The EU-Turkey deal is a bad one. Naming Turkey a safe third country, and returning people fitting the refugee profile is, on the international scale of legal values, the worst that Europe has to showcase since the beginning of the refugee issue and its attempt to handle arrivals, while also very clearly surpassing every poorly aimed, deadlocked or dangerous choice made up to now. Indeed, it's the escalation of a series of political decisions such as the involvement of NATO, military operations and the shielding of borders. The fact that the text of the agreement directly undermines and circumvents international and European law, clearly indicates that we are facing a reality that threatens the future of refugees.
The legal deficits of the agreement have been highlighted and criticised by international organisations even before it was signed. Despite the fact that the agreement text in many places makes direct reference to respect for international and European law, this is not enough to guarantee that this will indeed be the case. Given the situation Turkey is in, politically and legally, it is a far cry from being characterised as a safe third country. More specifically, the legal basis for the implementation of these measures is Directive 2013/32/ΕU on common processes for granting and repealing international protection, more precisely the concepts of “safe third country” and “first asylum country”. Specifically, Article 38 of the directive defines that the implementation of the concept of safe third countries is only permitted when a set of requirements are cumulatively met: there is no threat to the life or the freedom of the asylum claimant due to race, religion, nationality, social class, or political beliefs, there is no danger of serious harm, the principle of non refoulement and the ban on removal are abided by, while there is also the possibility to claim asylum and to be offered the requisite protection.
In the case of the deal, apart from the guarantees Turkey needs to provide so as to be characterised as a safe third country, Greece must in turn incorporate into its national legislation a) specific rules which, in the context of returns, require the asylum claimant to demonstrate a link with the third country so as to provide a reason for returning, b) specific methodology which the authorities must follow, c) securing individual examination of asylum claims, as well as the right to make use of legal means for appeal. Presidential Decree 113/2013, as revised and currently enforced, does not include any of the above guarantees, which means that no return to Turkey can take place before the above rules are incorporated into the national legislation, and before an appropriate framework is in place. Moreover, the fact that refugees transited through a country is not enough grounds for a link, as transit is often due to random events and does not mean that a significant relation the transit country exists, so as to provide grounds for returning.
Despite the fact that it is host to the largest number of refugees, Turkey cannot be characterised as a safe third country. There is no guarantee that those returned to Turkey will be granted the level of protection they are entitled to, nor that they will not be returned to the country they fled from, that is, back to danger. This realisation is supported by, among other things, numerous complaints made to international human rights organisations regarding cases of returns of Syrian citizens by Turkish authorities back to Syria, as well as the fact that just one day following the signing of the agreement and the unofficial naming of Turkey as a safe third country, Amnesty International publicised yet another case (in Greek) of mass return of Afghan refugees back to Kabul. In addition, Turkey has a long history of human rights violations, as well as proven persecutions of minorities and dissidents. Among these violations, Turkey also has the greatest number of convictions between 1959 up to now, over 3,000 (18% of the total), well above all member states which are cosignatories to the European Convention on Human Rights. At the same time, dissident lawyers are being publicly murdered in Turkey in recent months, press freedom is being ostracised, while dissident journalists are being jailed. Entire cities are under siege, while the intensity of repression is increasing, all the while the “cold” conflict with Russia spreads like a desert beneath the shattered political map.
As regards the legal framework for those entitled to international protection, the following are in place: Syrian citizens are granted temporary protection, with a right to work, but with restricted access to education social care and integration more generally. Citizens of other countries are granted the right to international protection, based on the Law on Foreign Citizens and International Protection which has been in force since 2014, but which does not correspond to being given refugee status, since Turkey has not lifted geographical restriction to granting refugee status only to European citizens or to foreign citizens formerly ordinarily resident in Europe. Here we must stress that Turkey is not the only country which has not lifted geographical restrictions, while based on the concept of European safe third country, this country must have ratified and be enforcing the Geneva Convention without geographical restrictions.
Legal acrobatics are in fact the result of the moral disintegration demonstrated by Europe in the case of the issue of refugees. Contrary to the demands of the Geneva Convention, where illegal entry is not prosecuted when it concerns refugees seeking shelter, we instead see a refutation if not a punishment, given that, according to the agreement, priority for relocation will be given to Syrian refugees who have not attempted to enter Europe illegally. That is, relocation will take place using “rules of good conduct”. Even so, of course, the number of refugees to be relocated stands at just 72,000 over two years, when recorded Syrian refugees are over 2,700,000. The implementation of a controversial measure, that of EU entry on humanitarian grounds in the event that flows stop, is the pinnacle of hypocrisy, as saying “we will welcome you if there are only a few of you” can hardly be called international law.
The distinction between the legal and actual treatment of people, arriving after 20th March 2016 relative to those who arrived before the agreement was signed, lacks even an elementary moral and political basis. Apart from the possibility of being part of the relocation programme, new arrivals are being held under a legally dubious framework, as the requisite procedures are not being followed, which include the issue and delivery of a detention decision, which includes justification on the reasons why they are being detained, without access to legal aid, without the right to claim asylum, and under unacceptable living conditions.
The opposite view claims, among other things, that given that Turkey is host to the largest number of refugees since the beginning of the war in Syria, it is a de facto safe country2.Moreover, given that, based on European legislation, every claimant is allowed to dispute the condition of safety on an individual basis, no country can be declared 100% safe. However, these realisations are not sufficient to build a solid argument that can withstand legal criticism. Even if we were to accept these arguments, when comparing these to the requirements of Article 38 of the Directive on non-refoulement, claiming refugee status, danger of serious harm, etc, then every counterargument crumbles.
In order for there to be a reduction in flows, human life, rights and asylum as an institution are taking a back seat. Since there is as yet no recognition of safe third countries at European level, Greece is called to recognise Turkey as being a safe third country, so that the agreement can be implemented. As regards its outcome, there are two possibilities: First, Greece will implement everything that is required to ensure large scale returns to Turkey, bearing the cost that this carries, since the fundamental prerequisite of the agreement is that Greece contravenes international refugee law.
Second, implementing the agreement to the letter while at the same time respecting European and international law – as proposed in the agreement text - will result in returns to Turkey being fewer than the forced returns being made by Hellenic Police, as the asylum claims made by new arrivals can in no way be considered unacceptable3. In other words, if Greek authorities follow international refugee law, the agreement cannot be implemented.
Georgia Spyropoulou is a legal expert working with Amnesty International (her views do not necessarily reflect those of Amnesty International).
Τranslated by Despina Biri
First published on k-lab, 30.3.2016