On 4 April 2016, a group of around 197 migrants and refugees was returned to Turkey as part of the “EU-Turkey deal on refugees”. A second group was returned four days later. The legal basis for these returns is a ‘deal’ between the European Council and its Turkish counterpart – and not the EU-Turkey readmission agreement, though both serve to send irregular migrants back to Turkey. What is the difference between them, and what is the ‘big deal’ actually all about?
The European Council’s statement of 18 March on the implementation of the Joint Action Plan has quickly become known as the “EU Turkey deal on refugees”. The deal – hailed by the European Council(1) as a solution for the problem of mass irregular immigration into the EU – has been condemned by NGOs and human rights advocates because of its disregard for international human rights and refugee law. Objections have also been made as to the legal (or illegal) EU cast the European Council chose to mold the ‘deal’. What is this criticism based on?.
The ‘Deal’: Solving the Problem or Adding to It?
To begin with the content of the deal: central issue is the agreement that all irregular migrants crossing from Turkey into Greek islands, including Syrians, will be returned to Turkey as from 20 March. Nevertheless, all new arrivals will be allowed to lodge applications for international protection upon arrival in Greece – also according to the deal. However, it is clear that Greece does not have the necessary capacity to deal with the new claims, and that many of the new arrivals are not properly informed. This could also explain why many of the persons returned on 4 and 8 April did not even lodge an application in the first place. Furthermore, there are serious allegations that data is manipulated in Greece in order to speed up the process of the return of immigrants. And then, we have not even discussed the Turkish asylum system. The deal, moreover, hinges on Turkey’s willingness to take the refugees back – and Turkey’s president Erdogan has already threatened to cancel the deal if the EU does not live up to its promises. These promises are that the EU resettles Syrian refugees directly from Turkey. However, promises to resettle approximately 22.000 Syrian refugees were made already in July 2015 by the EU Member States, and until now only 4.500 have been resettled. Does the EU really believe it can live up to its word this time, with the population in most Member States becoming more and more hostile towards refugees?
Turning to the critique on the (missing) legal basis of the deal: the deal is launched in a statement, alike the ones made by the same actors on 29 November 2015 and 7 March 2016. It is meant as an addition to – and not as a replacement of – these earlier statements. The difference between the earlier statements and the most recent statement is that whereas the earlier statements were more like a letter of intent, the statement of 18 March 2016 is similar to a Memorandum of Understanding; a statement not unlike a binding agreement in that it clearly sets a date after which irregular immigrants will be returned by Greece to Turkey. However, ‘statements’ such as the one made on 18 March can be made by the European Council without prior involvement of other EU institutions such as the European Parliament – the European Parliament, which in the weeks following the ‘deal’ voiced its concern about the content of the deal. Furthermore, since a Council statement is no official EU legal instrument, it can be challenged neither by the EU institutions nor by its Member States. So much about the respect of the European Council for democratic procedures.
What’s the Hurry?
The conclusion that the EU itself is also aware of the fact that it has overstepped the mark by sending immigrants back to Turkey without a proper legal basis can also be deduced from the recent decision of the Council of Ministers of the EU. In this decision, the Council established the position to be taken on behalf of the EU within the Joint Readmission Committee, which is to convene before long. It stated that the EU would propose the start of the application of Articles 4 and 6 of the EU-Turkey Readmission Agreement as of 1 June 2016. Originally, the full application of the Agreement was foreseen by October 2017. However, in order to ‘legalize’ the return of migrants to Turkey and in order not to have to resort to the EU-Turkey deal on refugees for too long a time, the EU is now keen on moving the date of the application of Articles 4 and 6 forward.
Whereas the implementation of the Agreement with regard to the return of own nationals may already be perceived as problematic considering Turkey’s doubtful treatment of its minorities, implementation of Articles 4 and 6 is at present particularly controversial. These articles deal with the readmission of third-country nationals and stateless persons, and can therefore also be applied to potential refugees. According to articles 33 and 35 of the recast Asylum Procedures Directive, Member States may consider an application for international protection inadmissible if a country which is not a Member State is considered ‘first country of asylum’ for the applicant. ‘First country of asylum’ is defined as the country in which the applicant can avail himself of ‘sufficient’ protection if he/she cannot be recognized as refugee – provided that he/she will be readmitted to that country. Thus, if Article 4 and 6 of the EU-Turkey Readmission Agreement enter into force in less than two months’ time, Turkey will automatically become a ‘first country of asylum’ for refugees coming to the EU through Turkey and these refugees can immediately and legally be returned to Turkey. As a consequence, the problems with the ‘illegality’ of the removal as part of the EU-Turkey deal will be solved.
Haste Makes Waste…
However, ‘haste makes waste’. The EU should take the time to reflect on the backlashes of sending refugees back to Turkey – be it as part of a ‘deal’, or under a rushed implementation of a readmission agreement. Will returned refugees be able to lodge an application for protection and will they have a fair chance of having this protection granted to them? Will they really want to stay in Turkey? And, if they are forced to stay there in deplorable conditions, what effects will that have on them and on their attitude towards Europe (think ‘safety’)? Furthermore, when interviewed in Turkey, most of the refugees plotting their way into Europe are aware of the dangers that lie ahead, and the fact that they may very well be sent back once they get to Europe. Nevertheless, as long as their homeland is in turmoil and as long as their status and future in neighboring countries such as Turkey is unclear, the steady flow of refugees to Europe will not be stemmed.
Margarite Helena Zoeteweij
PostDoc, nccr – on the move, University of Fribourg
(1) The European Council, consisting of the heads of state or government of the Member States, together with its President and the President of the Commission, should not be mixed up with the Council of the EU (or “Council of Ministers”, as it is sometimes called), in which national ministers from each EU country meet to adopt laws and coordinate policies in accordance with their area of competence.