By Henri Labayle, CDRE CDRE and Philippe de Bruycker, IEE/ULB ULB

The agreement concluded on the 18 March between the EU and Turkey deserves attention due to both the severity of the crisis and the largely negative public opinion surrounding the draft of the text which appeared on the 7 March. The serious legal questions which persist feed doubts about not only the viability of the proposed solution, but also its implementation in practice (1). Conversely, doubts no longer remain on the ability of the Union to renounce its fundamental values (2). The market of “subcontracting”, as already mentioned on this blog, has now been finalised and is beginning to be implemented.

1. Persistent legal problems

  • The main question is whether Turkey is a “safe third country” to which asylum seekers can be returned. The initial certainties in one direction or the other have now given way to questions. The opinions of fellow members or close colleagues of the Odysseus Network are divided on this issue: the disputesbetween Daniel Thym and Steve Peers in blog comments, and exchangesbetween Kay Hailbronner and James Hathaway are a testament to this.

The difficulty concerns the interpretation of the fifth requirement of Article 38 §1 of the Asylum Procedures Directive, according to which a third country may be considered safe for the asylum seeker in question if “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”.

Given that Turkey provides only temporary protection to non-European asylum seekers due to the fact that it has maintained a geographical limitation to the Geneva Convention, the European Commission considers that protection “equivalent” enough. Others believe instead that it is formal refugee status with all associated rights which must be granted. When preparatory works are invoked in favour of both sides of the argument,  it becomes clear that only the judge can decide. A question for a preliminary ruling on this point would be particularly interesting as it could encourage the Court of Justice to comment on the scope of Article 18 of the Charter of Fundamental Rights of the EU which states that “the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951”.

  • The implementation of the EU-Turkey declaration should also raise sensitive issues in practice.

First, one can only wonder how the Commission can rely on the readmission agreements that Greece and the EU have with Turkey as the legal basis for returning irregular migrants. This is in conflict with the Return Directive, knowing  that a readmission agreement is only a technical instrument to implement a return decision. A return decision is the only proper legal basis from which a person can be returned.

Then, how can we guarantee that the return decisions taken by the Greek authorities will be sufficiently individualised under the Article 4 of Protocol No. 4 to the ECHR  which prohibits mass expulsions? The most recent case of Khlaifia et al. v. Italy of the European Court of Human Rights, already commented on this blog, is extremely strict. It raises questions about how to proceed and motivate return decisions in order to be sure to avoid the censure of the judge. We note at this stage – the decision has indeed been referred to the Grand Chamber – that individual identification by the Italian authorities of the concerned persons prior to the return decisions was not enough to convince the judges of Strasbourg, even though vulnerable people had been adequately treated.

Finally, the fate of the people in the asylum and return procedures may now include their detention. The High Commissioner for Refugees has immediatelyexpressed its disapproval and suspended cooperation in harsh terms: “UNHCR has till now been supporting the authorities in the so-called hotspots on the Greek islands, where refugees and migrants were received, assisted, and registered. Under the new provisions, these sites have now become detention facilities. Accordingly, and in line with our policy on opposing mandatory detention, we have suspended some of our activities at all closed centres on the islands. This includes provision of transport to and from these sites. However, UNHCR will maintain a presence to carry out protection monitoring, to ensure that refugee and human rights standards are upheld, and to provide information on the rights and procedures to seek asylum”.

  • There remains a fundamental and curiously ignored question about the “right to leave any country.” The real objective of the EU is that the Turkish authorities prevent migrants from departing from their coast towards Greece; however, Article 2 of Protocol No. 4 to the ECHR declares that “everyone shall be free to leave any country, including his own”.

It is true that the right to leave is not absolute, as is provided in the text, which states “No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The assessment of compliance with this provision is even more difficult as  it requires determining whether Turkey is protecting its own interests or those of Greece and other neighbouring countries. The Court of Justice has already spoken on this point in its Jipa judgment of 10 July 2008 (C-33/07) on the restriction of the right of a Romanian citizen to leave his home country where he had been sent by Belgium for illegal stay in its territory. The Court held in that decision that “measures restricting the exercise of the right to free movement must be taken in light of considerations pertaining to the protection of public order or public security of the Member State adopting this measure. It cannot therefore be based exclusively on reasons advanced by another Member State to justify, as in the present case, a decision to remove a Community national from the territory of that State. Such a consideration does not however exclude the possibility of taking such reasons into account as part of the assessment made by the competent national authorities to adopt the measure restricting freedom of movement.” We see how the assessment is nuanced, so the answer to the question is unclear.

If the case law of the Court of Justice on this point does not obviously apply to Turkey, the question of the right to leave any country can arise from Article 12 of the International Covenant on Civil and Political Rights, with similar wording to the ECHR. The issue of compliance is obviously applicable to Turkey, but the European Union – which claims to respect human rights in its external relations policy – should also be concerned, especially since this right to leave is being challenged more and more by the outsourcing of migration control.

 2. A moral failure

Time will tell what will become of the agreement between the EU and Turkey in the history of international refugee law. It appears at first that it will not join the list of solutions found in the face of past crises of comparable size to the current exodus of refugees from Syria. One calls to mind in particular the Comprehensive Action Plan (CAP) of the 80s which allowed the resettlement of hundreds of thousands of Indochinese refugees from countries of first asylum to the West.

Nothing like today. Far from seeking a comprehensive solution, and rather more concerned with short-term European interests, the EU-Turkey agreement is no more than a last resort before the complete closure of borders, by a continent which does not want to have more refugees than it has been receiving in a most disordered manner for more than a year.

Nobody is fooled by the Declaration whose goal is allegedly to “to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk”. Instead, the aim of the EU is to get Turkey to hold people trying to reach the European Union on its territory, including asylum seekers travelling with irregular migrants in “mixed flows”.

The proof of this is the method of constructing the resettlement mechanism. After levelling their commitment to 72,000 people, the Declaration provides that if the number of returns from Greece to Turkey exceeds this maximum, the 1 for 1 mechanism (resettling a Syrian refugee from Turkey to the European Union in exchange for the readmission of a Syrian refugee from Greece to Turkey) would cease to function. In other words, the agreement would become void and the European Union would stop relocating refugees, which should logically lead Turkey to stop blocking the departure from its territory and therefore allow smugglers to resume their deadly trade.

We already knew that European countries have failed to agree to relocate asylum seekers arriving on the European continent fairly between them. It is therefore hardly surprising that the Union refuses to show real solidarity with a third country such as Turkey. Capping the resettlement mechanism to 72,000 persons is nothing other than a petty and arbitrary addition of the 19,000 resettlement places planned in 2015 which still remain to be distributed to the 54,000 relocation places allocated to Hungary which it will not use due to its opposition to any form of solidarity. This figure is obviously disproportionate to the challenge that Turkey faces, welcoming about 2.7 million irregular migrants to its territory, the majority of whom are refugees.

Under international refugee law, “solidarity” is only alluded to in the Preamble of the Geneva Convention, not in the body of its text. As a result, it has thus far remained elusive. Which unfortunately raises an opportunity to stress that it is inappropriate to blame the EU when other continents, whether North America or Oceania, show little solidarity in the context of the Syrian refugee crisis, other than giving money at international conferences during which physical solidarity through resettlement is not discussed. Is this because the engine of solidarity at the time – the reception of victims of communism in Vietnam – has disappeared?

Some would argue that Europeans have pledged not 3 billion, but 6 billion Euro to Turkey between now and 2018 to improve asylum capacities of that State. If this substantial assistance can actually be considered a form of financial solidarity, is it fair compensation considering the millions of refugees that Turkey has been hosting since 2011?

Those who succumb to the temptation of defending this idea will ultimately be returned to a squalid haggling which will include the repeal of the visa requirement by the EU in favour of Turkish citizens. It is good to know that for third countries, this is such a fundamental element in their relations with the European Union that some candidate countries present it as a step in the enlargement process, as has been observed in the Balkans. We can see that the Turkish government is exploiting this European concession, and moreover, that the EU still dares to commit to “moving forward in a process of enlargement”, a commitment that no one takes seriously, not even the Turkish government, which pretends that such a promise can be serious even though only those who want to believe it are convinced.

In total, the agreement between the EU and Turkey shows that international refugee law needs to be reformed, now more than ever before. Establishing a legal route for applicants to apply for asylum in the European Union without having to risk their lives could contribute to this development. A resettlement mechanism from Turkey to the European Union concluded in a true spirit of solidarity between two partners concerned about the fate of refugees could have been a step in this direction, even if the limits of physical solidarity of one party were compensated by a form of financial solidarity for the benefit of the other.

The agreement concluded on 18 March is none of that. For the Union, it symbolizes the abandonment of the soft power based on law, ethics and human rights which it claims to embody in its founding treaties. Even the generosity of German Chancellor Angela Merkel has its limitations. These include the ones imposed by the EU, which only extends the right to seek asylum – as laid out in Article 14 of the Universal Declaration of Human Rights – to those who reach its territory, while doing all it can to prevent them from getting there. Curious then to think that in international law, the establishment of a responsibility to protect envisages right to enter the territory of a State in order to access its victims, but does not recognise the right of these victims to leave the territory in order to benefit from the assistance that we claim to offer them.