The EU-Turkey Joint Action Plan (hereafter the “Plan” or “Deal”), which was formulated to stem the flow of (mostly Syrian) refugees from Turkey to the EU via the Greek islands, had its second anniversary on 18 March 2018.
The Deal is premised on Turkey being considered a safe third country
The Deal has been portrayed as a success due to arrivals of refugees in Greece allegedly falling by 97%, compared to the period preceding its enforcement. In the six months prior to the Deal becoming operational, irregular crossings from Turkey to Greece averaged 93,000 arrivals per month. The Deal has been described as a “Game Changer”, primarily due to the stark reduction in arrivals. But the conditions in which protection-seekers now find themselves in Turkey and Greece, as well as the blatant disregard of other fundamental rights and values, are often ignored by those who promote the idea of the Deal’s success.
The Deal is premised on Turkey being considered a safe third country. Asylum-seekers reaching the European Union after having travelled through Turkey can potentially be returned to Turkey, if their claim is considered inadmissible. Apart from the returns procedure, the Deal focuses on supporting Syrians under temporary protection in Turkey, thereby reducing the push factors leading asylum-seekers to travel through Turkey and on to the European Union.
In exchange, the European Union initially agreed to provide financial support and humanitarian assistance to Turkey, in the amount of 3 billion Euros, to aid with migration management in Turkey. The money is not paid directly to the Turkish State, but implemented in the form of projects. On 14 March 2018, the European Commission announced that another 3 billion Euros would be mobilised to support Syrian refugees in Turkey.
For every Syrian returned to Turkey from Greece, another Syrian is meant to be resettled
Additionally, the EU agreed to speed up visa liberation negotiations for Turkish nationals and to revisit negotiations on the Customs Union and accession to the EU. Negotiations on visa liberation were first commenced in 2013 and meant to be completed by October 2016. However, the visa restrictions still remain today and the failure to have them lifted has frequently been cited as one of the reasons why Turkey may exit the Deal. The same goes for the latter, which is currently paused due to political instability and widely criticized legal changes in Turkey.
A second significant element of the Deal is the one-to-one exchange. For every Syrian returned to Turkey from Greece, another Syrian is meant to be resettled from Turkey to the EU, with priority to be given to migrants who have not previously entered or tried to enter the EU irregularly, thus hoping to discourage people from seeking to enter the European Union irregularly.
As far as the legal basis of the returns process is concerned, these were first based on a bilateral readmission agreement between Greece and Turkey, which was superseded by the EU-Turkey Readmission Agreement, which took effect for non-Turkish nationals on 1 June 2016.
Article 4 of the Readmission Agreement stipulates that Turkey shall readmit all third-country nationals or stateless persons who do not, or no longer, meet all requirements to be granted entry, presence or residence in the European Union and who entered the EU “after having stayed on, or transited through, Turkey.”
As part of the measures implemented to facilitate the EU-Turkey Deal, Greece has pursued a containment policy on the Greek islands. It is intended to prevent asylum-seekers from leaving the islands for mainland Greece and EU-States further to the north, and to keep protection-seekers in a location where their claims can be easily assessed and they can easily be returned to Turkey (so-called ‘hotspots’).
Turkey as a Safe Third Country
The primary assumption underlying the Deal is that Turkey can be considered a ‘safe third country’. The safe third country concept is based on the belief that people genuinely in need of international protection could, should and would seek asylum in the first safe place they reach, rather than moving on to another third State. It is argued that this type of ‘secondary’ movement amounts to migration rather than movement for protection purposes. The concept is thus applied to determine the admissibility of an asylum application, not its merits. Notably, the Refugee Convention does not impose such a duty on individuals or on States, as such a rule would disproportionately affect States directly bordering a conflict zone. Nonetheless, with the purpose of international burden-sharing in mind, provisions for the transfer of protection-seekers based on the safe third country concept are internationally accepted, as long as asylum-seekers are always guaranteed access to protection in accordance with the Refugee Convention.
According to estimates, more than 300,000 Syrian children are out of school
In the EU context, under Article 33(2)(c) of the Asylum Procedures Directive, Member States may consider an application for protection inadmissible where a non-EU State is considered a safe third country for the individual applicant. Article 38(1) of the Asylum Procedures Directive sets out the list of requirements for a third country to be considered safe. These include the principle that “life and liberty are not be threatened on account of race, religion, nationality, membership of a particular social group or political opinion;” that there is not risk of serious harm; the principle of non-refoulement is observed and the possibility of requesting refugee status and where granted, to receive protection in line with the Geneva Convention.
Article 38(2) goes on to stipulate that an applicant has the right “to challenge the application of the safe third country concept (…) to his or her particular circumstances.”
A second category of safe third country is provided for in Article 39 of the Procedures Directive on the ‘European Safe Third Country’, frequently referred to as the ‘super’ safe third country. It is applied to States that have ratified the Geneva Convention without any geographical limitations, have an asylum procedure prescribed by law and have ratified the European Convention on Human Rights (ECHR). A super safe third country is assumed to be inherently safe and there is thus no recourse to individual examination. For the purposes of the EU-Turkey Deal, Turkey is considered to fall under the safe third country concept provided for in Article 38.
While examining all conditions of the safe third country concept goes well beyond the scope of this current post, I will focus only on Article 38(1)(e): “the possibility (…) to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention,” arguably the most important element to refugee protection, and also one of the aspects of the Deal that has been most heavily criticized.
Refugee Status in Accordance with the Geneva Convention
Turkey has ratified both the 1951 Refugee Convention and its 1967 Protocol. However, Turkey entered and maintains a geographical limitation for non-European asylum-seekers. In other words, Turkey only recognises refugees stemming from member states of the Council of Europe. Thereby, non-European asylum-seekers are effectively excluded from refugee status as provided for in the Refugee Convention. Syrians, who are at the core of the Deal, are subject to a different form of protection regime. At first, they were classified as guests and only later put under a temporary protection regime. This was ultimately formalised by the Temporary Protection Regulation in October 2014. The Regulation is designed for situations of mass influx, where individual processing becomes impossible due to the sheer numbers of protection-seekers. The underlying idea is to host Syrians (or others receiving temporary protection) in Turkey until the conflict in Syria (or elsewhere) subsides and then facilitate their return home.
non-European asylum-seekers are effectively excluded from refugee status
In accordance with this framework, those receiving temporary protection have a right to reside in Turkey, whilst being deprived of the prospect of long-term legal integration. This is evidenced by children’s continued limited access to schools (see more on this below) and restricted access to the employment market. In January 2016, the Turkish government passed the Regulation on the Work Permits for Foreigners under Temporary Protection Act, allowing those under temporary protection to apply for work permits.
Nonetheless, it is currently estimated that only 20,000 Syrians hold a valid work permit, compared to the estimated 800,000 who work illegally, including large numbers of children. According to estimates, more than 300,000 Syrian children are out of school, as they are working to help provide for their families. Non-Syrian protection-seekers find themselves in even more precarious conditions, as Iraqis and Afghans for example are ineligible for temporary protection or basic state services, while making up 44% and 43% of non-Syrian asylum-seekers in Turkey, respectively. As is evidenced by the foregoing, the EU-Turkey Deal focuses mainly on Syrian refugees. While Syrians should undoubtedly receive the necessary support and protection, at the same time the rights and needs of other groups of protection-seekers should not be disregarded.
However, this interpretation of Article 38 is not universally shared. Evidently, the EU has taken the view that it is sufficient that Turkey applies equivalent standards of protection in practice. Similarly, authors such as Thym base their opposing argument on the existing two-tier categorisation of safe third country (discussed above) and super safe third country. He argues that explicit reference to the prohibition of geographical limitations in Article 39(2)(a) and the absence thereof in Article 38 indicates that refugee protection does not need to be in full compliance with the Geneva Convention. Instead, he argues that lesser forms of protection are indirectly acknowledged and accepted due to the omission of the geographical limitation prohibition in Article 38.
However, as explained above, I hold the view that the protection afforded in Turkey can and should not be understood as providing the same degree of protection as guaranteed to refugees under the Geneva Convention. It is worth nothing that accession to the European Union would require a lifting of the geographic limitation. While refugee protection standards are undoubtedly not consistent across the EU, the Geneva Convention is a common baseline, something that cannot be said of Turkey, and which exemplifies how the EU is shifting its protection obligations onto a country that does not afford asylum-seekers the same levels of protection provided for on the EU level.
Legal Challenges to Turkey as a Safe Third Country
As mentioned above, the Deal provides asylum-seekers with the right to an effective remedy in case they wish to challenge their asylum application. The Greek Asylum Appeals Committee, the body initially tasked with appeals on asylum decisions, appears to have agreed with the above interpretation of Article 38 that Turkey could not be considered a safe third country. Tasked with examining individual rebuttals to the safe third country concept, by June 2016, in all except two of the appeals, the Appeals Committee found in favour of the appellants.
Following public concerns that these findings would open the floodgates for a large number of asylum-seekers to challenge the applicability of the safe third country to their individual case, along with pressures from the EU, the Asylum Appeals Committee was replaced by the Independent Appeals Committee in June 2016. Critics, which included members of the replaced Asylum Appeals Committee, interpreted the changes as a political move and remarked that: “managing legal issues by use of political priorities raises many questions about (…) the protection of human rights and the rule of law.”
more than 13,000 protection seekers are currently still trapped on the Aegean islands in deplorable conditions
In its first nine months, the restructured Committee ruled that Turkey could be considered a safe country for the applicant(s) in at least 20 cases. The Committee’s findings were subsequently challenged by two Syrian asylum-seekers before the Council of State (Greece’s highest court). On 22 September 2017, the Council of State ruled that the two applicants could be returned to Turkey to have their protection claims heard and assessed there. The Committee inter alia held that Article 38(1) on the definition of a safe third country did not require that a country had ratified the Geneva Convention or entered geographical limitations, as long as certain fundamental rights such as access to health care and employment were guaranteed. It is likely that lower tribunals will follow the findings of the Council of State, raising concerns that this finding may have adverse effects on a large number of Syrian asylum-seekers.
The Situation in Greece
According to recent reports and Greek government statistics, more than 13,000 protection seekers are currently still trapped on the Aegean islands in deplorable conditions. This is due to the containment policy put in place, to prevent people arriving on the islands from moving on to mainland Greece and further on to other EU States. According to the Greek government, the policy is necessary for the country to carry out its obligations under the EU-Turkey Deal. The policy was adopted to confine asylum-seekers to the so-called refugee hotspots and other reception facilities needed to facilitate speedy processing, making returns to Turkey easier and faster.
Despite continued arrivals, these high numbers can also be attributed to the fact that the asylum application and appeals procedures are slow and only few people actually end up being returned to Turkey – yet are not permitted/able to move on from the islands either. Furthermore, in December 2016, the EU and Greek authorities ended exemptions for vulnerable groups from the requirement to remain on the islands. Despite raising concerns over adequate care provided for the most vulnerable, this has also had an adverse effect on the already high number of people on the islands.
As to conditions on the islands, due to slow asylum procedures people are stuck on the islands, causing the reception facilities to be severely overcrowded. In some instances, facilities have been housing twice as many people as they were designed for.
Due to severe and systematic lack of accommodation, many people are forced to live in tents even during winter. In January 2017, three men died on the Greek islands of Lesbos, their deaths being ascribed to carbon monoxide poisoning, likely to be caused by makeshift heating refugees used in their tents.
Concerns over safety have also been noted, with increased sexual violence reported by the UNHCR (and blatantly dismissed by Greek authorities). Living in deplorable conditions with lack to sanitation, and general feelings of hopelessness due to severe delays in the processing of applications have resulted in severe mental health and self-harm issues amongst the refugee population on the islands. Human rights groups have also noted the lack to legal representation and accurate translation as well as the lack of access to education.
the Deal is evidently simply a tool to keep migrants out of the EU at any cost
Despite the Deal having been described as being successful in reducing numbers, between 10-14 March 2018, 500 protection-seekers reached the Aegean. A Greek Police official is cited as having said that this spike in arrivals can be attributed to Turkish officials, who control the influx in an effort to exert pressure. These arrivals are by no means the exception. Between July and December 2017, at least 20,000 people arrived on the islands, with 70% of people stemming from Syria, Afghanistan and Iraq. One day before the Deal’s second anniversary, a boat carrying protection-seekers sank in the eastern Aegean Sea with the Greek Coast Guard recovering 16 bodies, including children. It is feared that numbers will increase.
The EU’s efforts to reduce migratory flows at all costs have undermined and ridiculed the human rights owed to refugees under both international and EU law. The EU-Turkey Deal has trapped protection-seekers in a country still recovering from a recent failed coup d’état and experiencing the rollback of fundamental rights and freedoms on the one side, and a country completely overburdened and unable to provide even the most basic of amenities such as shelter and access to sanitation on the other. Arguably, the lack of such amenities might just be another attempt by the European Union to defer people from seeking protection in its territory. The EU-Turkey Deal was recently called a “success” by German chancellor Merkel, first and foremost for combating irregular migration. These comments, once again, completely ignore the human cost of this purported “success”.
In 2016, Turkey, Pakistan and Lebanon hosted the largest refugee populations, with 2.9m, 1.4m and 1m respectively. In comparison, the EU only hosts a fraction, which one would hope meant that higher standards of protection and care were available and employed. However, many protection-seekers find themselves stranded in inhumane conditions – not just in Greece. Despite the need to revisit its policy of burden-sharing, currently the most pressing need is for asylum-seekers on the Greek islands to receive adequate care. In the last two years the Deal may have achieved a reduction in the numbers of asylum-seekers arriving Greece, but given the disproportionate cost being paid in terms of deaths at sea, living conditions and respect for human rights, the Deal is evidently simply a tool to keep migrants out of the EU at any cost, with little concern for improving their reception and living conditions in Turkey or the EU.
 Serious harm is defined in Directive 2011/95/EU, Article 15, as death penalty or execution, torture or inhuman and degrading treatment or punishment, or serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.
 Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (3rd edn, OUP, 2007).
 Systematic deficiencies in the Greek asylum system were most notably noted by the European Court of Human Rights in M.S.S. v Belgium and Greece and more recently on 15 March 2018, in A.E.A. v Greece.
Photo credit: (c) Kevin McElvaney. Photo taken on 7 January 2018, at Camp Moria on the Greek island of Lesvos