Blog post by Vasiliki Apatzidou (University of Groningen, University of Malta), Pupul Lama (University of Groningen, Uppsala University) and Constanzza Sermeno (University of Groningen, University College Dublin)

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Introduction

 

In March 2016, the European Union (EU) took a crucial decision to come into an agreement with Turkey by signing the EU-Turkey Statement in order to secure its external borders and combat irregular migration. The Statement aimed to prevent the arrival of irregular migrants in Europe by setting a 1:1 scheme or a one-for-one policy. Under this deal, every third-country national (hereafter TCN) arriving irregularly to the Greek islands would be returned back to Turkey. In exchange for every Syrian refugee returned from the Greek islands to Turkey, another Syrian refugee from Turkey would be resettled in the EU by taking into account the UN Vulnerability Criteria.  

 

The Statement’s politicised nature temporarily guaranteed a drastic decline in the influx of refugees and migrants arriving in Greece; however, it failed to put an end to the now-protracted migration ‘crisis’ in the EU. The troubling externalisation of migration control through increased deterrence and crackdown measures at the external borders presents a grim reality and undermines the core values and responsibilities of the EU concerning the protection of human rights. In this regard, the present article highlights the socio-legal implications and ramifications of the EU migration policy on externalisation by critically examining the EU-Turkey Statement. Additionally, the article discusses the externalisation practices from the perspective of human rights in accordance with international standards. Lastly, the authors reconsider the measure of policy success of the Statement and aim to contribute to a broader understanding of the EU migration policy framework.  

 

Background

 

Since 2015, more than one million people have crossed the borders to Europe, some by sea through the Greek islands, others through the Balkan route to arrive in Central Europe. This was a situation of displacement induced by conflicts, political instability, impoverishment, gross violation of human rights and the fear of persecution compelling millions of migrants and asylum-seekers to travel under challenging circumstances. Such persons crossed numerous State borders in an attempt to enter Europe either in search of international protection under the international refugee law or in search of a better life.  

 

These mixed migration flows sparked a situation of emergency as the EU coped with irregular migration at its external borders, primarily in Greece, Italy and Spain. Greece particularly struggled to keep pace with the high pressure of asylum applications due to an unprecedented inflow of new arrivals from Turkey, with little or no response from the larger part of the EU. However, seeing the alarming situation in Greece, the EU reversed their initial open-border approach and externalised their migration policies by introducing a wide range of stringent measures and practices to prevent people from arriving in the EU irregularly.

 

The measures adopted by the EU include turning Greece from a transit zone to a buffer zone, leaving thousands of refugees and migrants stranded in the region. The EU also increased Frontex operations and NATO presence in the Aegean Sea, which was followed by the closure of the Balkan route. The conclusion of the EU-Turkey deal came right after. This kind of cooperation acted as another step in the direction of placing migration management at the heart of EU’s external relations.

 

The EU-Turkey Statement

 

The Statement between the EU and Turkey entails two important obligations. Firstly, Turkey agreed to undertake the responsibility of preventing refugees and migrants from arriving in Europe. In exchange, the EU allocated billions of euros to Turkey as financial support for the reception of refugees, including the returnees, in their territory. As an incentive, the EU also promised to speed up the visa liberalisation process for Turkish citizens in the Schengen zone.  

 

Secondly, the Statement established a 1:1 policy where irregular arrivals in the Greek islands would be immediately returned to Turkey, while those applying for asylum in Turkey would have a higher likelihood of being accepted and resettled in the EU. The crux of the scheme was that in exchange for every Syrian returned from the Greek islands to Turkey, another Syrian from Turkey would be resettled in the EU. It is noteworthy to mention that in the Statement there was no reference to the situation of human rights in Turkey, indicating that Turkey is considered a safe-third-country.  

 

With regard to the above mentioned obligations, firstly, there was ambiguity regarding their legal nature on whether the Statement was a binding international text concluded between EU and Turkey or an informal Statement signed between EU Member States and Turkey. Secondly, this Statement raised some questions on the ability of Turkey to deliver assistance to the concerned people. Moreover, the failed coup d’état against the current Turkish government in 2016 resulted in intensified crackdown measures carried out by the authoritarian government that were fundamentally at odds with the safeguard of human rights of TCNs.  

 

Upon implementation, the Statement signalled a new era marked by the EU’s efforts to halt the migratory flows to Europe, outsource the protection responsibility and externalise the issue of border management and migration control. The implementation of the Statement raised many speculations.  

 

On the one hand, the EU believes that the agreement was a success due to the drastic decrease in the arrival of migrants from Turkey, therefore, satisfying the overall intent of the Statement. However, on the other hand, there are mounting concerns raised by human rights organisations regarding severe violations of human rights and inadequate international protection for the incoming TCNs.  

 

Firstly, by securitising the external borders, the EU amplified the vulnerability of the TCNs and triggered them to resort to dangerous routes operated by smugglers and traffickers. Secondly, the outsourcing of border management as the EU’s externalisation policy shifted the protection responsibility of one of the world’s most contemporary humanitarian crises to a State with questionable capacity to ensure adequate protection and safeguard of the human rights of TCNs. Thirdly, the EU attempted to externalise its legal obligation to Turkey by means of informal mechanisms and press statements instead of standard legal procedure that is administered by the Parliament. Finally, the EU-Turkey Statement demonstrated their willingness to absolve themselves from judicial scrutiny and flout international obligations related to exercising non-refoulement principle and granting asylum and protection to those fleeing conflict, persecution and serious violation of human rights.  

 

Is Turkey a Safe Country?

 

Whether Turkey is a safe country is highly disputed. As it is well known, Turkey is a conditional signatory to the 1951 Convention on the Status of Refugees and its 1967 Protocol, and has ratified the Convention with geographical limitation. Due to this limitation, persons originating only from Europe can seek asylum in Turkey, whereas for other TCNs, Turkey is not legally obliged to grant asylum.  

 

For instance, Syrians are granted ‘temporary protection’ in Turkey and do not receive a permanent status. This has a number of serious implications in the everyday life of Syrians in Turkey such as their denial to access the labour market, education and legal housing.^[1] Furthermore, the situation in Turkey has deteriorated into a violent environment against the ‘temporary residents‘ and re-admitted non-Syrians. The non-Syrian nationals are being discriminated against and detained after their return to Turkey, thereby further complicating their access to asylum and legal assistance. Moreover, the Law on Foreigners and International Protection (LFIP) foresees that non-Syrians are only eligible for ‘conditional’ status.  

 

Illegal push-backs to Syria and other countries have quite often been referred to by civil society actors in Turkey. Amnesty International in a report published in 2016 revealed that after the conclusion of the Statement, the Turkish authorities stopped the registration of Syrian refugees at its border and many were sent back to war-ravaged Syria. In 2018, Human Rights Watch released a report documenting the shooting of Syrians attempting to enter Turkey using smuggling routes. The report also documented the interception of Syrians at the Turkey-Syria border as of December 2017, with subsequent deportation to Idlib governorate in Syria. These deportations of Syrians and the violations of the principle of non-refoulement have been reported by numerous sources in the period 2017-2018.  

 

In this regard, the Turkish government has undermined the rule of law and democracy and set the country on the path of authoritarianism. Nevertheless, the EU, being cognizant of this, reached an agreement with Turkey to prevent millions of people from seeking international protection and asylum in the EU, regardless of the alarming reports of human rights abuses in Turkey.  

 

The Situation in the Greek Islands

 

Measuring the implications and ramifications of the Statement requires not only an analysis of the situation in Turkey, but also an analysis of EU’s efforts in mitigating the refugee crisis at its borders. The direct consequence with respect to the Greek hotspots was that a person requesting asylum in the five hotspots in the islands (Lesvos, Chios, Samos, Kos and Leros) would have a geographical restriction and would not be able to move to the mainland until their asylum application is examined.  

 

Moreover, Syrians would have to undergo admissibility interviews where the Greek asylum service assesses whether Turkey is a safe country, and if the outcome is negative, only then the asylum service processes their claim on its merits. In legal terms, the new scheme that was created after the agreement encouraged discrimination on grounds of nationality. This caused thousands of migrants and refugees to be stranded in the Greek islands, testing the readiness of the authorities to take swift actions to meet the urgent needs and the situation of over-crowdedness.  

 

Additionally, the poor conditions at the Greek hotspots outline the deteriorating humanitarian situation wherein there is a failure to provide dignified and humane living conditions to those stranded in the islands awaiting their legal procedures. Therefore, six years on the EU has not successfully safeguarded the rights of people seeking asylum in Europe.  

 

Six Years on – Failure or Success?

 

Does the drastic drop in the arrivals of refugees and migrants to the Greek islands indicate that the EU-Turkey Statement was a success? The article states that the policy success cannot be measured on the basis of numbers i.e. how many new arrivals were intercepted, but should rather be measured on the basis of the human rights consequences since the implementation of the EU-Turkey Statement. So, it is essential to regulate and monitor human rights violations, measure the concerned population’s access to dignified living conditions, safe and legal assistance, and the right to seek asylum and international protection.  

 

Issues concerning forced migration and externalisation require critical steps towards rational border management at the EU level. To elaborate, externalisation and border management ought to be integrated in the EU agenda, along with the demand for proportionate distribution of refugees and asylum seekers in all EU Member States, with consideration of their best interests under international treaties.  

 

According to international law, ‘no State can avoid responsibility by outsourcing or contracting out its obligations’. Thus, EU’s cooperation with Turkey does not absolve them from performing their general duties and international obligations in practicing the principle of non-refoulement based on international customary law and other applicable international Conventions such as the Refugee 1951 Convention, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the European Convention on Human Rights.  

 

Moreover, the Statement has led to the allocation of funds in the construction of fences between Greece and Turkey and between Turkey and Bulgaria with the intention of ‘remote control’ and denying access to the European asylum system. Contrary to investing in protecting and promoting refugees’ integration, the EU increased the operations of Frontex at the sea and land borders and established the EU Emergency Trust Fund for Africa to promote development as a strategy for better migration management.^[2] With the adoption of such restrictive policies that aim at limiting access to the EU territory, the incidences of deaths at sea and circumstances of human trafficking are bound to perpetuate a cycle of human rights abuses.  

 

Hence, the Statement has failed to safeguard the human rights of those approaching the EU in search of international protection and better opportunities for life. Conversely, the EU has also undermined the responsibility of burden-sharing by allowing Greece to single handedly manage the surge of new arrivals. To further emphasise, the EU externalisation of the borders jeopardises its autonomy, diminishes its constitutional legitimacy, sacrifices the rule of law in Europe and neglects its capacity to respond to the humanitarian crisis happening at its external borders.  

 

Due to the reasons mentioned above, the EU needs to reinforce human rights in good faith and reject tools of responsibility deflection and externalisation strategies. This includes territorial protection of the incoming migrants and refugees, intra-EU solidarity and enhanced instruments for effective responsibility-sharing. Further, it is imperative to challenge the structural nature and legitimacy of the contemporary mechanisms of externalisation that risks diminishing accountability to the affected population.  

 

Moving Forward

 

The systemic externalisation by the EU exacerbates the vicious cycle of coercion, abuse and secondary movement, as witnessed by the displaced population, by denying entry and pushing them towards more dangerous routes. Additionally, by outsourcing the management of migration flows to Turkey, the EU effectively exercises responsibility-shifting instead of responsibility-sharing by using the context of externalisation to ‘regulate’ migration control.  

 

The article underlines the arguments revolving around externalisation by bringing forth significant accounts of core violations of human rights, international and refugee law commitments since the implementation of the EU-Turkey Statement. Hence, the present article concludes the examined Statement as a failed policy choice on the account that the EU displayed incompatibility and unwillingness in guaranteeing its principal objective of safeguarding human rights under international refugee law, European and human rights law.

 

The criticism of the EU-Turkey Statement still remains relevant and topical as the latest Greek Ministerial Decision clearly designates Turkey as a safe country. On 7 June 2021, the Greek government announced its decision to list Turkey as a ‘safe third country’ for asylum seekers coming from Syria, Afghanistan, Pakistan, Bangladesh and Somalia. This means that applications from nationals of one of the specified countries who enter Greece via Turkey will be considered inadmissible based on the assumption that Turkey is a safe country for them. Six years after the conclusion of the EU-Turkey Statement and the criticism that has taken place regarding the designation of Turkey as a safe country, the latest Greek decision once again undermines and outsources EU’s protection responsibility to a country where the human rights situation is highly contested.  

 

 

^[1] Batalla Adam L,‘The EU- Turkey Deal one year on: A delicate Balancing Act’[2017] 52 (4) Italian Journal of International Affairs.

^[2] Isaac K (2018) ‘A Faustian pact: Has the EU-Turkey deal undermined the EU’s own security? Comparative Strategy, 37(3)  

 

 

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