A Blog Post: Online Symposium INTERNATIONAL LAW
The EU-Turkey Migration Deal
NALSAR University of Law, Hyderabad
There is much chaos and distress in the Southeast European states as Greece, Hungary and other countries are facing massive influx of asylum seekers followed by an anxiety about who is actually in need of protection and who should be responsible for protection coupled with a lack of on-the-ground capacity to accommodate the number of asylum seekers. With this background the European Governments are turning their focus rapidly to the implementation of the EUTurkey deal that was signed in March 2016 by the 28 EU heads of state. This deal is supposed to address the overwhelming flow of smuggled migrants and asylum seekers travelling to Greece from various war torn nations through Turkey among other routes. What is the deal about? With more than one million refugees fleeing war, poverty and persecution, refugee crisis is the biggest challenge to European Union. Against this backdrop, the EU-Turkey deal signed between the 28 European Union states and Turkey is being hailed as a breakthrough by the European leaders’ as it aims at curbing the influx of asylum seekers into the European nations from countries like war torn Syria, poverty stricken Africa, Kosovo whose self determination is still shrouded with mystery, Afghanistan, Iraq and Iran.1 The provision implies that anyone arriving in Greece across the sea from Turkey will be returned to Turkey. And then one refugee waiting in Turkey will be taken in by the EU and settled. The deal has come to be described as ‘one in, one out’ deal2 one person will be put in their place from the Turkish refugee camp. In turn Turkey will receive help from EU as it is investing heavily in aid for refugees and has promised to do away with the visa requirement for Turkish citizens. This will allow visa-free travel in Schengen countries (except United Kingdom) for three months. The aim is also to re-energise the process of Turkey to join the EU after which Turkey will become the first Middle East country to join the European Union though it is still years away accompanied with various legal and political obstacles. Another agreement is that EU will collaborate with Turkey to set up a safe zone inside Syria as mostly it’s the Syrians who migrate to Europe because of the internal conflict in Syria.3 The EU is expected to contribute around three billion Euros to Turkey’s effort to improve the socio-economic conditions of Syrians during their temporary stay at Turkey. The target is also irregular migration which is the ultimate goal of the European Union. Greece can definitely not deal with this influx on its own without the support of the other member countries. Its GDP has fallen for eight years in a row and unemployment has reached 25% and it cannot be
expected to patrol its sea borders as many of its islands are just a stone throw away from Turkey. Though Greece was asked by EU in 2012 to raise a razor wire fence to close the much safer land route from Turkey, it hasn’t quite worked well for them. Neither can Germany deal with this on its own despite being in a stronger position. Even though the European Union’s response has not been unified or coherent, this consensus speaks to the level of concern that leaders have for their own domestic political futures in context of rising refugee and migrant population. The lacunae: The law currently allows returns under two circumstances, first being individuals who either do not apply or do not qualify for asylum and are considered as ‘irregular migrants’ and second are those who submit their asylum claim but have arrived from a country where they had or could have claimed protection that is a safe third country or the first country of asylum.4 The implied assumption behind the deal is that Turkey is a ‘safe third country’. The question is whether it really is a safe third country at all with rising intolerance and hostility in the nation. It has not ratified the 1967 Protocol of the Geneva Convention which extends the international refugee rules to the claimants from the non-European background. The asylum procedures in Turkey are incomplete as there is no mention of refugees being eligible for labour market, health or education. In addition to that there have been reports of forcible returns to Syria which violates the major principle of non-refoulement (dealt with later). The government of Turkey has shut down major newspapers fearing criticism and discriminating against the Turkish Kurdish population. With 2.5 million refugees that Turkey has taken since the war in Syria began in 2011, these conditions do not point to an affirmative answer.5 Collective Expulsion of Migrants: The deal implies that cases will be processed under the EU’s Asylum Procedure Directives and those who don’t qualify on the same shall be returned to Turkey. The language that migrants whose application has been found ‘inadmissible or unfounded’ in accordance with the directive shall be sent back overlooks the human rights obligations which require the states to evaluate arguments against return beyond those found in the refugee law. The Asylum Procedure Directive states that the individuals after fleeing persecution in their own country still face allot of technicalities, and in order to explain the reasons which compelled them to flee their country
and seek protection in Europe, asylum seekers should have the right to a personal interview.6 The provisions of the deal do not imply a personal interview. Collective Expulsion is prohibited under Article 19 of EU Charter of Fundamental Rights7 and is to be read in consonance with the European Convention on Human Rights8. Collective expulsion entails the removal of a group of persons from the territory including territorial water or the state ship of the expelling state and also, i.e. compelling an alien to leave the territory as held in the 2012 judgment Hirsi Jamaa & Ors v. Italy.9 It leads to displacement of an individual under constraint beyond the territorial limit of the expelling State to a State of destination which in the present case is Turkey. Any attempt to put the refugees off shore without giving them an opportunity to apply for international protection constitutes collective expulsion and thus the proposed solution of forcibly returning the individuals who are eyeing an access to Europe without permitting them to seek asylum is already unlawful. Non refoulement: According to the 1951 Convention Relating to the status of Refugees, the principle of nonrefoulement is so fundamental that no derogations or reservations can be made to it. It provides that no state shall return or expel a refugee against his or her will in any manner to a territory where he faces a threat to his life or freedom on the basis of his race, religion, nationality or political opinion under Article 33 of the convention. This provision would not apply only when there are reasonable grounds to believe that the refugee is a danger or threat to the country.10 This principle has been recognized in the customary international law.11 This would apply to mass expulsions too. That Turkey complies with the principle of non-refoulement is nothing but wishful thinking. The deal constitutes an immoral violation of International law as it facilitates the return of all refugees from the Greek island back to Turkey under the â€˜safe third country conceptâ€™ overlooking the fact that Turkey has never ratified the Geneva Refugee Convention and it lacks the fundamental safeguards for refugees and by deporting people to Syria does not conform to the principle of non- refoulement. Also, Turkish law does not bar or hesitate in turning away refugees seeking protection at its border. It already has sealed its land borders with Syria forcing those who need medical attention to cross irregularly and is forcing people from Syria to go back without considering the emergencies that these people are facing.12
All that said, sending people back to Turkey after the perilous journey theyâ€™ve made to Greece in dingy boats amounts to cruelty. It appears to create a form of trade in the human suffering. Resettlement of refugees is supposed to be carried out on a humanitarian basis and not according to some sort of quid pro quo. This deal forces the asylum seekers to take a more risky route of North Africa and Italy risking their lives as that route is ten times more likely to result in death and disappearance. Turkey has already put an end to its open door policy with regard to the asylum seekers by closing its border; the signing has put a burden on them to share the political responsibility nevertheless.
Kingsley, P. and Rankin, J. (2016). EU-Turkey refugee deal â€“ Q&A. [online] the Guardian. Available at: https://www.theguardian.com/world/2016/mar/08/eu-turkey-refugee-deal-qa [Accessed 10 Sep. 2016]. 2 Theconversation.com. (2016). Outsourcing a Humanitarian Crisis To Turkey- Is that the European Thing to do ?. [online] Available at: http://theconversation.com/outsourcing-a-humanitarian-crisis-to-turkey-is-that-the-europeanthing-to-do-55915 [Accessed 10 Sep. 2016]. 3 Giannopoulos, G. (2016). [online] Theconversation.com. Available at: http://theconversation.com/a-law-professorassesses-the-eu-plan-to-send-asylum-seekers-back-to-turkey-56535 [Accessed 10 Sep. 2016]. 4 Collett, E. (2016). The Paradox of the EU-Turkey Refugee Deal. [online] migrationpolicy.org. Available at: http://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal [Accessed 10 Sep. 2016]. 5 Supra n 2. 6 unhcr.org. (2005). The Asylum Procedure Directive. [online] Available at: http://www.unhcr.org/4a9d12ef9.pdf [Accessed 10 Sep. 2016]. 7 Id. 8 European Convention on Human Rights, art. 4, Protocol 4, 1950, Rome, ETS 5; 213 UNTS 221 9 Hirsi Jamaa & Ors v. Italy  (European Court of Human Rights). 10 1951 Convention Relating to the Status of Refugees art 33, 28 July, 1951, Geneva. 189 UNTS 137/  ATS 5 11 Id. 12 Amnesty.org. (2016). Turkey: Illegal mass returns of Syrian refugees expose fatal flaws in EU-Turkey deal. [online] Available at: https://www.amnesty.org/en/press-releases/2016/04/turkey-illegal-mass-returns-of-syrianrefugees-expose-fatal-flaws-in-eu-turkey-deal/ [Accessed 10 Sep. 2016]. https://www.informationlord.com