FINAL THESIS – LLM INTERNATIONAL AND EUROPEAN LAW: PUBLIC INTERNATIONAL LAW
T
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EU-T
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A N
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ARTINETTOSTUDENTN. 11404086
sara.martinetto@gmail.com
WRITTENUNDERTHESUPERVISIONOF PROFESSOR MAARTENDEN HEIJER
Abstract:
This works examines whether the EU-Turkey Statement of 18 March 2016 is in compliance with international and European law. In doing so, it systematizes the critiques the Deal has attracted and tries to carry out an all-comprehensive analysis of the instrument. This thesis investigates the causes of the CJEU Orders of 28 February 2017 and it comments on their content, with the intent to provide answers about the legal nature of the Statement, and to list the available remedies. Moreover, it assesses potential substantial violations, especially concerning the principle of non-refoulement, the right to seek asylum, and the prohibition on collective expulsion. In order to do so, this study examines both the text of the Statement and the way it has been implemented in national law and verifies their compliance with the Refugee Convention, European law, and ECHR.
TABLE OF CONTENTS
INTRODUCTION...4
CHAPTER 1...7
THE EU AND TURKEY: HISTORICAL BACKGROUND OF THE STATEMENT...7
1.1 THEROLE OFMIGRATION IN EU-TURKEYRELATIONS...7
1.2 BIRTH OFTHE EU-TURKEY STATEMENT...9
CHAPTER 2...11
LEGAL NATURE AND REMEDIES...11
2.1 BINDING?...11
2.2 ON WHOM? PATERNITY AND PROCEDURE...14
2.2.1 EU External Relations Law...14
2.2.2. International Responsibility...17
2.2.3. The VCLT...18
2.3. REMEDIES...19
3.1 NON-REFOULEMENTAND "PROTECTION ELSEWHERE" CONCEPTS...21
3.1.1 Legal Framework...22
3.1.2 Application to the EU-Turkey Statement...24
3.1.3 Interim remarks...31
3.2 THE GREEKASYLUM PROCEDURE...32
3.3 COLLECTIVE EXPULSION...34
INTRODUCTION
On 22 March 2016 and 19 May 2016, three applications for the annulment of the EU-Turkey Statement of 18 March 20161 have been lodged to the Court of Justice of the European Union by three individuals residing in different refugee camps in Lesvos. On 28 February 2017, the General Court has declined jurisdiction, thereby failing to provide answers to the stark criticisms the Deal has attracted since it was drafted.2
The aim of this work is to appraise whether the Deal is in compliance with international and European law. Thus, it will scrutinise its critical aspects, pertaining both to its form and legal nature, and its substance.3
In order to clarify the context, in which it was adopted, Chapter 1 will sketch out some recurrent patterns in EU-Turkey relations. Then, Chapter 2 will proceed in dealing with the doubts surrounding the adoption procedure of the Statement, which, ultimately, lead to the lack of jurisdiction of the CJEU. This will allow to better comprehend what are the legal consequences flowing out from the Deal, and which legal remedies are available in case of violations of international and European law. Finally, Chapter 3 will dive into the substantial provisions of the Statement, taking into account the claims included in the three applications to the CJEU.4 Particularly, the Chapter will evaluate whether Turkey can be considered a “safe country” in the meaning of the Asylum Procedures Directive,5 and examine how the Deal was implemented in Greek asylum law. This will allow to analyse the alleged violations of the right to seek asylum, the prohibition of refoulement, and of collective expulsion.
For each claim, the account will begin with a textual analysis of the Statement’s provision and of the International and European norms and principles, which are there recalled. Secondly, some 1 European Council, EU-Turkey statement, 18 March 2016, 18 March 2016, http://www.refworld.org/docid/-5857b3444.html, (Statement).
2 CJEU, T-192/16, NF v. European Council; T-193/16, NG v. European Council; T-257/16, NM v. European Council, 28 February 2017 (NF, NG and NM; the paragraph which are identical for the three orders will be reported just as NF). (CJEU).
3 A. Rizzo, La dimensione esterna dello spazio di libertà, sicurezza e giustizia. Sviluppi recenti e sfide aperte, in Freedom, Security & Justice: European Legal Studies, 2017, 149-150
4 CJEU, Applications, http://curia.europa.eu/juris/document/document.jsf?text=&docid=181014&pageIndex=0&docla-ng=en&mode=req&dir=&occ=first&part=1&cid=23382 (Applications).
5 Directive 2013/32/EU on common procedures for granting and withdrawing international protection, 26 June 2013 (hereinafter: APD).
remarks about how the Deal has been applied practically will be made for each section. Indeed, it is possible that violations of international and European law would result not directly from the provisions of the Deal,6 but from its realisation. This analysis aims to appraise whether the critiques, which have been raised by many scholars and NGOs,7 are stemming from the Deal per se, or from the asylum procedure of the two countries involved in its implementation, i.e. Greece and Turkey.8 In fact, the presence of “adequate procedural safeguards […] in both the inadmissibility process prior to removal and in the asylum system of the destination state” are fundamental to avoid violations to stem indirectly from the Statement.9
This reasoning appears much more important in the light of the willingness of the EU and its Member States to use the Deal as a blueprint for other agreements with third countries.10 Endeavours of further fostering these partnerships has been shown both at the EU level – with the new Action Plan adopted in Malta,11 and with the Partnership Framework12 to be adopted with third countries – and at national level, with the recent declarations of Angela Merkel and the new Italian Migration Compact.13 As it will be explained later on, these instruments are part of the externalisation policy of EU migration law, which has been strongly criticised, especially for its
6 Possible doubts raised by single provisions could be solved by mean of consistent interpretation. M. den Heijer, T. Spijkerboer, Is the EU-Turkey refugee and migration deal a treaty?, 7 April 2016, http://eulawanalysis.blogspot.nl/2016/04/is-eu-turkey-refugee-and-migration-deal.html
7 B. Benvenuti, The Migration Paradox and EU-Turkey Relations, in IAI Working Papers, 2017, 10
8 UNHRC, UNHCR on EU-Turkey deal: Asylum safeguards must prevail in implementation, 18 March 2016, http://www.unhcr.org/56ec533e9.html
9 R. Mandal, EU−Turkey Refugee Deal Is Vulnerable to Legal Challenge, 23 March 2016, https://www.chathamhouse.org/expert/comment/eu-turkey-refugee-deal-vulnerable-legal-challenge;
10 European Commission, Communication From The Commission To The European Parliament, The European
Council, The Council And The European Investment Bank on establishing a new Partnership Framework with third countries under the European Agenda on Migration, COM(2016) 385, 7 June 2016, 3; C. Lopez Curzi, Il processo di esternalizzazione delle frontiere europee: tappe e conseguenze di un processo pericoloso, 1 July 2016,
https://openmigration.org/analisi/il-processo-di-esternalizzazione-delle-frontiere-europee-tappe-e-conseguenze-di-un-processo-pericoloso/; I. Toygür, B. Benvenuti, One Year On: An Assessment of the EU-Turkey Statement on Refugees, in IAI Working Papers 17, 14 March 2017, 3, http://www.iai.it/it/pubblicazioni/one-year-assessment-eu-turkey-statement-refugees
11 European Council, Malta Declaration by the members of the European Council on the external aspects of
migration: addressing the Central Mediterranean route, 3 February 2017, http://www.consilium.europa.eu/en/press/press-releases/2017/01/03-malta-declaration/;
12 European Commission, Communication From The Commission on establishing a new Partnership Framework op.
cit.
13 C. Lopez Curzi, Ibid.; T. Spijkerboer, Fact Check: Did the EU-Turkey Deal Bring Down the Number of Migrants
and of Border Deaths?, 28 September 2016,
alleged disregard to human rights records of the third States, which the EU is undertaking commitments with, and which could expose the Union to violations of international law.14
In response to these critiques, the new Partnership Framework specifies that new agreements in the area of migration will take into account the particular characteristics of the third country, and will be tailored on the procedure and the protection regime there in place.15 This is an additional reason why it is deemed important to shed some light on how the EU-Turkey Statement has been implemented, and whether the promises of the Commission have been upheld.
As a final methodological remark, it is important to stress that the sources used in this work will not be limited to the articles of the Charter and Common European Asylum System instruments.16 In fact, it is considered necessary to use as a benchmark also norms and principles contained in the 1951 Refugee Convention and in the European Convention of Human Rights, since Turkey is a party to both these Conventions, while it is not bound by CEAS or by the Charter. Moreover, these instruments are strongly intertwined vis-à-vis migration and refugee law: on one side, the very wording of Art. 78 TFEU and multiple EU Regulations and Directives show a deep deference for International Refugee Law,17 which is deemed to be interpreted and implemented by CEAS;18 on the other hand, art. 52(3) of the Charter explicitly refers to ECtHR case law, which will thus be taken into account in the following analysis.
14 C. Lopez Curzi, Ibid.
15 European Commission, Communication From The Commission on establishing a new Partnership Framework op.
cit., 6
16 (CEAS)
17 Inter alia, art. 20 Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, 13 December 2011; P. Boeles et al., European
Migration Law, 2nd Edition, Intesentia, Cambridge, 2014, 248.
18 EASO, Exclusion:Articles 12 and 17 Qualification Directive (2011/95/EU) A Judicial Analysis, 2016, 10; M. Fullerton, A Tale of Two Decades: War Refugees and Asylum Policy in the European Union, in Washington University
CHAPTER 1
The EU and Turkey: Historical Background of the Statement
1.1 The role of migration in EU-Turkey relations
Notwithstanding the lengthy and troubled negotiations on accession,19 there has been a progressive integration between EU and Turkey.20 Particularly, “migration played a crucial role in shaping EU-Turkey relations”,21 especially in view of Turkey’s transformation from a country of emigration to a country of immigration or, at least, of transit toward Europe.22 This leads to two main trends.
In its internal sphere, Turkey has undertaken a series of reforms in the field of migration law.23 These were encouraged by the EU, as a chance to control the enormous migration flow, stemming from the Arab Spring first, and the Syrian conflict afterwards.24
As far as external policy is concerned, the cooperation between EU and Turkey regarding migration has been given tangible shape through the adoption of international agreements, which the 2016 Statement is part of.25 In this regard, two main points need to be stressed.
First of all, the agreements stipulated by the EU and Turkey can be considered part of the bigger policy of “externalisation of migration control” pursued by the EU.26
19 F. Cenzit, L. Hoffman, Rethinking Conditionality: Turkey’s European Union Accession and the Kurdish Question, in Journal of Common Market Studies, 2013, 418; O. Z. Oktav, A. Çelikaksoy, The Syrian refugee challenge and
Turkey’s quest for normative power in the Middle East, in International Journal, 2015, 408-411; A. Okyay, J.
Zaragoza-Cristiani, The Leverage of the Gatekeeper: Power and Interdependence in the Migration Nexus between the
EU and Turkey, in The International Spectator: Italian Journal of International Affairs, Vol. 51/N. 4, 2016, 51-59; V.
R. Scotti, The EU-Turkey Joint- Parliamentary Committee and Turkey’s EU Accession Process, in The Hague Journal
of Diplomacy, 2016, 197-198; A. Szymanski, EU-Turkey Pre-Accession Policy and its impact on Democracy and State Quality, in European Foreign Affairs Review, 2012, 533-538; M. Ugur, Open-ended Membership Prospect and Commitment Credibility: Explaining the Deadlock in EU-Turkey Accession Negotiations, in Journal of Common Market Studies, 2010, 968-970; Ö. Yaka, Why not EU? Dynamics of the Changing Turkish Attitudes Toward EU Membership, in Journal of Contemporary European Studies, 2016, 152-158
20 C. Karakas, op. cit., 1065-1066.
21 B. Benvenuti, op. cit., 2017, 3.
22 Ibid.
23 O. Z. Oktav, A. Çelikaksoy, op. cit., 411; B. Benvenuti, op. cit., 2017, 3-4
24 B. Benvenuti, op. cit., 3
25 B. Benvenuti, op. cit., 4
26 B. Frelik, I. M. Kysel, J. Podjul, The Impact of Externalization of Migration Controls on the Rights of Asylum
In this context, externalisation is defined as “extraterritorial state action to prevent migrants, including asylum seekers, from entering the legal jurisdiction or territories of the destination countries”,27 and was first envisioned during the Tampere Council of 1999.28
Its main aim is to contain the migration flow before it reaches the actual territory of the Union, thereby outsourcing the protection given by CEAS.29 On its part, UNHCR has often not been enthusiastic about externalisation policies: its Executive Committee has actually stressed that “asylum should not be refused solely on the ground that it could be sought from another State”.30
Externalisation can include policies, which involve a multiplicity of actors and take several forms.31 In particular, Readmission Agreements, adopted on the basis of art. 79(3) TFEU, are a commonly used tool in this regard: they provide for a scheme of returns of third country nationals in their country of origin or transit, in exchange for other benefits, such as visa liberalisation.32
The Readmission Agreement between the EU and Turkey was signed in 2013, after a troubled negotiation history.33 Similarly to the 2016 Statement, this was already embedded with a logic of burden-sharing of irregular migration:34 Turkey was obliged to take back irregular migrants of Turkish nationality or who travelled via Turkey to reach the Union.35
As a second point, it is worth considering how a closer integration between EU and Turkey, and the facilitation of movement across borders for Turkish citizens was used as leverage to negotiate deals, regarding the management of forced migration. Indeed, visa liberalisation has for long been one of the goal of Turkey in the accession process: however, its achievement is conditional on the
27 B. Frelik, I. M. Kysel, J. Podjul, op. cit., 193
28 M. den Heijer, Europe and Extraterritorial Asylum, Hart Publishing, Oxford and Portland, Oregon, 2012, 180-181
29 (Hereinafter: CEAS) D. Bulley, Shame on EU? Europe, RtoP, and the Politics of Refugee Protection, in Ethics &
International Affairs, 2017, 62; B. Frelik, I. M. Kysel, J. Podjul, op. cit., 190
30 UNHCR Executive Committee, Refugees without an Asylum Country, 1979; B. Frelik, I. M. Kysel, J. Podjul, op.
cit., 195
31 B. Frelik, I. M. Kysel, J. Podjul, op. cit., 193-194; See further M. den Heijer, op. cit., 2012
32 B. Benvenuti, op. cit., 5; B. Frelik, I. M. Kysel, J. Podjul, op. cit., 207; M. Rais, European Union Readmission
Agreement, in Forced Migration Review, 2016, 45
33 P. G. Bal, The Effects of the Refugee Crisis in the EU-Turkey Relations: The Readmission Agreement and Beyond, in European Scientific Journal, 2016, 17-18
34 N.A. Eralp, The Outlook for EU-Turkey Relations, 2014, 6, http://www.tepav.org.tr/en/haberler/s/3613
fulfilment of the requirements provided by the EU in the roadmap36 and in the Readmission Agreement.37 Thus, the EU seems to have contrasting feelings vis-à-vis Turkey: while promising visa liberalisation and memberships, it has a vested interest in using it as buffer zone for migration control.38
1.2 Birth of the EU-Turkey Statement
Externalisation policy and the promise of visa liberalisation strongly influenced the creation of the 2016 Deal. On one side, the EU felt compelled to tackle the migration crisis in 2015: to this end, it believed that an agreement with Turkey was necessary. Thus, negotiations began with the presentation of the EU-Turkey Joint Action Plan in October 2015, which stressed the need to further implement and develop the Readmission Agreement of 2013.39 The talks, which have been held in late 2015 and early 2016, lead to the signing of the Statement on 18th March 2016.
The main purpose of the Deal, as described by the Preamble, is to fight the loss of human rights at sea and to combat human smuggling. Its scope of application covers asylum seekers, which arrived in Greece after the 20th March 2016. Irregular migrants, who do not apply for international protection, would be send back pursuant to the Returns Directive.40 It is unclear what will happen to migrants intercepted at sea.41
Since its entry into force, the Statement has attracted a lot of criticism vis-à-vis its compliance with international refugee law, CEAS instruments, and human rights law.42 It has been described as 36 European Commission, Roadmap Toward a visa-free regime with Turkey, 16 Dec 2013, https://ec.europa.eu/home-
affairs/sites/homeaffairs/files/what-is-new/news/news/docs/20131216-roadmap_towards_the_visa-free_regime_with_turkey_en.pdf
37 A. Akdeniz, op. cit., 2; B. Benvenuti, op. cit., 6; N. A. Eralp, op. cit., 5
38 B. Benvenuti, op. cit., 3
39 B. Benvenuti, op. cit., 10
40 S. Peers, The draft EU/Turkey deal on migration and refugees: is it legal?, 16 March 2016, http://eulawanalysis.blogspot.nl/2016/03/the-draft-euturkey-deal-on-migration.html; this was also stressed by the UNHCR, in UNHCR urges immediate safeguards to be in place before any returns begin under EU-Turkey deal, 1 April 2016, http://www.unhcr.org/56fe31ca9.html
41 S. Peers, The draft Ibid.
42 ASGI, Accordo Ue-Turchia: ricorso alla Corte Europea di Giustizia, 14 November 2016, http://www.asgi.it/asilo-e-protezione-internazionale/accordo-ue-turchia-ricorso-corte-europea-giustizia/; S. Nebehay, K. Tagaris, UNHCR says
won't work in Greek 'detention centres' in swipe at EU-Turkey deal, 23 March 2016,
http://uk.reuters.com/article/uk-europe-migrants-greece-unhcr-idUKKCN0WO0S3;; B. Benvenuti, op. cit., 10; S. Tunaboylu, J. Alpes, The EU-Turkey
deal: what happens to people who return to Turkey?, in FMR review, 2017, 84; UNHCR, UNHCR expresses concern over EU-Turkey plan, 11 March 2016,
http://www.unhcr.org/news/latest/2016/3/56dee1546/unhcr-expresses-concern-“realpolitik at its worst”: an instrument, which is, at least, morally dubious, and potentially sacrificing human rights on the altar of effective migration policy.43
In addition, there are several doubts on whether the Deal is effective in practice: some argue that its purpose to combat human smuggling has been largely defeated in practice, since it has been documented that the few actual returns to Turkey concerned mainly economic migrants, which left without applying for asylum.44
As a matter of fact, these critiques are enough to shed doubt on the mainstream account regarding the Deal, 45 and on the enthusiastic tones used by the EU Commission in its reports on
implementation.46
eu-turkey-plan.html
43 The Statement was so defined by Pierini, EU Ambassador in Turkey, November 2016; G. Icoz, N. Martin, op. cit., 442
44 AA. VV., Alarm over effectiveness of EU-Turkey refugee deal grows in Brussels, 2 November 2016, http://www.euractiv.com/section/justice-home-affairs/news/alarm-over-eu-turkey-refugee-deal-grows-in-brussels/; K. Babická, EU-Turkey deal seems to be schizophrenic, 22 March 2016, http://migrationonline.cz/en/eu-turkey-deal-seems-to-be-schizophrenic; P. Nallu, Shipwreck Survivors Stranded by a Faltering Deal, 2 November 2016, https://www.newsdeeply.com/refugees/articles/2016/11/02/long-read-shipwreck-survivors-stranded-by-a-faltering-deal;
45 J. C. Hathaway, Taking refugee rights seriously: A reply to Professor Hailbronner, 12 March 2016, http://verfassungsblog.de/taking-refugee-rights-seriously-a-reply-to-professor-hailbronner/; D. Thym, Why the
EU-Turkey Deal Can Be Legal and a Step in the Right Direction, 11 March 2016,
http://eumigrationlawblog.eu/why-the-eu-turkey-deal-can-be-legal-and-a-step-in-the-right-direction/
46 European Commission, First Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 231, 20 April 2016; Second Report on the progress made in the implementation of the EU-Turkey
Statement, COM(2016) 349, 15 June 2016; Third Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 634, 28 September 2016; Fourth Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 792, 8 December 2016; Fifth Report on the progress made in the implementation of the EU-Turkey Statement, COM(2017) 204, 2 March 2017
CHAPTER 2
Legal Nature And Remedies
This Chapter deals with the criticisms the EU-Turkey Statement has received concerning its nature and its legal validity. Two main questions have been raised on this point: is the Statement a binding international agreement? Further – and, to some extent, regardless –was it concluded by the EU? Defining the document’s legal nature serves two purposes: verifying whether the statement has been subject to democratic scrutiny,47 and determining the remedies available to challenge the legality of its provisions.48 Specifically, this analysis has its focal point on the Orders issued by the General Court of the European Union on 28th February 2017, which have recently been appealed to the Court of Justice.49
2.1 Binding?
Prima facie, the Statement meets the requirements set out in art. 2(1) a) VCLT, hence, it could be
considered as an international binding agreement in the meaning of art. 38 ICJ Statute.50 However, some authors have regarded it as a merely political declaration, to be implemented in other instruments, then subject to legal review.51 Arguments and counterarguments on this point will be addressed in turn.
The first argument is terminological. In fact, it has been suggested that the document was titled “Statement” and not “agreement” or “convention”. Moreover, its wording indicates more an expression of “common desire”, than actual binding obligations, since “it does not use terms as shall and should, which are normally used in international law to indicate obligation”.52
47 Either as prescribed by art. 218 TFEU or by national law.
48 M. den Heijer, T. Spijkerboer, Ibid.
49 Information on the Appeal is yet not available.
50 M. den Heijer, T. Spijkerboer, Ibid.
51 K. Babická, Ibid.; E. Cannizzaro, Denialism as the Supreme Expression of Realism. A Quick Comment on NF v.
European Council, in European Papers, 1, at
http://www.europeanpapers.eu/it/europeanforum/denialism-as-the-supreme-expression-of-realism-comment-on-nf-v-european-council; M. den Heijer, T. Spijkerboer, Ibid.; C. Mătușescu,
Considerations on the legal nature and validity of the EU-Turkey Refugee Deal, in International Law Review, 2016, 93;
S. Peers, The Draft Ibid.
52 M. den Heijer, T. Spijkerboer, Ibid.; M. Gatti, The EU-Turkey Statement: A Treaty That Violates Democracy, EJIL: Talk!, 18 April 2016, https://www.ejiltalk.org/the-eu-turkey-statement-a-treaty-that-violates-democracy-part-1-of-2/
Secondly, it has been submitted that the agreement is not binding because the procedure under art. 218 TFEU has been disregarded.53 Allegedly, this would show that the parties did not intended to stipulate an agreement under art. 216 TFEU.
However, it needs to be stressed, art. 2(1) VCLT explicitly states that a treaty is so “whatever its particular designation”. As stated by the ICJ in Aegean Sea, the name gave to an act is not relevant to determine its legal nature. In order to do that, “all […] its actual terms and […] the particular circumstances in which [the agreement] was drawn up” need to be considered.54
Moreover, the Preamble of the Statement contains the expression “[the EU and Turkey] have agreed on”, followed by a list of action points.55 Apart from rendering the textual argument largely inconclusive – showing that the language does not unequivocally point to a political declaration – this wording highlights the striking similarities between this case and ICJ Qatar v. Bahrain. In its ruling, the Court affirmed that the 1990 Minutes “enumerate the commitments to which the Parties have consented. They thus create rights and obligations […] for the Parties”, and therefore “They constitute an international agreement”.56 In addition, in line with art. 46 VCLT, the Court held that failure to respect internal norms on the conclusion of international agreements cannot change the nature of the act in question.57
Therefore, it can be concluded that neither the name and the terminology used in the document, nor its non-compliance with procedural requirements can per se take away the bindingness of the treaty.58 Indeed, the substance, rather than the form, qualifies an international agreement.59
This vision was also consistent with CJEU jurisprudence, which defined an agreement in the meaning of art. 216 TFEU60 as an “undertaking entered into by entities subject to international law which has binding force, whatever its formal designation”61. It also stated, in France v. Commission, 53 M. den Heijer, T. Spijkerboer, Ibid.
54 ICJ, Aegean Sea Continental Shelf Case, 19 December 1978, §96
55 As reported in NF, §9; M. den Heijer, T. Spijkerboer, Ibid.
56 ICJ, Qatar v. Bahrain, 1 June 1994, §24
57 ICJ, Qatar v. Bahrain, 1 June 1994, §29
58 M. den Heijer, T. Spijkerboer, Ibid.
59 C. Favilli, La cooperazione UE-Turchia per contenere il flusso dei migranti e richiedenti asilo: obiettivo riuscito?, in Diritti umani e Diritto internazionale, 2016, 419
60 C. Mătușescu, op. cit., 96
61 CJEU, Joined cases C-103/12 and C-165/12, Parliament and Commission v Council, 26 November 2014, §83; G. Fernández Arribas, The EU-Turkey Statement, the Treaty-Making Process and Competent Organs.Is the Statement an
that the intention of the parties is fundamental to determine whether the document could be considered such an agreement.62
However, scrutinizing intentions of the parties might not be as simple. The Commission, together with some Members of the European Parliament, argued that the Deal is a mere political declaration, to be subsequently implemented through other binding acts.63 However, there is no reference in the Statement as to the adoption of follow-up agreements. Conversely, it appears that the Statement is finalising commitments, which were drafted with the adoption of the 2015 Joint Action Plan and the March 2016 Declaration.64 In fact, in the very words of the Commission, the Statement represents “a new phase in the EU-Turkey relationship”.65 A Joint action plan on the implementation of the EU-Turkey Statement was indeed adopted in December 2016, but this seems an informal act, undertaken between the EU coordinator for the implementation of the Deal, Maarten Verwey, and Greek authorities, in order to accelerate and improve asylum procedures in Greece.66
It should also be noticed that the first transfer carried out on the basis of the Statement took effectively place on 4 April 2016.67 This shows that the Parties perceive the Statement as a set of obligations, which are being abided to by the parties.68 Actually, it would be worrisome that the use of certain wording, or the lack of compliance with certain procedural requirements could deprive an instrument of the possibility to be legally reviewed, but not, at the same time, of its legal effects.69
International Agreement?, in European Papers, 9 April 2017, 4,
http://europeanpapers.eu/fr/europeanforum/eu-turkey-statement-treaty-making-power-and-competent-organs
62 CJEU, C-233/02, France v Commission, 23 March 2004, § 42-45; G. Fernández Arribas, Ibid.
63 NF, §41; C. Danisi, Taking the ‘Union’ out of ‘EU’: The EU-Turkey Statement on the Syrian Refugee Crisis as an
Agreement Between States under International Law, EJIL: Talk!, 20 April 2017,
https://www.ejiltalk.org/taking-the- union-out-of-eu-the-eu-turkey-statement-on-the-syrian-refugee-crisis-as-an-agreement-between-states-under-international-law/#more-15173; C. Mătușescu, op. cit., 95
64 C. Danisi, Ibid.; C. Favilli, op. cit., 407; M. Gatti, Ibid.
65 European Commission, First Report on the progress made in the implementation of the EU-Turkey Statement, COM(2016) 231, 20 April 2016,
66 Joint action plan on the implementation of the EU-Turkey Statement, 8 December 2016
67 European Commission, Press Release, 9 November 2016, at http://europa.eu/rapid/press-release_IP-16-3614_en.htm
68 C. Danisi, Ibid.; M. den Heijer, T. Spijkerboer, Ibid.
To conclude, in the awareness that application of the Statement cannot – alone – change its legal nature,70 implementation and behaviour of the actors involved brings strong evidence in support of the bindingness of the Deal.
2.2 On whom? Paternity and procedure
Before the Orders of 28th February 2017, no one was anticipating the outcome of the NF cases. Indeed, legal scholars were quite discouraged about the success of these applications, but their doubts were mainly focusing on the fulfilment of art. 263(4) TFEU requirement, which has been interpreted restrictively by the CJEU.71 However, the Court has declined jurisdiction because the finalisation of the Statement took place between “Heads of State or Government with their Turkish counterpart”. In particular, the idea that this was concluded by the EU institutions is based on a “communicative mistake”,72 since terms like “EU” or “European Council” have been used inappropriately in the Statement itself.73 Thereby, jurisdiction of the Court under art. 263 TFEU was ruled out.74
However, there are a number of reasons why this outcome is “both worrying and unconvincing”,75 and it is possible to appreciate them through different lenses: the one of EU External Relations Law, of International Responsibility, and of the Law of Treaties. The three perspectives will be addressed in turn.
2.2.1 EU External Relations Law
It needs to be recalled that the Treaty of Amsterdam (1997) transferred CEAS to the first pillar of the EC, setting aside the intergovernmental approach to matters related to migration.76 Nowadays, it is subject to “ordinary legislative procedure”.77 Therefore, the EU displays its external competence 70 G. Fernández Arribas, op. cit., 7
71 CJEU, T-541/10 e T-215/11, ADEDY et al v. Council, 27 November 2012, §84-85; C. Favilli, op. cit., 419-420; C. Mătușescu, op. cit., 98
72 E. Cannizzaro, op. cit., 2
73 NF, §58-60
74 NF, §67-68
75 E. Brouwer, The European Court of Justice on Humanitarian Visas: Legal integrity vs. political opportunism?, CEPS, 2017, 3, at https://www.ceps.eu/system/files/Visa%20Code%20CJEU%20E%20Brouwer%20CEPS%20-Commentary_0.pdf
76 P. Boeles et al., op. cit., 34
in migration matters pursuant to art. 218 and 79(3) TFEU and, hence, the analysis will focus on these provisions.
Firstly, art. 218 has been defined as “an autonomous and general provision of constitutional scope”,78 which designs the balance between EU institutions in concluding agreements.79 It provides that the competent institutions to conclude such a international agreements would be the Commission (recommendations), the Council of the European Union, and the Parliament, which, under paragraph 6 a) (v), needs to give its consent.80 Additionally, the European Council has no competence in concluding international agreements, with the exception of common security policy.81
Therefore, the European Council does not have the power to bind the EU in asylum-related matters,82 and the adoption of the Statement without parliamentary consent raises the issue of democratic accountability for acts finalized in its framework.83 Thus, a ruling of the Court defining the Statement as an agreement adopted by the EU would have been the same as admitting that European Council acted in breach of art. 218.84
However, given that the Court has defined the Statement has an agreement undertaken by Member States, one should turn to analyse art. 79(3) TFEU, which needs to be read in conjunction with art. 3(2) TFEU. Together, they provide for an explicit and exclusive competence of the Union in concluding agreement with third countries in the context of CEAS.85
In fact, in line with the so-called ERTA doctrine,86 in areas, such as CEAS – and, in particular, its externalisation process –, which are “covered to a large extent” by EU law, Member States should be precluded from signing such an agreement.87 Indeed, the EU-Turkey Statement could be seen 78 CJEU, C-425/13, Commission and Parliament v. Council, 16 July 2015, §62
79 M. Gatti, Ibid.
80 M. den Heijer, T. Spijkerboer, Ibid.; C. Mătușescu, op. cit., 95; G. Fernández Arribas, op. cit., 5; A. Rizzo, op. cit., 167
81 Art. 24-26 TEU
82 G. Fernández Arribas, op. cit., 6
83 M. Gatti, Ibid.
84 G. Fernández Arribas, op. cit., 9 April 2017, 2
85 A. Rizzo, op. cit., 158
86 S. Carrera, L. den Hertog, M. Stefan, It wasn’t me! The Luxembourg Court Orders on the EU-Turkey Refugee Deal, in CEPS, April 2017, 8, at https://www.ceps.eu/system/files/EU-Turkey%20Deal.pdf. For more information, see P. J. Kuijper et al., The Law of EU External Relations, Oxford University Press, Oxford, 2015, 1-19
both as “necessary to attain objectives of the Treaty”, described in art. 78-79 TFEU, and as an area, in which “common rules have been adopted”.88 Indeed, migration law has been thickly regulated by the EU,89 and the Junker Commission has undertaken an unprecedented activism in the area of migration,90 starting from the 2015 Agenda for Migration91.
Consequently, considering the Statement an act of Member States would go against the principle held by the CJEU, that Member States external policy should “not be capable of undermining the uniform and consistent application of the Community rules and the proper functioning of the system”.92 Theoretically, the Deal clearly impacts the interpretation of art. 35-38 Procedures Directive, since it unconditionally presumes that Turkey would meet the requirements to be considered a “safe country”.93
In any event, recognising to Member States the power to conclude agreements in an area of law, in which the EU has exclusive competence, has an additional downside: it opens up the possibility for national judges to review the act against constitutional law and, were a violation to be found, not to apply it.94
Given these remarks, the Deal should either be considered an act of the EU under art. 3(2) and 216 TFEU, or an act of Member States adopted in violation of the EU Treaties.95 Otherwise, it would be clear that the Statement “constitutes a form of crisis-led governance that falls outside and challenges the EU Treaty framework”, effectively re-instituting the inter-governmental decision making processes in the field of asylum law.96
One final point should be stressed in this regard: assuming, arguendo, that it was concluded by Heads of State and Government, the Statement did not respect the requirements set out by national 88 CJEU, Opinion 1/03, Lugano Convention, 7 February 2006
89 E. Cannizzaro, op. cit., 4
90 S. Carrera, S. Blockmans, D. Gros, E. Guild, The EU’s Response to the Refugee Crisis: Taking Stock and Setting
Policy Priorities, in Centre for European Policy Studies, 20/16, 2015, 2-12
91 Its first pillar pertains to the partnership with third countries to tackle irregular migration; European Commission,
European Agenda for Migration, COM(2015)240, 13 May 2015; C. Favilli, op. cit., 406
92 CJEU, Opinion 1/03, Lugano Convention, 7 February 2006, §126-133, as cited in S. Carrera, L. den Hertog, M. Stefan, op. cit., 9
93 C. Favilli, op. cit., 419
94 E. Cannizzaro, op. cit., 7
95 C. Favilli, op. cit., 418
legislation for the conclusion of international agreements. As an example, Constitutions of many Member States – inter alia the Italian (art. 10 and 80), French (art. 52-53) and Spanish one (art. 94) – require parliamentary approval in matters regulating the status of foreign nationals and immigration.97 Therefore, the Deal was subject to democratic scrutiny neither at the European level, nor at the national level.
2.2.2. International Responsibility
Some authors have tried to square their critiques to the CJEU Orders in the discipline set out by art. 6 and 7 Articles on the Responsibility of International Organisation.98 The conceptual hurdles in establishing international responsibility in the context of the EU are well-know,99 and conducting an in-depth analysis in this respect falls outside the scope of this paper. However, were one to adopt the “bifocal approach” in establishing “effective control” in the meaning of art. 7 ARIO,100 it would be helpful to look at facts on the ground, in order to establish whether the Statement could be considered an act of the EU or of Member States.
Firstly, and from the very beginning of negotiations, the EU has vindicated its role as “independent actor” in fostering the cooperation with Turkey in putting an end to the migration crisis.101 This appears clearly both from the draft statement issued on 7th March 2016,102 and from the text of the Statement itself.103 Secondly, the Commission is closely monitoring the implementation of the Deal, endorsing its content and its legal validity.104
Moreover, as some scholars have rightly pointed out, the Statement was published in a press release on the European Council website, which would logically lead to think of an active involvement of the institution as such105.
97 C. Favilli, op. cit., 420
98 E. Cannizzaro, op. cit., 5; (ARIO)
99 P. J. Kuijper, Introduction to the Symposium on Responsibility of International Organizations and of (Member)
States: Attributed or Direct Responsibility or Both?, in International Organization Law Review, 2010, 14-19
100 T. Dannenbaum, Dual Attribution in the Context of Military Operations, in International Organizations Law
Review, 2015, 401-426
101 C. Danisi, Ibid.
102 European Council, Statement of the EU Heads of State or Government, 7 March 2016, http://www.consilium.europa.eu/en/press/press-releases/2016/03/07-eu-turkey-meeting-statement/
103 C. Danisi, Ibid.
104 C. Danisi, Ibid.; A. Rizzo, op. cit., 174
Additionally, looking at the wording of the Deal, the Preamble clearly states that: “the EU and Turkey today decided […], they agreed on the following […]”. This expression clearly refers to the EU acting as a supranational organisation, undertaking specific commitments, and not merely assisting Member States in drafting the document106.
Ultimately, one needs to remember that Member States cannot always choose in which capacity they are acting.107 In fact, the Court has previously held that, when an agreement could be undertaken both by the Member States and by an EU institution, the nature and context of the agreement needs to be taken into account to determine who concluded it.108 The elements reported above can be considered as sufficient evidence that the EU and its organs exercise(d) factual control over the adoption and implementation of the Statement. Thus, the act should be attributed to the EU.
2.2.3. The VCLT
The last lens one could see these Orders through is constituted by the VCLT.109 Pursuant to its art. 26, a Treaty is binding only between parties. However, the Statement seems to create obligations for the Union itself: for examples, the EU is actually obliged to disburse 3 billion euros, on top of the other 3 billions agreed in the Joint Action Plan of 2015.110 In general, “The costs of the return operations of irregular migrants will be covered by the EU”.111 For the financing of the operations related to the cooperation between EU and Turkey in the field of migration the new fund “Facility for Refugees in Turkey” was created, which comprises money coming both from the EU and Member States.112 Moreover, as previously stated in Chapter 1, the Statement obliges the Union to speed up Turkey’s accession process and visa-liberalisation113. This leads to the conclusion the EU should be considered a party to the Statement.
106 C. Danisi, Ibid.
107 E. Cannizzaro, op. cit., 3; See Also CJEU, C-28/12, Commission v. Council, 28 April 2015, §41-42
108 CJEU, Joined cases C-181/91 and C-248/91, European Parliament v. Council of the European Communities and
Commission of the European Communities, 30 June 1993, §14-16
109 C. Danisi, Ibid.
110 C. Favilli, op. cit., 419
111 Statement, §1
112 C. Danisi, Ibid.; C. Favilli, Ibid.
2.3. Remedies
The previous sections illustrated that, notwithstanding the position of the CJEU that a remedy “must be available in the case of all measures adopted by the EU institutions, irrespective of their nature or form”,114 the possibility to successfully challenge the validity of the EU-Turkey Statement is visibly curtailed.115
Firstly, even if the Statement was considered an act of the EU, it would not be possible now to activate the control of the CJEU provided in art 218(11),116 since the Court cannot declare invalid a treaty which has already been concluded by the Union with a third State117.Secondly, the CJEU Orders have now clearly shown that action of annulment pursuant to art. 263 TFEU cannot be successful. However, there are still other venues to challenge single provisions of the deal, in case it was found not in compliance with international refugee law or human rights law.118
First, a national court could refer the matter to the CJEU, which would judge pursuant to art. 267 TFEU.119 On the other, migrants falling within the scope of the Deal could seek relief pursuant to art. 39 of ECtHR Rules of the Court: the judge of one of the Contracting Parties could ask the Court of Strasbourg for interim measures.120 Indeed, those measures were granted for the first time in
regard to the EU-Turkey deal, in June 2017.121 Moreover, while interim measures affect the single case, they have no direct impact on the legal validity of the Deal.
Nevertheless, as previously mentioned, the reasoning of the Court in NF opens up the possibility for Member States to review the Statement under national law. Therefore, national courts could play a prominent role in deciding whether the Statement should or should not be applied. If, on one hand, the activism of national courts could be welcomed as the only effective mean of judicial review of the Deal, on the other, it creates further uncertainties, both for the applicants, who are exposed to
114 CJEU, C-425/13, Commission and Parliament v. Council, 16 July 2015, §26
115 S. Carrera, L. den Hertog, M. Stefan, op. cit., 8; C. Mătușescu, op. cit., 98
116 C. Mătușescu, op. cit., 98
117 A. Rizzo, op. cit., 167; CJEU, Opinion 3/94, 13 December 1995
118 M. den Heijer, T. Spijkerboer, Ibid.; A. Rizzo, op. cit., 174
119 C. Mătușescu, Ibid.; A. Rizzo, op. cit., 173
120 A. Rizzo, Ibid.
121 ECRE, Greece: Strasbourg Court halts return of rejected asylum seeker to Turkey, 30 June 2017, https://www.ecre.org/greece-strasbourg-court-halts-return-of-rejected-asylum-seeker-to-turkey/;
different interpretation and application of the Deal, and for the relationships between EU and Turkey, the commitments of which become further blurred and ambiguous.
In Greece, most inadmissibility rulings (i.e. based on the concept that Turkey is a safe third country) have been, in practice, overturned by the Appeal Committee.122 However, this trend was averted with the adoption of L 4399/2016, which modified the composition of these Committees, increasing weight of the decision taken by the Member chosen by the Minister of Interior, and forsaking the help of independent experts.123 In this way, the independency and impartiality of these organs becomes more doubtful, as the pressure of the EU to keep the agreement in place rises.124 Thus, what seemed the only feasible mean of judicial review of the Deal appears as manifestly impaired.125
122 A. Accorsi, Stakes high as Greek court set to decide fate of EU-Turkey migrant deal, 10 March 2017, http://www.middleeasteye.net/news/fate-eu-turkey-deal-be-decided-greek-court-665414141; A. Camilli, Ibid.; N. Nielsen, Greek verdict hangs over EU-Turkey migrant deal, 17 March 2017, https://euobserver.com/migration/137277; The AIRE Centre, ECRE, With Greece: Recommendation for Refugee Protection, June 2016, 10; E. Zalan, EU defends
Turkey deal in light of Greek court ruling, 23 May 2016, at https://euobserver.com/migration/133515
123 L 4399, 22 June 2016; EU Commission, Third Report op. cit., 5; ASGI, Observations in Greece, 25 June 2016, 6, 24; MSF, op. cit., 17
124 B. Petrakis, EU-Turkey Agreement on Migration Must Remain in Force, Avramopoulos Says, 16 March 2017, http://greece.greekreporter.com/2017/03/16/eu-turkey-agreement-on-migration-must-remain-in-force-avramopoulos-says/; See also Joint action plan on the implementation of the EU-Turkey Statement, 8 December 2016
CHAPTER 3
Alleged Violation Of International And European Law
The first two points of the Statement are deemed to be the most problematic. In fact, the very first sentence – “All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey” – already poses countless problems.126 This affirmation would, alone, breach both the prohibition on collective expulsion and the principle of non-refoulement. However, the remaining part of the paragraph sets out certain obligations, which, allegedly, guarantee that the transfers will be carried out “in full accordance with EU and international law”,127 as stated multiple times by the Commission.128 Thus, this Chapter addresses both the substantive provisions of the Statement, and how they have been implemented in national law.
3.1 Non-refoulement and “protection elsewhere” concepts
As previously stated, the applications in NF, NG, and NM allege both that the Deal violates art. 1 (human dignity), 18 (Right to asylum) and 19 (non-refoulement) of the Charter and that Turkey is not a safe third country, in the meaning of the Procedures Directive.129 Before examining these contentions, two methodological remarks are deemed necessary.
Firstly, it could be worth to broaden the analysis to include also the concept of “first country of asylum”, prescribed in art. 35 APD. Indeed, the Statement applies to all irregular migrants, and, hence, Turkey could fall in each and everyone of these categories, depending on the applicant’s situation.
Secondly, it seems appropriate to analyse the claims together, given the interplay there is between those three articles, - and especially art. 19 on non-refoulement – and the concept of safe country. Moreover, both claims would require a closer look at the situation in the recipient State, i.e. Turkey. 126 Statement, §1
127 Statement, §1; P. Rodrigues, EU-Turkey deal: good on paper, bad in practice, 12 April 2016, http://leidenlawblog.nl/articles/eu-turkey-deal-good-on-paper-bad-in-practice; S. Peers, The final EU/Turkey refugee
deal: a legal assessment, 18 March 2016,
http://eulawanalysis.blogspot.nl/2016/03/the-final-euturkey-refugee-deal-legal.html
128 European Commission, Communication From The Commission on establishing a new Partnership Framework op.
cit., 6; First Report op. cit.; Second Report op. cit.; Third Report op. cit.; Fourth Report op. cit.; Fifth Report op. cit.
3.1.1 Legal Framework
The principle of non-refoulement, as enshrined in art. 33 Refugee Convention, prescribes that no refugee should be returned to a country where it faces persecution or ill-treatment.130 Moreover, the protection emanating from the principle covers also the case, where a beneficiary of international protection is sent to a third country, which then itself returns him/her to the country of origin, exposing him/her to persecution or ill-treatment.131 This interpretation is consistent in the practice of States, and it is based on the wording of art. 33 Refugee Convention, which reads “in any manner whatsoever”.132 Therefore, the existence of an obligation upon the second State not to engage in
refoulement does not affect the responsibility of the first State to ensure that former will not expose
the applicant to ill-treatment.133
In particular, the problem of indirect refoulement is intimately connected with third countries restrictions.134 In order to understand this link, one needs to consider that, nowadays, it is common for asylum seekers not to ask for international protection right in the first country they transit on after they flee their own.135 This has lead final destination countries, the EU in primis,136 to increasingly adopt procedural barriers, in order to even the distribution of asylum seekers among different States.137 In this way, “protection elsewhere” policies were created. Although the Refugee Convention makes no reference to these concepts,138 their application is now widespread practice among States.139
Their legal basis has been found in the lack, in the Refugee Convention, both of a right to be granted asylum and of a prohibition to send “an asylum seeker to a State where no persecution is
130 G. S. Goodwin-Gill, The Refugee in International Law, Oxford University Press, Oxford, 2007, 201-202
131 G. S. Goodwin-Gill, op. cit., 252
132 M. Foster, Protection Elsewhere: the legal implications of requiring refugees to seek protection in another State, in Michigan Journal of International Law, 2007, 244
133 See also ECtHR, T.I. v. United Kingdom, 7 March 2000; M.S.S. v. Belgium and Greece, 21 January 2011(M.S.S.); CJEU, Joined Cases C-411/10 and C-493/10, N.S. and M.E, 21 December 2011, §81 (N.S.)
134 S. H. Legomsky, Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The
Meaning of Effective Protection, in International Journal of Refugee Law, 2003, 572; J. Van Selmi, Access to Procedures‘Safe Third Countries’, 'Safe Countries of Origin' and 'Time Limits', UNHCR, 2001, 6
135 S. H. Legomsky, op. cit., 569
136 S. H. Legomsky, op. cit., 575; J. Van Selmi, op. cit., 3
137 M. Foster, op. cit., 224; S. H. Legomsky, op. cit., 570
138 M. Foster, op. cit., 226
feared”.140 Albeit these practices largely overlook both the obligation of taking into account the preference of the asylum seekers regarding their country of refuge, and the absence of an obligation upon them to file their application for international protection in the first possible country, 141 the UNHCR has generally welcomed them, since they are believed to respond to a rationale of effective protection and to prevent secondary movement.142 However, the UNHCR cautioned that sufficient safeguards need to be in place, in order for these policies not to become a tool to circumvent rights under the Refugee Convention.143
Thus, the requirements set out in art. 35-39 APD serve the purpose of checking whether these safeguards are actually in place: the failure of the country of return to reach the threshold prescribed therein, would automatically result in a violation of the prohibition of refoulement.144 Conversely, compliance with the principle of non-refoulement is one of the requirements for a country to be considered safe.145
On the other hand, were the country to fall within one of these categories, the APD prescribes different procedural consequences. In the case of safe country of origin, the application may be declared unfounded by Member States;146 in fact, the concept entails the presumption that a certain country does not persecute its own citizens, and it goes to the merit of the application, since it involves an assessment on whether the migrant coming from there has been persecuted.147
Moreover, applications may be found inadmissible if a country qualifies as first country of asylum or safe third country for the applicant:148 indeed, authorities would not judge on the merit of the application, but they will merely determine that “the asylum seeker should have applied for asylum
somewhere else”.149 Additionally, if a country qualifies as European safe third country for the applicant, the application can be not or not fully examined.150
140 M. Foster, op. cit., 226
141 M. Foster, op. cit., 236; J. Van Selmi, op. cit., 23
142 S. H. Legomsky, op. cit., 580, see footnote 46-47; J. Van Selmi, op. cit., 3
143 M. Foster, op. cit., 225
144 The AIRE Centre, ECRE, op. cit., 10
145 Art. 35 b) and 38 (1) c) d) APD
146 Art. 31(8) b) and 32(2) APD
147 S. Peers, 'Safe countries of origin': Assessing the new proposal, 14 September 2015, at http://eulawanalysis.blogspot.nl/2015/09/safe-countries-of-origin-assessing-new.html
148 Art. 33 (2) b) and c) APD
149 P. Boeles et al., op. cit., 286; S. Peers, Ibid.
As a result, the common effect of applying these concepts is the creation of a presumptio iuris
tantum, which could hence be rebutted. 151
Ultimately, other human rights treaties include a protection against refoulement, inter alia, art. 19 of the Charter, art. 3 Convention against Torture and art. 3 ECHR. However, it is important to notice that these norms have a broader scope of application ratione personae and their protection covers also aliens, who are not asylum seekers.152 Therefore, the authorities of the recipient State are under an obligation to assess whether any migrant would be subject to treatment contrary to art. 3 (and 19 of the Charter) in the country he has been returned to.
3.1.2 Application to the EU-Turkey Statement
Having sketched out the theoretical framework, it is possible now to assess how it applies to the EU-Turkey Statement. Clearly, the Deal is based on the presumption that Turkey is a “safe country”:153 in fact, it emerges from the text that the deal would apply to all irregular migrants, so to “migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the [APD]”.154 This means that also asylum seekers could be subject to returns, and that the mere transit is considered a sufficient link for Turkey to become a safe country for them.155
Thus, it is now necessary to proceed to see if Turkey meets the requirements of art. 35-39 APD and, hence, can be considered safe. Were Turkey not to meet those conditions, two possible scenarios of incompliance with the principle of non-refoulement are likely to open up: on one hand, Greece could be find responsible of refoulement to a country which does not provide sufficient protection for the asylum applicant; on the other, Greece could be find responsible of indirect refoulement, in case Turkey itself was found in violation of the principle.
151 Art. 38(2) Procedures Directive; S. Peers, E. Roman, The EU, Turkey and the Refugee Crisis: What could possibly
go wrong?, 5 February 2016, http://eulawanalysis.blogspot.nl/2016/02/the-eu-turkey-and-refugee-crisis-what.html
152 ECtHR, Hirsi Jamaa et al. v. Italy, 23 February 2012, §123-133
153 E. Roman, T. Baird, T. Radcliffe, op. cit., 9; UNHCR, Legal considerations on the return of asylum-seekers and
refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, 24 March 2016, 6
154 Statement, §1; S. Peers, The final Ibid.
155 DCR, ECRE, The DCR/ECRE desk research on application of a safe third country and a first country of asylum
concepts to Turkey, May 2016, 3; E. Roman, T. Baird, T. Radcliffe, op. cit., 9; S. Tunaboylu, J. Alpes, op. cit., 84;
On a preliminary note, it is important to remember that Turkey maintains a geographical limitation on the 1951 Geneva Convention:156 only applicants from Council of Europe parties may be granted international protection.157 Moreover, since the situation regarding Turkish citizens or habitual residents is largely regulated by the Association Agreement,158 hence, the significance of the Deal towards them is limited. Thus, the concepts of “safe country of origin” and “European safe third country” are excluded from the following analysis.
3.1.2.1. Safe third country
Art. 38(1) APD sets out the requirements for a third country to be considered “safe”.
As far as lit. a) and b) are concerned, the possibility that the applicant would be exposed to persecution or risk of serious harm,159 would need to be assessed on a case-by-case basis. Albeit the determination of a country as “safe” in the meaning of art. 38 APD does not entail an appraisal of the general situation vis-à-vis human rights in its territory, a situation of general violence could in some instances become relevant for this examination.160 In this case, the increasing tension with the Kurdish minority could result in exposure of migrants to indiscriminate violence if returned to some parts of the country.161
Secondly, art. 38(1) c) and d) have to deal with the respect of the principle of non-refoulement. Turkey has always had a bad record in regard to the principle.162 Particularly, some authors have argued that Turkey could be considered a persistent objector to the principle: in fact, due to the geographical limitation in force, it is bound by art. 33 Refugee Convention only vis-à-vis European asylum seekers.163 However, the wording of art. 38(1) d) aims at recalling art. 3 ECHR, which Turkey still needs to abide.164
156 S. Peers, E. Roman, Ibid.
157 S. Peers, The draft Ibid.; S. Peers, E. Roman, Ibid.
158 S. Peers, E. Roman, Ibid.
159 In the meaning of Qualification Directive
160 S. Peers, The draft Ibid.
161 V. Chetail, Will the EU-Turkey migrant deal work in practice?, 29 March 2016, http://graduateinstitute.ch/home/research/research-news.html/_/news/research/2016/will-the-eu-turkey-migrant-deal; S. Peers, E. Roman, Ibid.
162 See, inter alia, ECtHR, Abdolkhani And Karimnia V. Turkey, 22 September 2009, §117; G. S. Goodwin-Gill, op.
cit., 224.
163 M. Zieck, UNHCR and Turkey, and Beyond: of Parallel Tracks and Symptomatic Cracks, in International
Journal of Refugee Law, 2010, 615-616
164 Since the Soering judgement of 1989, the ECtHR has held that the article applies also in regard to inter-state removals. Therefore, it developed a consistent body of case law on the principle. Inter alia, Soering v. United Kingdom,
New safeguards against non-refoulement have also been introduced in Turkish Law, particularly, with the introduction of L 6458/2014 (art. 4) and of the 2014 Regulation on temporary protection now applied to Syrians (art. 6).165 However, Turkish law does not provide for an obligation of admittance: thus, it seems to adopt a narrow interpretation of art. 33 Refugee Convention, applying
non-refoulement only to asylum seekers already in its territory.166 This reading was not considered much of a problem at the outburst of the migration crisis, since Turkey had an “open door” policy in place.167 However, the situation grew desperate in 2015, when it has progressively closed the borders to Syrians refugees and engaged in systematic push-backs.168 To date, there is extensive evidence that Syrian asylum seekers need to rely on smugglers to enter Turkey.169
Moreover, several reports have “denounced an increase in deportations, push-backs, […] against asylum-seekers trying to cross the Turkish southern border”.170 Additionally, Turkey is concluding several readmission agreements with third countries, e.g. Yemen, Nigeria and Pakistan, which would further concretise the risk of indirect refoulement.171
Nevertheless, some argue that this evidence would not per se lead to the conclusion that Turkey is not a safe third country: the risk of refoulement needs still to be assessed on a case-by-case basis and 100% certainty is only required to be recognised as a “super-safe country”, under art. 39 APD.172
In any event, one cannot deny that extensive practice of violations of this principle erodes the presumption that Turkey is a safe third country: indeed, it multiplies the risk that a migrant sent
7 July 1989; Mamatkulov and Askarov v. Turkey, 6 February 2003; Vilvarajah et al. v. United Kingdom, 30 October 1991; N.A. v. United Kingdom, 17 July 2008; Salah Sheek v. the Netherlands, 11 January 2007
165 In this regard see ECtHR, Babajanov v. Turkey, 10 May 2016, 79-83
166 G. S. Goodwin-Gill, op. cit., 206-207
167 S. Peers, E. Roman, Ibid.
168 Amnesty International, Struggling to Survive: Refugees from Syria in Turkey, 2014, 9-10; HRW, Turkey: Syrians
Pushed Back at the Border, 23 November 2015,
https://www.hrw.org/news/2015/11/23/turkey-syrians-pushed-back-border; M. Ineli-Ciger, Implications of the New Turkish Law on Foreigners and International Protection and
Regulation no. 29153 on Temporary Protection for Syrians Seeking Protection in Turkey, in Oxford Monitor of Forced Migration, 2014, 31; MSF, Ibid.
169 HRW, Ibid.; S. Tunaboylu, J. Alpes, op. cit., 84
170 DCR, ECRE, op. cit., 4; S. Peers, E. Roman, Ibid.
171 S. Tunaboylu, J. Alpes, op. cit., 86
back from Europe would face the danger of being deported, and, consequently, the danger that Greece would breach the principle in turn.
The last requirement, under lit. e) concerns “the possibility […] to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”. Once again, the geographical limitation maintained by Turkey on the Geneva Convention is at the core of this evaluation.173 There are two main lines of arguments regarding this point.
On one side, scholars have argued that that the limitation alone would prevent Turkey from being considered a safe third country.174 This reasoning is supported by a comparative reading of art. 38 with art 35 b) APD: in the latter, there is an expressive reference to alternative means of protection, which is absent in the former.175 Therefore, it could be assumed that granting equivalent protection to the Geneva Convention would not be enough to make the country under art. 38.176 Moreover, a country which has not ratified would not be bound, under international law, to norms, which have not acquired status of customary international law.177
On the other side, some scholars, along with EU institutions, believe it is sufficient that an equivalent level of protection is afforded in Turkey.178 This argument is also based on a comparative reading of the APD, but it involves art. 39(2) a) and art. 38.179 The absence of these wording “without any geographical limitation” in art. 38 would theoretically open the possibility of considering equivalent protection as meeting the requirement sub e).180 Moreover, they contend that the lack of ratification or maintenance of geographical limitations does not prevent a country to act “in accordance with the Geneva Convention” in the meaning of art 38(1) e).181
173 S. Peers, The draft Ibid.
174 S. Peers, The final Ibid.
175 S. Peers, E. Roman, Ibid.
176 DCR, ECRE, op. cit., 6; S. Peers, E. Roman, Ibid.
177 V. Chetail, Ibid.; J. Durieux, Temporary Protection: Hovering at the Edges of Refugee Law, in Netherlands
Handbook of International Law, 2014, 223; M. Foster, op. cit., 240
178 S. Peers, The draft Ibid.; S. Peers, The final Ibid.
179 D. Thym, Ibid.
180 Art. 39(1) a) APD ; D. Thym, Ibid
Embracing the latter vision would require an inquiry whether Turkish law really grants a level of protection “in accordance with the Geneva Convention”.182 Indeed, L 6458/2014 on Foreign and International Protection was considered by commentators as a huge step forward in refugee protection (e.g. no prison sentence for violation of migration law).183 Further, art. 91 of this law was implemented by Regulation 29153/2014, which specified rights and obligations attached to the temporary protection accorded to Syrians.184 In this way, Turkish law creates three different legal regimes, depending on the provenience of the asylum seekers: Europeans enjoy the protection of the Geneva Convention, Syrians the temporary protection regime, and all other countries nationals “conditional refugee status” under L 6458/2014.185 All three regime reflect different levels of protection.186
With regard to the difference between European and non-European asylum seeker, the application process of latter is more burdensome: in fact, they need to file two separate applications, one with the UNHCR and one with Turkish authorities.187 Moreover, although the 2014 law prescribes detention as an exceptional measure (art. 68), it is widely applied, even in cases such as failure to comply with the asylum procedure or attempt the crossing for Greece, and can last up to one year.188 Several reports describe the conditions of these detention centres as so inhuman, that they could treatment contrary to art. 3 ECHR.189
The distinction is also discernable vis-à-vis the rights, which asylum seekers would be entitled to under Chapter IV of the Refugee Convention. First of all, it is extremely hard for non-Europeans to get a work permit.190 The conditions prescribed by the Turkish Law on Work Permits for Foreigners are particularly onerous, as they include – beside the possession of passport, resident permit, and job offer – that no other Turkish citizen is available for the position.191 Secondly, as far as housing is concerned, public centres are operating at full capacity, and, hence, many asylum seekers need to 182V. Chetail, Ibid.; S. Peers, The final Ibid.
183 Global Detention Project, Turkey Immigration Dentention, 2014,
https://www.globaldetentionproject.org/countries/europe/turkey; D. Thym, Ibid.
184 M. Ineli-Ciger, op. cit., 28; S. Peers, E. Roman, Ibid.
185 DCR, ECRE, op. cit., 7; S. Peers, E. Roman, Ibid.
186 S. Peers, E. Roman, Ibid.
187 Global Detention Project, Ibid.
188 Amnesty International, op. cit., 11; Global Detention Project, Ibid.
189 ASGI, Nessun rifugio sicuro: richiedenti asilo e rifugiati privati di protezione effettiva in Turchia, 6 June 2016, in http://www.asgi.it/notizia/nessun-rifugio-sicuro-richiedenti-asilo-e-rifugiati-privati-di-protezione-effettiva-in-turchia/; Global Detention Project, Ibid.; S. Peers, E. Roman, Ibid.
