EU-Turkey deal seems to be schizophrenic
On 17 and 18 March there was an EU summit in Brussels in order to confirm the agreement between Turkey and the EU from 7 March. The outcomes of the summit with regards to the joint statement with Turkey is a unprecedented plan to legalise (but not legitimise) violations of fundamental human rights and of international and European law.
EU and Turkey have signed an agreement already in November 2015 in which the EU offered Turkey 3 billion EUR in exchange for help in tackling the refugee crisis. The current deal adds another 3 billion EUR to be sent to Turkey until the end of 2018. The money should be allocated mainly on food, health care, education and other services for the two million Syrian refugees that are currently hosted in Turkey. Since November, approximately 2500 people arrive to Greece from Turkey every day.
The aim of the new agreement is supposed to be fighting the smugglers business
According to the deal, all new irregular migrants coming from Turkey to Greece shall be returned back to Turkey. In exchange for each returned Syrian, the EU should resettle one Syrian from Turkey to the EU. So a one-for-one arrangement.
The EU is, perhaps in a naïve or hypocritical way, hoping that people will be dissuaded from crossing the sea from Turkey knowing that they would be quickly returned back and that thus smugglers will lose their profitable business. That’s however quite unlikely. Smugglers will be able to find new routes to bring refugees to safety of Europe. The numbers of resettled persons would also need to be high enough so that people would see a real opportunity for them and would thus be dissuaded from attempting the dangerous crossings.
At the same time it is not clear how could returning people to Turkey not constitute breaching international and European law. It is only legal to return an asylum seeker back to a „third safe country“, but Turkey does definitely not comply with this notion. Although Turkey is a signatory to the Geneva Convention on Refugees, it keeps a geographical limitation, granting access to asylum procedures only for citizens from the Council of Europe countries. This limitation forbids the vast majority of refugees to seek international protection in Turkey.
It has also been documented that Turkey pushed Syrians back to Syria, again in breach of international standards (the non-refoulement principle). In order for Greece to send an asylum seeker back to Turkey, it would need to ask for diplomatic safeguards, so that she/he would not be sent back to Syria (see the case of Hirsí Jamaa v.Italy). European and international law forbid collective expulsions of aliens, which however seems to be a corner stone of the EU-Turkey statement.
The case law of the European Court for Human Rights clearly shows, that the Court would litigate against the effects of the deal at first occasion.
When the interim deal from March 7 was out, the EU representatives were severely criticised. The updated deal from last week is trying to tackle this criticism. On one hand it states that all irregular migrants arriving to Greece from Turkey will be immediately returned (which is illegal). On the other hand it adds that collective expulsions will not happen, everyone will be protected in line with international standards, including the non-refouement principle and that all asylum applications will be individually assessed. This schizophrenia in the very first paragraph only shows the desperation of the statement.
The problematic conditional resettlement
Even more absurd seems the proposal to resettle the same number of Syrians, as how many will be returned back to Turkey. Although refugees have no legal right to be resettled, resettlement is one of the durable solutions which UNHCR promoted and supported for years now. It is not only a measure to help refugees in difficult circumstances, but also to partially assume the burden of hosting large numbers of refugees from poorer countries with less resources, such as Turkey. By offering more resettlement places, the EU can show its readiness to constructively support neighbouring countries. In the logic of the current deal, if Turkey wants to have as many people resettled as possible, it would need to support illegal crossings to Greece rather than dissuading them. That would lead to more returns and in exchange to more resettlement. This obviously does not make any sense and besides being illegal, it is also ethically and morally wrong.
This all also means that all the further resettlements to the EU will happen mainly from Turkey and people from Lebanon or Jordan, with equally big refugee camps, will have much less chance for being resettled to Europe.
Refugee resettlement to EU member states remains voluntary and so the realisation of the deal remains unsure. The European Council conclusions also specifically mention that the deal with Turkey is not going to bring any new obligations for EU member states related to resettlement or intra-EU relocation.
So what did the summit bring?
The EU-Turkey statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.
Returning all irregular migrants to Turkey is, according to the deal, a temporary and extraordinary measure, but it is not clear what that exactly means.
As legal expert Steve Peers rightly mentions, the EU missed an opportunity to make sure the deal is in line with law by making sure Turkey would monitor the treatment of returned migrants and refugees and first and foremost ask Turkey to lift the geographical limitation to the Geneva Convention and apply it fully to all refugees.
Greece, where the assessment of one asylum application takes months, should according to the EU member states representatives cut the time to roughly a week. The Greek asylum system is in a critical state, Dublin returns to Greece have been forbidden on the basis of judgements of the European Court for Human Rights and the Court of Justice of the EU. Greece has been asking the EU for help for a number of years now, and it seems that Greece might be finally supported by EU member states while they see the opportunity of reducing the incoming migrants to Europe.
While EU member states were working on the controversial EU-Turkey deal, the proposal for introducing humanitarian visa in the EU Visa Code recast and a resolution on migration that deems solidarity between member states crucial. Tens of volunteers from EU countries are heading to Greece every day and non-governmental organisations are calling the EU for keeping common sense and respecting fundamental rights.The deal agreed during the last EU summit is a big political gesture with so far small legal impact. Its positive outcome could be some realistic help provided to Greece and more mutual solidarity of EU member states. Its core however runs against international and European human rights standards, and it will be for the European Court for Human Rights or the Court of Justice of the EU to say so.
Karolína Babická works as migration and asylum policy and advocacy officer in European Brussels-based NGO. She holds a PhD in international law from Charles University in Prague and Odysseus Network Certificate in EU Migration and Asylum Law.