Category: 7.1 Regular immigration

(Institutional Alert) :EU-Turkey statement, 18 March 2016

International Summit

Today the Members of the European Council met with their Turkish counterpart. This was the third meeting since November 2015 dedicated to deepening Turkey-EU relations as well as addressing the migration crisis.

The Members of the European Council expressed their deepest condolences to the people of Turkey following the bomb attack in Ankara on Sunday. They strongly condemned this heinous act and reiterated their continued support to fight terrorism in all its forms.

Turkey and the European Union reconfirmed their commitment to the implementation of their joint action plan activated on 29 November 2015. Much progress has been achieved already, including Turkey’s opening of its labour market to Syrians under temporary protection, the introduction of new visa requirements for Syrians and other nationalities, stepped up security efforts by the Turkish coast guard and police and enhanced information sharing. Moreover, the European Union has begun disbursing the 3 billion euro of the Facility for Refugees in Turkey for concrete projects and work has advanced on visa liberalisation and in the accession talks, including the opening of Chapter 17 last December. On 7 March 2016, Turkey furthermore agreed to accept the rapid return of all migrants not in need of international protection crossing from Turkey into Greece and to take back all irregular migrants intercepted in Turkish waters. Turkey and the EU also agreed to continue stepping up measures against migrant smugglers and welcomed the establishment of the NATO activity on the Aegean Sea. At the same time Turkey and the EU recognise that further, swift and determined efforts are needed.

In order to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk, the EU and Turkey today decided to end the irregular migration from Turkey to the EU. In order to achieve this goal, they agreed on the following additional action points:

1) All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full accordance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order. Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey. Turkey and Greece, assisted by EU institutions and agencies, will take the necessary steps and agree any necessary bilateral arrangements, including the presence of Turkish officials on Greek islands and Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby facilitate the smooth functioning of these arrangements. The costs of the return operations of irregular migrants will be covered by the EU.

2) For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to ensure that this principle will be implemented as from the same day the returns start. Priority will be given to migrants who have not previously entered or tried to enter the EU irregularly. On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 20 July 2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried out through a similar voluntary arrangement up to a limit of an additional 54.000 persons. The Members of the European Council welcome the Commission’s intention to propose an amendment to the relocation decision of 22 September 2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. Should these arrangements not meet the objective of ending the irregular migration and the number of returns come close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued.

3) Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect.

4) Once irregular crossings between Turkey and the EU are ending or at least have been substantially and sustainably reduced, a Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

5) The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met. To this end Turkey will take the necessary steps to fulfil the remaining requirements to allow the Commission to make, following the required assessment of compliance with the benchmarks, an appropriate proposal by the end of April on the basis of which the European Parliament and the Council can make a final decision.

6) The EU, in close cooperation with Turkey, will further speed up the disbursement of the initially allocated 3 billion euros under the Facility for Refugees in Turkey and ensure funding of further projects for persons under temporary protection identified with swift input from Turkey before the end of March. A first list of concrete projects for refugees, notably in the field of health, education, infrastructure, food and other living costs, that can be swiftly financed from the Facility, will be jointly identified within a week. Once these resources are about to be used to the full, and provided the above commitments are met, the EU will mobilise additional funding for the Facility of an additional 3 billion euro up to the end of 2018.

7) The EU and Turkey welcomed the ongoing work on the upgrading of the Customs Union.

8) The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency. They welcomed that the Commission will put forward a proposal to this effect in April. Preparatory work for the opening of other Chapters will continue at an accelerated pace without prejudice to Member States’ positions in accordance with the existing rules.

9) The EU and its Member States will work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria, in particular in certain areas near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.

All these elements will be taken forward in parallel and monitored jointly on a monthly basis.

The EU and Turkey decided to meet again as necessary in accordance with the joint statement of 29 November 2015.

WORTH READING : European Council Conclusions (17-18 March 2016)

I. MIGRATION

1. The European Council confirms its comprehensive strategy to tackle the migration crisis. Several elements of our common European response are in place today and are yielding results. Work on other elements is being taken forward diligently, so that they can be implemented as soon as possible. Priority will continue to be given to regaining control of our external borders.

2. Following the decisions of the Heads of State or Government of 7 March, and in the context of the Joint Action Plan with Turkey and its expansion, the European Council calls for:
• more work to be done on hotspots; much progress has been achieved in making all hotspots fully operational and increasing reception capacities; this effort should be continued, with the full assistance of the EU, including support for Greek asylum structures;
• the use of all means to support the capacity of Greece for the return of irregular migrants to Turkey in the context of the Greek-Turkish readmission Protocol and the EU-Turkey readmission agreement as of 1 June 2016. Member States declare their willingness to provide Greece at short notice with the necessary means, including border guards, asylum experts and interpreters. The European Council asks the Commission to coordinate all necessary support for Greece, for the full implementation of the EU-Turkey statement, and to develop an operational plan. The Commission will coordinate and organise together with Member States and agencies the necessary support structures to implement it effectively. The Commission will regularly report to the Council on its implementation;
• emergency support to be provided to help Greece cope with the humanitarian situation. The rapid adoption of the Regulation on emergency support is an important step in that respect. The draft amending budget presented by the Commission should be adopted without delay. Member States are invited to make immediate additional contributions under the Civil Protection Mechanism as well as to provide bilateral humanitarian assistance;
• accelerated relocation from Greece, which includes conducting the necessary security checks; the number of applications now being larger than the number of offers, as shown in the Commission report of 16 March, Member States should swiftly offer more places, in line with the existing commitments.

3. The European Council takes note of the Commission Communication “Next operational steps in EU-Turkey cooperation in the field of migration”, in particular as to how an asylum application from a migrant crossing from Turkey into Greece can be declared inadmissible, based on the concept of “first country of asylum” or “safe third country”, in accordance with European and international law.

4. The European Council reiterates that the EU-Turkey Statement does not establish any new commitments on Member States as far as relocation and resettlement are concerned.

5. The EU reiterates that it expects Turkey to respect the highest standards when it comes to democracy, rule of law, respect of fundamental freedoms, including freedom of expression.

6. The European Council reaffirms its support to Jordan and Lebanon. It calls for pledges to be disbursed promptly and EU Compacts to be finalised to enhance support to refugees and host communities in both countries.

7. The European Council calls for strengthening of cooperation with the Western Balkans countries in tackling the migration crisis and contributing to the objectives of the European Council.

8. Further to its February 2016 conclusions, the European Council invites the European Investment Bank to present to its June meeting a specific initiative aimed at rapidly mobilising additional financing in support of sustainable growth, vital infrastructure and social cohesion in Southern neighbourhood and Western Balkans countries.

9. The European Council is extremely vigilant as regards possible new routes for irregular migrants and calls for taking any measures that may become necessary in that respect. In this context, the fight against smugglers everywhere and by all appropriate means remains key. The EU stands ready to support the Government of National Accord, as the sole legitimate government of Libya, including, at its request, to restore stability, fight terrorism and manage migration in the central Mediterranean.

10. The European Council reaffirms its previous conclusions on the various elements of the comprehensive strategy and is pleased with progress on the European Border and Coast Guard proposal, which should be adopted as soon as possible. Work will also be taken forward on the future architecture of the EU’s migration policy, including the Dublin Regulation.

II. JOBS, GROWTH AND COMPETITIVENESS

11. To steer the Council’s discussions on the 2016 European Semester, the European Council endorsed the policy priority areas of the Annual Growth Survey: re-launching investment, pursuing structural reforms to modernise our economies, and conducting responsible fiscal policies. Member States will reflect these priorities in their forthcoming National Reform Programmes and Stability or Convergence Programmes. Such policies will contribute to placing the current recovery on a more sustainable basis and to fostering growth and employment. The European Council notes the Commission consultation on social issues and stresses the importance of well-functioning labour markets and welfare systems.

12. At its June meeting, the European Council will discuss the progress achieved in the work towards completing the Economic and Monetary Union. It will also adopt an Agenda for the implementation of all aspects of the Single Market, including delivery of the Commission’s Single Market, Digital Single Market and Capital Markets Union strategies, with a view to exploiting in full its untapped growth and productivity potential.

13. In the light of the difficult situation of the European steel sector, in a context of overcapacity at global level, the European Council calls on the Council to rapidly examine the Commission’s communication with a view to taking strong action in response to this challenge.

14. The European Council notes the situation of farmers, notably in the dairy and pig sectors, who are seriously affected by the drop in prices. It invites the Commission to quickly act upon the outcome of the Council (Agriculture) meeting of 14 March. It will closely follow the evolution of this sector of such importance for Europe.

15. The European Council notes that the Commission intends to publish shortly a communication on an action plan on VAT. It welcomes the intention of the Commission to include proposals for increased flexibility for Member States with respect to reduced rates of VAT, which would provide the option to Member States of VAT zero rating‎ for sanitary products.

III. CLIMATE AND ENERGY

16. The European Council welcomes the submission by the Commission of the package on energy security as well as of the Communication “Road from Paris”. It encourages the legislators to proceed with work on the proposals to reinforce the EU energy security as a matter of priority on the basis of its previous conclusions and the relevant strategies endorsed by the European Council. It also recalled the importance of a fully-functioning and interconnected energy market. Based on the Climate Communication, it underlines the EU’s commitment to reduce greenhouse gas emissions domestically and to increase the share of renewable energies and improve energy efficiency as agreed by the European Council in October 2014. Adapting the legislation in order to implement this framework remains a priority. The European Council invites the Commission to rapidly present all the remaining relevant proposals to this end so as to swiftly engage the legislative process. The European Council looks forward to the signature of the Paris Agreement in New York on 22 April and underlines the need for the European Union and its Member States to be able to ratify the Paris Agreement as soon as possible and on time so as to be Parties as of its entry into force.

European Commission : NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION

ORIGINAL PUBLISHED HERE

Brussels, 16.3.2016 COM(2016) 166 final :

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE EUROPEAN COUNCIL AND THE COUNCIL

NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION

  1. INTRODUCTION

On 7 March 2016, the Heads of State or Government of the European Union and the Prime Minister of Turkey discussed EU-Turkey relations and the progress made in the implementation of the Joint Action Plan.1

It was agreed that bold moves were needed to close down people smuggling routes, to break the business model of the smugglers, to protect our external borders and to end the migration crisis in Europe. The need to break the link between getting in a boat and staying in Europe was emphasised.

The NATO operation in the Aegean Sea, one of the tasks of which will be to identify potential smuggling activity and notify the Turkish authorities in real time, is an important element in these efforts. Cooperation between the NATO operation and Frontex will be crucial in stemming the flow of irregular migrants.

To decrease the irregular flow of migrants from Turkey to the EU, the leaders warmly welcomed the additional proposals made by Turkey and agreed to work with Turkey on the basis of a set of six principles. The President of the European Council was requested to take forward these proposals and work out the details with Turkey before the March European Council. This Communication sets out how the six principles should be taken forward, delivering on the full potential for EU-Turkey cooperation while respecting European and international law.

Together with joint European solutions and the comprehensive implementation of the European Migration Agenda, cooperation between EU and Turkey is key for an effective response to the refugee and migrant challenge.

These joint efforts to deal with refugees are part of our global engagement with Turkey as candidate country and as strategic partner.

  1. SIX PRINCIPLES FOR FURTHER DEVELOPING EU-TURKEY COOPERATION IN TACKLING THE MIGRATION CRISIS

Continue reading “European Commission : NEXT OPERATIONAL STEPS IN EU-TURKEY COOPERATION IN THE FIELD OF MIGRATION”

The draft EU/Turkey deal on migration and refugees: is it legal?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (Wednesday, 16 March 2016)

by Steve Peers

In the last week, there has been considerable legal controversy over the planned EU/Turkey agreement on refugee issues. I commented (together with Emanuela Roman) in general on the relevant points last month, but now we have a leaked draft text of a final deal. (See also today’s Commission communication on the deal, which adds a lot of important detail). This is a good moment to comment specifically on this draft, just before the summit meeting due to finalise it.

I have underlined the full leaked text below, and added annotated comments on each part of it. I will update this blog post if necessary in light of the final deal (if there is one).

The agreement will be formulated as an EU-Turkey statement. It will take as its basis the principles set out in the statement of 7/3/2016 while adding the following elements:

a) Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force. I will come back to the implications of this below.

b) The March 7 EU/Turkey statement is still applicable. As a reminder, it provided that: ‘all new irregular migrants’ reaching the Greek islands from Turkey would be returned to Turkey, with the EU covering the costs; there would be a ‘one-for-one’ resettlement of Syrians from Turkey by the EU, for every Syrian readmitted by Turkey; the aim was to lift short-term visa requirements for Turkey by June 2016; the existing €3 billion in EU and Member State funds committed for Syrian refugees in Turkey would be spent more quickly, with a decision on ‘additional funding’; the EU and Turkey would ‘prepare for the decision’ on opening new chapters in the accession process; and the EU and Turkey would work toward a de facto ‘safe zone’ in part of Syria. The statement also included some commitments on restoring Schengen, but they aren’t affected by the draft full deal.

As regards accession to the EU, note that: there are 35 ‘chapters’ to be negotiated; only one chapter has been closed to date in a decade of accession talks; a commitment to prepare for opening a chapter does not close a chapter, or even mean that a chapter will be opened (any Member State can still block this); it takes years to negotiate chapters; and there are many political obstacles to approving Turkish accession, which requires national government and parliament approval in every Member State (and possibly referendums in some).

1. On returns to Turkey: a) This will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, b) Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed by the Greek authorities in accordance with Directive 2013/32/EU. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, c) Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

a) How temporary exactly? b) This makes clear that the EU’s asylum procedure directive will apply to those who reach the Greek islands, as legally required. Note that the text does not refer to Greek waters: but the Directive explicitly applies to them too. It does not apply to international or Turkish waters. It is not clear what is planned as regards those intercepted before they reach the Greek islands.

As for ‘migrants not applying for asylum’ the crucial question is whether they will be given an effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. If an irregular migrant does not apply for asylum then in principle there is no legal obstacle to returning them to Turkey, subject to the conditions set out in the EU’s Returns Directive. Note that the intention is that the Greek authorities consider any application, which is a significant administrative burden; this implicitly reiterates the closure of the route via the Western Balkans. The EU’s decisions on relocation of asylum-seekers from Greece and Italy (discussed here) will implicitly continue to apply, but they only commit to relocating a minority of those who arrive in Greece, and they are barely being applied in practice.

If an application is ‘unfounded’ that means it has been rejected on the merits. If it is ‘inadmissible’ that means it has not been rejected on the merits, but on the grounds that Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are other grounds for inadmissibility, but they wouldn’t be relevant). The Commission paper briefly suggests that Turkey could be a ‘first country of asylum’ (for more analysis on that, see the prior blog post). Most of the debate is on whether Turkey is a ‘safe third country’. Is it? This brings us to…

c) The commitments on treatment in Turkey are meant to match EU rules in the procedures Directive, which define a ‘safe third country’ as a country where: the people concerned do not have their life or liberty threatened on ground of ‘race, religion, nationality, membership of a particular social group or political opinion’ (this test is taken from the Geneva Convention on refugee status); there is ‘no risk of serious harm’ in the sense of the EU definition of subsidiary protection (death penalty, torture et al, civilian risk in wartime); the people concerned won’t be sent toanother country which is unsafe (the non-refoulement rule, referring specifically to the Geneva Convention, plus the ban on removal to face torture et al as laid down by ECHR case law); and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

As set out in the previous blog post, the last point is questionable because Turkey does not apply the Geneva Convention to non-Europeans, and the best interpretation of this requirement is that it must do so in order for the clause to apply. However, this interpretation is not universally shared: the Commission, the Council, Greece and some academics take the view that it is sufficient that Turkey applies equivalent standards in practice. (Note that the Commission only selectively quotes the Directive to make this argument). This seems to be what the text of the draft deal is pushing towards. Of course, whether Turkey does apply equivalent standards in practice might itself be open to question.

Furthermore, again as discussed in the previous post, many NGOs argue that refugees are not always safe from mistreatment in Turkey itself, although no one argues that all of them are mistreated there.  Equally Turkey allegedly returns some people (but clearly not all of them) to unsafe countries, and the March 7 deal explicitly plans for a ‘safe zone’ in Syria.  Such a zone is conceivable in theory, but whether it would indeed be safe would have to be judged when and if it happens; and it may become less (or more) safe in light of events. To address these issues the procedures Directive says that the asylum-seeker must be able to argue that ‘the third country is not safe in his or her particular circumstances’. Everything will then turn on the assessment of an argument along these lines.

A critical here is whether the case can be fast-tracked. The procedures Directive contains lists of cases where the administrative procedure can be fast-tracked, and where the appeal against a negative decision to a court doesn’t automatically entitle an asylum-seeker to stay. Note that those lists don’t refer to fast-tracking ‘safe third country’ cases, although in practice it may be quicker to decide a case without examining the merits. It is possibly arguable that the lists aren’t exhaustive. If Greece wants to take this view, the interpretation of these clauses will be crucial. If the cases can’t be fast-tracked, it will obviously take longer to return people to Turkey in practice. Member States can set up special ‘border procedures’, but there is no reference to fast-tracking applications in this context. Furthermore, Member States can’t apply fast-track or border procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply border procedures to unaccompanied minors.

Odd as it might seem, the general state of human rights in Turkey (for example, as regards freedom of expression) is not directly legally relevant to returning refugees or other migrants there. The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees and migrants. However, the general state of human rights in Turkey is relevant for a different reason: the Commission has separately proposed that Turkey be designated a ‘safe country of origin’, so that any refugee claims byTurkish citizens can be more easily rejected. I argued last September that this proposal was untenable in light of the human rights record of Turkey. In light ofdevelopments since, I’ll update my assessment: the suggestion is now utterly preposterous. But this proposal is not part of the deal.

2. On resettlement based on 1-for-l principle: a) Priority will be given to Syrians who have not previously entered the EU irregularly, b) On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015. [Any further need for resettlement will be carried out within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 – non-allocated places]. c) Should the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

The idea of a ‘1-for-1’ swap of irregular migrants for resettled Syrians has been controversial, but does not raise legal issues as such. Resettlement of people who need protection from the countries they have fled to is common in practice, but is not a binding legal obligation under international or EU law. The legality of return of people to Turkey has to be judged separately (as discussed above) from the question of whatever trade-offs might be made in return for this. However, I certainly share the view of those who find a de facto ‘trade in human misery’ morally dubious.

On point a) it is open to Member States to prioritise resettlement on whatever criteria they like. Obviously the intention here is to deter people from attempting unsafe journeys via smugglers; whether that would work depends on the numbers who might be resettled. That is addressed by point b), which refers to the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and possibly (note the square brackets) another 18,000 who were originally going to be relocated from Hungary, but weren’t because the Hungarian government refused. These numbers clearly fall far short of the 2 million-plus Syrians estimated to be in Turkey. Point c) only undertakes to review the deal if the original modest numbers are reached. While the Hungarian government has reportedly been objecting to the idea of resettlement, note that this country didn’t commit itself to accept any resettled refugees last year, and so would not have to take any more people under this deal.  Whether other countries decide to resettle people is up to them. The Hungarian government resents interference in its own migration decisions; it does not and should not have any say in the resettlement decisions of other States.

3)Turkey will take any necessary measures to prevent new routes for illegal migration opening up out of Turkey and into the EU.

This refers to Bulgarian concerns that people might try to cross the Black Sea as a new entry route. Of course, if people do make to Bulgarian territory or waters, the EU asylum laws would apply, as they do for Greece.

4) Once the irregular crossings between Turkey and the EU have come to an end, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

This scheme is set out in a Commission Recommendation from December, as discussed in detail here. Note that this would not apply until irregular crossings have stopped. This seems rather utopian – although the Commission paper talks about substantial reductions as an alternative.

5) The EU and Turkey will further speed up the disbursement of the initially allocated 3 billion euros and ensure funding of additional projects before the end of March. Furthermore, the EU will decide on additional [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount of additional money from the EU and its Member States is still open for negotiation. Note that this money is not, as is widely assumed, simply handed over to Turkey for unnamed nefarious purposes; legally speaking it is only intended for projects that assist the Syrian refugee population. Today’s Commission paper lists how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians. Of course everyone should keep a beady eye on developments to ensure that the money is all spent as intended.

Conclusions

Overall this draft tries to address the two main legal concerns about the March 7 ‘deal’. It makes clear that the EU asylum laws will apply to those who reach Greece (subject to the caveat about what happens to those intercepted in Greek waters), and that Turkey will have to meet the relevant standards when taking people back. The key legal question will therefore be how these commitments are implemented in practice.

The main legal route to challenging what happens should be by asylum-seekers through the Greek courts. Those courts could refer questions to the CJEU about EU asylum law (the CJEU could fast-track its replies). Alternatively if the asylum-seekers have gone through the entire Greek court system, they could complain to the European Court of Human Rights.

What about the ‘deal’ itself? As I said at the outset, it is not binding so cannot be challenged as such. Its individual elements are binding and so their legality (or the implementation of them) can be challenged separately. On this point, it would be possible for the European Parliament or a Member State to challenge in the CJEU one particular legally binding element: the decision on the EU’s position on the EU/Turkey readmission treaty. That won’t directly affect the Greece/Turkey readmission deal, which is the key element in returns to Turkey in practice; but any ruling the CJEU might make would obviously be relevant to that latter deal by analogy.

STATEWATCH: Leaked version of the incoming EU-Turkey “Agreement”

ORIGINAL PUBLISHED ON STATEWATCH SITE

The agreement will be formulated as an EU-Turkey statement. It will take as its basis the principles set out in the statement of 7/3/2016 while adding the following elements:

1. On returns to Turkey: a) This will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, b) Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed by the Greek authorities in accordance with Directive 2013/32/EU. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, c) Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

2. On resettlement based on 1-for-l principle: a) Priority will be given to Syrians who have not previously entered the EU irregularly, b) On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015. [Any further need for resettlement will be carried out within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 – non-allocated places]. c) Should the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

3. Turkey will take any necessary measures to prevent new routes for illegal migration opening up out of Turkey and into the EU.

4. Once the irregular crossings between Turkey and the EU have come to an end, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

5. The EU and Turkey will further speed up the disbursement of the initially allocated 3 billion euros and ensure funding of additional projects before the end of March. Furthermore, the EU will decide on additional [X] billion for the period [Y] for the Turkey Refugee Facility.

KINGDOM OF SPAIN V. COUNCIL: ANOTHER PIECE IN THE “SCHENGEN PUZZLE”

ORIGINAL PUBLISHED ON EUROPEAN LAW BLOG
By Angelo Marletta
The current European migratory crisis shows how politically sensitive the surveillance of the EU’s external borders is and the dramatic human consequences of the failures of that surveillance. On the one hand, border surveillance is essential to obtain situational awareness and to build an effective border policy. Border surveillance can indeed provide data and patterns to analyze and forecast migratory flows and to coherently plan actions to deal with them. Under EU Law, the surveillance of the External Borders is based on the Schengen acquis.

On the other, failures of surveillance can negatively impact the whole system of border management and, more concretely, the lives of migrants. Notwithstanding the relatively close distances between its shores, the Mediterranean is by far the deadliest sea border for migrants.

In Kingdom of Spain v. European Parliament and Council (C-44/14, 8 September 2015) the Grand Chamber of the Court of Justice (‘CJEU’) delivered its third judgement on Protocol 19 to the TFEU (‘Schengen Protocol’) addressing an essential element of the Schengen cooperation on border surveillance: the European Border Surveillance System – in short, EUROSUR.

The judgment offers a particularly interesting analysis of the EUROSUR system it provided and, more generally, also contains important conclusions on the development of the Schengen acquis with regard to the position of UK and Ireland.

Before addressing the specific case, however, it seems useful to give some brief explanations on the EUROSUR system and on the Schengen Protocol.

What is EUROSUR?

EUROSUR is a technological platform for the operational cooperation and the exchange of information between the Schengen Member States and FRONTEX for the surveillance of the external land and sea borders.

The system was established in 2013 by Regulation 2013/1052 (‘the Regulation’), after a long and controversial legislative process, which started in 2002 with a Communication of the European Commission, putting forward the idea of a ‘permanent process of data and information exchange and processing’. In 2006 and 2007 two feasibility studies were carried out, one by FRONTEX (the 2006 MEDSEA study) and on 2007 (BORTEC study) (for an historical overview see the 2012 study by Hayes and Vermeulen).

From a general standpoint, EUROSUR represents a prominent example of the emerging intelligence-led approach to European border management. Such approach should combine the use of intelligence at the operational/tactical level with the application, at the strategic level, of the typical methods of intelligence analysis to better understand migratory flows, routes and vulnerabilities in the system of the external borders (in this sense, see the recent Proposal on the European Border and Coast Guard, COM (2015) 671 final and its artt. 10 par. 4, 12 and 14 par. 3 that expressly refer to EUROSUR).

In this context, EUROSUR should help to improve the situational awareness and the reaction capability of the Member States’ border authorities and FRONTEX in countering illegal immigration and cross-border crime, and in protecting the lives of migrants.

Despite its legitimate objectives, the new system’s compatibility with fundamental rights has been criticized (for the concerns relating to the protection from refoulement and to data protection, see the 2015 Fundamental Rights Agency Study, pp. 60 ff.). Moreover, its actual capability to detect small vessels and to help protect migrants’ lives has been questioned (see Rijpma and Vermeulen, 2015).

Concretely, EUROSUR connects the national authorities of the Member States in a single communication network and allows them to exchange and visualize in near real time relevant information and data through graphical interfaces called ‘situational pictures’.

On top of this, FRONTEX elaborates and makes directly available to the national authorities two additional graphical interfaces (the ‘European Situational Picture’ and the ‘Common Pre-Frontier Intelligence Picture’) combining information and data received from the national authorities connected to the system.

This immediate exchange of information should allow all the connected authorities to gain better situational awareness about the events occurring at the external borders and to coordinate their reactions in a more efficient way, for instance, by conducting targeted patrols along specific border sections, by intercepting or tracking suspicious vessels or launching search and rescue missions.

Needless to say, the implementation of such a system requires the acquisition and the exchange of the largest possible set of data and information; in this perspective, the EUROSUR Regulation took into account both the importance of exchanging information with neighbouring Third Countries (art. 20 of the Regulation) and with UK and Ireland, as Member States enjoying a peculiar status in the Schengen system. EUROSUR is indeed a measure ‘building upon’ a part the Schengenacquis to which the UK and Ireland are not taking part.

In and out: UK, Ireland, the Schengen Protocol and Article 19 Regulation

The particular position of UK and Ireland in regard of the Schengen cooperation – which constitutes a special form of enhanced cooperation between EU Member States – is regulated by Artt. 4 and 5 Schengen Protocol.

The two Member States are not bound by the Schengen acquis but they participate in some specific areas thereof (for instance, police cooperation) which are currently listed in the Council Decision 2000/365/CE for the UK and Northern Ireland, and in Council Decision 2002/192/CE for Ireland.

Beyond these areas, the UK and Ireland can at any time request ‘to take part’ in further parts of the Schengen acquis, but the Council shall authorize the extension by means of a unanimous decision.

However, the surveillance of the external borders, which the EUROSUR Regulation is aimed to enhance, is an area of the Schengen acquis in which UK and Ireland are currently not taking part.

Hence, the UK and Ireland are currently not bound by the Regulation’s rules.

Nonetheless, Art. 19 of the Regulation enables Member States (but not FRONTEX) to conclude bilateral or multilateral agreements with the UK or Ireland in order to exchange with them certain limited sets of data and information relating to events and incidents occurred at the land and sea borders.

The type of data and information sharable under this agreements is clearly delineated by the provision, whose paragraph (3) further specifies that any information provided in the context of EUROSUR by FRONTEX or by a Member State which is not party to the agreement shall not be shared with UK or Ireland without the prior approval of FRONTEX or of that Member State.

Put differently, Art. 19 (3) of the Regulation puts a significant limitation on the information that can be shared by a Schengen Member State with the UK or Ireland. In particular, the information on the type, status and position of assets (naval units, planes, surveillance drones) belonging to other Member States will be in principle not shared.

The Spanish argument and the Court’s solution: balancing free riding concerns and effet utile.

Unlike the previous episodes of the Schengen Protocol saga (see the previous judgments of the Grand Chamber on FRONTEX, C-77/05, 18 December 2007 and on the Visa Information System, C-482/08, 26 October 2010), the current action was brought by the Kingdom of Spain against the above mentioned Art. 19 of the Regulation in its entirety.

According to the Spanish argument, the conclusion of agreements with the UK and Ireland would surreptitiously enable those two Member States to ‘take part’ in areas of the Schengen acquis to which their participation has not been authorized by the Council under Art. 4 Schengen Protocol. Furthermore, this could also end up in a fragmentation of the EUROSUR system.

Nevertheless, the Court rejected the Spanish claim focusing on the distinction between the participation of the UK and Ireland (‘taking part’) in the sense of Art. 4 Schengen Protocol on the one hand, and on the other the establishment of forms of ‘limited cooperation’ with the UK and Ireland in areas of the acquis to which the latter have not yet been admitted.

According to the Court, such forms of ‘limited cooperation’ should be considered outside the scope of Art. 4 and could be allowed under two conditions.

First, the cooperation must be by its very nature limited; a limited cooperation agreement cannot grant to the UK and Ireland rights ‘comparable to those of the other Member States’ (§ 55). In Art. 19 Regulation, the European legislature included quite clear limitations: the UK or Ireland will receive only limited sets of information and data from the Member State participating in the agreement. More importantly, they will neither have access to the European pictures, nor receive information or data provided by other Member States (unless those Member States would have expressly consented). In other terms, Art. 19 Regulation will not allow the UK or Ireland to free-ride on the EUROSUR system.

As for the second condition, the CJEU specified that the establishment of such forms of ‘limited cooperation’ shall serve ‘the full implementation of the objectives of the Schengen acquis’ (§ 54).

Yet, having regard to the EUROSUR Regulation, the limited exchange of data and information with the UK and Ireland may contribute to increase the level of situational awareness and to improve the effectiveness of the surveillance at the external borders.

Information and data conveyed from those non-Schengen Member States could indeed contribute to close gaps and avoid ‘blind spots’ in the surveillance system (for Instance, with regard to the maritime border sections alongside Gibraltar).

Therefore, contrary to the Spanish plea, the Court found that the agreements based on Art. 19 Regulation, if anything, would help reduce the fragmentation of the EUROSUR system.

 Conclusion: more flexibility to negotiate new, more effective Schengen-instruments?

The Court’s judgment contributes to further clarifying the interpretation of the Schengen Protocol, recognizing – after the two previous judgements delivered against the UK – an important element of flexibility in the system.

On the one hand, considering both the tensions that currently affect the Schengen system as a whole and the tensed relationship between the EU and UK, the possibility of resorting to limited forms of cooperation with the UK and Ireland could represent a useful additional tool for negotiating new and more effective measures building upon the Schengen acquis, especially with regard to the management of the external borders. Interesting to notice, the Commission Juncker seems to have promptly seized the opportunity offered by the Court’s judgement (see in particular artt. 43 par. 2 and 50 of the new Proposal on the European Border and Coast Guard, COM (2015) 671 final).

On the other hand, the caveats laid down by the Court of Justice should preserve the philosophy underlying the Schengen Protocol and its ratio to incentivize the largest possible acceptance of the Schengen acquis by UK and Ireland. These two Member States, indeed, will still need to subscribe the respective part of the Schengen acquis in order to access to the core features of the EUROSUR system (or any other Schengen-measure); but, meanwhile, the limited benefits coming from the daily practice of ‘limited cooperation’” could help to make more attractive the full subscription of the measure and eventually overcome the reluctance of UK and Ireland to fully participate in the Schengen acquis.

– See more at: http://europeanlawblog.eu/?p=3128#sthash.DE8RGhHD.dpuf

VERFASSUNGSBLOG Taking refugee rights seriously: A reply to Professor Hailbronner

ORIGINAL PUBLISHED HERE

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Reactions to the proposed “refugee swap” between the EU and Turkey have been predictably absolutist.

On the one hand, most advocates have opposed the draft arrangement, asserting some combination of the right of refugees to be protected where they choose and/or that a protection swap would clearly breach the ECHR’s prohibition of “collective expulsion” of aliens. On the other hand, Professor Hailbronner argues against any right of refugees to make their own decisions about how to access protection, believes that refugees may be penalized if arriving in the EU “without the necessary documents,” suggests that it does not matter that Turkey is not relevantly a party to the Refugee Convention, and confidently asserts that there is no basis to see the prohibition of “collective expulsion” as engaged here.

As usual, the truth is somewhere in the middle.

I think Hailbronner is correct to raise hard questions about whether a refugee swap would necessarily contravene Art. 4 of Protocol 4 of the ECHR. As I noted in my initial commentary here, the caselaw of the Court – while speaking in quite emphatic terms about the importance of individualized assessment – has not yet grappled with an honest regime the goal of which was to maximize protection. While the proverbial devil is of course in the details, it is at least possible that the proposed swap might be a means of providing asylum in the EU based on relative vulnerability and urgency of needs, rather than simply on the basis of who has the money for a smuggler and is prepared to take the risk of arriving by sea. And if the scrutiny of rights protection in Turkey is (as I believe it must be) part of the deal, then it could also be a means of enhancing the protection of the millions of refugees already in Turkey. In this context – and assuming some scrutiny of particular circumstances prior to removal – it is not clear to me that the Court would reach the same results as it did on the clearly deterrent-oriented facts of Hirsi and Klaifa. Indeed, it is not clear to me that the Court should reach that result, given the critical need for refugee responsibility-sharing if the global refugee regime is to survive.

But where I believe Hailbronner errs is with regard to the Refugee Convention’s requirements for legality. True, there is no obligation affirmatively “to assist” a refugee to reach an asylum state’s borders. But apart from the much maligned decision of the US Supreme Court in Sale, neither is there any authority for NATO or any particular state to take action to stop refugees from reaching whatever country they can get to in order to engage the protection system. Not only does the duty of non-refoulement apply wherever a state exercises jurisdiction (Hailbronner’s “quasi-territorial jurisdiction” constraint is confusing or wrong or both), but the duty not to penalize refugees arriving without prior authorization (Art. 31) has not been interpreted by senior courts to require an immediate, non-stop journey from place of initial risk to the asylum country, as Hailbronner seems to suggest.

The core issue in the proposed refugee swap is, however, what protection is on offer in Turkey for those who would be sent there. I argued that removals would only be lawful under the Refugee Convention if three criteria are met: (1) Turkey must have obligations under the Refugee Convention; (2) Turkey must accurately assess (or acquiesce in) the refugee status of those to be returned; and (3) Turkey must in fact honor the Convention rights of the refugees who are sent there.

Professor Hailbronner does not contest the second of my proposed requirements. He seems also to agree with my third point, saying that “Turkey must meet in substance the material standards of the Convention” – though he frighteningly suggests elsewhere that “[t]he only individual right is the right not to be refouled…” with no recognition of the critical role of Arts. 2-34. But the nub of his critique is that if practice on the ground in Turkey is good enough, the fact that Turkey presently has no refugee obligations towards non-European refugees (given its geographical limitation) is irrelevant.

Hailbronner justifies this position by reference to Art. 38 of theProcedures Directive which is admittedly (and in my view, unfortunately) drafted in ambiguous terms. But as the CJEU has been at pains to point out, regional EU refugee norms must be interpreted in consonance with the requirements of international refugee law – not the other way round (see eg. HN v. Ireland, at [27]).

The Preamble to the Qualification Directive (in line with UNHCR Handbook para. 28) correctly affirms that refugee status recognition is a purely declaratory act – it does not make a person a refugee, but merely affirms what already is. It follows that under the Refugee Convention’s system of incremental attachment of rights, Syrian and other refugees who would be removed to Turkey are already provisional rights-holders of a significant bundle of rights at international law. If they cannot access an effective remedy for a threat to those accrued internationally guaranteed rights in Turkey, the EU will have engaged in unlawful rights-stripping by forcing them to Turkey – whatever vague promises Turkey may (be forced to) make about acting properly. As the Chief Justice of Australia made clear in the context of the challenge to Australian efforts to force refugees to go to Malaysia – like Turkey, a non-party state – “[t]he use of the terms ‘provides access… to effective procedures,’ ‘protection,’ and ‘relevant human rights standards’ are all indicative of enduring legal frameworks” (M70/2011 v. MIC, [2011] HCA 32 (Aus. HC, Aug. 31, 2011), at [66], per French C.J.).

In addition, as Michelle Foster and I explain in The Law of Refugee Status (at p.35 ff), a non-party state is under no duty to deliver to arriving refugees the more sophisticated rights due them under the Convention once they are lawfully staying or durably residing there (eg. the right to work) – inchoate rights that would have accrued under the Refugee Convention’s default mechanism had they not been involuntarily transferred. This fundamentally undermines the Refugee Convention’s commitment to the enfranchisement of refugees in their countries of asylum via the rights regime in Arts. 2-34.

Is it possible that a non-party state could both provide reliable access to a legal mechanism to enforce accrued rights and also reliably guarantee to grant the additional rights due refugees over time? In theory, yes. But the fact that Turkey has steadfastly refused to withdraw its anachronistic (and arguably discriminatory) position that only European refugees are international rights holders on its territory is surely reason for skepticism in this case.

VERFASSUNGSBLOG :Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway

(ORIGINAL PUBLISHED HERE )

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There are many open questions and objections against the EU-Turkey deal on an agreement whose details are yet to be negotiated to manage the Syrian refugee crisis. In particular on the reciprocity part: could the agreement as an easily available tool by Turkey to blackmail visa liberalization and progress in the EU Accession negotiations? How will the EU make sure the proper treatment of all returnees? How is the resettlement of   refugees from Syria to the EU (and to Germany) going to take place?

James Hathaway on this blog has listed three legal requirements for the agreement to be legal. In my view none of these are likely to block an agreement.

Ad 1: James Hathaway argues that any individual is entitled to decide for him/herself where to seek recognition as a refugee and therefore efforts to preclude would-be refugees to reach Greece would be in violation of the Convention.

This conclusion cannot be derived from the Convention. True, nobody can be forced to file an asylum claim in a specific country. That does not mean however that there is a freedom of choice where to seek protection.   The Convention does not provide a right of admission to those who have not yet reached a border where entry may be requested for the purpose of international protection.

The only individual right is the right not to be refouled (expelled or returned) to a country of persecution or inhuman or degrading treatment. There is no obligation to assist in reaching a border post or point of entry for the purpose of filing an asylum claim. That applies definitely for any action outside the Greek territory. But even within the highly controversial territorial waters off the Greek island it is at least doubtful whether EU cooperation with Turkey in establishing a more effective border control to prevent those not in possession of the necessary documents to enter the EU triggers the application of the Geneva Convention.

Art.31 of the Convention does not support such an assumption providing for impunity for those coming directly from a territory where their life or freedom was threatened – which is clearly not the focus of the draft agreement. Even the EctHR’s Hirsi judgment of 2012 cannot be interpreted as a right to admission to the EU for the purpose of filing an asylum application. Non refoulement is clearly limited to an exercise of quasi territorial jurisdiction and the obligation not to transport boat refugees to a country where they would in all likelihood face inhuman treatment as a direct result of such action.

Ad 2: James Hathaway argues that Turkey would have to withdraw its geographical limitation. This is clearly not the legal position of the EU and neither a requirement of international refugee law for the application of a safe third country concept. Art. 38 of the Procedures Directive 2013/32 defines the concept of safe third country explicitly with regard to the material obligations of the Convention including non-refoulement and receiving protection “in accordance with the Convention”.

One may argue on the interpretation of this provision. It is fairly clear however from the comparison with the “concept of European safe third country” in Art 39 that a ratification without a geographical limitation is not required. Nevertheless, Turkey must meet in substance the material standards of the Convention which may raise issues, particularly with regard to non-Syrian refugees under the new Turkish legislation of 2014 (see N. Eksi, The New Turkish Law on Foreigners and International Protection , 2014, p.83 ff).

Ad 3: The third legal barrier exposed by Hathaway is thejurisprudence of the European Court of Human Rights on the prohibition of collective expulsion of aliens under Art. 4 Prot.No. 4.

Hathaway mentions slight doubts on the reasonableness of this jurisprudence with respect to responsibility sharing agreements. Hathaway is right. But not only with respect to the requirement of an individuated assessment of an applicant’s circumstances to such agreements. The Courts application of the prohibition of collective expulsion to border control and rejection largely ignores the wording and purpose of the provision.

Expulsion affects the situation of aliens who have already acquired some kind of a residential or at least tolerated status. It is reasonable and at the heart of Art. 4 that a decision of removal must take into account the individual circumstances of each case. Rejection of persons at the border or prevention of illegal entry by return is a completely different matter.   It does not generally require an individual examination of the circumstances of each case. If a question of non-refoulement arises it is the non-refoulement clause and its procedural implications which regulates the procedural requirements rather than Art. 4.

Yet, even if Hirsi and subsequently Klaifia v. Italy (Nr. 16483/12 ) are taken at its face value it is highly doubtful whether the Court will strike down a EU-Turkey agreement on responsibility sharing for potential asylum seekers on the ground that it does not provide for an indiduated assessment of all circumstances of a case – provided that Turkey can be reasonably assumed to comply with its obligation to grant protection to all persons returned (rather than expelled) under the agreement.

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SUGGESTED CITATION  Hailbronner, Kay: Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway, VerfBlog, 2016/3/11, http://verfassungsblog.de/legal-requirements-for-the-eu-turkey-refugee-agreement-a-reply-to-j-hathaway/, DOI: https://dx.doi.org/10.17176/20160311-151627.

4 COMMENTS

  1. The third point is an assertion, not an argument. Since the ban on collective expulsion applies on the high seas, why would it not apply at the borders? If the agreement ignores the requirements set out in the case law, why would it not infringe the Convention? In any event, it also ignores the wording of the EU asylum acquis, which states that any application for asylum at the borders or on the territory must be considered by a Member State.
    Like the Commission, you only partly quote the procedures Directive. It says that a possibility must exist to ‚request refugee status‘ in accordance with the Geneva Convention. How can someone request Convention refugee status in a State which does not apply the Convention to the person concerned? And the procedures Directive does not only say that: asylum applicants must be able to make a case that Turkey is not safe in their individual case; there must not be refoulement from Turkey; and there must be decent treatment in Turkey. Even if these criteria are satisfied in many cases it is clear from NGO reports that they are not satisfied in all; that is why individuals must be able to explain why they are not safe in their particular circumstances, which is consistent with the ECHR interpretation of the prohibition of collective expulsion.

  2. Steve Peers is right. And insofar, the EU must guarantee asylum seekers entrance and access to asylum procedues on European territory to clarify if the „safe third country“ concept is applicable in their individual (!) case. The EU-Turkey Deal is the complete contradiction to this principle.

  3. But it may not be an indissoluble contradiction: The return of all migrants from Greece to Turkey is a principle in itself. The statement states: „They agreed to work on the basis of the principles they contain…“. So they can still agree on rules in accordance with the asylum procedure directive. I admit though that the statement lacks a phrase like „in accordance with the asylum acquis“.

    To Ad 2 of Mr Hailbronners article: Me too, I wondered about the phrase: “Turkey would have to withdraw its geographical limitation”. I dare an interpretation: Mr. Hathaway may not have conceived his phrase in a lawful but more in a legal-political manner. If the rules are finally in place Turkey has to grant refugees pushed back to Turkey rights in accordance with the Geneva Convention. It would be absurd not to grant these rights to all refugees in Turkey. The non-granting of these rights would possibly „push“ (at least not discourage) refugees to cross borders to Greece just to be pushed back to Turkey to get there the rights granted. So wouldn’t the most feasible solution be to grant all refugees these rights? The geographical limitation of Turkey would be weakened rather strongly in praxis. Maybe Mr. Hathaway had this in mind, when he spoke about the need to withdraw the geographical limitation.

    Disclaimer: These are just my thoughts as I read the article and the comments so I may have not considered all the obstacles, arguments and counter-arguments :)

  4. I agree with Thomas Matthies, it is not clear whether the agreement is intended somehow to ignore the EU law rules on considering claims individually, even where the ’safe third country‘ rules allegedly apply. If there is a genuine opportunity for people to argue that they would be refouled by Turkey or face poor treatment in Turkey in their individual cases then the agreement is much less problematic.
    That would only leave open the question of whether Turkey’s non-application of the Geneva Convention to non-Europeans is problematic. In my view it twists the obvious meaning of the procedures Directive to say that Turkey meets the criteria on this point. Given the goodies the EU is offering Turkey it would have been better to settle this question properly by Turkey agreeing to lift its geographical limitation on the Convention.

VERBASSUNGSBLOG: Three legal requirements for the EU-Turkey deal

An interview with JAMES HATHAWAY

The EU and Turkey seem to be heading towards an agreement on how to manage the Syrian refugee issue between them, including Turkey taking back refugees who entered the EU by boat from Greece and a flexible quota of refugees eligible for legal resettlement to the EU. Is this good or bad news?

As such, a system under which place of arrival is divorced from place of protection could be both legal and a good thing — if it enables those to be resettled to be chosen on the basis of eg. relative urgency of need, rather than just on the basis of who can pay for a smuggler. And to the extent that smugglers are no longer needed to reach solid protection, that is also a positive thing.

Some decry that this „one in, one out“ model treats people like cattle. How would such an agreement fit in with a system of individual asylum rights?

An individual is entitled to decide for himself where to seek recognition of his refugee status.  For this reason, undifferentiated efforts to deter groups known to include refugees — for example, NATO action “against smugglers”, to the extent it precludes refugees from reaching a state party — are in breach of the Refugee Convention. (And refugees are explicitly exempt from penalties for unlawful arrival). But the right to decide where to seek recognition of refugee status does not entail the right to choose where international refugee protection is to be enjoyed.  States enjoy substantial latitude to require a refugee to benefit from protection in a state not of the refugee’s choosing.

Is Turkey with its dismal human rights track record and questionable refugee protection standards a legally possible candidate for such an agreement in the first place?

There are three requirements that must be met for a state lawfully to remove a refugee to accept protection in a country not of his choosing: First, the destination state must be a state party to the Refugee Convention.  Second, it must ensure that refugees are in fact recognized.  And third, the destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).

Let’s start with the Convention. Turkey is a member state, isn’t it?

On this front, Turkey — despite appearances to the contrary — does not yet comply.  It has entered a geographical limitation on its accession to the Refugee Convention, under which it assumes no obligations to non-European refugees.  Put simply, obligations cannot lawfully be shared with a state which has none — and in this case, Turkey has none towards relevant refugee populations. Turkey would have to withdraw its geographical limitation. And since it in fact receives millions of non-Europeans, this may be politically feasible — especially when 6 billion Euros are involved.

What about the refugee status? Would Turkey have to recognize those who are returned from Greece as refugees?

Turkey must either recognize the refugee status of those returned or have a fair and effective process in place. UNHCR involvement in the process or an EU support office overseeing the refugee status determination process might enable this requirement to be met.  Or Turkey might simply agree — as many less developed countries do — to treat those returned from the EU as refugees without need of formal status assessment.

So, unless Turkey factually meets the standards of the Refugee Convention, legally there can’t be any removal of refugees to Turkey?

The destination state must in fact honor refugee rights (Arts. 2-34 of the Refugee Convention).  As senior courts have made clear, this is a matter of enforceable facts on the ground — not promises.  To date Turkey has a mixed, but largely positive record in this regard.  A process of international oversight and effective remedies for breach would be a plausible answer to the concern.

The resettlement quota seems to be only for Syrians. What about the Afghans, Iraqi and Eritreans and others who might also be in need of asylum and, in fact, entitled to get it?

Art. 3 of the Refugee Convention prohibits “discrimination” between and among refugees on the basis of country of nationality.  To the extent that all refugees are returned by the EU to Turkey but only Syrians — not eg. the many Iraqis and Afghans who also have solid refugee claims — can benefit from EU protection via resettlement, there is a potential issue of discrimination.  But if shown to be “objective and reasonable,” the differentiation is not discrimination, and thus not unlawful — and this might be shown.

So, under international refugee law the path taken by Turkey and the EU is viable?

Not necessarily. The more critical challenge arises from the European Convention on Human Rights.  While under the Refugee Convention there is no protection from “expulsion” that does not involve “refoulement” to the county of origin until an individual is admitted to a refugee status determination procedure (and hence is “lawfully present”), the ECHR disallows “collective expulsion of aliens.”  Perhaps unwittingly (and perhaps unwisely) the jurisprudence under the ECHR has found that even if it might otherwise be thought objective and reasonable, a “collective” procedure to expel non-citizens that does not take include a means to take account of individuated circumstances  is in breach of the ECHR.  My own view is that the jurisprudence to date did not consider systemic responsibility-sharing systems of the kind that meet the three criteria mentioned above, and might well have evolved differently had the cases involved a clearly protection-oriented scheme.  But (perhaps regrettably) the language of the case law to date does indeed seem to require an individuated assessment before expulsion of aliens is lawful.  In this sense, the ECHR seems to take away the flexibility that the Refugee Convention intended that states should enjoy in ensuring that all refugees get protection.

Questions: Maximilian Steinbeis

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SUGGESTED CITATION  Hathaway, James C.: Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY, VerfBlog, 2016/3/09, http://verfassungsblog.de/three-legal-requirements-for-the-eu-turkey-deal-an-interview-with-james-hathaway/, DOI: https://dx.doi.org/10.17176/20160309-164409.

Time to Save the Right to Asylum

ORIGINAL PUBLISHED HERE 

(ECRE Memorandum to the European Council Meeting 17 – 18 March 2016)

Ahead of the European Council Summit meeting of 17 and 18 March 2016, ECRE urges Heads of State or Government to assume political leadership and pave the way for a concerted EU response to what primarily continues to be a refugee crisis and not only a migratory phenomenon. Such a response must be based on the principle of solidarity and fair sharing of responsibility and respect for human rights. Current fragmented national approaches have added to the suffering of refugees and migrants arriving in the EU and have resulted in the erosion rather than restitution of the rule of law in the EU.

According to the latest available UNHCR figures over 130.000 persons arrived by sea in the EU in the two first months of 2016 alone, the vast majority (123.000) have arrived in Greece, with 88% coming from the world’s top 10 refugee-producing countries, including 45% from Syria, 25% from Afghanistan and 16% from Iraq. Recent arrivals also show a shift in the age and gender composition towards 54% women and children.1 The increase in the number of arrivals in the EU in 2015 and 2016 is creating huge challenges for the EU and its Member States. However, these numbers must be put into perspective intensifying conflicts in Syria as well as other countries such as Afghanistan and Iraq resulting in an unprecedented 60 million persons being forcibly displaced worldwide today. Moreover, despite the sharp increase of arrivals of asylum seekers and refugees in Europe, the fact remains that the vast majority of refugees continue to be hosted in other regions of the world.2 In this regard the EU has a legal and moral obligation to enhance the global protection regime by increasing the protection space within the EU as well as in these regions and uphold the right to asylum as laid down in Article 18 EU Charter of Fundamental Rights.

With this memorandum, ECRE urges the European Council to revisit the principles for collaboration with Turkey to ensure compliance with fundamental rights and presents recommendations for the development of rights-based solutions with regard to the situation of asylum seekers and refugees in Greece and access at the EU’s external borders, safe and legal channels to protection in the EU and the broader reform of the CEAS, including the reform of the Dublin system and the role of EU agencies.

  1. Revisit the EU-Turkey deal to ensure compliance with fundamental rights

At their extraordinary meeting with Turkey, Heads of State or Government have agreed on a set of principles providing the framework for EU-Turkey cooperation in managing the refugee and migrant flows to Europe and Turkey.3 ECRE strongly opposes the approach taken which, if implemented, risks violating international refugee law, EU asylum law and the EU Charter of Fundamental Rights, and would lead to a policy of containment and chain refoulement of persons in need of protection.

First, a policy of blanket returns of all “irregular migrants arriving in Greece’’ is incompatible with EU and international law and would be in complete dereliction of the principle of non refoulement. Those expressing the wish to apply for international protection have to be given access to the asylum procedure and a full examination of their claim in accordance with Article 6 recast Asylum Procedures Directive. The concerns in relation to a denial of access to the asylum procedure and potential refoulement should be read in light of recent information published by ECRE highlighting the limited capacity of the registration system in Greece. As ECRE has argued before, the examination of asylum claims cannot be based on the assumption that Turkey is a safe third country. Turkey does not comply with the criteria listed in Article 38 of the recast Asylum Procedures Directive which requires   that   applicants   must   be   protected   from   refoulement   in   the   “safe   third   country”   and   that   the possibility exists to request and receive protection in accordance with the Refugee Convention.4 Currently, Turkey still applies a geographical limitation to the 1951 Convention, which means that only persons fleeing events occurring in Europe can obtain refugee status. Though the Law on Foreigners and International Protection provides for a status of “conditional refugee” to those coming from non-European countries, this status only allows a person to temporarily reside in Turkey, while awaiting for resettlement, and does not automatically guarantee access to the labour market.

Moreover, the conditions in Turkey do not guarantee that fundamental rights of refugee and migrants are respected in Turkey. Asylum seekers from nationalities other than Syrian are subject to a largely dysfunctional international protection procedure. Despite recent reforms, the Directorate General for Migration Management lacks capacity to process asylum applications while numerous barriers to state-funded legal aid, coupled with resource constraints on NGOs, leave asylum seekers without legal representation and advice. Moreover, whereas the country received approximately 130.000 asylum applications from non-Syrians in 2015, to date the total reception capacity for these applicants is  850  places.5

Moreover, and also applicable to those not applying for international protection, EU Member States have a positive obligation to ensure that return to Turkey complies with the principle of non refoulement and the prohibition of collective expulsion, which necessitates a case-by-case assessment of such risk.

Second, resettling one Syrian to the EU for every Syrian readmitted from the Greek islands to Turkey is as Kafkaesque as it is legally and morally wrong. A strict reading of the plan outlined on 7 March 2016 would effectively make the number of resettlement places dependent on the number of Syrians who risk their lives in the Aegean and are finally readmitted to Turkey. In practice, this may work as an incentive for Turkey to have as many Syrians crossing irregularly and readmitted in order to have a higher number of refugees resettled out of Turkey. Conversely, keeping readmission numbers low either by preventing as much as possible arrivals of Syrians in Greece or refraining from effecting readmission, would result in a smaller resettlement commitment from the EU side. Moreover, the engagement of Member States to resettle out of Turkey should be guaranteed. Without such commitment, the plan outlined on 7 March may simply become a mechanism for readmission back to Turkey. Combined with a renewed emphasis on restriction of entry to Turkey from other countries by imposing visas to nationalities that previously did not require one, and plans for readmission agreements between Turkey and 14 countries of origin, as envisaged under the Joint EU-Turkey Action Plan, this reveals a policy of containment in Turkey on behalf of the EU, which can trigger the complicity of Member States in chain refoulement.

ECRE urges the European Council not to link resettlement to readmission but preserve resettlement as one of the durable solutions to refugee displacement and an unconditional instrument of international solidarity. The European Council should rather establish a comprehensive approach that upholds the right to asylum in the EU, provides substantial support to refugee livelihoods, education and the capacities of local actors and communities in Turkey through the recently agreed Refugee Facility. This should be accompanied by large scale resettlement and/or humanitarian admission programmes from Turkey, Jordan and Lebanon, which currently host the vast majority of the displaced from the Syria conflict. UNHCR has identified that 10% of the over 4 million Syrian refugees displaced by the conflict are currently in need of resettlement.6 The European programmes should be structured and financially supported to incrementally cover half of that number by 2020.7

  1. Assist Greece by responding to the emergency with concrete solidarity

Continue reading “Time to Save the Right to Asylum”