EU-Turkey plan for handling refugees is fraught with legal and procedural challenges

Thursday, 10 March 2016

Authors: Sergio Carrera and Elspeth Guild

Series: CEPS Commentary

EU-Turkey relations in the scope of the ongoing refugee crisis were at the heart of the European Council meeting of 7 March 2016. Among the set of initiatives proposed, the following two have attracted the most attention:

First, for every Syrian readmitted by Turkey from the Greek islands, another Syrian from Turkey would be resettled in an EU member state. This has come to be known as the ‘one for one’ resettlement approach. 

Second, all new irregular migrants and asylum-seekers crossing from Turkey to the Greek islands would be returned to Turkey without offering any guarantee of protection.

This plan raises three main legal issues relating to human rights obligations of the EU member states and two procedural issues.

First, EU law prohibits the collective expulsion of foreigners. This prohibition is found in Art. 19 EU Charter of Fundamental Rights. This article needs to be read in conjunction with the European Convention of Human Rights (ECHR) and the decisions of the European Court of Human Rights (ECtHR).

That court has argued that when a state has taken responsibility for irregular migrants and asylum-seekers, for example, by saving them by taking them on board one of their ships, the ECHR applies. This means that any attempt to put them ashore in a country that is not safe for them without giving them an opportunity to apply for international protection constitutes a collective expulsion. This judgement has been upheld in the 2012 judgment Hirsi Jamaa & ors v Italy. Importantly, the violation can take place even within the territorial waters of another state, and therefore applies extraterritorially. Thus, the proposed ‘solution’ of forcibly returning to Turkey individuals who are seeking access to Europe without permitting them to seek asylum is already unlawful.

Second, to return a person seeking international protection to Turkey without an individual and meaningful consideration to their claim to asylum or at least giving them the opportunity to make their asylum claim in an EU state breaches the internationally recognised duty of non-refoulement. Thus, if a Syrian tries to apply for asylum in an EU state but is sent back to Turkey without any consideration of his or her claim, this will constitute a fundamental human rights violation. Only if Turkey is indeed a ‘safe third country’ for the Syrian will the EU state avoid the charge of breaching its non-refoulement duty. According to the UN Refugee Agency (UNHRC), the term ‘safe third country’ applies to states that are not producing refugees or where refugees can enjoy asylum privileges without any danger.

A third legal issue posed by the plan is the question of whether Turkey constitutes a safe third country for refugees. Turkey ratified the 1951 Geneva Convention and acceded to its 1967 Protocol, but it retained a geographical limitation that exempts it from extending the Convention to cover non-European refugees.The country is a signatory state of the ECHR, but the ECtHR has filed multiple judgments against it for violations of the prohibition on torture, inhuman and degrading treatment and punishment including but not limited to its treatment of refugees. This situation poses a fundamental challenge to EU initiatives intending to declare Turkey a ‘safe third country’.

While the UNHCR is working closely with Turkey to assist in providing relief to refugees there, this is not a substitute for consideration of a person’s individual and unique claim to asylum. It is therefore understandable that that UNHCR has declared that it is not a party to this agreement “nor privy to all the details and modalities of implementation”.

Further, the ECtHR has held that leaving a person in a state of destitution (in particular an asylum-seeker whom the state itself makes vulnerable by not allowing him or her to work or to receive social benefits) is inhuman and degrading treatment under the ECHR and furthermore provides legal grounds why the person must not be sent back to that state. These arguments have been upheld in the 2011 case M.S.S. v Belgium and Greece, which was the judgment that ended ‘Dublin returns’ to Greece as from 2011. If the situation of refugees in Greece is dire, then that in Turkey is also unsatisfactory for anyone who does not have substantial personal resources. Thus, returning people to Turkey without giving them an effective hearing and a proper determination of their asylum claims is likely to be a violation of the ECHR.

The EU-Turkey deal also raises two procedural issues that are intrinsically related to the practical consequences if EU states decide not to respect their human rights obligations sketched earlier:

i) Any person who tries to seek asylum in an EU state and who is sent directly back to Turkey has probable cause to lodge a human rights claim against the member state. If he or she can procure legal advice (and there are a number of legal NGOs that have been very active in Turkey assisting people with claims about human rights abuses), that person can commence an action against the EU state responsible (or a number of them if they have acted in consort). While the person will normally be required to exhaust domestic remedies in the member state (not Turkey), exceptions can be made by the court where the remedy is not an effective one. This is likely to be the case for a number of member states, as evidenced by the growing number of infringement proceedings initiated against them by the European Commission for failure to correctly implement the EU’s asylum procedures Directive. So the issue is likely to be the subject of a petition to the ECtHR.

Although procedures in the ECtHR are slow and it can take years before a case is heard, the court has a power under Art. 39 of its procedural rules to issue the equivalent of an injunction against a state. A Rule 39 (Interim Measures) request is legally binding on the state to which it is addressed. As soon as a petition has been lodged before the court, it can make a Rule 39 request that the respondent state not expel or otherwise remove the individual until such time as the court itself has had a chance to consider the matter (in a number of years’ time).

ii) The state is obliged to obey. If the state complies only in the one specific case or another state tries to remove someone in the same situation, the court will not hesitate to issue as many Rule 39 requests as necessary until the states start to comply as a general rule. It has done this in several cases related to removals of asylum-seekers fearing persecution, ill-treatment or other serious harm. This has included cases of removing people to Somalia when it issued dozens of Rule 39s when a few states continued to try to get around the rules and expel Somalis. 

What this means is that there is not necessarily going to be a substantial period of time between the first expulsions/removals of Syrians to Turkey and legal action before the ECtHR. The time element is unlikely to be very much in favour of those member states that are keen to make Syrian refugees the problem of Turkey alone.

The EU-Turkey proposal suggests that for every Syrian refugee returned to Turkey because he or she was intercepted travelling irregularly to the EU, another Syrian (but not the same one) will be resettled from Turkey to the EU by air. The idea is also at odds with the prohibition of non-discrimination based on country of origin laid down in Art. 3 of the 1951 Geneva Convention. The ‘one in-one out’ resettlement approach is clearly a complicated and worrying suggestion and one that is incompatible with EU law.

The idea that one Syrian can be substituted for another is deeply inimical to established European traditions and norms in human rights, in which the individual circumstances of each person is the key factor. Moreover, a plan under which it is possible to penalise one Syrian for seeking to get to the EU and at the same time to privilege another who has not tried to do so is fundamentally incompatible with the human rights foundations of European integration.

 

CEPS Commentaries offer concise, policy-oriented insights into topical issues in European affairs. The views expressed are attributable only to the authors in a personal capacity and not to any institution with which they are associated.