturing to service economy.

 

Secondly, source countries are more likely to embrace a pledge by the EU to open a services sector, in exchange for ensuring a functioning readmission procedure, than they will actually benefit from already low tariffs. Therefore, to co-opt the LDC Waiver for migration management leads to a fuller integration of countries of origin into global value-chains.

 

Thirdly, the LDC Waiver works without attaching conditionalities. This is key because having too many conditionalities can increase the compliance costs on developing and least-developed countries and backfire, as a disproportionate amount of resources is invested into meeting criteria, rather than on the ground. (US Congress, GSP 2022).

 

In sum, the LDC Waiver not only responds to the WTO’s call for special and differential treatment of developing countries, but it offers more credibility to the revised EU GSP 2024-34 than the GSP, because of its co-ownership by countries of origin. The LDC Waiver opens up valuable export markets in exchange for a duty of taking back one’s own citizens. It would certainly be more in line with the WTO Marrakech Agreement’s Preamble which stresses ‘the need for positive efforts designed to ensure that developing countries …secure a share in the growth in international trade’ over negative retribution as a way to elevate nations out of poverty.

 

 

 

 

Revising EU visa policy

Professor Steve Peers

Back in 2014, the Commission proposed a revamp of EU visa policy (concerning short-term visit visas), in the form of a proposal to revise the EU’s visa code. This proposal ultimately failed, because the EU Parliament and Council could not agree on whether it should include “safe passage” visas for those needing protection or not. Now the Commission is trying again, focussing this time on security concerns, rather than economic growth.

Background

The rules for issuing short-term visas are set out in the Visa Code, adopted in 2009. The CJEU has clarified some key points of the Code, ruling that: in effect it creates a right to a visa if the conditions are satisfied, although Member States have flexibility over how to apply those conditions (Koushkaki, discussed here); there must be a possibility of judicial review as part of the appeal process (El-Hassani); and “safe passage” visas are not covered by the Code (X and X).

The Code concerns “Schengen visas”, ie visas which allow travel across the entire Schengen area. As such it applies to the EU countries fully applying the Schengen rules (all Member States except the UK, Ireland, Croatia, Cyprus, Romania and Bulgaria) as well as the non-EU Schengen associates: Norway, Iceland, Switzerland and Liechtenstein.

The list of non-EU countries whose citizens do (or do not) need a visa to visit the Schengen area is set out in a separate visa list Regulation (the plans for visa waivers for Turkey and Kosovo are on hold). EU policy is to waive visa requirements for nearby countries, subject to a (loosely-enforced) requirement for reciprocity, so it is likely that UK citizens will not need a visa to visit the EU after Brexit. However, EU legislation to set up a “travel authorisation” system, about to be adopted (see discussion here), will apply to all non-EU countries with a visa waiver but without a free movement agreement with the EU. As things stand, this law will apply to the UK, unless some special exemption is requested and agreed. A travel authorisation is similar to a visa in that it requires a prior authorisation to travel, but will cost less and be valid for much longer.

2014 proposals

As noted above, the ill-fated 2014 proposal to amend the visa code was focussed on economic issues, in particular aiming to facilitate tourism. A parallel proposal for a “touring visa” would have provided for an extended stay for those visiting multiple Member States for a longer period, as part of an orchestra or circus, for instance. (I discussed the details of both proposals here). The 2014 proposal also included provisions on facilitating the travel of EU citizens’ non-EU family members (discussed here), and, as noted already, it was an opportunity to argue for explicit “safe passage” rules to be added to the rules (as discussed here).

2018 proposal

The Commission withdrew both 2014 proposals in light of the negotiation deadlock, and tabled a revised visa code proposal in March 2018. (It did not try to revive the “touring visa” proposal). This was met with much interest in the Council, which adopted a negotiation position on the proposal already by June 2018. The European Parliament is taking a more leisurely approach, so has no position yet. (Note that the Commission has also suggested a revision of the law governing the related database, the Visa Information System, which would, among other things, provide for fingerprinting 6-year-old visa applicants, and extend that system to apply to long-stay visas and residence permits). 

The Commission’s 2018 communication on visa policy is a good overview of the purposes of the recent proposal. In addition to the main focus on security – which takes the form of penalties for non-EU countries that do not cooperate with the EU on readmission policy – it contains a limited number of simplifications for legitimate travellers. The Commission has dropped the proposals to simplify travel for EU citizens’ family members, and has made more suggestions to simplify the rules on multiple entry visas as compared to 2018.

The Council’s position

Compared to the Commission’s proposal, the Council has reserved for itself the power to punish countries that do not cooperate with the EU on readmission (by raising visa fees, requiring more documents, and slowing down processing times), following a diplomatic process in which the EU will threaten these sanctions if no cooperation is forthcoming. (It’s already EU policy to link treaties simplifying the issue of visas to readmission treaties, but this policy will now become unilateral, and take the form of sticks, rather than carrots).

On other issues, it will be possible for travellers to apply for a visa six months in advance, rather than three. The Council rejected the Commission’s proposal to let NGOs apply for visas on behalf of their staff. The visa application fee will rise from €60 to €80, and from €35 to €40 for 6-12 year olds. The Commission will have the power to revise the fee every three years. Member States’ option to waive the fee for diplomats is dropped. The new “punishment” clause will raise the visa application fee to €120 or €160 for travellers from countries that are judged not to cooperate on migration.

Multiple entry visas lasting for one, two or five years will be available, based on prior lawful use of a visa. The Council dropped the Commission’s proposal to refer to judicial review in the event of an appeal against refusal of a visa, but this cannot change the legal obligation to provide for such a review, since the CJEU ruling on this issue (El-Hassani, noted above) based this obligation on EU primary law: the EU Charter of Fundamental Rights.  The Commission proposal to issue visas at the border in order to encourage tourism has been dropped by the Council, and the current law’s possibilities of having “co-location” and “common application centres” are dropped, as they have been overtaken by events – the trend of outsourcing the visa application process to private entities. As a partial substitute, the revisions will simplify the rules which apply when one Member State represents another one for visa applications.

Comments

It remains to be seen whether the European Parliament will go along with these amendments, or whether it will seek to retain some of the simplification of travel rules which the Commission initially proposed in 2014, for instance for EU citizens’ family members. (Such rules, if agreed, will only briefly be helpful for UK citizens’ non-EU family members, before the end of the post-Brexit transition period).  The Parliament might also try to address the “safe passage” issue again, and it has traditional concerns about limiting fee increases for vulnerable groups like children. The visa code amendments might be linked in practice to the proposals to turn the Visa Information System into an even bigger Panopticon.

However, some version of the readmission punishment clauses are likely to go through, as they are part of the EU arsenal of stricter migration control policies (along with greater internal and external border checks, an expanded Frontex border control body, and agreements with countries like Turkey to control and take back asylum seekers and migrants). Whether they will be effective remains to be seen; there will presumably still be ‘carrots’ from the EU-Africa funds offered to States which cooperate with the EU’s increasing attempts at “remote control” of migration. Whether the new policy will work in practice, or – even if they do work – satisfy those voters who already remain angry despite hugely reduced migration flows, equally remains to be seen. 

Barnard & Peers: chapter 26

JHA4: chapter II:4

Photo credit: schengenvisainfo.com

The EU, Turkey and the Refugee Crisis: What could possibly go wrong?

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.