Unsafe Turkey, unsafe Europe

Migrants and riot police watch as the Moria refugee camp burns on the northeastern Greek island of Lesbos, Sept. 19. 2016.Michael Schwarz/Press Association. All rights reserved.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. The record of cases where Turkey has
been found in violation of the European Convention of Human Rights (ECHR)
evidences the unsafety for people seeking international protection or escaping
from that country.

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.
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 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.

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.

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