Six Years Since Europe’s Deal with Turkey

Guest post by Fenix - Humanitarian Legal Aid. Fenix is a legal NGO based on Lesvos and has three interconnected projects 1) Holistic Legal Aid (legal representation, protection case management and mental health and psychosocial support), 2) Advocacy and Strategic Efforts, and 3) Capacity Bridging and Community Engagement. Our projects are aimed at impacting the situation of asylum in Greece, with a specific focus on Lesvos, and in Europe at large.

The Genesis of the Deal

In 2015, close to one million people sought international protection in the EU, a significant rise compared to previous years. The increased numbers were followed by peaked hostile media and political narrative focused on images of large crowds of people moving towards or within the EU. Those arriving in the EU were treated as a threat; not as human beings in need of international protection.

As the number of people arriving at the external borders of the EU continued to grow, the political environment became even more hostile. The EU started to pressure Turkey to control departures from its shores and to reduce the number of arrivals in Greece. On 18 March 2016, the EU-Turkey Statement, an inter-governmental agreement between the members of the European Council and their Turkish counterpart on migration and asylum, was borne.

The Deal

At a cost of close to 6 billion Euros, the EU-Turkey Statement was presented as a 'temporary and extraordinary measure [...] to end human suffering and restore public order'. Six years have passed, and it has proven to be a permanent measure, which exacerbates human suffering and induces organised crime.

According to the Statement, everyone who arrives from Turkey to one of the Eastern Aegean islands and fails to apply for international protection or has their asylum application rejected as inadmissible or unfounded, will be returned to Turkey (assuming that Turkey is a Safe Third Country for them).

Safe Third Country

A Safe Third Country (STC), defined by Article 38 of Directive 2013/32/EU^, is one which where these five criteria are met: (i) life and liberty are not at risk, (ii) there is no risk of serious harm, (iii) the principle of non-refoulement will be respected, (iv) the right to freedom from torture will be respected, and (v) the possibility exists to receive protection in accordance with the Geneva Convention, if found to be a refugee. It is of note that when criteria (iii) and (vi) are applied to Turkey, it itself fails to meet the STC test.

The EU and Greece continued to return people to Turkey despite several reports published by diverse international organisations confirming that Turkey does not respect the principle of non-refoulement and there is a real risk of third-country nationals being returned to a country where their life or liberty are at risk (see also here, here and here).

The criteria require that an STC offers protection in line with the Geneva Convention.  In Turkey however, individuals applying for international protection are assessed differently depending on their nationality. Only people from 'European countries' are eligible for 'refugee status', while Syrians are eligible for ‘temporary protection’, a secondary form of leave.  Several other nationalities are only eligible for subsidiary protection, a tertiary form of leave.

As a result of the risk of refoulement, the distinction between nationalities, and other practical difficulties in accessing the asylum process, it is evident that Turkey cannot reasonably be considered an STC against the Directive’s criteria. 

Greece’s Application of the Safe Third Country Principle

In line with the EU-Turkey Statement, the concept of STC was recognised under Greek Law 4375/2016. This resulted in all asylum applications registered on the islands being assessed for admissibility first under a fast-track border procedure, at least in theory. The practice is, nevertheless, more complex. Between 2016 and 2019, non-Syrians from a country with a recognition rate of over 25% would have their asylum application assessed both in terms of admissibility and merits (‘merged procedure’), while non-Syrians from a country with a recognition rate of under 25% would have their applications examined based only on merits. Further, Syrian nationals would have their application exclusively examined on admissibility. From January 2020, only Syrian nationals had their asylum application examined on admissibility while the rest of the applications were examined on the merits. For example, in 2021, the Greek authorities issued 11,332  inadmissibility decisions at first instance, while 6,424 inadmissibility decisions were issued based on the STC concept (see here and here).

Prior to 2020, Law 4375/2016 allowed asylum seekers with vulnerabilities and those in need of special procedural guarantees to bypass the fast-track border procedure on the islands. This meant, their asylum applications were examined on the merits under the regular procedure. However, in 2020, with the introduction of Law 4636/2019, this exemption for the most vulnerable asylum seekers was abolished.

The policy of treating Turkey as an STC was formalised in June 2021 when the Greek Ministry of Foreign Affairs and the Ministry of Migration and Asylum published a Joint Ministerial Decision (JMD) designating Turkey as a STC for asylum seekers who are nationals of Syria, Afghanistan, Pakistan, Bangladesh and Somalia. The JMD applied to all asylum seekers whose asylum interview had not taken place, notwithstanding their date of arrival. With this decision, the Greek authorities can deem asylum applications inadmissible and refuse to assess an asylum claim substantively for nationals of these five countries, who represented approximately 70% of all asylum applications filed in 2020 in Greece, and around 60% of asylum applications in 2021.

Turkey Breaks the Deal

On 16 March 2020 Turkish authorities arbitrarily suspended the readmission process for rejected asylum seekers from one of the Eastern Aegean Islands. Two years later, the readmission process has yet to resume leaving thousands of asylum seekers whose asylum applications have been deemed inadmissible under Articles 84 of Law 4636/2019 and the JMD in a 'legal limbo'.

These and other legislative and policy changes represent systematic non-compliance with EU and international legal obligations and embody the failure of externalising asylum procedures.

The Legal Problem with Externalisation

This externalisation deal undermines effective access to the right to seek asylum enshrined in Article 14 of the Universal Declaration of Human Rights and Article 18 of the Charter of Fundamental Rights of the European Union.  It is likely to lead to the violation of the principle of non-refoulement enshrined in Article 3 of the European Convention on Human Rights, Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 33 of the Geneva Convention for Refugees and Article 4 of the Charter of Fundamental Rights of the European Union.

At the European level, instead of embodying the idea of a welcoming moral and legal response to those in need (in line with what is currently applied to persons fleeing from Ukraine) and creating a human rights-based Common European Asylum System, the European Commission proposals (see here and here) decimate the Common European Asylum System and prioritise externalisation and securitisation over moral and legal responsibilities to offer refuge. 

The deal has failed.  It has been an expensive experiment resulting in tremendous loss of life, legal and moral decency and European values as enshrined in the Refugee Convention. Therefore, European authorities must stop adopting containment, fast-track border procedures, return mechanisms and externalisation policies, and instead create safe and legal pathways and an effective and human rights-based Common European Asylum System for all.

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How to cite this blog post (Harvard style) 

Fenix Humanitarian Legal Aid (2022) Six Years Since Europe’s Deal with Turkey. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2022/04/six-years-europes [date]