Hundreds of used life vests lie in the hills above the town of Mithymna in Lesbos. Photo by Getty Images.

Hundreds of used life vests lie in the hills above the town of Mithymna in Lesbos. Photo by Getty Images.

According to last Friday’s EU-Turkey statement, the return of refugees and migrants to Turkey will be implemented in compliance with international and EU law. This may prove more problematic in reality.

As of 20 March the EU plans to send back all new arrivals to Greece from Turkey with an exchange system in place for Syrians only: for every Syrian returned another will be resettled to the EU from Turkey. These returns are envisaged as a ‘temporary and extraordinary’ measure that will nevertheless refrain from any ‘collective expulsion’, behaviour that is expressly prohibited under international law. The EU is banking on the proposed returns reducing the movement of refugees and migrants into the EU. The legality of the returns arrangement, though, is questionable, leaving it vulnerable to legal challenge.

Reconciling the returns arrangement with EU and international refugee law

According to the EU-Turkey statement, migrants arriving in the Greek islands will be registered and have their asylum applications processed by the Greek authorities in accordance with the Asylum Procedures Directive. However, ‘migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey’. Under the Asylum Procedures Directive, which forms a key element of EU asylum legislation, applications considered ‘inadmissible’ can be rejected without any substantive consideration of the asylum claim, thus speeding up the asylum process and paving the way for removals.

The reference to ‘inadmissible’ asylum applications points to likely reliance by the EU on ‘safe third country’ and ‘country of first asylum’ concepts as the legal basis for removing refugees, an approach previewed in a Commission communication of 16 March. But neither ‘safe third country’ nor ‘country of first asylum’ are concepts found in the UN Refugee Convention, the foundation of international refugee law. Instead, these notions are a product of the EU’s asylum system, aimed at transferring responsibility for refugees to another country on the basis that it has or will provide protection for the refugee in question. As a matter of international law, such removals are only defensible if circumstances are considered on an individual basis, effective protection is available in the country of destination and adequate procedural safeguards are available in both the inadmissibility process prior to removal and in the asylum system of the destination state.

Questions of procedure

The EU and Turkey appear to be confident that they can establish rapidly both systems and conditions to meet requirements under international and EU law. But daily arrivals in Lesbos, the main entry point for refugees in Greece, have hit over 2,000 in the last few months and Greek authorities have been struggling to manage registration and first response for refugees. It is questionable whether the pledged EU support will be sufficient for the Greek authorities to secure the necessary resources, both human and financial, and expertise essential for the additional strain that will be imposed on their asylum system. And appeals, the right to which is guaranteed under the Asylum Procedures Directive, may frustrate ambitions for rapid removals.

Questions of protection

Even if the procedural requirements are met, international and EU law both require consideration of the quality of protection available to returned refugees (and similar considerations are required under the European Convention on Human Rights). Turkey is hosting a sizeable Syrian refugee population, over 2.5 million. Concerns persist regarding conditions refugees face (for example, in relation to labour market access), including compliance with standards of international refugee law. There have been reports of pushbacks of Syrian refugees at the Turkish-Syrian border in violation of the principle of non-refoulement under international law, which bans the forcible return of refugees to situations where their life or freedom would be under threat.

Moreover, Turkey maintains a geographic restriction to its ratification of the UN Refugee Convention, confining its obligations under this treaty to individuals fleeing events in Europe. This restricted application of the Convention may not sit easily with the test in the Procedures Directive for determining whether a particular state is a ‘safe third country’. Even if Turkey were to provide to refugees similar rights to those outlined in the Convention, there is a legal argument that this test is only satisfied if refugee status actually operates as a consequence of Convention obligations.

Turkey’s restricted adherence to the Refugee Convention may be less of an obstacle in returns that seek to rely instead on the ‘first country of asylum’ concept. Such cases, nevertheless, would require careful assessment of whether the individual concerned had enjoyed rights consistent with those set out in the Refugee Convention during his or her stay in Turkey.

Wider implications

The 22 March statement from the Office of the UN High Commissioner for Refugees (UNHCR) on the deal indicates the operational and legal challenges that lie in store for Greece and the EU. It warned that the new arrangements are being put in place without adequate safeguards and that the transformation of certain reception centres in Greece to places of detention has already forced UNHCR to suspend certain activities.

Aside from these challenges, the EU’s approach risks sending a dangerous signal to refugee-hosting countries in less prosperous regions of the world. It does not appear to acknowledge the relative pressure that the EU faces in the context of a global displacement crisis, with global refugee numbers at a 20-year high of over 15 million. The vast majority of refugees are hosted by countries in developing regions, with many refugees finding themselves in situations of protracted displacement. Reliance by the EU on a scheme that emphasises removal of refugees to a country already struggling with a sizeable refugee population may have unforeseen implications for the principle of international solidarity in responding to refugee emergencies and access to asylum.

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