Unsafe Turkey, unsafe Europe

By Sergio Carrera - Aikaterini Drakopoulou, October 11, 2016

Moria Refugee camp in Lesvos Greece

Moria Refugee camp in Lesvos Greece

We need to look at the profound political, legal and ethical costs of reducing refugee flows. The EU-Turkey Statement shows how the political shenanigans indulged in by some EU institutions lead in fact to more insecurity and uncertainty.

The marked increase in refugee flows from Turkey to Greece and subsequently to other EU Member States during the second half of 2015 and first months of 2016 triggered a political tornado – with political manoeuvres shifting between European institutions and member state authorities.

In an attempt to control continuing flows, cooperation with Turkey has been presented as a key way to achieve what has become an EU priority, namely, to decrease the number of refugee entries and/or prevent them altogether while increasing the rates of enforced removal orders. Since the adoption of the EU-Turkey Statement of 18 March 2016, as Graph 1 below illustrates, the number of entries of asylum seekers to Greece has dramatically decreased. This is now presented as proof of success.

Graph 1: Arrivals in Greece 2015-2016

(Click to enlarge)

Source: UNHCR, Greece data snapshot – 12 Sep 2016

We argue that the shift of responsibility to offering international protection and the decrease in flows of those in need of such protection from Turkey to Greece has brought with it profound political, legal and ethical costs, which have led to high degrees of unsafety for all the actors involved and individuals in need of protection. These costs relate to:

–  First, deeper political instability and insecurity in Turkey, which continues being no-safe country for refugees and which after the failed coup d’état has now become a source of asylum seekers.

–  Second, an incapacity of Greece to ensure due access to international protection and reception conditions to asylum seekers and refugees; and

–  Third, crisis-led policy-making by the Council of the EU and the European Commission which considers negotiable the rights of asylum seekers and the democratic rule of law.

Unsafe Turkey
What was the EU-Turkey Statement about? Turkey agreed to admit the ‘rapid return’ of all ‘irregular immigrants’ intercepted in Turkish waters as well as those crossing into the Aegean islands. This came alongside the so-called ‘one-for-one’ resettlement deal according to which for every Syrian returned to Turkey from Greece, another Syrian would be resettled from Turkey to the EU. Turkey also agreed to anticipate the entry into force of the application of the EU-Turkey Readmission Agreement to third country nationals to June 2016.

One challenge underlying the statement’s implementation has been whether Turkey can be considered a ‘safe third country’/ ‘first country of asylum’. The European Commission has argued that the concept of ‘safe third country’ as defined in the Asylum Procedures Directive requires that the possibility exists of receiving protection in accordance with the Geneva Convention, but does not require that the safe third country has ratified that Convention without geographical reservation.’ In a letter sent to the Greek authorities in May 2016, the Commission reassured Greek authorities that Turkey is a ‘safe third country’ in light of the adoption of domestic legislative measures and diplomatic assurances by the Turkish authorities.

According to UNHCR, states can be considered ‘safe’ if they are not producers of refugees or when refugees can enjoy asylum rights without fear, insecurity or danger. It is difficult to think of Turkey as a ‘safe country’ rationally. Turkey ratified the 1951 Geneva Convention and acceded to its 1967 Protocol. But it retained a geographical limitation exempting it from extending the Convention to non-European refugees, including Syrians. The record of cases where Turkey has been found in violation of the European Convention of Human Rights (ECHR) evidences unsafety for people seeking international protection or escaping from that country. The drastic measures adopted by the government in response to the failed coup d’état, that involve inter alia the suspension of the ECHR, testify to the fact that democratic rule of law and fundamental rights can no longer be trusted in this country.

Diplomatic assurances and new pieces of legislation aimed at masking the protection gaps resulting from the geographical limitation to the 1951 Geneva Convention cannot be taken as sound legal grounds for concluding that the necessary protections are de facto delivered on the ground during the implementation phases. As previous research has showed, a key weakness affecting EU Readmission Agreements is that there are no effective ways to monitor their compliance with fundamental human rights during their practical application, in particular during the phase of post-readmission in the non-EU countries concerned.

As declared by the UNHCR Director, UNHCR no longer has access to the two most important centres where returnees are detained in Turkey. This gives ground to skepticism as to whether Turkey truly has a functioning asylum system and is ‘safe’.

The Statement is also dependent on the state of diplomatic relations between Turkey and the EU. A case in point exposing this politicization is the non-implementation of the expected application of the EU-Turkey Readmission Agreement in June 2016. It has been reported that the readmission lag was being used as ‘leverage’ by Ankara in its EU visa talks. In addition to the granting of a 3 billion euro deal to Turkey (the so-called Refugee Facility), one incentive behind the conclusion of the EU-Turkey Statement has been the waiver of the Schengen visa requirements for Turkish nationals by the end of June 2016, which remains pending. Turkey is now calling for it to happen before the end of 2016. The extent to which the EU will deliver remains uncertain, as the Commission’s proposal found resistance both inside the European Parliament and the member states. The fact that asylum applications from Turkey have increased since the coup d’état will certainly not make things any easier.

The legal uncertainty tainting the EU-Turkey deal has been highlighted by two cases currently pending before the Court of Justice of the European Union (CJEU) – Cases NF, NG and NM v European Council. It is uncertain whether the CJEU will declare them admissible. On the positive side, the Court’s assessment should focus on the legal effects that the Statement and subsequent Greek national implementing measures have on applicants and the lack of safety in Turkey for asylum seekers. The legal nature of the EU-Turkey Statement has been discussed within the European Parliament. Reportedly, the Parliament’s Legal Service concluded that the statement was not a legally binding agreement from the perspective of international law.

Unsafe Greece
Third Country nationals arriving in Greece after March 20, 2016 through the Aegean islands are subject to the EU-Turkey Statement. Since then, all newcomers are obliged to remain at the Reception and Identification Centres (RICs) under a ‘restriction of liberty’ regime. This amounts to de facto detention, for an initial period of 3 days which can be extended up to 25 days.

The living conditions of the RICs are far below standards and raise strong concerns regarding security issues. According to the Statement, newcomers who do not wish to seek international protection or whose asylum claims are rejected on their own merits or found inadmissible under the ‘first country of asylum/ safe third country’ concept, shall be readmitted to Turkey. Those lodging an asylum application are obliged to remain on the island of entrance until their application is examined.

Since the beginning of 2016, 164,730 individuals have reached Greek territory by sea. 88% of these come from the worlds’ top 10 refugee-producing countries. Unlike the period before the Statement, the vast majority of those arriving on these islands will get into the asylum procedure in order to be protected from readmission, be granted international protection status, and the chance to reunify with their family members in other member states. However, the number of people willing to seek international protection exceeds the capacity of the Greek Asylum Service to register and process the claims. As a result, the right to have full and unimpeded access to asylum cannot be properly exercised by newcomers. Those willing to seek international protection are required to express their will before the police in order to be included in a priority list for registration by the Asylum Service.

Until very recently only Syrians, Pakistanis and nationals of Maghreb and specific African countries (i.e. Nigeria) were registered and had their claims examined. All the rest were not registered by the Asylum Service at all. They have remained for a long time in a legal status which has been difficult to determine. As a consequence of the extremely limited capacity of the Asylum Service, approximately 12.500 individuals are currently trapped on the Aegean islands. It is of deep concern that the maximum capacity of the Reception and Identification Centres does not exceed 7.450 places. This situation has given rise to great tensions and has recently led to far-right wing supporters being involved in outbreaks of violence.

The Greek Law 4375/2016 implementing the EU-Turkey Statement establishes a fast-track asylum procedure for people lodging an application at their borders. This procedure raises grave concerns regarding the respect for fundamental rights and guarantees provided by the EU and national legal standards and fundamental rights protection. An illustrative example has been the statement by the Head of the Greek Asylum Service who declared that “insufferable pressure is being put on us to reduce our standards and minimize the guarantees of the asylum process”. The UN Special Rapporteur on the Rights of Migrants has stressed that, “the fast-track procedure does not provide adequate safeguards”.

502 third country nationals have been readmitted into Turkey in line with the Statement since the entry into force of the Statement and 1055 in line with the Readmission Protocol between Greece and Turkey since the beginning of the year.

After the coup d’état attempt in Turkey, the Statement was considered to be de facto suspended, due to the fact that the Turkish officers deployed in Greece to oversee readmissions had been withdrawn to Turkey and that the Turkish humanitarian organizations could no longer operate. Readmissions have started taking place again regardless of the tense situation in Turkey. During the first days of the implementation of the Statement, certain individuals returned “had not been allowed to formally register their asylum claims due to administrative chaos prevailing” at the RICs. A number of recently readmitted individuals are prima facie refugees who withdrew their asylum application to the Greek Asylum Service as a result of the length of the wait under uncertain legal status and inhumane living conditions.

Great efforts on the part of the Greek Government to influence the members of the Committee in favour of the implementation of the Agreement have been reported. After multiple decisions of the Committees overturning the presumption of Turkey as a ‘safe third country’, the Council of the EU urged the Greek government to review the composition of the Committees since “people from civil society are not neutral” and to explain to the judges that Turkey is ‘safe for Syrians’.

A week after, the Greek Parliament urgently approved an amendment to the 4375/2016 Law modifying the composition of the Committee dealing with fast-track procedures. The involvement of judicial officials in an administrative body raises questions of constitutionality and compliance with the right to an effective remedy.

Unsafe Brussels
The EU-Turkey Statement and the decrease in the number of asylum seeker applications from Turkey has brought with it high political, ethical, fundamental human rights and rule of law costs. The resulting picture is one where the sustainability of the current deal is highly dependent on and vulnerable to a non-EU country facing profound democratic rule of law challenges. It is also one where the Council of the EU and Commission are engaging in ‘unsafe’ political strategies giving priority to preventing entry, increasing expulsions and pressuring the Greek asylum system at the expense of EU constitutional principles, EU asylum law standards and the EU Charter of Fundamental Rights.

EU responses have been mainly driven by self-interest, short-termism and a sort of paranoid and/or crisis-led policy-making. The outcomes are ‘unsafe solutions’ which bring more insecurity for all actors involved, and for individuals in need of protection and assistance. Safety from the perspective of asylum has a very specific meaning in light of international and European human rights standards which cannot be ignored or neglected by EU or national authorities. These are not negotiable either when these engage with third countries.

The notion of ‘safety’ in the field of asylum must not be reformulated or re-framed politically as a migration management tool. EU institutions and member states cannot avoid implementing international and EU responsibilities and the obligation to guarantee individual assessment and access to protection for those in need in the EU.

The EU-Turkey Statement shows how the political shenanigans indulged in by some EU institutions lead in fact to more insecurity and uncertainty. A lesson to be learned from the EU responses so far to deal with the ‘European Humanitarian Crisis’ is that policy responses should not be pursued at the expense of EU constitutional principles, including cooperation with third countries. It is the very legitimacy of the EU and its member governments which is at stake.

Sergio Carrera is a Senior Research Fellow and Head of Justice and Home Affairs Programme, CEPS. He is an Associate Professor/Senior Research Fellow at the Faculty of Law in Maastricht University (the Netherlands). Carrera is also an Honorary Professor at the School of Law in Queen Mary University of London (UK).

Aikaterini Drakopoulou
is a Greek Attorney at Law and Member of the Athens’ Bar Association since 2009 and of the Legal Department of the Greek Council for Refugees.

Article courtesy of Open Democracy

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