Compliance of the EU Member States with the Principle of Non-Refoulement : The case of the EU-Turkey Statement of 18 March 2016

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Compliance of the EU

Member States with the

Principle of Non-Refoulement

THE CASE OF THE EU-TURKEY STATEMENT OF 18 MARCH 2016

-Master’s Thesis-

Laura Blom | University of Amsterdam | 20 July 2017

Student Nr.

10892133

Master track

International and European Law: Public International Law

Supervisor

Antoinette Hildering

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1

Abstract

While states reserve the right to control the admission and exclusion of aliens into their territory, the principle of non-refoulement imposes on them an obligation not to return someone to a place where he or she would face a risk of a violation of their rights under international human rights law and refugee law. When confronted with a large influx of migrants, states are faced with the dilemma of balancing state interests on the one hand and human rights on the other. European states have taken extraterritorial measures in order to keep migrants out of their borders. One of these measures is the EU-Turkey Statement of 18 March 2016, which allows for the return of all irregularly arriving migrants from the Greek islands to Turkey. This Statement raises the question whether the EU Member States comply

with the principle of non-refoulement under the EU-Turkey Statement?

The EU Member States can be held responsible for violations of the principle of

non-refoulement which has been laid down in Article 33 Refugee Convention and has developed

under Article 3 European Convention of Human Rights. The first sub-question addresses the obligations of the EU Member States under the principle of non-refoulement. The thesis then examines the text and implementation of the Statement, reflecting the compliance in theory and in practice. It has examined instances of both direct and indirect non-refoulement to incorporate the entire prohibition of refoulement, which is reflected in sub-question two and three.

The text of the EU-Turkey Statement of 18 March 2016 suggests that it will be implemented in full compliance with the principle of non-refoulement. Returnees are entitled to protection from non-refoulement in both Greece and Turkey. Despite the fact that non-European refugees are not eligible for refugee status under the Refugee Convention, the protection regimes in Turkey provide for a guarantee of those person’s basic rights. Nonetheless, the failure to provide for an adequate individual assessment of asylum-seekers’ claims in Greece, accounts of arbitrary detention in Turkey, and forced push-backs and deportations of Syrians at the Turkish-Syrian borders suggest otherwise. These circumstances put asylum-seekers who are returned under the Statement at risk of both direct and indirect refoulement. Therefore, the EU-Turkey Statement of 18 March 2016 cannot be considered to be in full compliance with the principle of non-refoulement.

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2

Introduction

In public international law a key attribute of the national sovereignty of states is the right to admit or exclude aliens from their territory.1 This right can however be restricted by treaty law or rules of customary international law. One such restriction is posed by the prohibition of

refoulement. This principle imposes on states a duty not to transfer or expel an individual to

another state where there are substantial grounds for believing he or she will be tortured, subjected to inhuman or degrading treatment2, or persecuted on one of the grounds of the Refugee Convention.3

Today there are 22.5 million refugees worldwide who have fled conflict or persecution in their home country.4 Most of them seek protection in neighbouring countries, which leads to a mass-influx of people looking for international protection in those states.5 Despite an international legal regime governing the rights of refugees, these states find themselves confronted with striking a balance between fulfilling their obligations under international law towards these individuals on the one hand, and protecting their population from security threats posed by aliens on the other.6_{Indeed, it is important to clarify the distinction between}

migrants who could seek protection from their own government on the one hand, and refugees on the other.7_{The latter are entitled to international protection, while the former should seek}

protection in their own country through national laws and redress mechanisms.8

States are allowed to use admission and expulsion policies to prevent unwanted aliens, who possibly pose a threat to national security, from entering.9 Nonetheless, they must adhere to their obligations under international human rights law and refugee law. In times of crisis there is a tendency to focus border policies on state interests rather than on humanitarian considerations, leading to an increasing conflict between refugee policies and human rights law.10 The identification of the scope of a state’s obligations towards refugees has gained

1_{See UN Charter, Arts 2(1) and (7) and, amongst others, ECtHR Salah Sheekh v the Netherlands (2007), para}

135; ECtHR Abdulaziz, Cabales and Balkandali (1985), para. 67.

2_{Rodley (2014), 183}

3_{Refugee Convention, Art 22; Boeles et al. (2014), 16.} 4_{UNHCR website, Figures at a Glance.}

5_{UNHCR website Top Hosting Countries} 6_{Padmanabhan (2011), 77.}

7_{Borchelt (2002), 474.} 8_{Edwards (2014), 519.} 9_{Padmanabhan (n 6), 77.} 10_{Kjaerum (2002), 513-514.}

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4 fundamental relevance and is one of the most controversial areas in human rights and refugee studies today.11

Against this background the Syrian refugee crisis has now developed into the largest of its time, with Syria accounting for 5.5 million of the total of 22.5 million refugees.12 A major player in the handling of this crisis is the European Union (EU), a destination for which many refugees are willing to risk their lives.13 At the same time, the externalisation of migration control is becoming the cornerstone of the European strategy in addressing the migration challenge.14 European states have reacted to migrant crises by asserting their sovereign right to control their borders, and have been at the forefront of the development of restrictions to deter the entrance of non-nationals into their territory.15 The EU has been cooperating with Turkey, currently host of the largest number of refugees worldwide16, for the reception of people trying to illegally reach Europe. The latest development in this cooperation is the EU-Turkey Statement of 18 March 2016.17 This statement provides for the return to Turkey of all irregular migrants crossing from Turkey into Greek islands. It also regulates a 1:1 scheme, allowing the resettlement of one Syrian from Turkey to the EU for every Syrian being returned to Turkey. The statement is supposed to serve as a blueprint for new ‘migration deals’ with countries like Libya, Sudan and Niger.18

This thesis focuses on the principle of non-refoulement in international human rights law and refugee law. Its aim is to examine to what extent the EU Member States comply with or violate the principle of non-refoulement under the EU-Turkey Statement and its implementation. The central research question to this examination is the following:

Do the EU Member States comply with the principle of non-refoulement under the EU-Turkey Statement of 18 March 2016?

11_{Gil-Bazo (2006), 571-572.}

12_{UNHCR website Figures at a Glance.} 13_{UNHCR website Europe Situation.} 14_{Toygür & Benvenuti (2017)} 15_{Borchelt (n 7), 475.}

16_{On 30 May 2017 Turkey hosted 2,5 million refugees according to the UNHCR - UNHCR website, available at}

http://www.unhcr.org/figures-at-a-glance.html, accessed 30-05-2017.

17_{EU-Turkey Statement, 18 March 2016 [The Statement]. It is also commonly referred to as the EU-Turkey}

‘deal’, but since its legal status remains unclear the neutral description of ‘statement’ will be employed in this thesis.

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5 Methodology

From an internal perspective, this thesis looks into the rules that are binding on the EU Member States in relation to their approach to asylum which is reflected in the Statement. One of these rules is the principle of non-refoulement as developed in refugee law and international human rights law. The thesis will explore whether this principle is respected or violated in the latest development in asylum policy in Europe. The reason for focusing on the EU Member States is because their approach can be highly indicative for the development of the non-refoulement principle in international law, as the EU Member States serve as an example for many other countries in the area of refugee policies.19 In particular, their implementation of the ‘safe third country’ construct has proven to have international appeal.20

Therefore the Member States’ respect or disrespect for the principle of non-refoulement can have far-reaching implications for the position of the principle under international law and the future development of refugee policies.

In order to provide an answer to the main research question, three sub-questions will form the basis of this thesis. The first chapter will set out the obligations of the EU Member States under the principle of non-refoulement. This part will be descriptive in nature and aims to introduce the non-refoulement principle by looking at the key legal instruments in both refugee law and international human rights law that provide the legal framework for the EU Member States in this area. From a range of sources21_{, Article 33 of the Refugee Convention}

and Article 3 ECHR are selected based on their relevance for the EU Member States and in order to incorporate both international refugee law and international human rights law. Article 33 represents the key legal instrument in the area of non-refoulement, while case law on Article 3 ECHR has been highly relevant for the development of the principle. Chapter I will identify what these obligations entail under international human rights law and refugee law and will discuss responsibility for violations of the principle in the EU context, based on ECtHR case law. The guiding sub-question for this chapter is: what are the obligations of the EU Member States under the principle of non-refoulement?

Chapters II and III form the core of this thesis as they evaluate the compliance of both the text and the implementation of the Statement with the principle of non-refoulement which has been set out in Chapter I. Adequate protection against non-refoulement is ensured through a

19_{Borchelt (n 7), 476.} 20_{Ibid, 523.}

21_{Non-refoulement is contained in Article 7 ICCPR, Article 3 Convention Against Torture, Article 33 Refugee}

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6 combination of legal safeguards and compliance in practice.22_{The text of the Statement is}

examined to address possible violations of non-refoulement that are implied by its substance, by looking at the legal safeguards against non-refoulement. The implementation is assessed in order to look at the actual practice of states and their consistent compliance with their obligations, which is decisive for determining the availability of protection against

non-refoulement.23 Chapter II addresses the following sub-question: do the EU Member States comply with the prohibition of direct refoulement under the Statement? This chapter focuses on possible instances of direct non-refoulement under the Statement. Chapter III then looks into similar instances in the context of indirect non-refoulement under the Statement and poses the question: do the EU Member States comply with the prohibition of indirect

refoulement under the Statement? By looking at both direct and indirect non-refoulement,

both elements of the prohibition of non-refoulement are covered by these chapters.

Because of the extensive overlap between the areas of international human rights law and refugee law,24 the thesis will use a combination of both fields in its analysis. In addition to a description of the current status of the law, the thesis will adopt an evaluative approach. The sources that are used include case law of relevant institutions like the European Court of Human Rights (ECtHR) and the Court of Justice of the EU (CJEU). In particular, ECtHR case law on Article 3 ECHR has contributed significantly to the development of non-refoulement in international human rights law. Criteria derived from this case law will therefore be considered leading in assessing the compliance with the principle of non-refoulement. Furthermore, instruments of ‘soft law’, like statements and reports by UNHCR, are used. The analysis is complemented by using reports from Amnesty International and other NGOs that will be used to see how asylum-seekers are treated or are likely to be treated. In addition, facts and figures from a range of on-line sources will be employed in support of these statements. In addition to the Member States of the EU, Turkey can also be held responsible for human rights violations committed as a result of the Statement. Where two or more states act collectively, the responsibility of each state may be invoked and is not “diminished or reduced by the fact that one or more other States are also responsible for the same act”25_{This applies}

to their acts with regard to refugees as well.26 However, the responsibility of Turkey lies

22_{ECtHR Hirsi Jamaa and Others v Italy (2012), para 128.} 23_{UNHCR (2016b), 2.}

24_{Edwards (n 8), 521.} 25_{ILC Articles, Art 47.} 26_{Foster (2007), 262.}

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7 beyond the scope of this thesis as the focus here lies on the EU Member States as an important actor in the area of asylum policy. Therefore the compliance of Turkey with the principle of non-refoulement will not be included within the scope of this thesis, except in the context of indirect refoulement of the EU Member States.

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8

Chapter 1. Obligations Under the Principle of Non-Refoulement

Non-refoulement obligations are contained in both customary international law27 and treaties.28 The principle has developed in the areas of international human rights law (IHRL) and international refugee law (IRL). IRL contains rules designed to prevent the return of refugees to territories where they may face persecution, whereas IHRL provides the rule that aims to prevent the refoulement of any individual to territories where they risk ill-treatment or other grave fundamental human rights violations.29 These can be referred to as ‘refugee

non-refoulement’ and ‘human rights non-non-refoulement’ respectively. While these principles have

developed in different legal areas, the legal frameworks overlap as refugees are covered by provisions of both IHLR and IRL.30

Obligations under the principle of non-refoulement are contained in several international legal instruments. Two of these are of particular relevance for answering the main research question and will form the outline of this chapter: the Refugee Convention (RC) of 195131 and the European Convention on Human Rights (ECHR).32 The Refugee Convention represents the key legal instrument in the field of refugee law and is therefore at the core of identifying the rights of refugees and asylum-seekers. Article 33 of the RC contains the cardinal provision that expresses the principle of non-refoulement.33_{In addition, non-refoulement has developed}

as a principle in case law under Article 3 ECHR, which lays down the prohibition of torture and inhuman or degrading treatment. The ECtHR has been highly instrumental in the development of the meaning of the principle of non-refoulement in its case law on Article 3 ECHR and is an important instrument for the enforcement of the prohibition of refoulement in the European context.34 The purpose of this chapter is to examine the non-refoulement obligations of EU Member States under these treaties by looking at Article 33 of the Refugee Convention and Article 3 ECHR. Finally, this chapter will expand on international responsibility of EU Member States for human rights violations by assessing ECtHR case law on the relation between the EU and the ECHR.

27_{Goodwin-Gill & McAdam (2007), 346-354.}

28_{Refugee Convention, Art 33; Convention Against Torture, Art 3.} 29_{Messineo (2011), 4-5.}

30_{Edwards (n 8), 521; ECtHR(2012) Hirsi Jamaa and Others v Italy} 31_{Refugee Convention}

32_{European Convention on Human Rights} 33_{Edwards (n 8), 520.}

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9 1.1 Article 33 Refugee Convention

The prohibition on refoulement of refugees has developed as a norm of customary international law35_{and can be found in Article 33 of the 1951 Refugee Convention (RC).}36

The 1951 Refugee Convention is the lex specialis of asylum and as such it is the key legal instrument to provide protection for those who fall within its scope.37 All EU Member States are party to the RC.38 In addition, while the EU as an international organisation is not a party to the RC, the TFEU explicitly states that the EU must abide by the RC and its 1967 Protocol and ensure its laws comply with the principle of non-refoulement.39 It was consolidated by case law of the Court of Justice of the EU (CJEU) that all legal and policy measures on asylum must be in accordance with the RC.40 Overall, it is well-established that the Convention is binding on the EU Member States both individually and acting collectively. Traditionally, the term refoulement refers to the obligations of states not to return a refugee to a country where his life or freedom is threatened.41 The principle of non-refoulement under the Refugee Convention applies to people whose refugee status has been determined and to asylum seekers during the period in which they are dealing with the process of determining their status.42 The latter are included because a person does not become a refugee because of recognition, but is recognised as such because he or she is a refugee.43 Non-refoulement for refugees is explicitly listed in Article 3344 of the RC. It forbids state parties to:

“Expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

Under Article 33(1) of the RC a State party has the responsibility to prevent a situation in which the refugee is forced to relocate to a territory in which there exists a threat to the refugee’s life or freedom, as a consequence of the State party’s conduct. This territory is not limited to the refugee’s own country of origin, but relates to any territory in which there exists

35_{Edwards (n 8), 514.}

36_{Refugee Convention, Art 33.} 37_{Mole & Meredith (2010), 9}

38_{UNHCR States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol,}

available at http://www.unhcr.org/protection/basic/3b73b0d63/states-parties-1951-convention-its-1967-protocol.html, accessed 15-05-2017.

39_{Treaty on the Functioning of the European Union, Article 78.} 40_{Boeles and others (2014), 293.}

41_{Ibid, 244.}

42_{Sainz-Pardo (2002), 26.}

43_{Council of Europe (1984); UNHCR (1979), para 28.} 44_{Refugee Convention, Art 33(1).}

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10 a threat to the refugee’s life or freedom on account of one of the grounds mentioned in Article 33(1) RC.45_{Furthermore, Article 33(1) includes both direct and indirect refoulement.}46

Non-refoulement under the RC differs from protection under the ECHR in that the reasons for

ill-treatment or persecution are material for refugee non-refoulement. This is reflected in Article 33 RC by adding the five reasons for persecution.47 Furthermore, a refugee can only avail him- or herself of the protection of a state party if persecuted by their own state or if that state is unwilling or unable to provide protection to the person concerned.48 This is not the case for protection under Article 3 ECHR.49

Given the overlap between refugee non-refoulement and human rights non-refoulement the prohibition of refoulement for asylum-seekers and refugees has been strengthened and reaffirmed by human rights law and regional human rights courts.50 This has been reinforced by the fact that the RC does not include an individual complaints mechanism.51 On an international level refugees and asylum-seekers have therefore tended to resort to human rights mechanisms for an examination of their complaint.52 In addition, the UNHCR is an important actor in ensuring respect for refugees’ rights. The UNHCR provides for ‘valuable guidance’ when determining refugee status, but its Guidelines and other documentation are not legally binding on the parties to the RC.53 Nevertheless, the CJEU has referred to the UNHCR’s documents as particularly relevant in refugee cases.54_{The ECtHR has cited Article}

33 as part of the applicable legal framework in cases concerning the return of asylum-seekers.55_{The rights laid down in the RC are still highly relevant today for the protection of}

refugees’ rights, though largely ensured through regional courts such as the ECtHR, with assistance of the UNHCR. It is these bodies that will be the focus of this thesis.

In sum, the obligation of non-refoulement in international refugee law lies down an obligation for the EU Member States to prevent the relocation of a refugee to a territory in which his or her life or freedom is threatened by the State or where that State is unwilling or unable to provide protection. Importantly, it also prohibits the relocation of a person while in the

45_{Wouters (2009), 133.} 46_{Edwards (n 8), 520.}

47_{The grounds for persecution of the Refugee Convention are: race, religion, nationality, membership of a}

particular social group or political opinion.

48_{Mole & Meredith (n 37), 25-26.} 49_{ECtHR Soering v UK (1989), para 91} 50_{Edwards (n 8), 521.}

51_{Mole & Meredith (n 37), 10-11.} 52_{Edwards (n 8), 517.}

53_{Boeles et al (n 40), 294.}

54_{CJEU Halaf (30 May 2013), para 44.}

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11 process of determining his or her status. In the remainder of this thesis, ‘ill-treatment’ will cover instances of treatment that are prohibited by either Article 33 RC or Article 3 ECHR. The next section will look at protection from non-refoulement provided by Article 3 ECHR.

1.2 Article 3 European Convention of Human Rights

In international human rights law (IHRL) the concept of non-refoulement is connected to the prohibition of torture. The responsibility of states to prevent human rights abuses is gaining importance, in particular with regard to torture.56 In IHRL non-refoulement refers to the positive obligation upon states not to expose a person to torture or ill-treatment by sending that person to a place where he or she faces a real risk of treatment in violation of this prohibition.57 States can be held responsible for those of its acts which expose an individual to a real risk of a violation of his or her rights by another state.58 The right of individuals not to be exposed to torture or ill-treatment is absolute under IHRL.59 As a consequence, the prohibition of refoulement is also of an absolute nature and contains no exceptions.60 This reasoning also applies to ‘indirect refoulement’, whereby a person is expelled or returned to a country from which they may subsequently be expelled or returned to a third country where they would face a real risk of such treatment.61

While non-refoulement is not explicitly mentioned in the ECHR, the prohibition of

refoulement has developed in ECtHR case law on Article 3 European Convention of Human

Rights (ECHR).62_{This article states:}

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”

The case law of the ECtHR has had considerable impact of the development of the scope of

non-refoulement beyond Article 33 RC and has been particularly influential on the

supranational law of the EU.63 Because Article 3 ECHR applies to all individuals and not just

56_{Shaw (2014), 201.} 57_{Rodley (n 2), 183.}

58_{Joseph & Fletcher (2014), 127-128; See ILC (2001), Article 16}

59_{This human right can be found in: ICCPR Arts 7, 10; ECHR Art 3; ACHR Art 5; UN Convention Against}

Torture (UNCAT).

60_{ECtHR Soering v The United Kingdom (1989), para 88; ECtHR Chahal v The United Kingdom (1996), para}

79-80.

61_{Edwards (n 8), 520-521.}

62_{ECHR, Art 3; see ECtHR Soering v United Kingdom (1989), para 88; and ECtHR Chahal v United Kingdom}

(1996).

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12 refugees, and because of the interpretation and enforcement provided for by the ECtHR, for EU Member States this provision covers and goes beyond the protection provided for by Article 33 RC.

In the context of IHRL, non-refoulement has acquired customary international law status by virtue of the idea that it is structurally embedded in the prohibition of torture and inhuman or degrading treatment or punishment.64 The ECtHR addressed the nature of the prohibition of

refoulement and stated that the return of a person to a country where he or she would face a

real risk of torture or inhuman or degrading treatment or punishment lies within the scope of the prohibition of such acts.65 In Soering v UK (1989) the Court unanimously held that the extradition of a German national to the US, where he would be subjected to the ‘death row phenomenon’, would violate article 3 ECHR.66_{The Court stated that an obligation similar to}

the explicit non-refoulement clause of the Convention Against Torture (CAT) is inherent to the general terms of Article 3 ECHR.67 The conclusions of the ECtHR are reinforced by the Human Rights Committee.68 In sum, it is evident that non-refoulement is a fundamental component of the customary prohibition of torture or cruel, inhuman or degrading treatment or punishment.69

Linked with the prohibition contained in Article 3 ECHR is the requirement of Article 13 ECHR. This provision requires the state party to provide a remedy which is able to provide an appropriate legal redress and deal with the substance of the applicant’s complaint, which is effective both in law and in practice.70_{This requires state parties to provide appropriate legal}

redress for instances of refoulement that violate Article 3. This element of

non-refoulement refers to the individual assessment of a person’s application for international

protection and the possibility to challenge a return or transfer.71_{Effective guarantees that}

protect the applicant against arbitrary refoulement are part of the non-refoulement obligation under Article 3 ECHR.72

The ECtHR requires the applicant in a case concerning Article 3 ECHR to demonstrate that there are substantial grounds for believing that he or she would face a real, foreseeable, risk of

64_{Messineo (n 29), 21.}

65_{Lauterpacht & Bethlehem (2003), 156.} 66_{ECtHR Soering v United Kingdom (1989)} 67_{Ibid, para 88.}

68_{HRC General Comment 31, para 12.} 69_{Lauterpacht & Bethlehem (n 65), 157.} 70_{Shaw (n 56), 259.}

71_{Amnesty International (n 18), 18.}

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13 being subjected to torture or inhuman or degrading treatment or punishment if removed.73_The

ill-treatment must amount to a ‘minimum level of severity’74_{which is determined by looking}

at all the circumstances of the cases and based on a relative assessment.75_{Measures that have}

the effect of putting an individual at risk of treatment in violation of Article 3 ECHR by removing them from a place of safety to a place of threat are therefore prohibited by the principle of non-refoulement.76

Responsibility for non-refoulement is not bound to a state’s territory but rather to its acts. The liability of states that are party to the ECHR can be incurred for acts which take place or produce effects outside the state’s territorial boundaries.77 For instance, the EU-Turkey Statement can produce effects that lie far beyond the EU Member States’ territory, but their responsibility may still be incurred for what happens to people who are returned to Turkey. The Member States acted collectively when concluding the Statement, which raises questions as to the responsibility for human rights violations resulting from the Statement. Whether an act is attributable to the EU or its Member States can differ in each situation. The next section will discuss the issue of responsibility for instances of non-refoulement in the context of the EU-Turkey Statement. Because the ECtHR is the most suitable institution for addressing instances of non-refoulement arising under the Statement, the next section will focus on the approach of this Court.

1.3 Responsibility for Breaches of the Obligation of Non-Refoulement

Responsibility of a state is incurred when an act or omission is attributable to the state and constitutes a breach of an international obligation of that state.78 The RC and ECHR impose obligations upon states that are owed to individuals, be they refugees or asylum-seekers. The breach of such an obligation can give rise to the responsibility of the state.79 The question of attribution of the EU-Turkey Statement has been addressed by the Court of Justice of the EU (CJEU). The CJEU was confronted with the question of the legal status of the EU-Turkey Statement in the applications of three asylum seekers being returned to Turkey based on the

73_{Lauterpacht & Bethlehem (n 65), 87.}

74_{ECtHR Soering v United Kingdom (1989), para 100; ECtHR Cruz Varas and Others v Sweden (1991), para 83.} 75_{Goodwin-Gill & McAdam (n 27), 314; ECtHR Cruz Varas and Others v Sweden (1991), para 83.}

76_{Lauterpacht & Bethlehem (n 65), 158-162.}

77_{ECtHR Soering v The United Kingdom (1989), paras 87-88. Den Heijer (2008), 287-288.} 78_{ILC Articles, Article 1 and 2.}

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14 Statement.80_{However, before the CJEU got to an assessment of the legal nature of the}

Statement, the applications were declared inadmissible because the Court found that the Statement is not an act of the EU but of the individual Member States and that the Court therefore lacked jurisdiction in these cases.81 The judgment has sparked criticism, as the language of the Statement explicitly refers to an agreement between Turkey and the EU.82 Critics argue that the heads of state acted in their capacity as members of the European Council rather than as representative of their State.83 The ECtHR has not yet addressed the Statement, but it would be interesting to explore its stance in these matters as it represents the main enforcement mechanism for protection against non-refoulement in the European context. This section discusses whether the ECtHR might follow the reasoning of the CJEU or might reach a different conclusion on responsibility for the EU-Turkey Statement.

The EU-Turkey Statement is often referred to as a ‘deal’ or an ‘agreement’, but it was not concluded following the official EU procedure for concluding treaties with third countries and therefore called a ‘statement’ and not an agreement.84_{However, whether a text is a treaty does}

not depend on form but on whether the parties intend to bind themselves.85 Calling it a statement does not exclude the possibility of producing legal effects. Some have argued that the text and context of the Statement are such that they support the view that it is a treaty,86 while others maintain the view that only its implementation can be challenged in court and not its substance.87_{Nonetheless, even if the Statement is considered an act of the EU, the EU is}

not (yet) a party to the ECHR and therefore its acts cannot be challenged before the ECtHR. However, all EU Member States are party to the ECHR, meaning that their acts can be challenged either collectively or individually.88

The EU Member States’ obligations under EU law can be conflicting with their obligations under the ECHR. The relationship between the EU and the ECHR has been addressed by the ECtHR in Bosphorus (2005). The ECtHR introduced the doctrine of ‘equivalent protection’89

80_{CJEU cases NF v European council (T-192/16); NM v European Council (T-257/16); NG v European Council}

(T-193/16)

81_{CJEU NF v European Council (T-192/16), para 71}

82_{Council of Europe ‘EU-Turkey Statement, 18 March 2016’, the document repeatedly speaks of “Turkey and}

the EU…” .

83_{Danisi (2017)}

84_{Toygür & Benvenuti (n 14)}

85_{ICJ Aegean Sea (1976), paras 95-96; ICJ Qatar/Bahrain (1994), para 24.} 86_{Den Heijer & Spijkerboer (2017).}

87_{For example Peers (2016); Babická (2016)} 88_{Hoffmeister (2010), 730.}

89_{This doctrine states that action taken by the state in compliance with legal obligations flowing from its}

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15 for determining state responsibility in the context of EU action in fundamental rights-sensitive areas, which had considerable implications for the relationship between the EU and the ECHR.90_{The ‘equivalent protection’ doctrine allows the ECtHR to exercise some scrutiny of}

EU actions, despite the EU not being a party to the ECHR. For example, in TI v The United

Kingdom (2000)91, the ECtHR remarked that states, while implementing EU law, are responsible under the ECHR for the consequences of the removal of asylum seekers from their territory.92

The ‘equivalent protection’ doctrine can only be relied upon by the Member States if EU law leaves them no discretion whatsoever.93 If the organisation, in this case the EU, provides for equivalent protection, the presumption will be that a state has not departed from the requirements of the Convention when it merely implements legal obligations flowing from its membership of the organisation.94 In Bosphorus the ECtHR accepted that ‘the impugned interference was not the result of an exercise of discretion by the Irish authorities’.95 In the case of the EU-Turkey Statement however, the Member States did exercise discretion over the text and implementation of the Statement. The EU Member States are ‘fully responsible under the Convention for all acts falling outside its strict legal obligations’.96 The Statement does not impose a strict legal obligation on Member States to return people to Turkey. So even if the Statement is considered an act of the EU or imposed by it on its Member States, as critics argue, the Member States are afforded discretion and the presumption of equivalent protection does not apply.97_{The ECtHR will therefore have to look into the responsibility of the EU}

Member States and not the EU.

However, this discussion yields two observations that fall outside the scope of this thesis but may be relevant for the use of the EU-Turkey Statement as a blueprint for future ‘migrant deals’ with countries such as Libya or Egypt. First of all, if the Member States do not exercise discretion in the conclusion of future similar deals or statements, the ECtHR may have to assess whether the presumption of equivalent protection is rebuttable if it is considered that

as this organisation is considered to protect fundamental rights in a manner which can be considered ‘at least equivalent’ to that for which the ECHR provides. “Equivalent” in this context means “comparable” rather than “identical”. See ECtHR Bosphorus v Ireland (2005), para 155.

90_{Costello (2006), 87-90.}

91_{ECtHR TI v The United Kingdom (2000).} 92_{Costello (n 90), 94.}

93_{Ibid, 108.}

94_{ECtHR Bosphorus v Ireland (2005), para 156; Loizidou v Turkey (preliminary objections), judgment of 23}

March 1995, para 75

95_{ECtHR Bosphorus v Ireland (2005), para 148.} 96_{Ibid, para 157.}

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16 the protection of ECHR rights was ‘manifestly deficient’.98_{While the Member State remains}

the one responsible for a breach of ECHR obligations because the EU has not acceded to the ECHR, 99_{it could nonetheless provide for an indirect review of EU action by the ECtHR.}100

Secondly, the Statement allows for the return of people from EU territory to a third country which takes place within the jurisdiction of the EU Member States. Jurisdiction is a requirement for admissibility of a case to the ECtHR.101 In future similar agreements where refugees are contained in a third country without ever setting foot on EU territory, the requirement of control102 as set out in Al Skeini (2011) will become relevant for incurring EU Member States’ responsibility.

In conclusion, if the EU Member States fail to comply with their obligations of

non-refoulement, their responsibility will be incurred. They would be in violation of Article 3

ECHR and Article 33 RC, by which all EU Member States are bound. The Member States are under a positive obligation to be aware of the risks faced by people who are returned by them.103 The returns to Turkey are instructed by the heads of state in the EU-Turkey Statement and therefore given by an organ of the State, which makes possible breaches of Article 3 ECHR resulting from the Statement attributable to the Member States.104 As explained above, the Member States exercised discretion in concluding and implementing the Statement, so even if the Statement was an act of the EU, the responsibility for violations of

non-refoulement would still lie with the Member States. This thesis therefore focuses on the

responsibility of the EU Member States and not the EU itself. Whether there is an interference with peoples’ right under Article 3 ECHR will be determined in the following chapters, which look into compliance of the EU Member States with the principle of non-refoulement. If there exists an interference, the question remains whether the interference can be justified. However, as the right conferred upon people by Article 3 ECHR is of an absolute nature105, no derogations are permitted. So if an interference is established, the EU Member States are in

98_{ECtHR Bosphorus v Ireland, para 156.} 99_{Costello (n 90), 103.}

100_{Peers (2006), 452.}

101_{ECHR, Art 1; ECtHR, Al Skeini and Others v The United Kingdom (2011), para 130.}

102_{A state’s jurisdictional competence is considered primarily territorial, but may extend to acts of its authorities}

which produce extra-territorial effects. This is the case when such authorities exert authority and control over others, when the state exercises all or some of the public powers in another state, or when the use of force by a state’s agents operating outside its territory bring the individual under the control of the state’s authorities. See ECtHR Al Skeini and Others v The United Kingdom (2011), paras 133-136.

103_{Rodley (n 2), 183.} 104_{ILC (2001), Art 4.}

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17 breach of the international obligations conferred upon them by Article 3 ECHR and Article 33 RC.

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18

Chapter 2. Direct Refoulement

Direct refoulement refers to the situation in which an individual is directly expelled to a country in which he or she is at risk of being tortured or mistreated.106 In public international law it has been commonly accepted that the state’s duty to undertake preventive action is activated when the state has knowledge – understood as knowing or ought to have known – of potential damage done to a party, and that state is capable to act.107 The principle of direct

non-refoulement is related to this concept of knowledge. A state cannot knowingly return a

person to a country in which he or she faces the risk or threat of torture or ill-treatment. This implies that the State can or should be aware of the magnitude of this risk. EU countries have developed the concept of ‘safe third country’ (STC) and ‘first country of asylum’ (FCA) to determine whether persons can be returned to a particular country.108 The duty to know or ought to know whether a person faces a risk of torture or ill-treatment requires a state wanting to expel a person to investigate whether the country of return can be defined as safe for the individual. The constructs of STC and FCA allow states to skip this investigation and adopt a general presumption of safety. No individual investigation is required as the country is presumed to be safe for return.109

However, as illustrated in Bosphorus (2005), Member States’ obligations under the ECHR remain in place when implementing EU law.110_{Indeed, the application of STC and FCA}

concepts must comply with non-refoulement111 and be read against the background of relevant ECtHR case law.112 For example, in Ilias and Ahmed v Hungary (2017) the Court found that

simply relying on the argument of the inclusion of Serbia in the national list of safe countries is not enough to satisfy the procedural safeguards of Article 3 ECHR.113 In Hirsi v Italy (2012), the ECtHR took the following factors into account for determining whether a country of return can be considered safe or that there are substantial grounds for believing that there is

106_{Edwards (n 8), 521.} 107_{Den Heijer (2013), 277.}

108_{Definitions of these concepts can be found in EU Procedures Directive, Arts 35, 38. Australia has adopted}

similar provisions, for a discussion see S Taylor ‘ Australia’s ‘Safe Third Country’ Provisions – Their Impact on Australia’s Fulfillment of Its Non-Refoulement Obligations’ in 15 University of Tasmania Law Review 196; a broader discussion on STC in state practice can be found in MT Gil-Bazo ‘The Safe Third Country Concept in International Agreements on Refugee Protection’ (2015) 33 Netherlands Quarterly of Human Rights 42.

109_{EU Procedures Directive, Art 33.} 110_{Costello (n 90), 122.}

111_{Application of the ‘safe third country’ and ‘first country of asylum’ concepts must respect the principle of}

non-refoulement in accordance with the Refugee Convention – Article 27(1) EU Procedures Directive.

112_{Boeles et al (n 40), 281.}

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19 a real risk of treatment contrary to Article 3 ECHR114_{: whether refugees enjoy special}

protection; whether irregular migrants and refugees are at risk of arrest and detention under inhuman circumstances or even torture or subjected to precarious living conditions and xenophobic and racist acts.115

This chapter will look into the compliance with the principle of direct non-refoulement of the EU Member States under the Statement. It will do so by looking at the practices of STC and FCA read against the background of the relevant case law of the ECtHR, with a focus on the situation of asylum-seekers in Turkey. The sub-question that will form the core of this chapter is: do the EU Member States comply with the principle of direct non-refoulement under the

EU-Turkey Statement? First, the compliance of the text of the Statement with direct non-refoulement will be evaluated by looking at the legal basis for the returns. Second, the

implementation of the Statement with direct non-refoulement is discussed to see how returnees are treated in practice.

2.1 Compliance of the Text of the Statement with Direct Non-Refoulement

The first action point of the Statement reads: “[a]ll migrants will be protected in accordance

with the relevant international standards and in respect of the principle of non-refoulement”116. At the same time, “all new irregular migrants crossing from Turkey into Greek islands […] will be returned to Turkey” and “migrants not applying for asylum or whose application has been found unfounded or inadmissible […] will be returned to Turkey”.117 These returns must comply with the principle of non-refoulement in both IHRL and IRL, as is recognised in the first action point. The legal basis for returns under the Statement is found in the concepts of ‘first country of asylum’ (FCA) and ‘safe third country’ (STC).118 Since the introduction of these concepts almost twenty years ago, there have been concerns that policies that were based on these notions are lacking necessary safeguards to ensure non-refoulement of individuals.119_{When an application falls into one of these}

categories, Member States are not required to examine the individual asylum claim.120_This

section will explore these concepts in relation to the protection regime for refugees in Turkey

114_{ECtHR Hirsi Jamaa and Others v Italy (2012), paras 117-121} 115_{Ibid, para 125.}

116_{EU-Turkey Statement, 18 March 2016,} 117_Ibid.

118_{EU Procedures Directive, Arts 35, 38.}

119_{Allain (2001), 549; UNHCR Executive Committee (1999).} 120_{EU Procedures Directive, Art 33; Boeles et al (n 40), 280.}

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20 to see whether returns from Greece to Turkey can amount to a violation of the prohibition of

refoulement.

Syrian Refugees: First Country of Asylum

Under the Statement Turkey serves as a “first country of asylum”121_{(FCA) for Syrian}

refugees. This means that Member States are not required to examine an asylum claim by a Syrian national on its substance because the individual has been recognised as refugee or has otherwise enjoyed sufficient protection in Turkey.122 If this is the case, a person’s application is not judged on the merits of his or her individual asylum claim.123 There must however be an opportunity for the applicant to challenge the application of the concept to his or her personal circumstances.124 Issues are raised in regard to both the possibility to be recognised as refugee in Turkey and with regard to the extent in which Turkey ensures protection that is “sufficient” for Syrian refugees.125

Turkey applies the Refugee Convention with a geographical limitation.126 In its reservation to Article 1 Part A RC, the Turkish government states that “It does not […] intend to accept any

commitment in connexion with events occurring outside of Europe”.127 This means that persons fleeing from a conflict that is not occurring in Europe cannot be granted refugee status in Turkey. Asylum-seekers coming from outside Europe are therefore subject to the general Turkish Law on Foreigners and International Protection (LFIP).128 Their rights under this law must amount to protection that is equal to the protection afforded by the RC for Turkey not to be violating international law.129_{According to several observers the rights}

afforded to asylum-seekers under the LFIP cannot be considered to amount to protection in accordance with the RC.130

Within this framework, Syrian refugees, who make up the largest part of refugees in Turkey, cannot be granted refugee status in accordance with the Refugee Convention. While there has been made an exception allowing for partial temporary protection for Syrians,131 a Greek

121_{EU Procedures Directive, Art 35.}

122_{EU Procedures Directive, Art 33(2)(b): the application for international protection may be declared}

inadmissible

123_{Peers (2016)}

124_{EU Procedures Directive, Art 35; Boeles et al (n 40), 281.} 125_{Council of Europe Parliamentary Assembly (2016b).} 126_{Boeles et al (n 40), 296.}

127_{Refugee Convention, 196.} 128_{Ihlamur-Öner (2013), 194.}

129_{Edinburgh Peace and Justice Centre (2016), 14.} 130_{Council of Europe Parliamentary Assembly (2016a)} 131_{AIDA (2015), 15.}

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21 appeals tribunal recently ruled against the return of three Syrian citizens to Turkey under the Statement. The tribunal observed that despite the temporary protection regime Syrians are not granted all the rights due to them under the RC.132_{This means that Syrian refugees who are}

returned from Greece to Turkey under the Statement have not been, and cannot be, recognised as a refugee in the meaning of the RC in Turkey. In this respect, Turkey cannot be considered an FCA for Syrian refugees because they are not recognised as refugees in that country. Despite the fact that Syrian nationals cannot be recognised as refugees in Turkey, the FCA concept can also be applied when individuals enjoy other, ‘sufficient’ protection. The UNHCR recommends that ‘sufficient’ protection should comply with international standards on living standards, work rights, health care and education, access to a right of legal stay, assistance to persons with specific needs and timely access to a durable solution.133 However, under the Turkish system Syrians benefitting from temporary protection are barred from applying for international protection,134 and thus from the prospect of long-term integration. This does not allow for a durable solution for Syrian refugees seeking protection in Turkey and does not guarantee Syrian refugees ‘sufficient’ protection in Turkey.

The fact that Syrian nationals are not eligible for either refugee status under the RC or for other ‘sufficient’ protection leads to the conclusion that Turkey cannot be presumed to be an FCA for Syrian refugees. While the temporary protection regime provides for some important safeguards, a risk of direct refoulement arises by allowing Member States not to examine the applications of Syrian refugees on their substance but by applying the presumption of FCA. Non-Syrian Refugees: Safe Third Country

The ‘safe third country’135_{(STC) concept is used as a legal basis for the return of non-Syrian}

asylum-seekers from Greece to Turkey. Safe third country practice refers to situations in which states return asylum-seekers to a third country that is considered ‘safe’, in which he or she could have or should have requested refugee protection in accordance with asylum procedures and reception conditions that adhere to international and EU law.136 Safe third country lists are developed to allocate asylum applications by applying a presumption that the applicant will not be exposed to refoulement. EU countries have applied a similar

132_{Fotiadis, Smith & Kingsley (2016).} 133_{UNHCR (n 23)}

134_{AIDA (n 131), 104.}

135_{The concept of a ‘safe third country’ is defined in Article 38 of the EU Procedures Directive.} 136_{EU Procedures Directive, Article 38(4).}

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22 presumption incorrectly before, as recognised by the ECtHR in MSS v Belgium and Greece (2011)137_{and by the CJEU in NS and ME (2011).}138

The concept of STC allows for a quicker handling of applications for international protection. However, the use of such a presumption of safety can endanger the right of refugees to be protected from refoulement.139 It is required by EU law that the safety of a third country is

assessed on a case-by-case basis with the possibility of challenging the application of safe third country to one’s case.140_{But within the EU states are allowed to define their own}

domestic policy towards third countries, which does not allow for a uniform definition of which country is and which is not a ‘safe third country’.141

The text of the Statement accords all applicants for asylum an individually processed application in Greece, including a right to appeal the return decision142 This is important because some applicants may have individual circumstances which create a risk of ill-treatment in Turkey for them personally. It is also a requirement under Article 3 ECHR taken in conjunction with Article 13 ECHR.143 The fact that a right to appeal is explicitly recognised in the Statement contributes to the compliance of the text with the principle of

non-refoulement. However, Turkey is presumed an STC for non-Syrian refugees, which can lead

to an applicant’s application to be declared inadmissible.144_{While the application has been}

individually processed, there has been no assessment of the individual circumstances in the case, leading to an increased risk of refoulement.

The ECtHR has rejected the presumption of a country’s safety on several occasions.145_{In Ilias}

and Ahmed v Hungary (2017) the ECtHR found that, regardless of the existence of

ill-treatment in the country of relocation,146 simply relying on the argument of the inclusion of Serbia in the national list of safe third countries is not enough to satisfy the procedural safeguards of Article 3 ECHR.147 This indicates that EU Member States cannot apply the presumption of ‘safe third country’ in expulsion cases without risking a violation of Article 3

137_{ECtHR MSS v Belgium and Greece (2011), para 340.} 138_{CJEU, NS and ME (2011), para 105}

139_{Sy (2015), 467}

140_{EU Procedures Directive, Article 38(2).} 141_{Kjaerum (n 10), 518.}

142_{EU-Turkey Statement, 18 March 2016.} 143_{ECHR, Arts 3, 13.}

144_{EU Procedures Directive, Art 33.}

145_{See ECtHR cases K.R.S. v United Kingdom (2008) and M.S.S. v Belgium and Greece (2011), an applicant}

shall be able to challenge – and rebut – the presumption that a country is safe for him or her.

146_{ECtHR Ilias and Ahmed v Hungary (2017), para 124.} 147_{Ibid, para 118-120.}

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23 ECHR. The Court required the authorities to carry out an assessment of the individual’s risk of inhuman and degrading treatment.148

Turkey is considered an STC for non-Syrian refugees under the Statement. However, individuals returned to Turkey under the Statement are not included in the scope of application of the RC in Turkey, because of Turkey’s reservation to the RC.149_{An STC must}

include special protection for refugees in order to comply with the criteria set out by the ECtHR in Hirsi v Italy.150 Non-Syrian refugees can apply for ‘international protection’, which entails three types151: RC refugee status, conditional refugee status and subsidiary protection. RC refugee status is not available for non-European refugees because of the geographical limitation in place. Greek Appeal Committees have prevented returns to Turkey, arguing that Turkey does not qualify as an STC.152

As conditional refugee or beneficiary of subsidiary protection, individuals have various rights including free healthcare and education. They are allocated to a designated province where they are required to reside. There have been complaints that some of these places are not equipped to integrate foreigners and there are allegations of racism and discrimination against foreigners.153 Furthermore, non-Syrian refugees are not eligible for family reunification or long-term residence permits.154 Due to the overwhelming number of people seeking refuge in Turkey refugees are often living in poor conditions.155 These circumstances may lead to the conclusion that non-Syrian refugees are subjected to precarious living conditions or xenophobic and racist acts, which are indicators of a risk of treatment in violation of Article 3 ECHR.156_{Furthermore, it raises concerns as to whether the protection received by non-Syrian}

refugees in Turkey can be deemed ‘sufficient’, since it provides no access to a durable solution.

Overall, both Syrian and non-Syrian refugees do not enjoy protection in Turkey that is equivalent to that granted by the Refugee Convention as they are not eligible for refugee status under this Convention, which subjects them to other protection regimes with less legal safeguards. Nonetheless, the protection set up under the Turkish LFIP is largely based on the

148_{ECtHR Ilias and Ahmed v Hungary (2017), para 118-120.} 149_{Refugee Convention, 196.}

150_{ECtHR Hirsi v Italy (2012), paras 117-121.} 151_{Council of Europe (2016a), 6.}

152_{Toygür & Benvenuti (n 14)} 153_{Council of Europe (n 151), 6-7.} 154_Ibid.

155_{Amnesty International (2016b), 25}

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24 EU law that underlies the Common European Asylum System (CEAS).157_{The safeguards in}

place in Turkey should protect refugees from treatment that would violate the EU Member States’ obligation of non-refoulement. The presumption of Turkey as a safe third country or first country of asylum is, however, problematic with regards to the individual assessment of a person’s claim and creates a risk of direct non-refoulement in individual cases. The next section looks at the implementation of the Statement to see how the Turkish asylum-system works in practice and how refugees are treated in Turkey.

2.2 Compliance of the Implementation of the Statement with Direct Non-Refoulement

According to data published by the European Council, 1238 people have been returned from Greece to Turkey under the EU-Turkey Statement until 5 July 2017.158 The return of irregular migrants from Greece to Turkey could give rise to instances of direct refoulement if persons who can be defined as refugees are at risk of a violation of Article 33 RC, or if individuals are subjected to treatment in breach of Article 3 ECHR in Turkey. Direct refoulement can also result from the failure to provide an applicant for international protection with an adequate assessment of his claim.159While the existence of domestic laws and the ratification of relevant international and regional instruments are a pre-requisite for providing the necessary legal basis for guaranteeing respect for fundamental rights, they are not in itself sufficient to ensure adequate protection against the risk of ill-treatment. The actual practice of states is decisive for determining the availability of protection.160 This section will therefore look into the actual situation faced by asylum-seekers returned to Turkey under the Statement, to see if their return from Greek islands complies with the principle of direct non-refoulement.

Hirsi v Italy: Ill-treatment in Turkey

Returns of asylum-seekers on the basis that Turkey is an STC or FCA have been prevented by NGOs and Greek lawyers because the protection regime in Turkey is not in line with international standards.161_{According to the ECtHR, a country of return cannot be considered}

‘safe’ for return if irregular migrants and refugees are at risk of arrest and detention under inhuman circumstances or subjected to precarious living conditions and xenophobic and racist

157_{Amnesty International (n 155), 13.}

158_{As of 5 July 2017; see European Council (2017) ‘Operational Implementation of the EU-Turkey Statement’} 159_{ECtHR MSS v Belgium and Greece (2011), paras 265, 315, 321. This would amount to a violation of Article 3}

ECHR taken in conjunction with Article 13 ECHR because of the lack of an effective remedy

160_{ECtHR Hirsi Jamaa and Others v Italy (2012), para 128; UNHCR (n 23), 2.} 161_{Amnesty International (n 18), 17.}

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25 acts.162_{Turkey has a record of ill-treatment of asylum-seekers and refugees that has been}

addressed by NGOs163_{and the ECtHR in a series of judgments.}164_{UNHCR reported that}

between December 2013 and August 2014 Syrian refugees were being subjected to abusive violence by Turkish border guards when they were trying to enter Turkey.165 Amnesty International concluded that the treatment of almost 300 refugees being detained in Turkeys Şanlıurfa province amounted to ill-treatment.166_{In 2015 the International Rescue Committee}

found evidence that indicated ill-treatment of children.167 In addition, extreme-right political groups in south-eastern Turkey track down refugees and beat them in public. Refugees have also been attacked and injured after being expelled from some neighbourhoods.168 This evidence suggests that refugees are at risk of being subjected to precarious living conditions, xenophobic and racist acts which adds to the risk of treatment in violation of Article 3 ECHR for people being returned from Greece to Turkey.

In addition, concerns have been raised about the conditions in the Duzici camp in southern Turkey, to which Syrian refugees are returned under the Statement. Syrian nationals have stated that they were arbitrarily detained under squalid conditions.169 Arbitrary detention of people in poor conditions in Turkey has been condemned by the ECtHR before.170 The Special Representative to the Secretary General of the Council of Europe on migration and refugees found that general conditions in the camp were not good and raised concerns about the legality of detention of the camp’s residents.171 In 2015 the ECtHR ruled that the Turkish reception facilities were inadequate and did not meet minimum procedural guarantees.172_This

conclusion was supported by the UNHCR.173_{However, EU authorities on a visit to Kirklareli}

removal centre voiced their satisfaction with the situation in the centre.174_{A similar}

conclusion was reached by an UNHCR evaluation in 2014-2015 on the situation of Syrian refugees in reception facilities.175 On the other hand, the Special Representative of the

162_{ECtHR Hirsi Jamaa and Others v Italy (2012), para 125.}

163_{See Human Rights Watch (2015) and Amnesty International (2015a).}

164_{See for instance ECtHR, Abdolkhani and Karimnia v Turkey (2009); SA v Turkey (2015), paras 48-50;}

ECtHR Asalya v Turkey (2014).

165_{Council of Europe (2016b)}

166_{Amnesty International (2014a; 2014b; 2015b)} 167_{Council of Europe (n 165).}

168_{Al-Monitor (2014).}

169_{Edinburgh Peace and Justice Centre (2016), 15.}

170_{ECtHR Abdolkhani and Karimnia v Turkey (2009); ECtHR Asalya v Turkey (2014)} 171_{Council of Europe (n 151), 28.}

172_{ECtHR S.A. v Turkey (2015), paras 43, 50.} 173_{UNHCR (2016a), 37-38.}

174_{European Commission (2017).} 175_{UNHCR (n 173), 37-38.}

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26 Council of Europe reported allegations of ill-treatment in Kirklareli removal centre and found that the authorities were not completely transparent on the people staying in the centre.176

Overall, reports on ill-treatment in Turkey are inconsistent which makes it hard to reach a conclusion on the risk of ill-treatment faced by returnees in the camps.

In addition to allegations of ill-treatment of refugees in Turkey, the monitoring of human rights abuses resulting from the Statement has been criticized. The European Ombudsman warned that the European Commission needs to increase its reporting on possible human rights abuses resulting from the Statement.177 There are also reports that UNHCR staff has been kept from visiting asylum seekers in Turkey who have been deported from Greece to Turkey under the Statement. The UNHCR has agreed to monitor the human rights conditions in Turkish refugee camps.178 By denying them access to the camps, it becomes hard to assess the human rights conditions of refugees returned under the Statement and consequently to see whether their return is a violation of the principle of non-refoulement. The UNHCR found that only 12 out of 82 Syrian nationals that were returned from Greece to Turkey under the Statement and, as Syrian nationals, are eligible for temporary protection in Turkey179 have (re)acquired temporary protection status. The others were still in the process of their status being determined or could not be located by the UNHCR.180 So while reports on ill-treatment are cause for concern, the lack of transparency makes it hard to make an adequate assessment of the risk of refoulement for people being returned to Turkey.

Assessment of Claims

Under the EU-Turkey Statement, asylum-seekers are expected to stay on the Greek islands pending a decision on their claim for protection.181_{NGOs have expressed their concern on the}

admissibility check taking place in Greece.182 Asylum seekers reportedly wait up to 12 months to have their individual claims examined without access to appropriate accommodation and services.183 The EU has acknowledged the existence of an ‘accumulated backlog in the processing of all stages of asylum applications on the Greek islands’.184 The

176_{Council of Europe (n 151), 25.} 177_{European Ombudsman (2017).}

178_{UNHCR Representation in Greece (2016); C Stupp (2017).} 179_{AIDA (n 131), 15.}

180_{UNHCR Representation in Greece (2016)} 181_{EU-Turkey Statement, 18 March 2016, under 1).} 182_{See Oxfam Novib (2017); MSF (2017)}

183_{Oxfam Novib (2017)}

Compliance of the EU Member States with the Principle of Non-Refoulement : The case of the EU-Turkey Statement of 18 March 2016