The removal of so-called ‘irregular migrants’ from Greek territory
to Turkey commenced yesterday, 4th April, under a deal
struck between the European Union and Turkey on March 18th. Since
the announcement of the deal there has been some confusion among commentators
as to who exactly is set to be returned from Greece to Turkey and under what
conditions. Additionally, many have questioned the legality of the deal. Given
that yesterday’s deportations “only included migrants who
had not sought asylum”, the legality of the deal as it applies to refugees
and asylum seekers has yet to be tested.
This article aims to clarify what this deal means, setting out that its
intention is for the return to Turkey of almost
all (but not absolutely all), refugees, asylum seekers and other migrants
arriving on Greek islands. There appear, however, to be significant grounds for
legal challenge by potential returnees that could well kill the deal off in
whole or in part. Much
commentary on the deal has focussed on the potential for the treatment
accorded to refugees and asylum seekers in
practice to not meet the standards required by EU and international law,
either regarding procedural safeguards relating to their assessment in and
removal from Greece, or in relation to the conditions and treatment they may
experience in Turkey. While practical conditions are certainly cause for legal
concern and will be addressed below, it is also important to note that the
protections afforded by Turkey to refugees and asylum seekers in law do not appear to meet the
standards required by the Refugee Convention and the EU Common Procedures
Directive. As such, the removal of refugees and asylum seekers from any EU
State to Turkey will violate that State’s protection obligations under EU and
international law.
EU countries already woefully failing in their obligation to protect
refugees cannot evade their legal duties simply by shunting refugees beyond EU
borders. EU countries must work together to protect refugees in dire need.
This deal presages a similar deal being worked out between the EU
and Turkey that is to see refugees, asylum seekers and other migrants from
across the whole union returned to Turkey. That deal is currently due to enter
into force on June 1st 2016. Further, the EU is attempting to
conclude similar deals with other countries of transit for refugees, including
Lebanon and Jordan.
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Note on terminology: All individuals arriving on Greek territory not having entered
through regular legal channels are deemed ‘irregular migrants’. Some may be
refugees and asylum seekers and some may not be. A refugee is someone fleeing
persecution on grounds set out in the Refugee Convention
(sometimes known as the Geneva Convention), and additionally the EU
Qualification Directive provides that those at risk of ‘serious harm’,
including from armed conflict, are to be provided international protection on
a similar basis as those subject to persecution. An asylum seeker is someone
claiming to be a refugee but whose status the authorities have not yet
determined. Asylum seekers have certain rights, while other rights follow once
they are determined to be a genuine refugee.
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The Current Situation
Though the deal between Turkey and the EU was struck over two weeks
ago, removals of individuals from Greece to Turkey did not begin until yesterday.
This is largely because Greece is struggling
to implement the terms of the deal. In particular, Greece is still awaiting the
arrival of several thousand security and legal experts to be sent by other EU
States to assist with processing asylum applications. However, all individuals
arriving on the Greek islands since the deal was struck are to be processed
under the terms of the deal and as such may potentially be subject to the new
removals process.
It is key to note, however, that according to Turkey's
EU Affairs Minister, Volkan Bozkir, those deported from Greece today “only
included migrants who had not sought asylum.” As long as these individuals had
been given the opportunity to seek asylum in accordance with EU and
international law, today’s deportations therefore avoided the potential legal
obstacles to the removal of refugees and asylum seekers, and as such the
legality of the deal in its wider form is yet to be tested.
The Terms of the Deal and
its Legal Basis
The deal provides that:
1.
“all new irregular migrants
crossing from Turkey into Greek islands … will be returned to Turkey”, that;
2.
“Migrants not applying for
asylum or whose application has been found unfounded or inadmissible … will be
returned to Turkey”, and that;
3.
“For every Syrian being
returned to Turkey from Greek islands, another Syrian will be resettled from
Turkey to the EU” (the so called ‘1 in, 1 out’ plan).
These provisions do not appear to be entirely compatible with one
another, and will be addressed below.
The legal basis underpinning the deal is provided by a Readmission
Agreement concluded between Greece and Turkey in 2001, as well as the terms
of the EU
Common Procedures Directive. Under the bilateral Readmission Agreement, each
party agreed to readmit migrants that had irregularly crossed from its
territory into the territory of the other party. Though until now it has not
been properly implemented, it is still in force. The EU Common Procedures
Directive sets out the terms whereby an asylum seeker or refugee may be
returned to a non-EU State that is deemed to be a ‘first country of asylum’ or
a ‘third safe country’.
A readmission
agreement between the EU and Turkey entered into force on 1st
October 2014, and its provisions allowing for the return of refugees, asylum
seekers and other third country nationals from across the whole EU to Turkey are
currently due to become active on July 1st this year.
Who is to be Removed from
Greece?
The deal states that all
new irregular migrants are to be returned. However, its terms go on to provide
that all asylum applications will be considered individually, as is required by
law, and that,
“Migrants not applying for asylum or whose
application has been found unfounded or inadmissible … will be returned to
Turkey.”
The key point here is that under Common Procedures Directive, one
ground on which an application may be found to be inadmissible is that the
individual applying for asylum has come from a third safe country or a country
of first asylum to which he or she may be returned. Under the deal Turkey
is to be designated a safe country and has agreed to accept returnees.
Therefore, if the deal were implemented in the way in which the EU and Turkey
intend, all refugees and asylum seekers would be returned to Turkey unless they
can show specific and exceptional reasons why Turkey would not be safe for them
in their particular circumstances. It would therefore have been consistent with
the actual terms of the deal to state that almost
all new irregular migrants will be returned.
This deal, however, raises significant legal concerns and as such
will be subject to legal challenge.
Grounds for Challenge:
Procedural Safeguards
EU and international law provide significant procedural safeguards
whereby each and every asylum applicant arriving in Greece must be provided
with a full and fair hearing to the highest standard, and must have the
opportunity to challenge any initial ruling in the national courts. It is far
from clear that the Greek authorities have the capacity to actually implement
this on the scale required, and even with the additional capacity pledged by
other EU States, if those arriving to assist do not speak Greek and are not
trained in Greek law it is unclear how exactly they will negotiate the Greek
legal system. This in itself may lead to challenges on the basis of the
fairness of the asylum hearings.
Grounds for Challenge: Is
Turkey a ‘Safe Country’ for Refugees and Asylum Seekers?
As noted, the EU Common Procedures Directive provides that where an
individual applying for asylum has come from a third safe country or a country
of first asylum, if that third country will readmit the asylum seeker, he
or she may be returned there. The premise for this is that the asylum seeker
will be able to seek, and if necessary receive, protection in the third country
to the standard required by EU and international law – in other words that the
third country is safe for the asylum
seeker. Under the terms of the deal, Greece and the EU are to consider Turkey
to be safe for refugees and asylum seekers. However, the Common Procedures
Directive sets very stringent conditions for when a third country may be
considered safe – conditions that Turkey appears not to meet. Notably, in order
to be considered a safe third country, the third country must provide the
possibility to:
“request refugee status and, if found to be a
refugee, to receive protection in accordance with the Geneva Convention”;
and in order to be considered a first country of asylum, it must be
the case that the asylum seeker:
“enjoys sufficient protection in that
country”.
According to the UNHCR, Greece is set to
remove Syrian refugees and asylum seekers (or stateless persons normally
residing in Syria) to Turkey on the basis that Turkey is a first country of
asylum, predicated on the fact that Turkey has implemented a temporary
protection regime whereby all Syrians are automatically entitled to
protection without going through a full asylum application process. Non-Syrian
refugees and asylum seekers will be removed on the basis that Turkey is
designated a third safe country, whereby they may seek and receive protection
under Turkey’s Law on Foreigners and International
Protection, which came into effect in 2014.
‘Third Safe Country’
Designation and Refugee Convention Ratification
In order to be designated a third safe country, a refugee must be
able to request and receive protection “in accordance with the Geneva [Refugee]
Convention”. Turkey has not ratified the Refugee Convention and its Protocol so
as to cover refugees from outside Europe (a legacy from the WWII era). The EU
argues that as long as the substance of the protections provided in the Refugee
Convention are available in practice, formal ratification is not necessary for
Turkey to be designated a ‘third safe country’. The UNHCR and many other legal
analysts dispute
this, however, arguing that formal ratification of the Convention to cover
refugees from all countries is required. A legal challenge is highly likely on
this basis.
Turkish Asylum Law and
Substantive Refugee Convention Standards
Even if the Greek Courts were to side with the EU on the matter of Refugee
Convention non-ratification, it would still be the case that the right of
refugees and asylum seekers to be protected “in accordance with the Geneva
Convention” must mean that the substantive content of all of the protections of
the Refugee Convention must be available under Turkish law. Additionally, with
regard to the first country of asylum requirement that the asylum seeker will
enjoy “sufficient protection” in that country, the UNHCR has stated that this
requires:
“compliance, in law and practice, […] with
relevant international refugee and human rights standards, including adequate
standards of living, work rights, health care and education”.
Again, the substantive protections of the Refugee Convention must be
available under Turkish law. However, despite the commendable steps of
introducing the new general asylum law, based heavily on the EU model, and the temporary
protection regime for Syrians, there are various areas in which Turkish law falls
short.
Under the general asylum law, non-European asylum seekers may apply
for what is called ‘conditional refugee’ status, but the protections available
are somewhat less than those provided to European refugees under the Refugee
Convention. One example of where this protection falls short is with regard to
wage earning employment. The Refugee Convention provides that refugees must
receive “the most favourable treatment accorded to nationals of a foreign
country”, but Turkish law requires a six month period following the lodging of
an asylum claim before a refugee can apply for a work permit even if determined
to be a refugee before that point – a restriction that does not apply to all
foreigners present in Turkey.
Far more restrictive
conditions are placed on Syrians under the temporary protection regime with
regard to wage earning employment. In addition to the protection standard
iterated above, the Refugee Convention provides that after three years in the
country, “restrictive measures imposed on aliens or the employment of aliens
for the protection of the national labour market shall not be applied [to
refugees]”. Under the temporary protection regime for Syrians, work permits
must be applied for by a prospective employer and will be valid only with
regard to a particular workplace, requiring a new application every time the
place of employment changes. Further, the number of foreigners under temporary
protection employed in a given workplace cannot be more than 10 per cent of
Turkish citizens employed in the same workplace. These restrictions do not
apply to other foreigners in Turkey, and do not expire after three years.
A comprehensive analysis of Turkish asylum
law as against the Refugee Convention will be necessary to fully determine all
potential shortcomings of Turkish law, but there appear to be other such
instances. For example, with regard to freedom of movement, the Refugee Convention
provides that refugees shall be accorded “the right to choose their place of
residence to move freely within its territory, subject to any regulations
applicable to aliens generally in the same circumstances.” However, the
Temporary Protection Regulation provides that Syrians “shall be obligated to …
reside in a province, temporary accommodation center or a certain place
determined by the Directorate General”. According to the Asylum Information
Database (AIDA):
“On 29 August 2015, a DGMM written
instruction signed by the Minister of Interior was circulated to the
Governorates across Turkey, specifically ordering the institution of a range of
measures by provincial authorities to control and prevent the movement of
Syrians inside Turkey. […] Its existence became known when security agencies
particularly in the southern provinces began to act on this instruction and
started intercepting Syrians seeking to travel to western regions of the
country. It appears that the impetus behind this measure was to halt the
growing irregular sea crossings of Syrian nationals to Greek islands along the
Aegean coast. The instruction explicitly refers to the ongoing problems arising
from the “movement of Syrians outside the provinces where they are
registered””.
These restrictions do not apply to aliens generally, nor to
non-European ‘conditional refugees’, nor to European refugees.
In addition to violating the specific rights listed, these
provisions violate the Refugee Convention standard whereby the protections of
the Convention shall be applied to all refugees without discrimination as to
country of origin.
Protection Standards in
Turkey in Practice
Additionally, asylum applicants in Greece may challenge their
removal to Turkey on the basis that on arrival in Turkey they are, in reality,
at risk of not receiving those protections that are required by the Refugee
Convention, and potentially even those that are provided for by Turkish law. Of
course, this will depend on an ability to show that there are grounds for
believing this to be the case, but human rights organisations have expressed
concern about the conditions in which refugees live in Turkey. Amnesty
International has reported that through 2015:
“most
refugees and asylum-seekers outside camps received little or no assistance and
were not granted the right to work. In many cases they struggled to survive,
getting by through exploitative and underpaid irregular work and the charity of
neighbours. Asylum applications for non-Syrians were rarely processed in
practice. […] In September, at least 200 refugees – mostly Syrian – attempting
to travel irregularly to Greece were kept in incommunicado or even secret
detention at various locations in Turkey.”
One matter of particular concern regarding treatment to which Syrian
refugees and asylum seekers may be subjected in practice is the proposal for so-called
‘safe areas’ inside Syria. The EU-Turkey deal provides for the possibility of
spaces inside Syria
“near the Turkish border which would allow
for the local population and refugees to live in areas which will be more safe.”
An absolutely fundamental provision of international refugee law is
the prohibition of non-refoulement,
whereby refugees or asylum seekers may not be returned to a country where they
face a real risk of persecution, or, under EU law, of ‘serious harm’. There is
no way to know if these proposed Syrian so-called ‘safe areas’ will actually be
or remain safe to the standards required by EU law. The possibility that
refugees removed from EU territory may be further removed into such areas
inside Syria raises significant concern that, despite the formal provisions of
Turkish law prohibiting non-refoulement,
there is in fact a real risk that this will happen. Further to this, Amnesty
International last week released a report
documenting numerous instances of Syrians being forcibly refouled from Turkey to Syria.
Syrian Refugees: 1 in, 1
out
The ‘1 in, 1 out’ agreement contained in the deal to resettle one
Syrian refugee from Turkey in Europe for each Syrian returned to Turkey from
Europe, up to a total of 72,000 refugees, makes no difference to the legal
situation. It is unlawful to remove refugees to a country where they will not
be fully protected, whatever happens in response.
Removal of Refugees and
Asylum Seekers to Turkey Must be Considered Unlawful
Turkey is to be commended for providing some employment and other protections
to over 2.7
million Syrian refugees on its territory, and for providing the possibility
for others to apply for asylum. However, given that; Turkey has not ratified
the Refugee Convention and its Protocol so as to apply to non-Europeans;
Turkish asylum law does not meet the substantive protection standards set out
in the Refugee Convention and under EU law; and refugees and asylum seekers
removed to Turkey face in practice a real risk of being subjected to treatment
or conditions falling far short of the protections required by the Refugee
Convention and other provisions of EU and international law; it cannot be
considered that refugees and asylum seekers removed from Greece to Turkey will
“receive protection in accordance with the Geneva Convention” or will receive
“sufficient protection” in that country. Combined with serious concern over the
ability to apply the legally mandated procedural safeguards in Greece, any
removals of refugees or asylum seekers to Turkey will be unlawful.
Europe’s Dismal Failure to
Protect Refugees in Dire Need
To state that Turkey is not a safe country for the purposes of EU
law is not an exercise in claiming that Turkey is worse than European countries
in its treatment of refugees. Indeed, though much more still needs to be done,
Turkey has made notable steps in the right direction in recent times. The
absolute responsibility for protecting refugees present in EU countries lies
with those very EU countries, many of which are woefully failing in this
regard. In a recent study
conducted by the Refugee Rights Data Project at the “Jungle” refugee camp in
Calais, France, almost 75 per cent of respondents reported having experienced
police violence whilst resident at the camp. Even if a proportion of this could
be justified as some form of crowd control, it would appear to indicate the
systemic ill treatment of those in need of international protection in Calais,
in violation of the European Convention on Human Rights. One doctor who has
worked with refugees and internally displaced people in Darfur, Myanmar, Uganda
and Congo has recently stated
that the conditions in Europe are the worst he has ever seen.
EU countries cannot absolve themselves of their responsibilities
simply by shunting refugees and asylum seekers beyond EU borders. Any attempt
to remove those in need of international protection without the proper
safeguards or to remove them to a place where they are not guaranteed
protection to the legally mandated standard will simply amount to further
violation of the legal obligation to protect refugees. The only way that EU
States can comply with their humanitarian obligations is to change their
behaviour and directly protect refugees and asylum seekers on their territories.
Given the numbers of people in need of protection at the current time, and
though there is no explicit legal obligation to do so, in practice it would
appear that the only way for EU States to effectively comply with their legal
obligation to protect refugees is to cooperate so as to share this
responsibility across the whole Union.
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