On Friday,Patrick, one of our volunteers, gave a lecture on the EU-Turkey Deal. Patrick is a lawyer, and he has been working with the UN in Syria. Her is a written version of his lecture:
The EU-Turkey Deal
Introduction
The recent EU-Turkey deal aims to reduce the flow of migrants into Europe via the Greek islands. Below is an attempt to analyse the implications of the agreement and to provide some background to the increased refugee and migrant flows into Europe. I have structured this document for the most part in a question- and-answer format for ease of reference. Please note that events on the ground are constantly changing, so many points in the document below may require revision in the near future.
The Syrian conflict started in early 2011, so why did the influx of Syrian refugees into Europe only increase substantially from 2015?
Between 2011 and 2015, the Syrians taking refuge in countries surrounding their homeland (primarily Turkey, Lebanon and Jordan) entertained some hope that the conflict would end and they could return to their homes and resume some kind of normal lives. They were willing to put up with fairly abject conditions in countries hosting them until that time (such as living in tents, not being allowed work and with poor access to health and schooling). However, during the last year, with the conflict showed no signs of ending, many decided that it was better to try to start new lives in Europe. Getting refugee status there promised the possibility of finding legal, productive employment and access to healthcare and education; in short, the possibility of a far better life than was on offer in Turkey, Lebanon and Jordan.
Why are refugees forced to use people smugglers and risk their lives?
There is a hideous irony to the European asylum system; member states make it as hard as possible to get there, but once you arrive, your means of arrival becomes irrelevant and you are free to access some of the most generous asylum-systems on the planet. This is primarily due to what is called carrier sanctions: a provision of EU law (directive 2001/51/EC and article 26 of the Schengen Convention) which states that carriers transporting people into the Schengen area (the passport free zone that includes most of the Continental EU countries) shall, if they transport people who are refused entry into the Schengen Area, pay for the return of the refused people, and pay penalties. This essentially means that migrants without a visa are not allowed on boats, planes or trains into the Schengen Area, forcing them to resort to migrant smugglers. Humanitarian visas are in general not given to refugees who want to apply for asylum. Airlines also check for visas for passengers making international flights within the Schengen area, forcing migrants to travel overland instead (ie from Greece to Germany). According to a study carried out for the European Parliament, “penalties for carriers, who assume some of the control duties of the European police services, either block asylum-seekers far from Europe’s borders or force them to pay more and take greater risks to travel illegally”
Why has the EU agreed this deal with Turkey?
Because of domestic political pressure. With approximately one million people entering the continent last year as irregular migrants, EU politicians have been forced to come up with a meaningful response, after years of effectively ignoring the issue. Of particular importance is the impact of the crisis in Europe’s largest economy, Germany, where Angela Merkel, its chancellor and by some distance the most powerful national politician in Europe, faces the most serious threat to her hold on power in many years, due to her handling of the migrant crisis. Her primary aim was to reassure German voters that some measure of control would be restored prior to German federal elections in mid-March, and the EU-Turkey deal was her attempt at achieving this.
What is the deal intended to achieve and how will it work in theory?
The deal is intended to achieve a dramatic reduction of refugee flows into Europe. In theory, it is appealing in its simplicity: all irregular migrants arriving on Greek territory via Turkey from Sunday 20 March onwards will be returned to Turkey. For every Syrian refugee arriving (and subsequently returned to Turkey), one Syrian refugee registered as such and living in Turkey (and who has not previously made the attempt to travel to Europe) will be resettled somewhere in Europe.
The following bullet points attempt to summarise the main provisions:
- Returns:All “irregular migrants” crossing from Turkey into Greece from 20 March will be sent back. Each arrival seeking asylum will be registered and individually assessed by the Greek authorities, with 4-5,000 experts sent in from other European countries to undertake these rapid asylum assessments. The return of those found deserving of refugee status will begin on 4 April. Those who are deemed economic migrants or who do not seek protection will be returned immediately.
- One-for-one:For each Syrian returned to Turkey, a Syrian migrant will be resettled in the EU. Priority will be given to those who have not tried to illegally enter the EU and the number is capped at 72,000. Resettlement will happen on 4 April, at the same time as Syrian refugees are returned to Turkey.
- Easing of Visa restrictions:Turkish nationals should have visa-free access to the Schengen passport-free zone by June. This will not apply to non-Schengen countries like Britain, and Turkey has to meet 72 conditions before this part of the deal takes effect.
- Financial aid:The EU is to speed up the allocation of a previously-agreed €3bn ($3.3 bn; £2.3 bn) in aid to Turkey to help migrants, with another €3bn agreed under the deal.
- Turkey EU membership:Both sides agreed to “re-energise” Turkey’s bid to join the European bloc, with talks due by July.
- EU will help set up safe areas inside Syria: This seems rather unrealistic. More below…
What are the legal issues?
The 1951 Refugee Convention, the cornerstone for international refugee law, agreed that countries should provide protection, but not how the country in question would be chosen. The concept of a “safe third country” or “safe country of asylum” refers to the idea that asylum seekers should not be able to go wherever they choose, but should seek protection in the first country they reach where they can find this protection.
The EU Procedures Directive identifies a “safe third country” as countries to which asylum seekers can be returned with less than full examination of their asylum claims. Treatment in Turkey will need to match EU rules in this Directive, which defines 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 1951 Convention);
- 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 toanother country which is unsafe (the non-refoulement rule, referring specifically to the Refugee Convention, plus the ban on removal to face torture as laid down by case law of the European Court of Human Rights);
- and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention’ ie full and effective access to education, work, health care and, as necessary, social assistance.
These safeguards would need to be set out legally and would need to govern any mechanism under which responsibility would be transferred for assessing an asylum claim (pre-departure screening would also need to be in place to identify heightened risk categories that may not be appropriate for return even if the above conditions are met). EU law specifically states that a third country can only be considered safe if “it has ratified the provisions of the Geneva Convention without any geographical limitations.” (Directive 2013/32/EU, article 39 2(a)).
Does Turkey fulfil these requirements?
In a word, no. While Turkey ratified the 1951 Refugee Convention and its 1967 Protocol, the country maintains a geographical limitation that excludes from protection anyone not originally from a European country. For those coming from outside of this zone (everyone in Greece), Turkey may grant limited protection in the form of one of many temporary statuses (conditional refugee status, humanitarian residence permit, or temporary protection). This means that individuals qualifying for international protection may be granted an ability to stay in Turkey and not be subject to return to their home country, but must ultimately find a long-term solution outside Turkey. They do not have the ability to integrate into Turkish society.
The New Turkish Law
The Turkish Parliament passed new landmark legislation, the Law on Foreigners and International Protection (LRIP), in April 2013, The new law went into effect in April 2014. The new law made a number of changes to the asylum system in Turkey, mainly with regard to legal procedures and bureaucracy. The geographical limitation remains in place under the new law, leaving most refugees with no long-term solution in Turkey. The law provides protection and assistance for asylum-seekers and refugees, regardless of their country of origin. Non-Syrian and non-Europeans requests for asylum are processed by UNHCR (which takes years) and wait for resettlement to another country; which can also take years and may in fact never happen. While refugees wait they do not have very good access to services. They do not generally have the right to work.
The system, which is not yet fully functional, provides for “conditional refugee status” for non-European refugees for the purposes of resettlement in another country. According to a recent EU report, in 2015 Turkey registered 64,109 asylum requests (most from Iraqi and Afghan nationals). But only 459 refugee status determination interviews were concluded—there is no information about the outcome—while the remaining applications are still pending.
Individuals coming from Syria fall under Temporary Protection under the LFIP. Syrian nationals apply to the Turkish government and do not undergo individual status determination with UNHCR. Based on vulnerabilities and other criteria, Syrians may be referred by the government for resettlement to a third country.
Refoulement
This principle not only forbids governments from deporting refugees to places where their lives or freedom would be threatened but also from rejecting asylum seekers at their borders who would face such threats. At the very time the EU was announcing its migration control deal, Turkey had closed its border to tens of thousands of Syrians fleeing bombs and bullets in the northern Syrian city of Aleppo. The EU did not consider Turkey safe until now. Turkey is not fully signed up to the UN refugee convention (see above) and as already noted has broken international law by sending back refugees to Syria. While it has accepted more Syrian refugees than any other country, it has sometimes forcibly returned Syrian, Iraqi and Afghan asylum seekers to their countries of origin. Just hours after the EU deal was signed, Amnesty International reported that 30 Afghan refugees were sent back to Afghanistan. Turkey has granted “temporary protection” to more than two million Syrians, but it still refuses effective protection in practice to non-Europeans including Afghans, Iraqis and others applying for it. Turkey has also repeatedly pushed Syrians back into the war zone and closed borders to others seeking to flee.
Right to Work
Practically all refugees in Europe have this, once their claims for asylum have been assessed, and judged valid. In fact, in most European countries, asylum-seekers are also permitted to work after a certain period (usually six months to a year) while they wait for the outcome of their claim. This is not the case in Turkey, where only Convention refugees (ie Europeans) have the right to work. While a Turkish law introduced in January 2016 finally allowed Syrians the chance to apply for work permits in certain situations, Turkey does not automatically grant Syrians the right to work – a crucial right enshrined by the 1951 convention – and it remains to be seen how the new labour law will work in practice. In the meantime, most Syrians work for less than the minimum wage and have no legal recourse to stop their exploitation. In fact, since January, aid groups said they had not yet heard of any Syrian being granted a work permit under the law. This has led many to send their children to work in order to make ends meet – so there are 400,000 Syrian refugee kids NOT in school in Turkey. Aid groups are also concerned that refugees returned to Turkey will not be given the right to work.
With regard to healthcare and education, Syrians living under temporary protection in Turkey officially have access to free health care, and to free education for their children. Housing is however something many of the over two million Syrian refugees who live outside the refugee camps in Turkey struggle to get, and large numbers live in abject poverty. Syrians who move from the city where they are registered to another often lack the necessary information to overcome bureaucratic hurdles and to secure access to medical care and education in their new places of residence.
Safety
Reports by Amnesty International and local groups speak of arbitrary arrests of refugees and of ill-treatment in detention in Turkey, plus denial of legal representation or aid, making it impossible for them to challenge their detention and deportation. Non-Syrian refugees have very few social and economic rights in Turkey, and many are forced to turn to exploitative, unsafe, and underpaid informal labor to make ends meet.
Settlement
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.
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.
Further, the deal may not even increase resettlement. It’s been called “one-in one-out”, but it’s really none-in none-out, because if it succeeds in deterring Syrians from fleeing to Greece, there will be no obligation to resettle the Syrians in Turkey
Safe Zone
Turkey has repeatedly indicated that it wants to create a “safe zone” at its borders inside northern Syria, to which Syrians could flee. The Turkish government does not explain how the “safe zone” would be secured, and today’s highly volatile situation in Syria and the ongoing violence make it unlikely that such efforts could succeed. Recent history has shown that so-called safe zones like Srebrenica during the Balkan conflict in the 1990s have, in fact, been death traps that have served to contain the flow of displaced people seeking to escape danger rather than protecting civilians from harm.
Legal Challenges to the Deal
What about legal challenges to the deal? Syrians for whom Turkey offers temporary protection, and other nationalities with even less protection, should be able to challenge whether Turkey provides them effective protection before being sent back there. 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 (EU court of justice) about EU asylum law. However, in practice it’s not clear how much access Syrians in detention centres will have to either lawyers or to courts.
Will it Save Lives?
The humanitarian argument of saving lives at sea has often served as a fig leaf for self-interested, coercive border enforcement measures. As old routes close down, new routes emerge to respond to people’s needs and determination. Stopping the boats will not stop people trying to reach safety in Europe, but it may well prompt human smugglers to use alternative, and more dangerous, routes to ferry desperate people across the sea and land borders. And given the Turkish security forces’ reputation for using excessive force, there is a risk that Turkey will use abusive tactics to prevent people from reaching its EU neighbors Greece and Bulgaria.
Cracking down on smuggling networks without presenting any viable alternatives, without other possibilities to reach safety and effective protection, might in fact increase the numbers of men, women, and children enduring arduous, potentially fatal, journeys and leave more refugees stuck under harsh conditions in third countries where they are unable to build a better life. There are already concerns, for example, that more people may attempt the far longer and more dangerous crossing from Egypt. Instead of focusing on securing and policing their borders even further, European countries should put more money and effort into sharing the responsibility of managing the refugee flow. This would require all EU member states to swiftly implement their obligations to make places available for asylum seekers from Greece and Italy under the relocation plan agreed in September 2015.
Latest Updates: Guardian 24 March 2016
A triple blow was dealt to the EU-Turkey migration deal after five leading aid groups refused to work with Brussels on its implementation, a Turkish diplomat ruled out changing Turkish legislation to make the deal more palatable to rights campaigners, and a senior Greek official said nobody knew how the agreement was supposed to work. The UN refugee agency said it was suspending most of its activities in refugee centres on the Greek islands because they were now being used as detention facilities for people due to be sent back to Turkey. UNHCR was later joined by Médecins Sans Frontières, the International Rescue Committee, the Norwegian Refugee Council and Save the Children. All five said they did not want to be involved in the blanket expulsion of refugees because it contravened international law. In a separate and stronger statement, Marie Elisabeth Ingres, MSF’s head of mission in Greece, said: “We will not allow our assistance to be instrumentalised for a mass expulsion operation and we refuse to be part of a system that has no regard for the humanitarian or protection needs of asylum seekers and migrants.”
Practical Issues in Greece with the Deal
EU officials said Greece also needed time to set up legal and administrative structures to carry out the deportations and grant migrants individual asylum and appeal hearings Greece needs an extra 4,000 asylum officials from the rest of the EU in order to deport such a high number of people. As of 24 March, these reinforcements had not yet arrived, and in the meantime the number of refugees in Greece has risen above 50,000. The UNHCR said it believed Greece did not have the capacity to deal with so many people: “UNHCR is concerned that the EU-Turkey deal is being implemented before the required safeguards are in place in Greece. At present, Greece does not have sufficient capacity on the islands for assessing asylum claims, nor the proper conditions to accommodate people decently and safely pending an examination of their cases.” The deputy mayor of Lesbos, the island where most migrants land, said no Greek official knew exactly how the deportation process would work, nor what to do with the refugees while they waited. When asked by the Guardian if he had received any concrete instructions about how refugees would be processed and returned to Turkey, Giorgos Kazanos said: “No, not yet. Nobody knows. Every five minutes, the orders change. So who knows.”
What about refugees already in Greece?
Since the closure of the Macedonian border, more than 40,000 refugees have been trapped in squalid conditions in Greece. These will not be returned to Turkey under the terms of the deal – but in theory will be shared between the members of the EU. In practice, EU members have failed to uphold earlier articulations of this sharing process in the past, and may yet do so again, leading to a humanitarian crisis in Greece. Some of those trapped may try to move onwards through the Balkans – via Albania, perhaps, and conceivably by sea to Italy. Since the EU promised to place 160,000 refugees from Greece and Italy elsewhere in the bloc, only 937 people have been found a new home. Asylum-seekers who arrived in Greece before March 20 are still eligible for EU relocation, which entails applying for asylum and being either denied and returned to Turkey, or accepted and given an offer from a member state that has agreed to the plan. Asylum-seekers cannot choose the country to be relocated to in this case. Only those nationalities with 75% recognition rate are covered by resettlement plan (Syrians, Eritreans, Iraqis), so not Pakistanis or Afghanis. Indeed, many Pakistanis are stranded in Greece as they do not possess the money required by their own government for regaining entry to Pakistan. The Dublin Regulation (which obliges asylum-seekers to apply for asylum in the first country they enter in the EU – which is often Greece or Italy, obviously) is still in place and border controls have been re-established. The Greek asylum-system is completely dysfunctional and ill-equipped to cope with anything like the numbers of asylum-seekers currently in the country. Its economy is also very weak with very little job opportunities. Its recognition rate is one of the lowest in Europe.
What about refugees arriving in Greece from Sunday 20 March?
Under the terms of this agreement, if you’re Syrian at least you still have a faint possibility of being resettled in Europe; but you will be placed at the back of a very long queue of Syrian refugees currently in Turkey seeking resettlement in Europe. The deal says nothing about Iraqis and Afghans, who can apply for asylum. They (as well as every other irregular migrant) will also be sent back to Turkey. It’s very unlikely they’ll get any kind of protection there; but it’s worth noting in an article today (25 March 2016) in – of all publications – the Daily Mail, which discusses EU pressure on Turkey to change its national legislation in order to give Afghans and Iraqis more rights as refugees. Although updates from yesterday, 24 March, are not encouraging: Turkey’s ambassador to the EU said in an interview with the website EU Observer that his government would not change its laws again. “No, no, no, and no,” Selim Yenel was quoted as saying by EU Observer, in response to the idea that Turkey might let EU officials observe its asylum process in action. Yenel argued that Turkey is already a safe country for refugees. The EU leaders had previously pressed Ankara to change its rules to extend international standards of protection to non-Syrian migrants, a condition for Greece to be able legally to return asylum seekers to Turkey.
What is the Alternative?
Europe needs to step up mass resettlement schemes. While this is going to require great administrative and financial efforts, it’s hard to see there’s no alternative to it. People are going to try and come anyway, and the sooner we can try and manage that process, the easier it will become. If you create resettlement schemes, people feel like there is a point to staying put in the Middle East, because in the long term this might lead to them being given a safe and legal passage to the West, and then they don’t have to risk death in the rolling seas.
There is also an advantage to Western governments of resettlement schemes because at least they can decide when people arrive, where they will go, and can screen people in advance to weed out anyone who they think might be a potential terrorist. For example, Canada’s resettlement program has allowed the country to prepare, as people arrive at specific times to specific places. Germany can’t currently do the same because they don’t know who’s coming, when they’re coming or where exactly they’re coming.
Once people who might have gone in a more chaotic fashion decide to stay in their countries in the hope of being resettled in a more orderly fashion, everyone wins. Refugees win because they don’t drown. And Western countries win because they don’t get people turning up in droves in an unmanageable way.
In general, the following steps need to be taken: increase safe and legal channels into the EU to reduce demand for smuggling and dangerous journeys, specifically through:
- Increased refugee resettlement;
- Expanded family reunification (that is, allow those outside the EU to join immediate family members who have found legal refuge inside the Union); and
- Reform of the EU Visa Code with a view to creating a Schengen humanitarian visa.