Is the EU-Turkey refugee and migration deal a treaty?

Maarten den Heijer*, Thomas Spijkerboer**

*Assistant professor of international law at the Universiteit van Amsterdam

**Professor of migration law at the Vrije Universiteit Amsterdam.

In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties with third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).

It seems that legal experts of the Commission and the Council have identified the issue. Shortly after the EU-Turkey Statement, the Commission proposed to amend the Relocation Decisions relating to Italy and Greece, in order to transfer some of the relocation commitments concerning asylum seekers arriving in Italy and Greece to Syrians in Turkey. The proposal appears to contradict the view that the EU-Turkey Statement of 18 March did not intend to produce legal effects. However, in consideration 4 of the proposal’s preamble, the presented rationale for the amendment is the Statement of the EU Heads of State or Government of 7 March 2016, in which the Members of the European Council (and not Turkey) agreed to work towards the Turkish proposal of resettling, “for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the Member States, within the framework of the existing commitments”. The Commission would seem to be navigating around the EU-Turkey Statement as the ground for amending the 22 September Council Decision, possibly fearing that to do otherwise may lend support to the argument that the Statement is, in fact, a treaty.

It could be argued that the statement is not a treaty in the meaning of the Vienna Convention on the Law of Treaties or an international agreement in the meaning of Article 216 TFEU, precisely because it is merely a “statement”. This is the view of Steve Peers on this blog: “Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force.” Karolína Babická appears to share this view: “The EU-Turkey statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.”

A further reason not to view the statement as a treaty is that it does not use terms as shall and should, which are normally used in international law to indicate obligations of result (shall) or obligations of effort (should). Instead, the more indistinct term ‘will’ is used. On the other hand, the Statement says that the EU and Turkey “have agreed on the following additional points”. Article 216 TFEU uses the term ‘agreement’ when referring to a treaty with third countries. If two parties agree to something, can the result be anything less than an “agreement”? Or is the meaning of the term agreement in Art. 216 TFEU different from its ordinary meaning?

If one would embrace the thought that the Statement of 18 March is not a treaty or agreement because it is designated as “Statement” and uses the term “will”, it would follow that the EU could neglect the constitutional safeguards of Art. 218 TFEU by changing the form or terminology of a particular text. It would be rather odd if the EP and CJEU could be sidetracked by such clever ruses. It would mean that the applicability of constitutional safeguards depends entirely on choices regarding the design instead of content made by Commission or Council.

That the form is not decisive is confirmed in the case law of the International Court of Justice. In Aegean Sea, the question was whether a joint communiqué, issued after a meeting between the Prime Ministers of Greece and Turkey, in which they agreed that a territorial dispute dividing the two countries should be resolved by the ICJ, constituted a treaty on the basis of which the ICJ had jurisdiction over the case. The Court held:

95. The Brussels Communiqué of 31 May 1975 does not bear any signature or initials, and the Court was informed by counsel for Greece that the Prime Ministers issued it directly to the press during a press conference held at the conclusion of their meeting on that date. The Turkish Government, in the observations which it transmitted to the Court on 25 August 1976, considered it "evident that a joint communiqué does not amount to an agreement under international law", adding that "If it were one, it would need to be ratified at least on the part of Turkey" (para. 15). The Greek Government, on the other hand, maintains that a joint communiqué may constitute such an agreement. To have this effect, it says, "It is necessary, and it is sufficient, for the communiqué to include-in addition to the customary forms, protestations of friendship, recital of major principles and declarations of intent-provisions of a treaty nature" (Memorial, para. 279). Counsel for Greece, moreover, referred to the issue of joint communiqués as "a modern ritual which has acquired full status in international practice".

96. On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form - a communiqué - in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.

The ICJ found that the terms of the communiqué, using terms as “decision” and “obligation” were indicative of the parties intending to bind themselves. However, it transpired from the context, namely previous and later negotiations and diplomatic exchanges between the parties, that they had not yet undertaken an unconditional commitment to submit the continental shelf dispute to the Court.

In Qatar/Bahrain, the question was whether minutes of a meeting between two Foreign Ministers constituted a treaty. The ICJ held:

24. The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi Arabia, and state what had been "agreed" between the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar's acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to Say that, if a compromise agreement is reached during that time, the case is to be withdrawn. 25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seised after May 1991. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.

On that basis, the ICJ concluded the dispute to be within its jurisdiction. It follows that the question of whether a text is a treaty does not depend on form but on whether the parties intended to bind themselves. Whether there is such intent, depends on the terms used and the context in which the text was drawn up.

There is no reason to assume that this reasoning does not apply to the EU (which is not a party to the Vienna Convention on the Law of Treaties). In interpreting agreements concluded between the EU and third countries, the CJEU consistently observes that even though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order (C-386/08, Brita, par 42). Presumably, the definition of a treaty in Art. 2(1)(a) VCLT belongs to customary international law. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which has not yet entered into force, uses the same definition and expands it to agreements concluded between international organizations or an international organization and a state.

Both the text and context of the EU-Turkey Statement support the view that it is a treaty. The parties “decided” to end the irregular migration from Turkey to the EU, and, to that purpose, they “agreed” on a number of action points. These include a commitment on the part of Turkey to accept returned migrants and a commitment on the part of the EU to accept for resettlement one Syrian for every one Syrian returned to Turkey. Further, the Statement reaffirms the joint action plan of November 2015 and mentions that it is already being implemented. Indeed, several implementation reports have been drawn up since November 2015, from which it is clear that the previous action plan has been activated (here and here). The EU-Turkey Statement now at issue is also being implemented. For example, the Greek parliament has passed a law allowing migrants arriving in the country to be returned to Turkey. On Monday 4 April 2016, Turkey accepted the first returned asylum seekers from Greece. All this indicates that the EU-Turkey Statement was meant to sort legal effects. This, in turn, indicates that both parties intended to bind themselves and that, therefore, it is a treaty.

One way to argue that the EU-Turkey statement is not an agreement in the sense of Article 216 TFEU would be to posit that it merely reconfirms already existing obligations from previous agreements (such as the EU-Turkey and Greece-Turkey Readmission Agreements). But textually as well as contextually, that argument is difficult to uphold. First, the substantive part of the agreement opens with the decision to return all irregular migrants to Turkey. Even though this sentence is followed by qualifications about compatibility with international and European law and even the explicit statement that this does not constitute collective expulsion, this is a highly novel (and legally very questionable) element, which can hardly be construed as a restatement of pre-existing obligations. The same is true for the EU commitments to resettle Syrians from Turkey and the additional funding for the Facility for Refugees in Turkey of 3 billion euro. Secondly, it is well known that the pre-existing readmission obligations (on the basis of the EU-Turkey and Greece-Turkey Readmission Agreements) were barely being applied. Therefore, the fact that Turkey agreed that, as of 20 March 2016, all irregular migrants were to be accepted is a substantively novel element. The idea that the EU-Turkey Statement merely repeats pre-existing legal obligations is not convincing.

Does the fact that the internal EU rules were possibly not followed mean that the Statement does not have legal effect? Probably not, as the Statement was agreed by the Members of the European Council, whom Turkey could have considered to have full powers to bind the EU. Article 46 VCLT provides that a party may not “invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Paragraph 2 of that provision provides that a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. In Qatar/Bahrain, the ICJ did not consider it relevant that Qatar had not followed the procedures required by its own Constitution for the conclusion of treaties: “Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.” (par. 29).

We are therefore of the view that the EU-Turkey Statement is a treaty with legal effects, despite its name and despite internal EU rules not having been observed.

Why is the binding nature relevant?

That the Statement is a treaty implies not only that the EU and Turkey must uphold its terms; it also opens up a debate out is legal effects, including possible challenges against its legality in view of possible conflict with other rules and treaties, such as human rights. The fact that the Statement has already been concluded and is therefore no longer merely ‘envisaged’, means, however, that it is no longer possible to obtain an opinion of the CJEU “as to whether an agreement envisaged is compatible with the Treaties” (Art. 218(11) TFEU). It is still possible for one of the EU institutions or a Member State to bring an action for annulment of the act of the European Council to conclude the agreement with Turkey. Such an action was successfully brought in Commission v France (C-327/91), when the ECJ declared void the act whereby the Commission sought to conclude a competition agreement with the US, for reason of the Commission not being empowered to do so. However, this left the Agreement with the US itself intact, which is in conformity with the rule of Article 46 VCLT.

In view of the default position in international law that all treaties are equal, it further is difficult to argue that the Statement is void because of a possible conflict with human rights such as guaranteed in the ECHR or within the EU legal order, such as the right to asylum and the prohibitions of non-refoulement and collective expulsion. Only if the EU-Turkey Statement conflicts with jus cogens, is it to be considered void and may Member States not give effect to it (Art. 53 VCLT).

It is however possible for individuals (such as those being returned from Greece to Turkey) to challenge the implementation of the EU-Turkey agreement before national courts, arguing that it conflicts with fundamental rights. This in turn, may lead to a referral to the CJEU or a complaint before the ECtHR. Is the agreement in violation of human rights? As has been argued by UNHCR (here and here) and many others (eg here), the agreement may well raise issues under (at least) the prohibition of refoulement (is Turkey safe and is there a risk of expulsion from Turkey?), the right to liberty (is systematic detention in Greece allowed?) and the prohibition of collective expulsion (are the returnees able to challenge their return on individual basis, including before a court?). However, the Statement does not prescribe how, exactly, returns are to be effectuated and does not oblige Greece to systematically detain all asylum seekers who enter the country from Turkey. The Statement says that returns are to “take place in full accordance with EU and international law, thus excluding any kind of collective expulsion” and that “[a]ll migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement.” Further, migrants are to be “duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive.” It would seem therefore that the Statement itself does not directly violate international norms – it leaves the Member States sufficient freedom to implement the obligations in harmony with human rights. It follows that the Member States (Greece) must implement the agreement in harmony with human rights: “Where a number of apparently contradictory instruments are simultaneously applicable, they must be construed in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law.” (ECtHR Nada v Switzerland, par 170).

Conclusion

This brings us to two concluding observations. First, the devil of implementing the EU-Turkey deal is in the detail. Although its effectiveness in terms of stopping irregular migration by creating a deterrent effect may depend on returning all persons arriving in Greece as quickly as possible, fundamental rights may well halt returns in individual cases or result in lengthy procedures. It is indeed the question whether the appropriate human rights framework is in place in Greece (as is observed by UNHCR).  Second, the EP is right in asking critical questions about the Council not following the rules for concluding a treaty (also see earlier questions about the EU-Turkey deal of 29 November 2015). Although one could take the view that time did not allow to await an Opinion of the CJEU, the agreement was not concluded with Turkey overnight and there would at least seem to have been opportunity to ask consent from European Parliament (Art. 218(6) says that, in an “urgent situation”, EP and Council may agree on a time-limit for consent). That the institutional role of the EP has been neglected confirms the worrying trend that intergovernmental decision-making is taking over in the Union, and that national interests increasingly often prevail over the common values of the Union. This is bad for European democracy.

Barnard & Peers: chapter 24, chapter 26

JHA4: chapter I:5

Photo credit: rabble.org.uk

The final EU/Turkey refugee deal: a legal assessment

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

The draft EU/Turkey deal on migration and refugees: is it legal?

Steve Peers

In the last week, there has been considerable legal controversy over the planned EU/Turkey agreement on refugee issues. I commented (together with Emanuela Roman) in general on the relevant points last month, but now we have a leaked draft text of a final deal. (See also today's Commission communication on the deal, which adds a lot of important detail). This is a good moment to comment specifically on this draft, just before the summit meeting due to finalise it. 

I have underlined the full leaked text below, and added annotated comments on each part of it. I will update this blog post if necessary in light of the final deal (if there is one).

The agreement will be formulated as an EU-Turkey statement. It will take as its basis the principles set out in the statement of 7/3/2016 while adding the following elements:

a) Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force. I will come back to the implications of this below.

b) The March 7 EU/Turkey statement is still applicable. As a reminder, it provided that: ‘all new irregular migrants’ reaching the Greek islands from Turkey would be returned to Turkey, with the EU covering the costs; there would be a ‘one-for-one’ resettlement of Syrians from Turkey by the EU, for every Syrian readmitted by Turkey; the aim was to lift short-term visa requirements for Turkey by June 2016; the existing €3 billion in EU and Member State funds committed for Syrian refugees in Turkey would be spent more quickly, with a decision on ‘additional funding’; the EU and Turkey would ‘prepare for the decision’ on opening new chapters in the accession process; and the EU and Turkey would work toward a de facto ‘safe zone’ in part of Syria. The statement also included some commitments on restoring Schengen, but they aren’t affected by the draft full deal.

As regards accession to the EU, note that: there are 35 ‘chapters’ to be negotiated; only one chapter has been closed to date in a decade of accession talks; a commitment to prepare for opening a chapter does not close a chapter, or even mean that a chapter will be opened (any Member State can still block this); it takes years to negotiate chapters; and there are many political obstacles to approving Turkish accession, which requires national government and parliament approval in every Member State (and possibly referendums in some).   

1.       On returns to Turkey: a) This will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, b) Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed by the Greek authorities in accordance with Directive 2013/32/EU. 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, c) 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.

a) How temporary exactly? b) This 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 intention is that the Greek authorities consider any application, 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? This brings us to…

c) The commitments on treatment in Turkey are meant 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). This seems to be what the text of the draft deal is pushing towards. Of course, 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 March 7 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.    On resettlement based on 1-for-l principle: a) Priority will be given to Syrians who have not previously entered the EU irregularly, b) 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. [Any further need for resettlement will be carried out within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 - non-allocated places]. c) Should 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.

On point a) 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. That is addressed by point b), which refers to the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and possibly (note the square brackets) another 18,000 who were originally going to be relocated from Hungary, but weren’t because the Hungarian government refused. These numbers clearly fall far short of the 2 million-plus Syrians estimated to be in Turkey. Point c) only undertakes to review the deal if the original modest numbers are reached. While the Hungarian government has reportedly been objecting to the idea of resettlement, note that this country didn’t commit itself to accept any resettled refugees last year, and so would not have to take any more people under this deal.  Whether other countries decide to resettle people is up to them. The Hungarian government resents interference in its own migration decisions; it does not and should not have any say in the resettlement decisions of other States.

3)   Turkey will take any necessary measures to prevent new routes for illegal migration opening up out of Turkey and into the EU.

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, 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 this would not apply until irregular crossings have stopped. This seems rather utopian - although the Commission paper talks about substantial reductions as an alternative.

5)   The EU and Turkey will further speed up the disbursement of the initially allocated 3 billion euros and ensure funding of additional projects before the end of March. Furthermore, the EU will decide on additional [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount of additional money from the EU and its Member States is still open for negotiation. Note that this money is not, as is widely assumed, simply handed over to Turkey for unnamed nefarious purposes; legally speaking it is only intended for projects that assist the Syrian refugee population. Today's Commission paper lists how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians. Of course everyone should keep a beady eye on developments to ensure that the money is all spent as intended.

Conclusions

Overall this draft 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 key legal question will therefore 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, they could complain to the European Court of Human Rights.

What about the ‘deal’ itself? As I said at the outset, it is not binding so cannot be challenged as such. Its individual elements are binding and so their legality (or the implementation of them) can be challenged separately. On this point, it would be possible for the European Parliament or a Member State to challenge in the CJEU one particular legally binding element: the decision on the EU’s position on the EU/Turkey readmission treaty. That won’t directly affect the Greece/Turkey readmission deal, which is the key element in returns to Turkey in practice; but any ruling the CJEU might make would obviously be relevant to that latter deal by analogy.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.worldbulletin.net