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Q&A: Why the EU-Turkey Migration Deal is No Blueprint

On March 18, 2016, the European Union signed an agreement with Turkey to stem migration and refugee flows to Greece. In 2015, over 850,000 people reached Greek islands by boat from Turkey. The majority were Syrians, Iraqis, and Afghans.

The EU-Turkey deal commits Turkey to accept the return of all asylum seekers who travelled through Turkey in exchange for billions of Euros in aid, visa liberalization for Turkish citizens, and revived negotiations for Turkish accession to the EU. The €3 billion funding is designated for projects to improve the lives of refugees as well as of host communities in Turkey. The deal also provides for the resettlement of one other Syrian refugee from Turkey for each Syrian returned to Turkey under the deal.

In a progress report on the implementation of the EU-Turkey agreement, published on September 28, the European Commission claimed that the deal is delivering results: arrivals from Turkey to Greece across the Aegean are down, millions of Euros have been disbursed to improve access to education and healthcare in Turkey, and returns and resettlement have been undertaken. Indeed, the commission and leaders of some member states cite the EU-Turkey deal as a model for agreements with other major transit countries.

In reality, the EU-Turkey agreement has set a dangerous precedent by putting at risk the very principle of the right to seek refuge. Combined with the closure of the Western Balkan route to EU countries, it has contributed to severe overcrowding in substandard and unsafe detention centers and camps on the Greek islands. The absence of clear policy to mitigate the dramatic impact of the deal on the refugees and asylum seekers warehoused in Greece has caused immense suffering for asylum seekers.

What is wrong with the EU-Turkey deal?
The agreement rests on the flawed premise that Greece and the EU need not evaluate the individual protection needs of those arriving via the Aegean Sea on the grounds that Turkey is a “safe third country” or “safe first country of asylum.” This is not, however, the case.

Turkey ratified the 1951 Refugee Convention, but maintained an important geographic limitation that excludes any non-Europeans from full refugee status. Syrian asylum seekers can only benefit from a temporary protection regime in Turkey, allowing them to live there, but not granting them the convention’s full protection. They continue to face many obstacles to registration, access to education, employment, and healthcare. A January move by the Turkish government to allow Syrians to apply for work permits, while a positive step, has benefitted only a few thousand people. Asylum seekers from other countries, such as Iraq and Afghanistan, do not even have access to temporary protection status in Turkey. And while Turkey has been generous in hosting over 2.7 million Syrian refugees, it has effectively sealed its border with Syria and has shot at and forcibly returned women, men, and children fleeing violence, persecution and human rights abuse in that country.

The EU-Turkey deal sent a message that protection for refugees can be commodified, outsourced, and deflected. It arguably serves as cover to beleaguered countries that have been hosting hundreds of thousands of refugees for years to withdraw their hospitality. In May, the Kenyan government announced plans to speed up the repatriation of Somali refugees and close the Dadaab camp, the largest refugee camp in the world, citing Europe’s policies to turn away Syrian refugees. Since July 2016, Pakistani police and provincial authorities have stepped up pressure against Afghans living in Pakistan in what the United Nations High Commissioner for Refugees (UNHCR) has called a “concerted push” to repatriate hundreds of thousands of Afghan refugees before the end of the year. 

Is the EU-Turkey deal fair for asylum seekers?
The centerpiece of the EU-Turkey deal is an accelerated border procedure, put into place by Greece in April, for handling asylum applications for people who enter Greece via Turkey. The plan envisioned that asylum seekers would be sent quickly back to Turkey to have their asylum claims processed there.

However, vulnerable asylum seekers who fall into one of nine categories defined in a Greek law that went into effect in April (including unaccompanied children, victims of rape and torture, and people with disabilities) are exempted from this accelerated border process, and their asylum application are examined on the merits. Similarly, people who are entitled to family reunification under EU asylum rules are exempted from the deal. In principle all other asylum seekers are subject to the fast-track border procedure, which foresees a final decision on admissibility or eligibility within 15 days, including appeal.

In practice, Greek Asylum Appeal Committees have broadly refused to accept that Turkey is a safe country for asylum seekers, and have been considering most applications on the merits rather than declaring them inadmissible on the ground that asylum seekers should have sought protection in Turkey instead.

Human Rights Watch and other groups have documented a continued gap in access to information and legal assistance during this accelerated border procedure. This raises serious concerns about the fairness of the procedure.

How many asylum seekers have been returned to Turkey after their asylum claims were ruled inadmissible on the grounds that Turkey is a “safe country”?
To date, not a single person has been returned to Turkey on the grounds their asylum application was inadmissible because they could obtain effective protection in Turkey. Many of the initial decisions, in which asylum officers from other EU member states participate, have ruled asylum claims inadmissible. But Greek Asylum Appeal Committees consistently ruled that Turkey is not a safe country and that asylum applications should be admitted for regular examination on the merits in Greece.

Following suggestions from other EU countries, Greece amended its asylum law in June, changing the composition of the appeals committees and removing the possibility for asylum seekers to request a personal hearing on appeal.

While the old Greek Asylum Appeals Committees ruled in only two cases that claims were not admissible and applicants could be returned to Turkey, the new committees have reached perhaps a dozen such decisions. At least one Syrian is challenging the decision at Greece's highest court, the Council of State; none have yet been forcibly returned.

According to the European Commission, 687 people who arrived in the Greek islands irregularly since the EU-Turkey deal entered into effect on March 20, have been returned to Turkey. However, all of the returns so far were either voluntary or involuntary based on one of three grounds: the person did not apply for asylum, withdrew their asylum application after a negative decision on their first hearing, or was rejected after an examination on the merits.

Human Rights Watch documented a vast array of irregularities in the context of the first forcible returns, in April, of individuals portrayed by Greek authorities as people who have not applied for asylum.

More recently, UNHCR expressed its concern regarding the return of two groups of people to Turkey in late October. According to the UNHCR, on October 20, 10 Syrian nationals were returned by plane to Adana, Turkey despite having declared their intention to seek asylum at the hotspot – or EU screening center – on Leros. On October 21, 59 people, including many Iraqis and Afghans, were returned by ferry to Dikili, Turkey. UNHCR did not have access to the second group and said it cannot confirm whether the members had access to asylum procedures. The returned Syrians said they were not informed they were being returned to Turkey, where they were detained upon arrival. The Greek government said it was investigating the allegations.

Hasn’t the EU resettled Syrians who had been living in Turkey because of the deal?
According to the European Commission, as of the end of September, 1,614 Syrians had been resettled from Turkey to EU countries under the 1:1 framework. Resettlement initiatives represent a key safe and legal pathway for refugees to reach a place of safety and rebuild their lives. But at least some of the resettled refugees would probably have been resettled anyway under UNHCR bilateral arrangements with individual EU governments based on humanitarian needs alone rather than on swapping one Syrian refugee for another to punish the one returned for attempting to seek asylum irregularly and to reward another for sitting quietly and waiting.

The language of the EU-Turkey deal invoked a highly questionable element of conditionality between resettlement and the forced return of asylum seekers. The deal itself failed to contribute to any visible boost of the resettlement of Syrian refugees to EU countries. It also, in effect, treats refugees as interchangeable commodities in a deal that fails to take into account the reasons why one refugee might feel compelled to make a dangerous boat journey from Turkey to Greece while another might feel relatively safe in Turkey and willing to stay there for some time.

Despite these and other efforts since 2015, the EU has largely failed to overcome its poor record in providing resettlement places commensurate with the overwhelming need and its capacity.

In any case, resettlement efforts should not be a substitute for the right to spontaneously seek asylum in Europe and should not be linked to conditionalities that effectively punish those who seek asylum on European shores.

But the deal brought down the number of arrivals, right?
There is no doubt that arrivals to the islands have decreased since March. That month, nearly 27,000 people reached the Greek islands from Turkey. In April, only 3,650 made the crossing, and arrivals were under 2,000 in each month from May through July. There was an increase in August and September, however, with over 3,000 arrivals in each month. These numbers are of course far lower than the peak in October 2015, when almost 215,000 people reached Greek shores.

It is hard to argue that the deal had no effect on arrivals. However, it is far from clear how much of a role it has played in comparison with other factors. The border closures along the Western Balkan route to the north of Greece, a more effective crackdown on smuggling networks and the unappealing prospect of being stuck in Greece with little chance of reuniting with family members elsewhere in Europe could also be seen as important factors alongside the EU-Turkey deal.

So what has happened to those who have arrived in Greece since March 20?
Virtually everyone who has arrived on the Greek islands since March has applied for asylum. To implement the EU-Turkey deal right after March 20, Greece instituted a formal policy of automatic detention in EU-mandated closed screening centers on the islands (known as “hotspots”), a move welcomed by the European Commission, but criticized by UNHCR and most of the nongovernmental organizations that had been providing assistance to asylum seekers in those same locations before they were converted into detention centers. In practice, the policy has progressively been relaxed and people have more freedom of movement. Unless and until an asylum seeker is admitted to the Greek asylum system and allowed to formally lodge an application, they must remain on the islands.

In the wake of a massive fire at the Moria hotspot on Lesbos, in September, which left hundreds of people without shelter and prompted calls to transfer many to the mainland, the European Commission reiterated that the general rule should be keeping asylum seekers on the islands “to avoid secondary movement to the rest of Europe.”

The policy of containment has led to significant tensions on the islands in addition to deteriorating conditions. The maximum capacity on the five main islands receiving asylum seekers and migrants remains 8,085 while the total presence on the islands was almost double that (15,914) as of early November. Protests by local residents and xenophobic incidents appear to be on the rise. About 61,000 migrants and asylum seekers are stranded in the Greek countrywide.

Human Rights Watch and other groups have documented severely overcrowded and filthy conditions in hotspots on the islands, where police fail to protect camp residents – including women and children – from violence and harassment. Fights occur daily, particularly in the food lines, with no police intervention. Many people sleep on the ground in small tents or makeshift shelters constructed of blankets, plastic sheeting, and scraps of fencing and cardboard. Health care is inadequate, and food is insufficient and of poor quality.

Aren’t other EU countries supposed to be relocating asylum seekers out of Greece?
In September 2015, EU countries agreed to an emergency plan to relocate tens of thousands of asylum seekers out of countries experiencing significant numbers of arrivals, a move designed in large part to help Greece. But in practice very few people have been relocated from Greece. Out of the 66,400 asylum seekers to be relocated out of Greece to other EU countries by September 2017, only 5,437 have actually been transferred.

The abject failure of the plan has many causes, including deep hostility by certain member states, foot-dragging by others, and lack of trust among eligible asylum seekers in a bureaucratic, slow mechanism that does not give them any say about where they will end up. But the plan also suffers from serious design flaws. In particular, only nationals of countries with EU-wide protection rates of at least 75 percent are eligible, based on data updated quarterly.

This is both arbitrary and discriminatory. It has led to unjustifiable inclusions (Costa Ricans) and problematic exclusions (Afghans). These decisions are based on the vagaries of the number of applicants and disparities among EU countries in terms of guidance on the situation in countries of origin, quality of the examination, and the individual circumstances and quality of representation of asylum seekers of the same nationality. Since June, Iraqis have not been eligible because their EU-wide recognition rate fell just under 75 percent in the previous quarter.

In addition, no one, regardless of nationality, who arrived after March 20, when the EU-Turkey deal went into effect, is eligible for relocation under the scheme.

At the same time, the European Commission and some member states are pressing to resume returns to Greece under the Dublin Regulation, which as a general rule requires the first EU country of entry to assume responsibility for processing asylum applications. Most EU countries suspended Dublin transfers, as they are known, to Greece following a 2011 ruling by the European Court of Human Rights that found systemic deficiencies leading to a real risk of inhuman and degrading treatment for asylum seekers returned there.

Resuming Dublin returns to Greece would exacerbate the already appalling situation for many asylum seekers in the country.

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