As European governments rapidly turn their attention to the implementation of the EU-Turkey agreement, observers have raised serious questions regarding whether the deal itself is legal, and more importantly, if it will even work. The 28 EU heads of state forged the March 18 deal with Turkey with their backs seemingly against the wall, and in an atmosphere of palpable panic. At its core, the agreement aims to address the overwhelming flow of smuggled migrants and asylum seekers traveling across the Aegean from Turkey to the Greek islands by allowing Greece to return to Turkey “all new irregular migrants” arriving after March 20. In exchange, EU Member States will increase resettlement of Syrian refugees residing in Turkey, accelerate visa liberalization for Turkish nationals, and boost existing financial support for Turkey’s refugee population.
For leaders the objective was clear: to find a way to prevent unchecked arrivals into the European Union. The fact that a group of 28 states with increasingly divergent interests was able to find consensus speaks to the level of concern that leaders have for their own domestic political futures in a context of rising populism.
However, the deal has also unveiled a paradox for a European Union that has spent several decades preaching its own high asylum standards to neighboring countries. To achieve its self-imposed goal—a significant reduction in arrivals and an increase in returns to Turkey—policymakers will have to drastically cut legal corners, potentially violating EU law on issues such as detention and the right to appeal. But if governments execute the agreement in conformity with international and European legal frameworks, few arrivals are likely to be returned, and the agreement risks becoming the latest in a long series of undelivered promises to exasperated publics for whom the complex legal conundrums of implementation are both meaningless and irrelevant.
While the former route is deeply tempting for policymakers, undermining Europe’s human-rights commitments in such a visible way may prove even more costly in the long-term than the current chaos in Greece. Leaders are clearly aware of the risk. In the days leading up to the final agreement, the European Union back-pedaled significantly from rhetoric about creating “a large-scale mechanism to ship back irregular migrants” to an assessment process respecting the asylum rights of each individual reaching Greece. A strong backlash from refugee and other human-rights organizations confirmed this, including the United Nations High Commissioner for Refugees (UNHCR) which highlighted long-standing international prohibitions on collective expulsion, or “blanket returns.” But the speed and unchartered nature of the implementation may mean rules are set aside in favor of expediency.
Thus, governments are taking a bet that the “messaging” of the EU-Turkey agreement, rather than its implementation, will suffice to deter arrivals without having to test its legality or viability in practice.
Can Anyone be Returned?
EU law currently allows for returns under two circumstances. First, individuals who do not apply or do not qualify for asylum are considered “irregular migrants” and are eligible to be returned to Turkey under an existing readmission agreement with Greece (pending the implementation in June 2016 of a readmission agreement between the European Union and Turkey). Second, individuals who submit asylum claims but are determined to have arrived from a country where they had or could have claimed protection (a “safe third country” or “first country of asylum,” the EU criteria for which include the right to nonrefoulement and the ability to both request and receive protection) are considered inadmissible to the European Union and eligible for return. Whether Turkey truly meets the criteria to be designated a safe country, as it has been under the deal, remains in question.
A look at both the profile of recent arrivals in Greece, and the substantive protection currently available in Turkey, suggests the promised individual asylum assessments will weed out only a small proportion for return as irregular migrants, suggesting the rest will fall under the “safe third country” or “first country of asylum” categories. In February 2016 alone, more than 57,000 migrants arrived on the Greek islands; 52 percent were Syrian nationals, while a further 41 percent were Afghan and Iraqi nationals (25 and 16 percent, respectively). All three populations include those with significant protection needs, but it remains unclear whether Turkey has sufficient safeguards in place (in principle and in practice) to meet these needs to EU standards. Ensuring all returns are legal according to EU law and the 1951 Refugee Convention would thus likely lead to very few being returned.
The current protection regime in Turkey can be broadly broken down into two categories: Syrian nationals, who are given temporary protection status (with limited rights including regulated access to the labor market), and everyone else, who has a right to international protection based on the Law on Foreigners and International Protection passed in 2014 (though this stops short of full refugee status). Perhaps more troublingly, the framework for providing such protection still exists primarily on paper rather than in practice. At the end of February 2016, Turkey’s caseload of asylum seekers remained more than 200,000, with just 38,595 having received protection: it will take time for the Turkish system to scale-up sufficiently to address this backlog, especially as the responsible agency is also scrambling to meet other deliverables created by the EU-Turkey deal, such as visa liberalization. This makes real access to protection for additional returnees—particularly non-Syrians—under the current EU-Turkey deal a distant prospect, and Greece would struggle to justify such returns.
The Turkish government, however, has stated that it sees its current protection framework, at least on paper, as sufficient and pushed back hard against the idea of further reform, including the full adoption of the Geneva Convention.
With respect to the Syrian population itself, nearly half of those taking the journey do so in order to join family members already residing in Europe, according to interviews conducted by UNHCR in February. Even with the EU-Turkey deal in place, asylum claims made in Greece still have to be considered according to the existing Dublin Regulation, suggesting that those with valid and verified family connections would be transferred to the appropriate EU Member State to complete asylum procedures rather than be returned to Turkey. In the wake of the March 18 summit, EU officials suggested the legal basis of returns of potential candidates for family reunification was still to be determined. Add to this the challenges of returning any children—who comprised 40 percent of all arrivals to Greece in February—given current reception conditions for minors in Turkey, and the prospects of returning significant numbers in the short-term under the current agreement look remote.
Some argue these challenges are minor, not least because the vast majority of those arriving in Greece, so far, have not filed asylum claims there—1,470 filed in February, or 2.5 percent of arrivals—with many hoping to move on throughout the European Union. However, the increased prospect of return to Turkey and the closure of the Western Balkans route may well change that dynamic. In addition, security concerns—notably terrorist attacks in Paris and Brussels—have shifted policy goals toward effective identification, registration, and management of those who are arriving, and not just on meeting protection needs.
Logistical Challenges
The challenges of meeting legal standards for the return of asylum seekers pales in comparison to the logistical challenge that has now been handed to the Greek government, in addressing both asylum and security imperatives. First, the government will need to put new legislation in place to allow for case-by-case assessments and appeals of those assessments, and to facilitate returns. This includes the prospect of judges from other EU Member States hearing appeals on the islands under Greek jurisdiction, while it is not clear Greek legislation currently allows for this.
Second, getting those judges, and other officials to the islands to effect the process will prove challenging for overstretched national administrations loathe to lose their personnel while their own asylum backlogs remain high. If Europe learned one thing during 2015, it is that pledges of officers and equipment do not materialize immediately, not least because bureaucracies take time to process transfers of human resources. Deals made in Brussels are quickly forgotten in national capitals.
In addition, building systems takes time: the EU registration hotspots in Greece took more than six months to materialize, due both to an absence of pre-existing infrastructure and a lackluster response from an exhausted Greek government. The process also revealed significant loopholes and information gaps in terms of registration and identification.
Finally, the transformation of hotspots into detention centers not only poses a logistical challenge, but also risks losing essential practical support from international and nongovernmental organizations. UNHCR, the International Rescue Committee (IRC), and Save the Children, among others, have all withdrawn services out of concern for the conditions and rights violations that will ensue. Without their support, the process loses both legitimacy and resources.
This, in turn, raises a more significant question about the evident ad hoc implementation of the EU-Turkey deal. Much of the process is being worked out on the ground by officials who are still unclear about the legal ramifications of their decisions. This may be deliberate: to increase the numbers returned, policymakers may have to feign a reality that does not currently exist, not just with regard to conditions in Turkey, but also with respect to offering arrivals a real and informed opportunity to make an asylum claim.
In doing so EU leaders would be making a calculated risk. It will take time for a case to reach either the Court of Justice of the European Union (CJEU) or the European Court of Human Rights (ECtHR) to find the processes unlawful. The scheme has already been declared “extraordinary” and “temporary,” and individuals summarily returned are unlikely to have legal recourse. The temporariness is also a political reality—should visa liberalization not materialize at the end of June, the European Union will be less likely to find a willing partner in Turkey. Thus the scheme has its own built-in detonator, but one with brutal consequences for those arrivals who are caught up in the meantime.
Looking Down the Road
The agreement’s broader implications are likely too politically remote to seem real to policymakers under pressure. Much has been made of the likelihood that smugglers will diversify and adapt, and that the drivers impelling movement are not diminishing. Cessation of the en masse smuggling route across the Aegean may also push up prices for other paths, diminishing demand, while increasing danger. Leaders may accomplish their goal of reducing arrival numbers in Greece, but find themselves experiencing déjà vu. In investing huge political capital towards such a localized area, there is a reasonable risk that, within a year, Europe will have come full circle, with renewed flows across the more dangerous route across the Central Mediterranean. Ironically, one of the premises behind shutting down the Libya route in 2015 was to reduce the deeply damaging danger and death, and confine mixed flows to the less risky routes across the Eastern Mediterranean.
The reality is that EU leaders left themselves too little time to do many of the things that could have avoided such drastic deal-making with Turkey, whether offering greater assistance in countries of first asylum, or fully supporting the development of the asylum system in Greece. The opportunity to convince Turkey to develop a full protection system was lost in the exigencies of the summit negotiations, though there remains an opening to significantly bolster Greece’s ability to receive, register, and process claims. The opportunity also exists to pilot a new idea that has emerged from this deal: the concept of a collaborative, EU-led fast-track assessment system that can operate at the European Union’s external borders. Such a system, composed of competent adjudicators and integrating robust, early legal advice for applicants, might actually serve both the protection goal—offering asylum seekers a quick and credible assessment of their claim—as well as the migration management goal, by swiftly disaggregating the viability of claims and effecting legitimate returns. However, the haphazard implementation approaches of the last year suggest this opportunity too will be squandered, in a context where detail has become anathema to politics.
Displacing the Problem
The idea of returns coupled with large-scale resettlement is beguiling and, from a distance, charmingly simple. But policymakers have viewed the EU-Turkey deal through the lens of the last six months, amplified by concerns over Schengen, rather than the longer scope of the last (and next) five years. The complex and ever-shifting dynamics of migration flows, coupled with the well-documented limitations of existing protection capacity in a broad range of countries (not only Greece and Turkey) suggest the next crisis for the European Union will not be far behind.
Through the deal, leaders hope to send a message to smugglers and would-be asylum seekers beyond EU borders. But they will also send a message to other host countries—including Turkey—that providing protection to large populations is a fungible task: should governments face the prospect of domestic unpopularity, the obligation to protect becomes secondary. This, for overstretched countries such as Lebanon, is an important memo, and may bolster efforts in major host countries to make conditions untenable for their existing refugee populations, leaving refugees with fewer and fewer alternatives. In focusing upon the most visible perceived threat, the problem has once again been squeezed elsewhere rather than resolved.
Elizabeth Collett is Director of the Brussels-based Migration Policy Institute Europe and is Senior Advisor to MPI's Transatlantic Council on Migration. Her work focuses in particular on European migration and immigrant integration policy.
The Paradox of the EU-Turkey Refugee Deal
As European governments rapidly turn their attention to the implementation of the EU-Turkey agreement, observers have raised serious questions regarding whether the deal itself is legal, and more importantly, if it will even work. The 28 EU heads of state forged the March 18 deal with Turkey with their backs seemingly against the wall, and in an atmosphere of palpable panic. At its core, the agreement aims to address the overwhelming flow of smuggled migrants and asylum seekers traveling across the Aegean from Turkey to the Greek islands by allowing Greece to return to Turkey “all new irregular migrants” arriving after March 20. In exchange, EU Member States will increase resettlement of Syrian refugees residing in Turkey, accelerate visa liberalization for Turkish nationals, and boost existing financial support for Turkey’s refugee population.
For leaders the objective was clear: to find a way to prevent unchecked arrivals into the European Union. The fact that a group of 28 states with increasingly divergent interests was able to find consensus speaks to the level of concern that leaders have for their own domestic political futures in a context of rising populism.
However, the deal has also unveiled a paradox for a European Union that has spent several decades preaching its own high asylum standards to neighboring countries. To achieve its self-imposed goal—a significant reduction in arrivals and an increase in returns to Turkey—policymakers will have to drastically cut legal corners, potentially violating EU law on issues such as detention and the right to appeal. But if governments execute the agreement in conformity with international and European legal frameworks, few arrivals are likely to be returned, and the agreement risks becoming the latest in a long series of undelivered promises to exasperated publics for whom the complex legal conundrums of implementation are both meaningless and irrelevant.
While the former route is deeply tempting for policymakers, undermining Europe’s human-rights commitments in such a visible way may prove even more costly in the long-term than the current chaos in Greece. Leaders are clearly aware of the risk. In the days leading up to the final agreement, the European Union back-pedaled significantly from rhetoric about creating “a large-scale mechanism to ship back irregular migrants” to an assessment process respecting the asylum rights of each individual reaching Greece. A strong backlash from refugee and other human-rights organizations confirmed this, including the United Nations High Commissioner for Refugees (UNHCR) which highlighted long-standing international prohibitions on collective expulsion, or “blanket returns.” But the speed and unchartered nature of the implementation may mean rules are set aside in favor of expediency.
Thus, governments are taking a bet that the “messaging” of the EU-Turkey agreement, rather than its implementation, will suffice to deter arrivals without having to test its legality or viability in practice.
Can Anyone be Returned?
EU law currently allows for returns under two circumstances. First, individuals who do not apply or do not qualify for asylum are considered “irregular migrants” and are eligible to be returned to Turkey under an existing readmission agreement with Greece (pending the implementation in June 2016 of a readmission agreement between the European Union and Turkey). Second, individuals who submit asylum claims but are determined to have arrived from a country where they had or could have claimed protection (a “safe third country” or “first country of asylum,” the EU criteria for which include the right to nonrefoulement and the ability to both request and receive protection) are considered inadmissible to the European Union and eligible for return. Whether Turkey truly meets the criteria to be designated a safe country, as it has been under the deal, remains in question.
A look at both the profile of recent arrivals in Greece, and the substantive protection currently available in Turkey, suggests the promised individual asylum assessments will weed out only a small proportion for return as irregular migrants, suggesting the rest will fall under the “safe third country” or “first country of asylum” categories. In February 2016 alone, more than 57,000 migrants arrived on the Greek islands; 52 percent were Syrian nationals, while a further 41 percent were Afghan and Iraqi nationals (25 and 16 percent, respectively). All three populations include those with significant protection needs, but it remains unclear whether Turkey has sufficient safeguards in place (in principle and in practice) to meet these needs to EU standards. Ensuring all returns are legal according to EU law and the 1951 Refugee Convention would thus likely lead to very few being returned.
The current protection regime in Turkey can be broadly broken down into two categories: Syrian nationals, who are given temporary protection status (with limited rights including regulated access to the labor market), and everyone else, who has a right to international protection based on the Law on Foreigners and International Protection passed in 2014 (though this stops short of full refugee status). Perhaps more troublingly, the framework for providing such protection still exists primarily on paper rather than in practice. At the end of February 2016, Turkey’s caseload of asylum seekers remained more than 200,000, with just 38,595 having received protection: it will take time for the Turkish system to scale-up sufficiently to address this backlog, especially as the responsible agency is also scrambling to meet other deliverables created by the EU-Turkey deal, such as visa liberalization. This makes real access to protection for additional returnees—particularly non-Syrians—under the current EU-Turkey deal a distant prospect, and Greece would struggle to justify such returns.
The Turkish government, however, has stated that it sees its current protection framework, at least on paper, as sufficient and pushed back hard against the idea of further reform, including the full adoption of the Geneva Convention.
With respect to the Syrian population itself, nearly half of those taking the journey do so in order to join family members already residing in Europe, according to interviews conducted by UNHCR in February. Even with the EU-Turkey deal in place, asylum claims made in Greece still have to be considered according to the existing Dublin Regulation, suggesting that those with valid and verified family connections would be transferred to the appropriate EU Member State to complete asylum procedures rather than be returned to Turkey. In the wake of the March 18 summit, EU officials suggested the legal basis of returns of potential candidates for family reunification was still to be determined. Add to this the challenges of returning any children—who comprised 40 percent of all arrivals to Greece in February—given current reception conditions for minors in Turkey, and the prospects of returning significant numbers in the short-term under the current agreement look remote.
Some argue these challenges are minor, not least because the vast majority of those arriving in Greece, so far, have not filed asylum claims there—1,470 filed in February, or 2.5 percent of arrivals—with many hoping to move on throughout the European Union. However, the increased prospect of return to Turkey and the closure of the Western Balkans route may well change that dynamic. In addition, security concerns—notably terrorist attacks in Paris and Brussels—have shifted policy goals toward effective identification, registration, and management of those who are arriving, and not just on meeting protection needs.
Logistical Challenges
The challenges of meeting legal standards for the return of asylum seekers pales in comparison to the logistical challenge that has now been handed to the Greek government, in addressing both asylum and security imperatives. First, the government will need to put new legislation in place to allow for case-by-case assessments and appeals of those assessments, and to facilitate returns. This includes the prospect of judges from other EU Member States hearing appeals on the islands under Greek jurisdiction, while it is not clear Greek legislation currently allows for this.
Second, getting those judges, and other officials to the islands to effect the process will prove challenging for overstretched national administrations loathe to lose their personnel while their own asylum backlogs remain high. If Europe learned one thing during 2015, it is that pledges of officers and equipment do not materialize immediately, not least because bureaucracies take time to process transfers of human resources. Deals made in Brussels are quickly forgotten in national capitals.
In addition, building systems takes time: the EU registration hotspots in Greece took more than six months to materialize, due both to an absence of pre-existing infrastructure and a lackluster response from an exhausted Greek government. The process also revealed significant loopholes and information gaps in terms of registration and identification.
Finally, the transformation of hotspots into detention centers not only poses a logistical challenge, but also risks losing essential practical support from international and nongovernmental organizations. UNHCR, the International Rescue Committee (IRC), and Save the Children, among others, have all withdrawn services out of concern for the conditions and rights violations that will ensue. Without their support, the process loses both legitimacy and resources.
This, in turn, raises a more significant question about the evident ad hoc implementation of the EU-Turkey deal. Much of the process is being worked out on the ground by officials who are still unclear about the legal ramifications of their decisions. This may be deliberate: to increase the numbers returned, policymakers may have to feign a reality that does not currently exist, not just with regard to conditions in Turkey, but also with respect to offering arrivals a real and informed opportunity to make an asylum claim.
In doing so EU leaders would be making a calculated risk. It will take time for a case to reach either the Court of Justice of the European Union (CJEU) or the European Court of Human Rights (ECtHR) to find the processes unlawful. The scheme has already been declared “extraordinary” and “temporary,” and individuals summarily returned are unlikely to have legal recourse. The temporariness is also a political reality—should visa liberalization not materialize at the end of June, the European Union will be less likely to find a willing partner in Turkey. Thus the scheme has its own built-in detonator, but one with brutal consequences for those arrivals who are caught up in the meantime.
Looking Down the Road
The agreement’s broader implications are likely too politically remote to seem real to policymakers under pressure. Much has been made of the likelihood that smugglers will diversify and adapt, and that the drivers impelling movement are not diminishing. Cessation of the en masse smuggling route across the Aegean may also push up prices for other paths, diminishing demand, while increasing danger. Leaders may accomplish their goal of reducing arrival numbers in Greece, but find themselves experiencing déjà vu. In investing huge political capital towards such a localized area, there is a reasonable risk that, within a year, Europe will have come full circle, with renewed flows across the more dangerous route across the Central Mediterranean. Ironically, one of the premises behind shutting down the Libya route in 2015 was to reduce the deeply damaging danger and death, and confine mixed flows to the less risky routes across the Eastern Mediterranean.
The reality is that EU leaders left themselves too little time to do many of the things that could have avoided such drastic deal-making with Turkey, whether offering greater assistance in countries of first asylum, or fully supporting the development of the asylum system in Greece. The opportunity to convince Turkey to develop a full protection system was lost in the exigencies of the summit negotiations, though there remains an opening to significantly bolster Greece’s ability to receive, register, and process claims. The opportunity also exists to pilot a new idea that has emerged from this deal: the concept of a collaborative, EU-led fast-track assessment system that can operate at the European Union’s external borders. Such a system, composed of competent adjudicators and integrating robust, early legal advice for applicants, might actually serve both the protection goal—offering asylum seekers a quick and credible assessment of their claim—as well as the migration management goal, by swiftly disaggregating the viability of claims and effecting legitimate returns. However, the haphazard implementation approaches of the last year suggest this opportunity too will be squandered, in a context where detail has become anathema to politics.
Displacing the Problem
The idea of returns coupled with large-scale resettlement is beguiling and, from a distance, charmingly simple. But policymakers have viewed the EU-Turkey deal through the lens of the last six months, amplified by concerns over Schengen, rather than the longer scope of the last (and next) five years. The complex and ever-shifting dynamics of migration flows, coupled with the well-documented limitations of existing protection capacity in a broad range of countries (not only Greece and Turkey) suggest the next crisis for the European Union will not be far behind.
Through the deal, leaders hope to send a message to smugglers and would-be asylum seekers beyond EU borders. But they will also send a message to other host countries—including Turkey—that providing protection to large populations is a fungible task: should governments face the prospect of domestic unpopularity, the obligation to protect becomes secondary. This, for overstretched countries such as Lebanon, is an important memo, and may bolster efforts in major host countries to make conditions untenable for their existing refugee populations, leaving refugees with fewer and fewer alternatives. In focusing upon the most visible perceived threat, the problem has once again been squeezed elsewhere rather than resolved.
Elizabeth Collett is Director of the Brussels-based Migration Policy Institute Europe and is Senior Advisor to MPI's Transatlantic Council on Migration. Her work focuses in particular on European migration and immigrant integration policy.
Moving Europe Beyond Crisis page