On 18 March, the EU and Turkey agreed a deal in which, for each Syrian migrant returned to Turkey from Greece, another will be resettled legally in the EU. Vincent Chetail, Professor of International Law and Director of the Global Migration Centre, examines the nature of, and prospects for, the deal.

What are the key points of the EU-Turkey agreement?

The EU and Turkey agreed on three main points. First, “all new irregular migrants” will be returned to Turkey. However, such a return is limited to migrants arriving on Greek islands, not those coming through other routes or those intercepted at sea. Second, “for every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU.” Third, in exchange for this deal, visa requirements for Turkish citizens are to be lifted by the end of June 2016, provided that Turkey fulfils all benchmarks required for such a lift, which is not obvious. The EU also agrees to “re-energise” the accession of Turkey, but “without prejudice to Member States’ positions”, as several Member States are firmly opposed to any adhesion of Turkey.

Vincent Chetail, Professor of International Law

The more concrete terms of the deal are, of course, financial: the EU will speed up the disbursement of the initially allocated EUR 3 billion for financing projects on education, infrastructure and food for refugees in Turkey. Then, an additional EUR 3 billion will be paid up to the end of 2018. Exchanging refugees against financial assistance is not new but remains morally questionable; this last agreement exemplifies the policy of containment carried out by the EU for the last several years in order to avoid its responsibility towards refugees.

Is this agreement compatible with international law?

The agreement underlines that returns “will take place in full accordance with EU and international law, thus excluding any kind of collective expulsion”. Accordingly, “all migrants will be protected in accordance with the relevant international standards” and “any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive.” This however raises the question of how Greek authorities will be able to undertake an individual examination of all asylum claims, given they have failed to do so during the last few years. Particularly strong assistance from the EU will thus be crucial to help Greece fulfil its international obligations.

Furthermore, individual assessment of asylum requests, which includes a right to lodge an appeal before a court, can take a long period of time. During the asylum procedure, most of these applicants will be maintained in camp and detention centres, thus transforming Greece into a vast ‘open’ prison for victims of war and persecution. Are we ready to accept this? Greece has been condemned several times by the European Court of Human Rights for the very poor conditions of detention of asylum-seekers. Making Greece a new Calais raises legal and operational challenges as well as ethical questions about the responsibility of the EU and its very legitimacy to promote the rule of law on its territory.

Despite such questioning, diplomats agreed on the final text without thinking about its practical repercussions. It is true the asylum procedure can be accelerated in case of removal to a so-called “safe third country”, a well-known – albeit controversial – notion of refugee law. However, even in such a case, the EU Asylum Procedures Directive still requires an individual examination of the safety of Turkey for that particular applicant – an affirmation that can be contested before a court by each asylum-seeker.

Is Turkey a “safe third country” under refugee law?

Turkey is obviously not the best candidate; commentators and NGOs frequently criticise the autocratic drift of the regime, violations of freedom of the press and other abuses against political opponents. Even excluding these well-known parameters, Turkey is not legally speaking a safe third country under the EU Asylum Procedures Directive for three main reasons.

Firstly, even if EU diplomats appear to have totally missed this point, Turkey has ratified the 1951 Refugee Convention and its 1967 Protocol with a very substantial restriction: only Europeans can claim refugee status. Nonetheless, with regard to Syrians, the Turkish government has recently relaxed its domestic law with the adoption in October 2014 of a Regulation on Temporary Protection and, in January 2016, it finally allowed Syrians to enter the labour market. The effects of this new regulation remain to be seen in practice and it does not apply to all refugees from other countries (such as Iraq, Afghanistan and Eritrea), who represent a substantial number of asylum-seekers in Greece. More importantly, because of its very limited ratification, Turkey is not internationally bound to treat non-European refugees in accordance with the Geneva Convention, as required by Article 38 of the Asylum Procedures Directive to be considered as a safe country.

Secondly, according to this last provision, there must be no risk of execution, torture, inhuman or degrading treatment in Turkey. From this angle, the recurrent terrorist attacks perpetrated on the Turkish territory, and the armed conflict against Kurds, represent another predicament for considering it a safe country. This means, in practice, all asylum-seekers with Kurdish origin should be granted asylum in Greece. Moreover, the internal conflict between the Turkish army and Kurdish rebels may pose threats to the safety of refugees in the southeast of the country.

Thirdly, it must also be established for each individual that Turkey will not remove asylum-seekers to a country where there is a risk of persecution, torture, inhuman or degrading treatment. Although Turkey is hosting a substantial number of Syrian refugees - 2.7 million - Human Rights Watch and Amnesty International denounced in November and December 2015 an increase in deportations, push-backs, arbitrary detention and physical violence against asylum-seekers trying to cross the Turkish southern border from Syria or Iraq. In sum, while the safety of a third country must be always assessed on an individual case-by-case basis, Turkey does not, on a general level, fulfil most of the conditions required by international and EU law. In such a case, it will remain the responsibility of Greece to assess asylum requests.

What about the deal “one Syrian returned to Turkey, one Syrian resettled in the EU”?

Treating refugees like cattle is not a decent answer for tackling this humanitarian tragedy. This approach will bring indelible shame on the EU, so prompt to give human rights lessons abroad, but unable to comply with its teaching in its own territory for this most vulnerable group of persons. Distinguishing Syrians from other persons in need of protection on the basis of their nationality is contrary to Article 3 of the Refugee Convention and the principle of equality under EU and international law (prohibiting discrimination on account of country of origin). Furthermore, the resettlement of Syrian refugees from Turkey will not occur in addition to existing commitments, but will be limited to the previously agreed resettlement quota of a maximum of 72,000 persons. The allocation of resettled refugees will be decided by Member States on a purely voluntary basis. Needless to say, this deplorable exchange of refugees between the EU and Turkey will rapidly show its political and operational limits.

What to do?

The EU must first of all learn from its own mistakes. Since 1999, it has established a Common European Asylum System based on a myriad of EU Directives, but this sophisticated system does not work. This is not due to the current “crisis”. It simply reflects the systemic drawbacks of EU asylum law and policy. These shortcomings are well-known and they are detailed in a book I recently co-edited as a result of a joint research project between the Graduate Institute’s Global Migration Centre and the Academic Network for Legal Studies on Immigration and Asylum in Europe: Reforming the Common European Asylum System: The New European Refugee Law.

The current “crisis” is a crisis of the EU more than a refugee crisis. It challenges the raison d’être of the Common European Asylum System as an integral component of EU construction. As acknowledged by many refugee law experts over the last decade, the Dublin Regulation must be reformed in depth, and the principle of solidarity among Member States must be implemented in accordance with Article 80 of the Treaty on the Functioning of the European Union. Additionally, a binding mechanism of resettlement and humanitarian visas must be implemented for the most vulnerable refugees living in neighbouring countries. Finally, humanitarian assistance must be delivered not only to Turkey but to all neighbouring states of Syria, including Lebanon, where refugees represent a quarter of its population.

More fundamentally, there is a vital need for a sound, rational and objective assessment of the current crisis. The panic spread by politicians and mass media is counterproductive and does not reflect the situation. The spectre of a mass influx to the EU remains highly questionable and eminently relative. According to Eurostat, 1.2 million asylum-seekers were registered in the EU last year, representing only 0.2% of the total EU population. Turning our backs on the protection needs of this modest proportion of victims of war will be remembered as another missed opportunity in the still long history of the 21st century.  

Additional information can be found in Le message des Européens aux réfugiés,  Le Temps, 23 March, Frédéric Koller.