Table of contents:
• Introduction
……….... 3Chapter 1: The EU-Turkey cooperation: an attempt to boost
collaboration in managing the flows of irregular migrants ………..7
1.0 From the economic association to the readmission agreement: the origins of EU-Turkey complex partnership1.1 The EU-Turkey Joint Action Plan of October 2015 and the Statement of 29 November 2015
1.2 The EU-Turkey Statement of 18 March 2016 and the European Council Conclusions 1.3 The Commission Statement of 16 March 2016
Chapter 2: Progress made in the implementation of the Statement and
the limits of resettlement and relocation programs ………19
2.1 The revised Greek Law2.2 Return policy: legal and operational steps 2.3 The increasing numbers of resettlement
2.4 The adoption of Standard Operating Procedures
2.5 ‘Hotspot approach’ and relocation scheme: a disorderly strategy to restore order 2.5.1 Schengen area and Dublin system at stake
2.5.2 Relocation and Resettlement on the test bench 2.5.3 The lack of legal regulation within the hotspots
2.5.4 Reception or detention centres? The precarious conditions within the hotspots
Chapter 3: The development of the deal in the light of the reform of the
Common European Asylum System ………..62
3.1 Towards a fairer and swifter common asylum procedure3.1.1 Reforming Procedures Directive: the ‘safe country’ binding application 3.1.2 Streamlined procedure: strengthening or jeopardising individual guarantees?
Chapter 4: The qualification of the deal: an international
agreement?...87
4.1 The atypical form and the adoption procedure4.2 An effective binding instrument?
4.3 The non-use of the action for annulment by institutional actors and its use by private claimants
Chapter 5: The qualification of Turkey as ‘safe country’……….…104
5.1 Legislation on Temporary Protection and Refugee status: is it actually safe for everyone?5.2 Compliance with the EU Asylum Procedures Directive (in theory and in practice) 5.2.1 The principle of non-refoulement
5.2.3 Administrative detention of asylum seekers and “irregular migrants” 5.2.4 Right to an effective remedy
Chapter 6: Issues of compatibility with international (and European)
migration Law and human rights Law ………...153
6.1 Collective expulsions6.2 The prohibition of refoulement 6.3 Possible violation of Article 3 ECHR
6.4 Possible discrimination based on the country of origin: the “one for one” clause
• Conclusions
………173Introduction
As a consequence of the deteriorating situation in the Middle East’s States and in particular of the exacerbation of the conflict inside Syria, since 2011 thousands of persons fleeing the terror of war were forced to leave their own countries in order to seek shelter in the neighbouring States, mainly Turkey, which also represents the natural connection with the EU territory. Many of them, indeed, subsequently try to cross the Aegean Sea, relying on the smugglers networks, in order to enter the EU through the Greek islands.
This circumstances led to a significant increasing of migratory flows directed to the EU during the last years, that obliged Member States to elaborate rapid emergency solutions to stem the crisis and reduce the pressure on the frontline Member States primarily affected by the incomings.
In the light of this situation the EU seems to be choosing to go down the road of a deal-making approach, focused on the cooperation with third countries of origin or transit of the new arriving asylum seekers. Undoubtedly, being Turkey a sort of bridge between Middle East and Europe, it is the first strategic partner with whom the EU has decided to boost collaboration in the migration control field.
Emblematic of this scheme, the Statement that the EU Heads of State or Government have negotiated with the Turkish government and finally adopted on 18 March 2016 is the result of a round of preparatory works and consultations started in late 2015 with the approval of the 15 October Joint Action Plan.
The purpose of this research is that of examining the practical effects of this strategy on the migrants’ protection side, highlighting all the contradictions of an action that apparently hinders the set of fundamental rights on which the EU legitimacy and credibility are grounded and illustrate the necessity for the EU to replace the current tendency to externalise its responsibilities with the building of an actual common asylum policy based on the principle of solidarity and fair sharing envisaged by Article 80 TFEU and aimed at granting asylum seekers an effective access to international protection.
In the first chapter will be analysed the key commitments agreed by the Parties, first of all the return to Turkey of all irregular migrants reaching the Greek islands and the resettlement of one Syrian present in Turkey, among those who did not previously attempt to reach the EU, for every Syrian returned to Turkey under the deal. The EU also committed to disburse 3 billion euros (2 billion made available by the Member States and 1
billion from the EU budget) for financing the ‘Facility for Refugees in Turkey’, an instrument aimed at promoting the development of new social and educational projects in favour of persons under temporary protection. The real issue at stake for Turkey is however the visa liberalization for its own nationals to enter the EU territory, on which fulfilment would depend the fate of the Statement itself.
In the second chapter will be provided an outline of the Statement’s practical implementation, showing the numbers of return and resettlement operations and their tangible effect on the overall influxes’ control.
One of the consequences of the Statement’ enactment has been the adjustment of the Greek legislation on asylum and more specifically the adoption of a new Law in compliance with the EU Asylum Procedures Directive, covering all asylum seekers arriving as of 20 March and making easier the declaration of applications’ inadmissibility based on the safe country concepts. According to the new legal framework, a fast-track procedure can be applied to process all the claims at the border, while applicants are accommodated in reception centres that following the entry into effect of the new mechanism have been converted into closed camps where individuals are de facto held in detention, without being granted with all the required legal safeguards. This is attributable both to the deficiencies of the Greek asylum system and to the lack of legal guidelines governing the ‘hotspots’ that the EU failed to provide. The atmosphere of uncertainty and the shortage of personnel from the EU agencies working on the Greek islands imply delays in the functioning of the examination system and return mechanism, consequently worsening the overcrowding in the centres. As a consequence, many asylum seekers overstep the border moving to other countries without being registered in Greece.
In this context will be also presented the limits of the strategy outlined in the 2015 European Agenda on Migration aimed at alleviating the burden on frontline Member States, in particular Italy and Greece, in situation of excessive migratory pressure through the creation of Migration Management Support Teams (MMSTs) working on the ground within the hotspots and the elaboration of an intra-EU relocation program, which is however insufficient to address the crisis.
The third chapter will be focused on the analysis of the commitments agreed, in the light of the proposed reform of the Common European Asylum System (CEAS) and in particular of the Asylum Procedures Directive (APD), that if adopted in its current form would lead to a weakening of asylum seekers’ guarantees. According to the Commission plan, indeed,
the APD should be replaced with a Regulation, whose provisions are directly applicable in national legal systems, excluding governments’ discretion.
The most significant change contained in the proposal is the creation of an obligation for Member States to apply the ‘first country of asylum’ and ‘safe third country’ concepts to declare asylum applications inadmissible, with the aim of harmonizing their use. As a consequence of this provision, however, the applicants mainly risk to be subject to violations of their human rights whether on the ground of the inadmissibility statement they are returned to a country, in the concerned case Turkey, that does not offer all the safeguards required by Article 35 and 38 APD to be considered a safe country in their particular case.
Another very debatable point, discussed in chapter four, regards the legal qualification of the Statement. More specifically, academics and even the EU institutions have debated on whether it has to be qualified as an international agreement, or rather as a non-binding instrument, like seems to be suggested by the form and terminology used and by its adoption procedure. In spite of this, however, the Statement has been followed by implementation acts, demonstrating the intention of the parties to put in practice (at least in part) the commitments undertaken.
In addition to the clarification of its legal nature, it is also necessary to determine which is/are the subject/s responsible for its implementation and for eventual violations of Law. One of the main contradictions to solve is the qualification of Turkey as a safe country for all irregular migrants and asylum seekers returned to Turkey from the Greek islands on the basis of the mechanism outlined in the Statement. Chapter five will furnish an overall picture of the Turkish current legislation on asylum and of the consolidated practices in the field of migration control and management. It will be highlighted how the effort made by Turkey to progressively adapt its rules to the EU aquis, although considerable, is still inadequate to grant an effective degree of protection to foreigners in accordance with the core European and international standards.
Only Syrians, since 2014, benefit of an ad hoc temporary protection regime, that grants an alternative model of protection to the refugee status, while all the other nationalities are de facto excluded from international protection, being qualified as conditional refugees, that means a transitory status waiting for being resettled to a third country. This lack of safeguard is observable especially in practice, since according to NGOs reports irregular migrants and asylum seekers returned under the deal, including Syrians, are frequently arbitrarily kept in detention or forcibly returned to their countries of origin.
The EU, at the moment of negotiating the deal, should have been taken into account (and the Greek authorities should do it when examining every single case) the incompatibility of Turkish Laws and practices with the requirement listed at Article 35 and 38 of the APD for being qualified as a ‘first country of asylum’ or a ‘safe third country’ for applicants. As a consequence of the serious doubts surrounding the qualification of Turkey as a safe country for any individual, by returning there irregular migrants and asylum seekers Greece might violate the prohibition of refoulement, as codified among others by Article 33 of the Geneva Convention and by the EU Charter of Fundamental Rights, since they would be subject to threats to their life or to torture and inhuman or degrading treatment in Turkey. Furthermore, as underscored in chapter six, the Greek authorities risk putting in place collective expulsions, prohibited by the EU Charter of Fundamental Rights, if they do not adequately consider the individual circumstances arising in any single case.
The Greek asylum system itself, as indicated by recent judgments of the European Court of Human Rights and by many NGOs reports, risks producing violations of Article 3 ECHR (and thus of Article 4 of the EU Charter of Fundamental Rights) in relation to the detention conditions of asylum seekers falling under the scope of the Statement. Finally, the two-way mechanism according to which for every Syrian returned to Turkey another Syrian present in Turkey will be resettled into the EU is contestable for its implicit double discrimination, on the grounds of nationality and among Syrians.
Chapter 1
The EU-Turkey cooperation: an attempt to boost collaboration in
managing the flows of irregular migrants
1.0 From the economic association to the readmission agreement: the origins of EU-Turkey complex partnership
Due to its peculiar geographical position and its role of connection between Europe and Middle East, Turkey has ever represented a strategic partner for the EU. Their collaboration started in the first instance for economic causes and more recently also because of migration containment needs, since it is the main country of transit for all persons escaping from the conflicts within Arabic States and trying to reach Europe.
The bilateral collaboration started with the Turkish request to be an associate member of the European Economic Community (EEC) in 1959, followed by an association agreement, known as the “Ankara Agreement”, signed on September 1963 and directed to progressively create a Customs Union with the EEC and, possibly, to become part of the international organization’s membership. In this context it was also stipulated the first financial protocol. The Customs Union, covering trade in manufactured products and requiring alignment by Turkey with some EEC policies, was definitively constituted in 1995 and since then it has increased the volume of trade between Member States and Turkey, allowing the latter to develop its economy and improve its population’s living conditions.
The admission of Turkey as a candidate State for EU full membership has been decided in the occasion of the Helsinki European Council of 1999, but the accession negotiations started only in October 2005.
In the meanwhile, on April 2002 Ankara concluded a bilateral readmission protocol with Greece, allowing Athens to return to Turkey all migrants coming from its territory and not eligible for international protection.
The Turkish failure to apply to Cyprus the Additional Protocol to the Ankara Agreement signed in 1970 led to the Council decision of December 2006 to suspend the opening of further eight relevant chapters and the closure of any chapter until Turkey has implemented its obligation. The only chapter being provisionally closed on June 2006 is the one regarding science and research.
A renewal of relations occurred in 2013, due to migration control needs of both parties. The fact that Turkey is the natural hosting country for the flow of asylum seekers escaping from war in neighbouring Syria and that many of them try to reach the EU transiting through Ankara’s territory, leads the Union to consider the Turkish government as the main partner of its strategy for migration management. After a period of negotiations, on 16 December 2013 the EU and Turkey signed a readmission agreement obliging Turkey to take back its own nationals and third country citizens who have transited to it, from the EU territory. In exchange for this commitment, the EU accepted to reenergise the visa liberalization dialogue (the main issue at stake for Ankara), submitting to Turkey a roadmap of 72 criteria, among which migration control and human rights strengthening, to be fulfilled before the visa exemption regime came into force. The readmission agreement definitively entered into effect on 1 October 2014,1 with the exception of obligations relating to third country nationals, which activation was postponed to 1 October 2017.
The turning point is represented, however, by the rounds of negotiations between the EU and Turkish governments that started in late 2015 and led to the 18 March joint Statement activating a return mechanism (which legal framework is constituted by the 2002 bilateral protocol) allowing Greece to immediately send back all irregular migrants coming from the Turkish territory. On the basis of this instrument, the Greek-Turkish readmission agreement has been succeeded by the EU-Turkey agreement, following the activation of the provisions on readmission of third country nationals on 1 June 2016.
1.1 The Joint Action Plan of 15 October 2015 and the Statement of 29 November
On the last autumn EU leaders and Turkey government decided to step up the bilateral dialogue starting from the reinforcement of their cooperation in the field of migration management, with the aim to address the crisis created by the massive influx of Syrians escaping from their own country and in need of protection. An
1 Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation, Official Journal of the European Union, 7 May 2014.
informal meeting of Heads of State or government on 23 September 2015, when both parties declared to be intentioned to improve the dialogue at all levels, was followed by the adoption of a Joint Action Plan on 15 October 2015. This document tries to point out the main common challenges that have to be tackle through a coordinated strategy based on sharing responsibilities and efforts. The actions to be implemented are substantially directed to: “address the root causes leading to the massive influx of Syrians, support Syrians under temporary protection and their host communities in Turkey and strengthen cooperation to prevent irregular migration flows to the EU”.2 This confirms the purpose of the EU to deal with the refugees crisis not only internally, but also trying to reduce the incoming flows with the help of the main country of transit from Syria, as confirmed by the declaration of the European Council President, Donald Tusk: “An agreement with Turkey makes sense if it effectively reduces the inflow of refugees. Concessions will only be justified when this goal is achieved”.3 Turkey is the only country separating Syria from the external borders of the EU, and its coast offers a direct access to the near Greek Dodecanese Island, which represent the port of entry into the EU for many refugees. “Due to its geographical position Turkey has a key role to play in managing the crisis: the EU arguably needs Turkey more than Turkey needs the EU”.4 In change of its help with the migration containment strategy, Turkey requires the EU a number of concessions, especially concerning visa requirements for Turkish nationals and the advance of accession procedure. It is interesting to notice that in the first part of the Plan “the migration crisis is presented as a refugee issue, regarding the temporary protection of Syrians, whereas the second section describes it as an irregular migration problem”.5 According to the plan, the EU intends to reinforce its financial commitment, rapidly mobilizing new founds outside the IPA (Instrument for Pre-accession Assistance) programme to support Turkey in managing the presence of Syrians on its territory: in particular the money will be covering the costs of humanitarian
2 European Commission, EU-Turkey Joint Action Plan, Press Release, 15 October 2015. 3 European Council, Invitation letter by president Donald Tusk to the members of the European Council, 13 October 2015.
4 Farcy Jean Baptiste, EU-Turkey agreement: solving the EU asylum crisis or creating a new Calais in Bodrum?, EU Immigration and Asylum Law and Policy, 7 December 2015, p.1.
assistance, legal support, social inclusion, access to education, infrastructures and services. The EU will also continue to provide assistance to Syrians displaced within Syria and to the refugees hosted in Lebanon, Jordan and Iraq, to contribute to weaken the reasons that encourage them to move towards Turkey and Europe. The document also refers to the support that must be given to the existing resettlement schemes, but it doesn’t call for any new arrangement to extend and adapt those programmes to the emerging situation. Turkey is required to build a stronger asylum system, by adopting the necessary secondary legislation, ensuring that migrants are registered and provided with appropriate documents and continuing to elaborate policies that allow Syrians under temporary protection to accede to the public and health services. The second part of this understanding concerns the common effort in fighting migrant smuggling and preventing irregular entries. It means, for the EU, to better inform protection seekers about the risks linked to any attempt to enter irregularly into the Member States territory and about the possibilities and the procedures available to leave Turkey in a legal manner. The EU is also responsible of reinforcing the Turkish Coast Guard capacity to monitor the borders and cooperating with Turkish authorities in the organizations of the joint return operations. The deal also establishes to deploy a Frontex liaison officer to Turkey and appoint a Turkish liaison officer to Frontex. The EU will also increase its economic burden to facilitate Turkey in reaching a well-functioning asylum, migration and integrated border management systems as mutually agreed in the framework of the Visa Liberalisation Dialogue. Turkey, for its part, has to reinforce cooperation with Greek authorities in fighting irregular movement and readmit all the irregular migrants coming to Greece from its territory, that are not in need of international protection. On the other hand, if the asylum requirements are respected, the status of refugee must be granted immediately. In the light of the need to dismantle criminal networks, it is necessary to “intensify the exchange of information to accelerate the identification of fraudulent travel documents and the real identities of migrants”.6
The implementation of the Joint Action Plan has been activated by the joint Statement released in the occasion of the EU Heads of State or government and Turkey government meeting on 29 November 2015. Both parts declared that the readmission agreement would be fully applicable starting from June 2016, with the
purpose of “bringing order into migratory flows and stem irregular migration”.7 On the side of humanitarian assistance, the EU has established to extend its financial aid by providing an initial 3 billion euro of additional resources to the Refugee Facility created by Commission to support Syrians under temporary protection in Turkey and host communities. This takes into account the situation of Turkey, a country that hosts more than 2,2 million of asylum seekers from Syria and has already spent 8 billion dollars of its own resources to provide massive humanitarian assistance. European Parliament President Martin Schulz pointed out that “the European Parliament has again strongly voiced its disappointment that Member States time and again fail to follow-up on their promises and pledges, while the European institutions deliver every step of the way. He also stressed that the intake of huge numbers of refugees has been unevenly shared between the Member States”.8 With the aim to bring back the migratory flows under control, both sides reconfirm their commitment to cooperate in preventing uncontrolled irregular influx to Turkey and to the EU and in returning migrants who are not in need of international protection to their countries of origin. The strengthening of external borders to combat smuggling is “a legitimate objective, but this will not prevent migrants from wanting to come to the EU. To a large extent smuggling exists due to the lack of legal routes to reach the EU and apply for asylum”.9
It is evident that behind the humanitarian intent, the EU aims at creating the suitable conditions for Syrians to be integrated in Turkish society, thus discouraging them to move towards Europe. The support that EU leaders expect to be furnished by Turkey to facilitate the access to the labour market and public services contrasts with the limitation of social and economic rights recognized to the migrants in their own countries.10 The temporary protection status conferred to Syrians arrived in Turkey seems however to impede their full integration: they are not refugees or asylum seekers and the Turkish regulation does not define a time
7 European Council, Meeting of Heads of state or government with Turkey- EU-Turkey Statement, Press Release 870/15, 29 November 2015.
8 European Parliament, Outcome of the meeting of Heads of State or government with Turkey on 29 November 2015, Post-European Council Briefing, December 2015. 9 Farcy Jean Baptiste, EU-Turkey agreement: solving the EU asylum crisis or creating a new Calais in Bodrum?, EU Immigration and Asylum Law and Policy, 7 December 2015, p. 3.
limit for their status nor a procedure to apply for international protection, contrary to the EU Directive on Temporary protection, which at article 17 prescribes that “persons enjoying temporary protection must be able to lodge an application for asylum at any time. The examination of any asylum application not processed before the end of the period of temporary protection shall be completed after the end of that period”.11 Moreover, the TPR does not safeguard any right to work, education and social assistance, not even for vulnerable groups. Consequently Syrians still continue to leave Turkey and pay smugglers to reach Europe.
Turkey would also cease its open door policy by reinforcing the control at its eastern borders in order to stop the influx of Syrians, which is expected to arise as a result of the agreement’s activation. “The agreement allows Member States to externalize the management of migration outside of their own borders. If there is a solution to the asylum crisis in the EU it will not come simply from negotiations with a third country’s government”.12
1.2 The EU-Turkey Statement of 18 March 2016 and the European Council conclusions
On 7 March 2016 the EU Heads of State or government met the Turkish Prime Minister Ahmet Davutoglu to discuss about the progress made in the application of the Joint Action Plan. Both sides agreed that the smugglers business model has to be destroyed and the external borders has to be strictly protected in order to solve the European migration crisis: in the light of these considerations they underlined the importance of the just operational NATO activity in the Aegean sea. The EU representatives also welcomed the Turkey proposals about the “return of all new irregular migrants crossing form Turkey into the Greek island with the costs covered by the Union; resettle, for every Syrian readmitted by Turkey from Greece, another Syrian from Turkey to the EU Member States, within the framework of
11 Council of the European Union, Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, 20 July 2001.
12 Farcy, J, EU-Turkey agreement: solving the EU asylum crisis or creating a new Calais in Bodrum?, EU Immigration and Asylum Law and Policy, 7 December 2015, p. 5.
existing commitments”13; increase the EU financial commitment for the Refugee Facility and furnish humanitarian assistance to the Syrians displaced within Syria. EU leaders also put in evidence the need to help Greece with the management of the difficult internal situation, qualifying it as a collective responsibility requiring an urgent mobilisation of all the resources available. They also have to ensure the development of a well-functioning hotspots system, support Greece in implementing the returns to Turkey and accelerate the relocation, each Member State providing more places as suggested by EASO. However the document clarify that no new commitments on Member States are established about resettlement and relocation.
The turning point in the EU-Turkey relations has been reached on 18 March 2016, with the joint Statement by EU Heads of State or government and Turkey government, that has established the actions to be implemented in order to achieve the double objective of fighting criminal networks and offering migrants a harmless alternative to enter the EU territory. The main actions to be put in place concern the return to Turkey of all new irregular migrants coming into Greece starting from 20 March and the resettlement from Turkey to the EU of one Syrian for every Syrian being returned to Turkey from Greece. The first measure is “temporary and extraordinary, necessary to end the human suffering and restore public order”.14 The first question to arise is about the quantification of ‘temporary’, since the agreement does not prescribes a time limit for the implementation of the measure, that is expected to be in force until the end of the extraordinary situation. In the second instance, the deal prescribes the return to Turkey of migrants who did not present any asylum claim or whose application has been declared inadmissible in accordance with the Asylum Procedure Directive: the costs of the operations are covered by the EU. This issue has been addressed also in the European Council conclusions of 18 March, with the call for a full assistance to Greek authorities in the context of asylum structures, increasing reception capacities of the hotspots, and of return of irregular migrants to Turkey on the basis of the Greek-Turkish readmission Protocol and the EU-Turkey readmission agreement as of 1 June 2016. The Commission has been designated to prepare an operational plan and report to
13 European Council, Statement of the EU Heads of State or government, Press release, 7 March 2016.
the Council on its implementation.15 The text of the agreement states the Asylum Procedures Directive to apply to the migrants who have reached the Greek island and the Directive for itself explicitly includes those who are founded in the Greek waters, but the condition of those who are intercepted in Turkish or international waters is not disciplined.
The resettlement takes place on the basis of the existent commitments, “taken by Member States in the conclusions of Representatives of the government meeting within the Council on July 2015, of which 18.000 places remain”.16 It is also provided the possibility to raise this number, through a voluntary commitment, up to the limit of an additional 54.000 persons. The European Council affirmed the need to accelerate relocation from Greece, conducting the necessary security checks: member States have to make available more places, in line with the existing commitments, forasmuch as the number of applications are larger than the number of offers. It is reiterated that the EU-Turkey Statement of 18 March “does not establish any new commitments on member States as far as relocation and resettlement are concerned”.17 Another issue to consider have to do with the possibility that “if all resettlement from now on takes place from Turkey, then no-one will be resettled by the EU from Lebanon and Jordan, which also host large numbers of Syrian refugees”.18
The EU-Turkey Statement also reaffirms the effort made by Turkey in preventing new sea or land illegal routes directed to Europe. In the conclusions of the meeting of 18 March, the European Council reminds that about the strategy to address the migration crisis, priority will be given to reinforce control of EU external borders, as confirmed by the progress made on the European Border and Coast Guard proposal side, which was finally adopted on October 2016. The fight against migrant smuggling continues to be the key-objective and for this reason it is
15 European Council Conclusions, EUCO 12/1/16, 17-18 March 2016.
16 European Council, EU-Turkey Statement, Press Release 144/16, 18 March 2016. 17 European Council Conclusions, EUCO 12/1/16, 17-18 March 2016.
18 Peers, S, The final EU-Turkey refugee deal: a legal assessment, EU Law Analysis, 18 March 2016.
necessary to monitor the potential development of new irregular routes and to put in place the essential measures.19
A Voluntary Humanitarian Admission Scheme, to which Member States will be participating on a voluntary basis, “will be activated once irregular crossing between Turkey and the EU are ending or at least have been substantially and sustainably reduced”.20
The EU and Turkey expressed the intention to cooperate in any effort to improve humanitarian conditions in Syria, to ensure that Syrians and refugees live in more safe areas. “A safe 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”.21
The EU is committed to speed up the financing of the initially 3 billion euros and to furnish further resources to develop new projects for persons under temporary protection concerning education, infrastructure, health, food and other living costs. When these funds will be about to end the EU will provide the disbursement of an additional 3 billion euros up to the end of 2018.
1.3 The Commission Statement of 16 March 2016
A communication has been released by the Commission on 16 March 2016, with the aim to indicate the principles to be followed for further developing EU-Turkey cooperation in the field of migration, that needs to be supported by the Commission, EU agencies and Member States. The document put in evidence that is strictly necessary ensuring massive irregular flows to be replaced by a legal suitable procedure, in order to break the smugglers business. Analysing the returns of all new irregular migrants, both of those in need of protection and those who are not, it is put in evidence that they have to fully respect the refugee protection
19 European Council Conclusions, EUCO 12/1/16, 17-18 March 2016.
20 European Council, EU-Turkey Statement, Press Release 144/16, 18 March 2016. 21 Peers, S, The final EU-Turkey refugee deal: a legal assessment, EU Law Analysis, 18 March 2016.
safeguards established by international and European law. In particular, considering that it is mandatory to implement operations in line with the fundamental requirement that every case needs to be treated individually, the Asylum Procedures Directive lays down the legal and procedural parameters to be observed in order to avoid the implementation of a blanket return policy. An expedite procedure can apply when there is no need to examine the substance of an application because it can be considered inadmissible on the basis of the fact that an other country would deal with it and give the person sufficient protection. According to the norms of the Directive, a person asking for asylum in Greece has to be registered, identified and, in case the claim is considered inadmissible, it is mandatory to give this migrant a personal interview to find out whether there are particular circumstances to be taken into account and to grant the right of appeal against the inadmissibility decision. “Before returning a person in need of international protection member States need to be satisfied that the third country will respect a set of standards concerning fundamental rights, non-discrimination and respect for international law”.22 The document also prescribes a number of changes to be implemented in the Greek and Turkish legislation. “In the case of Greece this applies to the status of Turkey as ‘safe third country’ and will entail a number of detailed procedural rules in areas like appeal procedures. In the case of Turkey, this applies in areas like the renewal of temporary protection status for Syrians who had left Turkey, access to affective asylum procedures for all persons in need of international protection and ensuring that protection equivalent to Geneva Convention is afforded to non-Syrians, notably those returned”.23 In the document it is also reaffirmed that the return operations, put in place under the readmission agreement, have to be implemented ensuring the respect of the principle of non-refoulement in line with Turkey’s existing international obligations. As regards the practical aspects between Turkey and Greece should be decided any arrangements to achieve the goal of a large-scale return. They adopted a joint declaration of readmission on 8 March establishing, inter alia, the use of a delegated readmission officer to accelerate the procedures, but they still have to increase the number of liaison officers. The EU will support Greece to create the
22 European Commission, COM(2016) 166 final, Communication: Next operational steps in EU-Turkey cooperation in the field of migration, 16 March 2016.
necessary infrastructures: the hotspots in the Greek islands need to be adapted to the main objective of implementing returns to Turkey, that will replace the former focus on registration and screening and its infrastructure have to be reconfigured to deal adequately with vulnerable groups. Another issue that Greece has to face is the need for increasing the reception capacity of the islands, including separate facilities for irregular migrants and those undergoing the longer procedure of an asylum request, and provide sufficient detention capacity to deal with persons who present a risk of absconding. It is also necessary “to increase the capacity of the Greek Asylum Service to allow expedited readmission to Turkey and a swift acceptance of asylum request. It is also put in evidence that appeal Committees should be able to rule a high number of appeals within a short period of time and in this regards EASO should be called upon to support the Greek authorities in quickly and effectively processing applications and returns, if necessary through an additional and targeted call for assistance from the Member States”.24 Lastly it is required an arrangement to implement large-scale transport from Greece to Turkey. Considering that irregular arrivals are estimated to be 2.000 per day, the cost for the EU would be around 20 million a month.
The Commission considers the 1:1 scheme as an attempt “to replace irregular flows of migrants travelling in dangerous conditions across the Aegean by an orderly and legal resettlement process”.25 In order to ensure the right mode of operation of this system it is necessary that Member States offer an adequate number of resettlement places. Given that the scheme should function “within the framework of the existing commitments”,26 the Commission recognise the European Resettlement Scheme already in place as the first natural source of places (18.000 left available) to be linked to the return of irregular migrants and asylum seekers from Greece to Turkey and considers worthwhile to transfer some commitments under the relocation decisions to the 1:1 scheme in case further need for resettlement arises, in line with its policy of considering humanitarian admission, resettlement and relocation as equivalent expressions of solidarity with others States experiencing any kind of migration pressure. It is necessary to link the number of migrants
24 European Commission, COM(2016) 166 final, Communication: Next operational steps in EU-Turkey cooperation in the field of migration, 16 March 2016.
25 Ibid.
26 European Council, Statement of the EU Heads of State or government, Press release, 7 March 2016.
effectively returned to Turkey and that of persons resettled in the EU from Turkey: to ensure this correspondence the EU should adopt a week by week approach to verify how many Syrians have been readmitted in Turkey and immediately start the operation to resettle the same number. Once irregular flows from Turkey have been substantially reduced, it is expected that a crescent number of Member states will be participating in the Voluntary Humanitarian Admission Scheme with Turkey, which will permits to swiftly and efficiently admit in the EU persons in need of international protection escaping from Syria and crossing Turkey. The Commission suggests that the 1:1 scheme, as well as the Voluntary Humanitarian Admission, should be applied to Syrians registered by the Turkish authorities prior to 29 November 2015. The operating procedures of Voluntary Humanitarian Admission Scheme would be “used for the more general purposes of the 1:1 scheme, being complemented by a mechanism that creates a disincentive to cross the Aegean Sea”. In implementing resettlement “priority should be given to those Syrians who remained in Turkey since they are eligible for temporary protection”.27
In order to improve humanitarian conditions in Syria and consequently discourage the movements of Syrians towards Turkey, the Commission is already disbursing a substantial aid to support, among others, about 50 projects concerning humanitarian, development and stabilisation assistance. From the beginning of the crisis to March 2016 the funds allocated amounted to 468 million. The EU and Turkey, both members of the International Syria Support Group, will continue to cooperate in this field coordinating efforts to solve the crisis, notably focusing on the “situation of refugee stranded in the corridor between Aleppo and the Turkey-Syria border”. 28
27 European Commission, COM(2016) 166 final, Communication: Next operational steps in EU-Turkey cooperation in the field of migration, 16 March 2016.
Chapter 2
Progress made in the implementation of the Statement and the
limits of resettlement and relocation programs
2.1 The revised Greek legislation
After the adoption of the Statement, the Greek administration dealt with the requirement to adapt its legislation to the new arrangements, in order to ensure the correct and swift application of the legal and operational provisions, in accordance with the EU Asylum Procedures Directive. To this end, the Greek Parliament adopted Law 4375 on 1 April 2016 under urgent procedure with the aim of transposing the legal standard of the EU Asylum Procedures Directive into the national legislation, mainly new provisions to apply the concepts of first country of asylum and safe third country and a fast-track procedure for the asylum applications processing.
The revised law, which entered into force on 3 April, involves a number of changes in the field of first reception and asylum procedure, labour rights of people under international protection and management of migratory flows towards Greece. A twofold legal framework governs the asylum procedure: the old procedure, under Presidential Decree 114/2010, applies to the claims lodged before 7 June 2013, while the new procedure, under Presidential Decree 113/2013, applies to the claims lodged after that date.
A number of elements of the revised procedure have been the subject of significant criticisms coming from NGO’s and international organizations accusing it to be responsible of a weakening in migrants’ protection standards. Among others, the Parliamentary Assembly of the Council of Europe (PACE), that highlighted the
“serious human rights concerns raised by the law both regarding the substance and the implementation of the statement”.29
It is pointed out, specifically, that under article 54 of the new Law a claim is declared inadmissible for a number of reasons, including the fact that the asylum seeker is coming from a first country of asylum or a safe third country. The qualification of a country as ‘safe’ has not changed and article 56 contains no reference to the adoption of a list of specific safe countries, but the concept of first country of asylum has become weaker under a safety point of view. Previously, according to Article 19 (2) of the Presidential Decree 113/2013, to be considered a first country of asylum the State, in this case Turkey, had to fulfil the safe third country condition, whereas article 55 of the new law just requires the first country of asylum to provide the migrant with ‘sufficient protection’, which means in the first instance to protect the person from refoulement, but does not entail that the Asylum Service have to take into account the safety criteria mentioned at article 56. PACE recommended Greece to “refer the question of interpretation of the concept of sufficient protection in Article 35 of the European Union Asylum Procedures Directive to the Court of Justice of the European Union and, until such interpretation has been given, refrain from involuntary returns of Syrian refugees to Turkey under this provision”.30
As pointed out by the European Council of Refugees and Exiles, this provision does not directly entail that Turkey can be considered as a safe third country, since it would implicate “the possibility to request refugee status and receive protection in accordance with Geneva Convention, a status that Turkey is unlikely to meet”,31 but from an individual safeguards point of view it implies a lower level of protection. An asylum application, indeed, can be declared inadmissible and rejected on the basis of the existence of a sufficient level of protection in Turkey,
29 Parliamentary Assembly of the Council of Europe, The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016, Resolution 2109, 20 April 2016.
30 Parliamentary Assembly of the Council of Europe, Resolution of 20 April 2016 on the situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016. 31 ECRE, Greece urgently adopts controversial law to implement EU-Turkey deal, ECRE Weekly Bulletin, 8 April 2016.
with no need for an investigation on the merits of each case and even if the State can not be qualified as safe.
The border procedure resembles the main elements contained in article 24 of the Presidential Decree 113/2013, which was applied at the airport borders. The new law establishes that this procedure not only applies to the admissibility matter or the substance of claims examined under the accelerated procedure, indeed according to article 60 all the applications can be examined on its merits at the border, even if it is possible to adopt extraordinary measure when authorities have to face a huge number of arrivals. The same article introduces a new provision at paragraph 4, allowing the Ministers of Interior and Defence to adopt exceptional measures in case of a sudden and considerable increase of the migrants arriving and lodging an asylum claim at the border or in the Registration and Identification centres, including the help provided by EASO officials and interpreters to the Greek authorities with the registration process and the first interviews to the migrants. Paragraph 4 also provide for a fast-track procedure, establishing short deadlines of one day for the applicant to prepare the first instance interview and three days for the decision on an appeal. However these measures are not applicable to vulnerable groups or persons falling within the family provisions of the Dublin III Regulation. The time limits appear controversial since article 43 of Asylum Procedures Directive prescribes to examine the cases and take decisions “within a reasonable time” (after four weeks, the applicant shall be granted entry to the territory of the Member State in order for his or her application to be processed), but it is necessary to reflect on “whether such speed is really reasonable and offers sufficient procedural guarantees”.32
A related issue arises with regard to the absence at article 60 of the new law of any automatic suspensive effect for an appeal against the decision of return, deportation or readmission in the border procedure. This entail that migrants whose applications for international protection have been rejected “must apply to a judge in order to remain on the Greek territory during the appeal process” and for this reason “they are being deprived of the right to an effective remedy”33 against a
32 ECRE, Greece urgently adopts controversial law to implement EU-Turkey deal, ECRE Weekly Bulletin, 8 April 2016.
33 European Parliament, On the frontline: the hotspot approach to managing migration, Directorate General for Internal Policies, May 2016.
“decision taken on their application for international protection, including a decision taken at the border or in the transit zones of a Member State”, as set out by article 46 of the Asylum Procedures Directive. The European common rules make a difference between the applications rejected on the basis of the first country of asylum principle, for which is not automatically decided a suspensive effect and those deemed inadmissible on the basis of the safe third country provision, that entail it automatically.
Article 46 of the Directive, at paragraph 6 establishes that in case of a decision considering the claim unfounded or inadmissible, a court, acting ex officio or on the basis of an explicit request by the migrant, has the power to decide whether or not the applicant can remain on the territory of that State pending the outcome of the remedy, in case it is not provided for in national law. As clarified at paragraph 7, this rule applies to the procedures set out in accordance with article 43. The applicant must have “the necessary interpretation, legal assistance and at least one week to prepare the request and submit to the court or tribunal the arguments in favour of granting him or her the right to remain on the territory pending the outcome of the remedy”34.
The time limit set out by article 61 of the Greek law to lodge an appeal while staying in a Reception and Identification centre or against a negative decision for international protection in cases of article 60 is five days from the notification of the decision. When an application examined under accelerate procedure or deemed inadmissible has been rejected, as well as when is submitted while the applicant is in detention, the appeal have to be lodged within fifteen days from the notification of the decision. An appeal against the negative decision considering the application as inadmissible pursuant to article 54 (first country of asylum), “shall also be deemed against the relevant transfer decision, pursuant to the relevant provisions of Council Regulation 604/2013 of the European Parliament and of the Council”
.
35
34 Directive 2013/32/EU of the European Parliament and of the Council, on common procedures for granting and withdrawing international protection, 26 June 2013.
35 Law No. 4375 of 2016 on the organization and operation of the Asylum Service, the Appeals Authority, the Reception and Identification Service, the establishment of the General Secretariat for Reception, the transposition into Greek legislation of the provisions of Directive 2013/32/EC [Greece], 3 April 2016, available at:
The revised law also takes in charge the resolution of the backlog of cases under the previous procedure, in order to regularise the process for thousands of asylum seekers. According to article 22 a two years, renewable residence permit on humanitarian ground is automatically released to all those applicants lodging their asylum request for over five years, having a pending appeal and holding a valid asylum seekers permit, unless they represent a threat to national security. Whether the applicant lodge an appeal before the Appeal Authority within two months from the decision to give the permit the old procedure continues, otherwise it ceases. As established by article 23, applicants whose asylum seekers permit had to be renewed and that have not presented themselves before the authorities by 31 August 2015 “are considered to have implicitly withdrawn their claims and the procedures are thereby discontinued”.36 Official statistics contained in the Explanatory Report on the new law issued by the Hellenic Parliament reveal that 18.500 cases were pending at the beginning of April 2016, of which 7.800 automatically entitled to receive a residence permit on humanitarian ground, while the remaining had to be “examined by the Appeal Committees or be granted residence permits on humanitarian grounds as soon as claims reach the five years wait threshold”. 37
2.2 Return policy: legal and operational steps
Analysing the EU-Turkey Statement effectiveness in the light of the challenges that it is being called to address, it results that the main goals are being achieved as confirmed by the Commission’s periodic reports underlining the steady delivery of results, although the pace of return policy has revealed to be slower than expected. First of all it has been registered a significant decrease in the number of irregular migrants and asylum seekers crossing from Turkey into Greece, demonstrating that the business model of the smugglers can and has to be broken. In the month before the implementation of the agreement, there were around 1740 persons arriving in the Greek island every day, while since 21 March the average daily number of
36 Asylum Information Database, Greece: asylum reform in the wake of the EU-Turkey deal, 4 April 2016.
arrivals is 94.38 Also the number of fatalities in the Aegean Sea has fallen from over 270 to 11. All the irregular migrants returned from Greece to Turkey had received a negative asylum decision (including negative decisions at second instance), had withdrawn their asylum applications, or had not applied for asylum. Despite the European Asylum Support Office aid, the pace of examining asylum claims by the Greek Asylum Service and appeals before the new Greek appeal Authority results slow. According to the European Commission, the lack of founds would hamper the creation of adequate bodies and the management of the high number of asylum requests. Additionally, the Greek administration needs to increase its capacity to implement an inflexible return policy, that is the key deterrent to irregular flows: whether Greece dos not demonstrate to be able to solve these inconsistencies, the entire agreement structure would collapse. Readmissions and returns have been suspended immediately after the attempted coup in mid July, but were restored in early September, while EU continues to support the International Organization for Migration Assisted Voluntary Returns programme: since 1 June to the end of September 1976 persons were returned from Greece to their country of origin. 39
Greece and Turkey have both adopted some legislative and administrative measures to fulfil the provisions of the EU-Turkey Statement in accordance with international and European Law. As underlined by the second Commission’s Report,40 Turkey, in addition to ensuring temporary protection status to those Syrians who have been returned from Greece and giving a written assurance to the Commission about the protection from refoulement of non-Syrians seeking for international protection in its territory, has adopted a regulation on work permits for international protection applicants and international protection status holders. The application of these rules has entailed the submission of 10.584 work claims from Syrians: 8.000 of them have been approved, representing a doubling of the number for the whole 2015. This measure is aimed to promote the integration of asylum seekers within the socio-economic context, in line with the purpose of the EU-Turkey Statement.
38 European Commission, COM (2016) 634 final, Third Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 28 September 2016.
39 Ibid.
40 European Commission, COM (2016) 349 final, Second Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 15 June 2016.
Turkey has also developed a roadmap aimed to speed up the examination of international protection applications by non-Syrians, so that any new claim will be processed within six months. This permits to streamline pending applications, reducing the backlog of 12.000 to 13.000 requests for month. The EU has been authorized to supervise regularly the conditions of Syrians and non-Syrians who have been returned to Turkey, including by visiting refugee camps and centres and Turkish authorities have concluded an agreement with UNHCR to allow a delegation of the body to enter in the removal centres and verify the effective application of international protection procedures and safeguards. Regarding the EU-Turkey readmission agreement, the “Turkish Council of Ministers has not yet taken the decisions authorizing the application of the third-country nationals provisions”41, whereas some progress has been recorded in the implementation of the provisions regarding the readmission of Turkish nationals.
The Commission has helped Greece in concluding that Turkey is a safe third country and/or a country of first asylum in line with the meaning provided by the Asylum Procedures Directive, in order to permit the return of all irregular migrants coming into Greece since 20 March 2016, as established by the EU-Turkey Statement. On 5 May the Greek authorities received a written assessment from the Commission highlighting the necessary legislative and other measures taken by Turkey as indicated in its Communication of 16 March 2016 “in order to allow Greece to declare on the basis of individual assessment an application for asylum inadmissible in accordance with Article 33 (2) (b) or (c) of the Asylum Procedures Directive for both Syrians and non-Syrians applicants who had irregularly crossed into the Greek islands via Turkey as of 20 march 2016”.42
Greece has accepted to modify its legislation in order to create and put in place the new Appeal Authority and Appeal Committees appointed to process at second instance appeals lodged since 20 July against the first instance negative decisions about the applications for international protection taken by the Greek Asylum Service. Each Appeal Committee is composed by three members: two judges of the Administrative Court and one Greek citizen with a background in legal, political,
41 European Commission, COM (2016) 634 final, Third Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 28 September 2016.
42 European Commission, COM (2016) 349 final, Second Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 15 June 2016.
humanitarian and social sciences and with relevant experience proposed by UNHCR or, when it is not in a position to designate a member, by the National Committee for Human Rights.
The appeal process started to work very slowly. The first second-instance decisions were issued on August and as of 18 September 1.013 appeals against first instance decisions have been issued, both on admissibility and on merits. Out of the 311 cases on admissibility so far examined only six second-instance decisions have confirmed the Asylum Service decision, while 40 appeal decisions on merits have confirmed the first-instance negative decisions, that have been reversed just in two cases. A Syrian launched a higher level of appeal to the Hellenic Council of State in order to change the Appeal Committee’s decision.
Another problem put in evidence by the Commission since the entry into force of the Statement is the overcrowd in the Greek hotspots, that leads to dangerous conditions in refugee camps, where migrants, including minors and vulnerable groups, are not provided with all the essential safeguards.
Although the flow of arrivals has been reduced, the number of hosted persons on the islands has continued to increase from 8.450 in June to 13.863 on 27 September (even if it is necessary to take into account the suspension of the return operations after the attempted coup). This figure exceeds the actual reception capacity planned to accommodate 7.450 people creating a steady excessive pressure on facilities and making the management of the situation increasingly difficult. Despite the support offered by the Commission and Frontex, a number of operational steps still have to be implemented to improve the management of the hotspots and ensure better conditions for the hosted migrants. In the first place to alleviate the situation it is essential to reduce the number of people required to stay on the islands and this goal can be achieved by speeding up the processing of asylum applications under the border procedure applicable to applications on the islands. As a consequence it is possible to raise the number of returns to Turkey of those asylum seekers whose claims have been considered inadmissible or unfounded and to transfer to the mainland those applicants whose requests have been deemed admissible.
On the other hand the reception facilities on the islands needs to be largely expanded and the provision of winter conditions needs urgently to be adopted. In this context, Unaccompanied Minors represent a top priority and have to be “transferred to dedicated facilities: the Commission has made funding available for
additional reception capacity and has been encouraging Member States to relocate a higher number of them”. 43 In the second Report of June, the Commission pointed out the requirement of reinforce security in Greek reception centres and hotspots in order to ensure a higher level of protection for the migrants, given the overcrowding and recurrent unrest between migrant groups. The Third Report of September informs about the appointment of the head of Reception and Identification Service, but also highlights the lack of order at local level, where the management continues to be obstructed by the delay in nominating and deploying permanent Greek hotspots coordinators. It is fundamental to solve this issue also to restore security and new Standard Operating Procedures for the hotspots had urgently to be adopted in line with the EU-Turkey Statement. By conducting an overall assessment in three hotspots, the European Asylum Support Office found out key areas that need to be strengthened from a safety and security point of view: “results included the hiring of a private security company, infrastructure works to ensure a secure perimeter and the provision of medical kits and fire extinguishers”.44 According to the study conducted by the Greek authorities, the migrants hosted in all the Greek territory are more than 60.000. Of those present in the mainland, between 9 June and 30 July 27.592, including 1.225 Unaccompanied Minors, were pre-registered into the asylum procedure.
The fifth Commission’s report of 2 March 201745 indicates a total number of 1.487 migrants returned to Turkey from the Greek islands since the date of the EU-Turkey Statement: a figure much lower than that of arrivals.
Syrians returned to Turkey are placed in Duzici camp and entitled to apply for temporary protection. According to the data released by the Commission, until now all returned Syrians were pre-registered with the exception of ten who decided to return voluntary to Syria.
Non-Syrians are instead accommodated in the removal centre of Kirklareli in Turkey, where they are informed about the possibility to request international
43 European Commission, COM (2016) 634 final, Third Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 28 September 2016, p.6.
44 European Commission, COM (2016) 634 final, Third Report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 28 September 2016, p.7.
45 European Commission, COM (2017) 204 final, Report from the Commission to the European Parliament, the European Council and the Council, Fifth report on the progress made in the implementation of the EU-Turkey Statement, Brussels, 2 March 2017.
