University of Amsterdam
Master Thesis
International and European Public Law
Lilia Hendrikse
mr. dr. M. den Heijer
22 July 2017
[
RETURNED TO TURKEY
]
On whether Turkey can be considered a ‘first country of asylum’ and/or a ‘safe third country’ for the refugees who are returned to Turkey under the EU-Turkey Statement.
Table of Content
Introduction 4
The EU-Turkey Statement 6
The Historical Background 6
The Joint Action Plan 7
From the Joint Action Plan to the EU-Turkey Statement 7
The Principle of Non-Refoulement in International and European Union Law 9
International Law 9
The 1951 Refugee Convention 9
The European Convention on Human Rights 10
The M.S.S. v. Belgium and Greece case 10
European Union Law 11
The European Charter of Fundamental Rights 11
The Concept of ‘First Country of Asylum’ and ‘Safe Third Country’ 13
International Law – The Refugee Convention 13
European Union Law - The Procedures Directive 14
Criticism on the ‘Safe Country’ Concepts 16
The ‘Safe Country’ Concepts and the Refugee Convention 19
International Law 19
European Union Law 20
Turkey: a ‘First Country of Asylum’ or ‘Safe Third Country’? 26
Overview of Turkey’s international protection framework 26
International Protection Statuses 26
The Temporary Protection status 27
Assessment of the Situation in Turkey 27
Scholars’, NGOs’ and UNHCR’s Perspective 27
The European Commission’s Perspective 29
Conclusion 35
Annex I 37
Introduction
With 3 million refugees on its territory, Turkey is the country that hosts the most refugees of the world. Most of the refugees residing in Turkey are Syrians who fled the civil war, as well as refugees coming from Iraq, Afghanistan and Iran. Many of them try to cross the
Mediterranean sea to reach the shores of European countries. In 2015 around 850,000
refugees arrived in Greece. Greece struggled with this large inflow of migrants. The European Union tried to find a solution to end the migration from Turkey to Greece and reached an agreement with Turkey on 18 March 2016 called the EU-Turkey Statement.
Under the EU-Turkey Statement all irregular migrants crossing from Turkey to Greece, will be returned to Turkey. The people who will be returned are migrants who do not have a right to international protection. In addition, people who apply for asylum in Greece can be send back to Turkey on the basis that Turkey is a ‘first country of asylum’ or a ‘safe third country’. These concepts are laid down in Articles 35 and 38 of the EU Procedures Directive. A ‘first country of asylum’ (FCA) is a country where the person has been already recognised as a refugee in that country or otherwise enjoys sufficient protection there. A ‘safe third country’ (STC) is a country where the person has not already received protection but where he or she could receive this protection. This means that an asylum application lodged in Greece can be inadmissible on the basis that Turkey can provide ‘protection’.
By returning refugees on the basis of Articles 35 and 38 Procedures Directive, the EU assumes Turkey to be ‘safe’ for refugees. This assumption however, has been criticized by scholars, NGOs and GOs. They are of the opinion that Turkey is not ‘safe’ for refugees and that returning the refugees to Turkey would be a violation of Articles 35 and 38. One of the conditions for returning people to a third state is that the state respects the principle of
non-refoulement1. Furthermore according to the Procedures Directive, Turkey should be able to provide ‘sufficient protection’ or protection that is in ‘accordance with’ the Refugee
Convention2. Therefore this thesis will examine whether Turkey provides effective protection to refugees in order to be considered a FCA and/or STC.
1 This is the prohibition to return someone to a state where he or she would face a risk of persecution, torture, or inhuman and degrading treatment.
2 The 1951 Refugee Convention is an international treaty which defines the term ‘refugee’ and outlines the rights of the displaced, as well as the legal obligations of States to protect them.
To come to a conclusion, firstly the historical background will be discussed of the EU-Turkey Statement and its most important content. Secondly the principle of non-refoulement will be explained in the context of international and European Union law. The third chapter will elaborate on the concepts of FCA and STC in international and European Union law, which are still disputed notions. It will examine the criticism on the concepts and take a stand towards this criticism. It is important to clarify the concepts first, before applying them to the situation in Turkey. The last chapter will consider Turkeys asylum framework and give an assessment of the refugee situation in Turkey. It will analyse and compare different reports from different sources like Amnesty International, UNHCR and the European Commission. In addition some case law will be discussed. Finally the question will be answered whether Turkey can be considered a FCA and/or STC.
The EU-Turkey Statement
On 18 March 2016 the EU and Turkey reached an agreement in order to end the irregular migration from Turkey to the EU, particularly to Greece. This EU-Turkey Statement consisted of nine points which amongst others entailed a return policy of the irregular
migrants back to Turkey, an EU resettlement policy for Syrians and an allocation of 3 billion euro’s for refugees in Turkey. This chapter will discuss the historical background of the EU-Turkey Statement and its precise content.
The Historical Background
Until 2014 most of the refugees who sought refuge in Europe came from Africa (Eritrea, Nigeria and Somalia) and entered Europe via Italy. This changed in 2015 when the main route shifted to Greece, with most people coming from Syria, Afghanistan and Iraq. The cause of this shift was the unstable situation in those countries and especially the ongoing war in Syria. In 2013 the number of refugees and migrants arriving on the Greek islands more than tripled from 3,600 to 11,400; in 2014 it almost quadrupled again to 43,500. 3 In only the month October of 2015 more than 200,000 refugees arrived in Greece. This was the highest number ever seen.4 In total around 850,000 people arrived in Greece in 2015 via sea.5 More than half of the people were of Syrian origin and arrived in on the North Aegean islands of Lesvos, Chios and Samos, and in the Dodecanese islands of Kos and Leros.6
In addition, almost 4,000 people died at sea because of the unsafe conditions in which they tried to cross the Mediterranean sea.7 Greece was unable to respond to this emergency and the European Union struggled to find a solution for this refugee crisis.
The Joint Action Plan
3 UNHCR, ‘The sea route to Europe: The Mediterranean passage in the age of refugees’,
http://www.unhcr.org/5592bd059.html#11, (28 April 2017).
4 UNHCR, ‘Refugee Situations: Greece’, http://data2.unhcr.org/en/situations/mediterranean/location/5179, (28 April 2017).
5 UNCHR, ‘Greece data snapshot - 30 Dec 2015’, https://data2.unhcr.org/en/documents/download/46644, (28 April 2017).
6 UNHCR, ‘The sea route to Europe: The Mediterranean passage in the age of refugees’,
http://www.unhcr.org/5592bd059.html#11, (28 April 2017). 7 IOM, ‘Migration Flows Europe: Arrivals and Fatalities’,
During an EU Summit on 15 October 2015 the EU countries and Turkey agreed on a ‘Joint Action Plan’. It consisted of two parts; Part I: Supporting the Syrians under temporary protection and their Turkish hosting communities and Part II: Strengthening cooperation to prevent irregular migration. Both parts identified the actions that were to be implemented simultaneously by Turkey and the EU.
Under Part I Turkey was expected to offer temporary protection to Syrian refugees who entered the country. It had to ensure that migrants were registered and provided with
appropriate documents. The country had to enhance the effective implementation of the Law on Foreigners and International Protection (LFIP) by adopting the necessary secondary legislation.8 In exchange, the EU promised to mobilise new funds to support Turkey in coping with the challenge represented by the presence of Syrians under temporary protection.
Under the second part Turkey was expected to contain Syrian refugees and prevent them from crossing the EU’s external borders. Turkish authorities were required to strengthen their cooperation with the EU and step up its border patrol activities. The EU on its part would consider ‘the visa liberalisation dialogue’, which involved the easing of the visa requirements for Turkish nationals. In addition, depending on Turkey’s commitment, the EU would open up new chapters in EU accession talks, which had to re-energise the accession process of Turkey. 9 On 29 November 2015 the Joint Action Plan was activated.10
From the Joint Action Plan to the EU-Turkey Statement
The EU and Turkey continued deepening their relationships and seeking solutions for the migration crisis. On 18 March 2016 the European Council met with their Turkish counterpart. The commitment to the Joint Action Plan was reconfirmed and the parties stated that much progress had been achieved. The EU had begun disbursing 3 billion euros of the Facility for Refugees in Turkey for concrete projects and there was some advance on the visa
liberalization and accession talks. Turkey had opened up its labour market to the Syrians under temporary protection and had stepped up security efforts by the Turkish coast guard. 11 8 For more information on the LFIP see pages 26-27.
9 Commission Press Release, MEMO/15/5860, (15 October 2015).
10 Council of the European Union Press Release, 870/15, (29 November 2015). 11 Council of the European Union Press Release, 144/16, (18 March 2016).
The parties recognized that more efforts were needed though and nine additional action points were outlined in what was called the ‘EU-Turkey Statement’. The first and foremost
important part for the European Union was that all new irregular migrants crossing from Turkey into Greek islands would be returned to Turkey as from 20 March 2016. These migrants are people who do not have a right to international protection or people who have found or could have found protection in Turkey on the basis of the FCA and STC criteria.. 12
This thesis will focus on this returning mechanism of the EU-Turkey Statement and examine whether Turkey provides effective protection to refugees in order to be considered a FCA and/or STC.
The Principle of Non-Refoulement in
International and European Union Law
The principle of non-refoulement is the prohibition to return someone to a state where he or she would face a risk of persecution, torture, or inhuman and degrading treatment. Since there are suggestions that Turkey is ‘unsafe’ for refugees, it is meaningful to look at this principle. The principle can be found in international as well as in European Union Law. This chapter will start with the examination of the principle of non-refoulement in international law and will then turn to the principle in European law.International Law
The 1951 Refugee Convention
The principle of non-refoulement can be found in Article 33 of the 1951 Convention Relating to the Status of Refugees. Article 33(1) provides:
‘No Contracting State shall expel or return (‘refouler’) 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.’13
All states that have ratified the Refugee Convention are bound by this provision. In addition, most authors accept that the principle of non-refoulement has acquired the status of
international customary law.14 Therefore, states that have not ratified the Refugee Convention
or its 1967 Protocol, still have the duty to respect the prohibition of refoulement on the basis of international customary law.15
According to Article 42 reservations to Article 33 are not allowed. However, there are two exceptions whereby refoulement is permitted. These exceptions are listed in the second paragraph of the Article, which provides that the non-refoulement principle cannot be claimed
by a refugee who is a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the 13 Art. 33(1) of the 1951 Convention Relating to the Status of Refugees.
14 A Zimmermann (ed.) The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A
Commentary (Oxford University Press 2011) p. 1345.
community of that country.16 Because of these exceptions, the principle of non-refoulement in
not an absolute right under the Refugee Convention.
The European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms (better known as the European Convention on Human Rights, ECHR) entered into force in 1953 and is now ratified by 47 countries.17 The European Court of Human Rights (ECtHR) ensures the observance of the Convention. Article 3 of the ECHR prohibits all forms of torture and other inhuman or degrading treatment or punishment. Based on this provision, the ECtHR
developed the principle of non-refoulement in its jurisprudence. In contrast to the Refugee Convention, the prohibition of refoulement has an absolute character according to the ECtHR. In Soering v. the United Kingdom the Court held that extraditing a person to a territory where he or she faced a real risk of harm (in this case the death penalty) may breach Article 3 ECHR.18 The Court confirmed this in the Chahal v. the United Kingdom case and stated that the principle applies to applicants who are suspected of being a terrorist as well.19 The applicant’s conduct is irrelevant for examining whether the principle has been breached or not.20 The M.S.S. v Belgium and Greece case gave some insights regarding the expulsion of asylum seekers. 21 This case will be discussed below.
The M.S.S. v. Belgium and Greece case
The M.S.S. v. Belgium and Greece case was a case before the ECtHR and concerned an Afghan asylum seeker who entered the European Union trough Greece and then travelled to Belgium. In Belgium he applied for asylum, but Belgium transferred him back to Greece. Belgium was of the opinion that Greece was the responsible state for the examination of the asylum application according to the Dublin Regulation. The Dublin Regulation is an EU regulation which lays down a mechanism for determining which Member State is responsible for examining an asylum application lodged in one of the Member States by a third-country national. One of the criteria in the Dublin Regulation is that the state responsible for the
16 Art. 33(2) of the 1951 Convention Relating to the Status of Refugees. 17 Council of Europe ‘Chart of signatures and ratifications of Treaty 005’
http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/treaty/005/signatures? p_auth=KY0XJDcc (1 June 2017).
18 ECtHR 7 July 1989 Soering v. the United Kingdom Series A no. 161.
19 ECtHR 15 November 1996 Chahal v. the United Kingdom Reports of Judgments and Decisions 1996-V. 20 GS Goodwin-Gill and J McAdam The Refugee in International Law (3rd edn OUP 2007), p. 311. 21 ECtHR 21 January 2011, M.S.S. v Belgium and Greece, No. 30696/09.
application, is the one where the asylum seeker has irregularly entered the European Union. In this case the asylum seeker entered the EU trough Greece and therefore the applicant was send back to Greece. In Greece the applicant faced detention under harsh circumstances and was forced to live on the streets without any material support. According to the ECtHR Belgium had violated Article 3 ECHR by sending back the applicant and thereby exposing him to risks linked to the deficiencies in Greece’s asylum procedure. The Belgian authorities ‘knew or ought to have known that [the applicant] had no guarantee that his asylum
application would be seriously examined by the Greek authorities’ at the time of his
expulsion.22 In addition the Dublin Regulation contained a discretionary ‘sovereignty clause’ which allowed Member States to examine the asylum seekers application themselves.
Belgium could have examined the application itself under the Dublin Regulation, since they knew or ought to have known about the deficiencies of the Greek asylum system. The Court stated ‘that it was in fact up to the Belgian authorities […] not merely to assume that the
applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice’.23 If they would have done so, the Belgian authorities could have seen that the applicant faced a risk contrary to Article 3 ECHR. Therefore the applicant’s transfer by Belgium to Greece gave rise to a violation of Article 3 of the Convention.
European Union Law
The European Charter of Fundamental Rights
The European Charter of Fundamental Rights is legally binding for all the EU institutions and its Member States since the entry into force of the Treaty of Lisbon in 2009. The Charter applies to national authorities when they implement EU law. The Charter sets out a series of individual rights and freedoms.24 Article 4 of the Charter provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
The European Court of Justice gave an interpretation of this Article in the N.S. case. 25 The case concerned an Afghan asylum seeker, who entered the EU trough Greece and then travelled to the United Kingdom. He applied for asylum in the United Kingdom. The United Kingdom however transferred him back to Greece on the basis of the Dublin Regulation. The 22 ECtHR 21 January 2011, M.S.S. v Belgium and Greece, No. 30696/09, para. 358.
23 Ibid., para. 359.
24 European Commission ‘EU Charter of Fundamental Rights’ http://ec.europa.eu/justice/fundamental-rights/charter/index_en.htm (7 June 2017).
Court of Justice interpreted Article 4 ‘as meaning that the Member States, including the
national courts, may not transfer an asylum seeker to the ‘Member State responsible’ […] where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.’26 To assess whether the
‘responsible’ state ( according to the Dublin Regulation) complies with fundamental rights, the ‘sending’ state can take into account Commission Reports and Dublin Recast Proposals, reports of international non-governmental organizations and documents prepared by
UNHCR.27 States can therefore not simply presume compliance with fundamental rights of the EU states. They will have to assess this compliance.28
When the transferring state is aware of the systemic deficiencies in the asylum procedure and in the reception conditions of the ‘responsible’ state, it cannot transfer an asylum seeker to that state, since that would result into a violation of the principle non-refoulement.
26 Ibid., para. 106. 27 Ibid., para. 90-92. 28 Ibid., para. 100.
The Concept of ‘First Country of
Asylum’ and ‘Safe Third Country’
A ‘first country of asylum’ and a ‘safe third country’ are states through which an asylum seeker has passed, but from which he or she has moved. The ‘first country of asylum’ (FCA) is a state in which an asylum seeker has been recognized as a refugee or has otherwise enjoyed sufficient protection. The ‘safe third country’(STC) is a state in which an asylum seeker could have found protection , but has not done so. These concepts come back in international law instruments as well as in European Union law.
International Law – The Refugee Convention
Regarding international law, the concepts of FCA and STC cannot be explicitly found in the Refugee Convention. According to the UNHCR it has some basis in Article 31(1), which provides29;
The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or
freedom was threatened in the sense of Article 1[…].30
This provision mentions the fact that an asylum seeker should come directly from a country where his or her life or freedom was at risk, before this article can apply. For the FCA and STC notions this article has been interpreted a contrario in the sense that when a refugee does
not come directly from a dangerous country, the article does not apply and he or she may be
sent back to that country thereby assuming it to be a ‘safe’ country.31
According to UNHCR these concepts are legitimate, provided that states always ensure 29 UNHCR EXCOM Conclusion No 15 ‘Background note on the Safe Country Concept and Refugee Status’ UN Doc EC/SCP/68 (26 July 1991).
30 Article 31(1) of the 1951 Convention relating to the Status of Refugees.
31 A Hurwitz The Collective Responsibility of States to Protect Refugees (Oxford University Press 2009), p. 47-48.
protection of the refugees. In conclusion the FCA and STC concepts cannot be expressly found in the Refugee Convention and are more ‘concepts applied in state practice’ according to UNHCR.32 The two notions developed in the 1990’s and were mostly used by European States. The concepts can be found in European Union law in the Procedures Directive.
European Union Law - The Procedures Directive
The main objective of the Procedures Directive is to develop common procedures for granting and withdrawing international protection. 33 The granting and withdrawing of international protection is based on criteria laid down in the Qualification Directive.34 Under the Procedures Directive states can transfer a person seeking international protection to a ‘first country of asylum’ (art. 35) or to a ‘safe third country’ (art. 38). This means that an application is considered inadmissible, because the applicant was granted international protection in another state or he or she could have found protection in a third state.35 By transferring an asylum seeker to a FCA or a STC, the state avoids the necessity to make a decision on the merits of an asylum application and shifts this responsibility to another state.
A country can be considered a FCA if the asylum seeker has been recognised in that country as a refugee and he or she can still avail himself/herself of that protection or he or she
otherwise enjoys sufficient protection in that country, including benefiting from the principle of non-refoulement and provided that he or she will be readmitted to that country. The applicant must be allowed to challenge the application of the first country of asylum concept to his or her particular circumstances. In order to establish whether a country can be
considered a first country of asylum, states may take into account art. 38(1).
A STC is a third country where an asylum seeker has not before enjoyed protection, but where (a) his life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) there is no risk of serious harm; (c) the principle of non-refoulement in accordance with the Refugee Convention is respected; (d) the 32 UNHCR ‘An Overview of Protection Issues in Europe - Legislative Trends and Positions Taken by UNHCR’ (EUROPEAN SERIES Volume 1- No 3 – 1995/09) (Geneva 1995), p. 18.
33 Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast).
34 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted.
prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and (e) the possibility exists to request refugee status and, if found to be a refugee, to receive protection in
accordance with the Refugee Convention. 36 Furthermore, there must be a connection between the country and the applicant, making it reasonable for that person to go to that country; the applicant should be able to challenge the application of the safe third country concept on the grounds that the third country is not safe in his or her particular circumstances and the person must be admitted to that country. 37
In the Hirsi Jamaa v. Italy case Italy argued that Libya was a ‘safe’ destination for migrants intercepted on the high seas. The ECtHR case concerned the interception at sea by the Italian authorities of nationals from Eritrea and Somalia. The applicants were immediately pushed back to Libya. Italy considered Libya to be safe based on the presumption that Libya had complied with its international commitments as regards asylum and the protection of refugees, including the principle of non-refoulement. In addition, it argued that the Italian-Libyan Friendship Treaty of 2008, in accordance with which clandestine migrants were returned to Libya, made specific reference to compliance with the provisions of international human rights law and other international conventions to which Libya was party.38 The Court dismissed this argument and said that the international reports on the country observed Libya’s failure to comply with its international obligations. The existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment.39 Italy could not evade its own responsibility under the Convention by relying on its subsequent obligations arising out of the bilateral agreements with Libya. According to the Court the situation in Libya was well-known and easy to verify on the basis of multiple sources. The Italian authorities knew or should have known that irregular migrants would be exposed in Libya to treatment in breach of the Convention and that they would not be given any kind of protection in that country. 40 Therefore the Court concluded that there had been a violation of Article 3 ECHR.
36 Procedures Directive, art. 38(1). 37 Ibid., art 38(2-4).
38 ECtHR 23 February 2012, Hirsi Jamaa and Others v. Italy, No. 27765/09, para. 127. 39 Ibid., para. 128.
Criticism on the ‘Safe Country’ Concepts
The ‘first country of asylum’ and the ‘safe third country’ concepts are based on the assumption that those countries can be considered ‘safe’ for persons seeking international protection. The ‘safe country’ concept is still disputed in the context of both international and European law.
Already in the 1990’s UNHCR noted the increased use of these concepts in especially European countries. According to UNHCR some states gave a too broad definition of the notions, which lead to the sending of asylum seekers to intermediate countries where the asylum seekers were at risk of refoulement because of inadequate procedural guarantees surrounding the asylum procedure. It considered that the concepts can be useful for
determining which state has to examine an asylum application and thereby create a ‘burden-sharing’ mechanism.41 However, as mentioned before, UNHCR has taken the view that the
‘safe country’ concepts are legitimate.
In the context of the European interpretation of the concept scholars have been critical. In the early 2000s G. Borchelt called the ‘safe country’ concept a ‘misguided approach to asylum
policy [which] constitutes a violation of the fundamental international human rights standard of non-refoulement’.42 He argued that difference in state practice for the determination of ‘safe countries’, ‘chain deportations’ whereby asylum-seekers are returned indirectly to their country of origin and the lack of a guarantee that the third country will examine the substance of the asylum claim contribute to the strong likelihood of refoulement of asylum seekers.43 States should not develop and utilize practices that violate the non-refoulement principle and therefore this practice should be eradicated according to Borchelt.44 Goodwin-Gill and McAdam point out another argument against the use of the ‘safe country’ concepts namely the fact that it neglects to take into account the individual circumstances of the asylum seeker. A country may be safe for some individuals or groups, but not for others.45
Even if these arguments have some truth, the fact remains that the ‘safe country’ concepts are 41 UNHCR ‘An Overview of Protection Issues in Europe - Legislative Trends and Positions Taken by UNHCR’ (EUROPEAN SERIES Volume 1- No 3 – 1995/09) (Geneva 1995), p. 15.
42 G Borchelt ‘The Safe Third Country Practice in the European Union: A Misguided Approach to Asylum Law and a Violation of International Human Rights Standards’ (2001-2002) 33 Colum. Hum. Rts. L. Rev. 473, p. 476.
43 Ibid., p. 514. 44 Ibid., p. 522-523.
used by states in practice. The ‘safe country’ notion is not only used by European states but the concept can be found in Australia, Canada and the United States as well.46 In addition, by converting the ‘safe country’ concepts into actual laws, the concepts are not only a matter of state practice anymore. They are legal and binding notions, which can be supervised by legal authorities. The FCA and STC notions form part of the Procedures Directive, which is a binding EU instrument. The directive is binding as to the result to be achieved. The fact that it is a binding instrument, will lessen the divergence in state practice for the determination of a ‘safe country’. Because it is a directive, Member States are left with the choice of form and methods to achieve the result of the directive.47 This is enshrined in Article 38 of the Procedures Directive for example. Article 38(2) stipulates that the application of the STC concept shall be subject to rules laid down in national law. It gives however some minimum rules which Member States should implement, namely that the applicant should be able to challenge the application of the STC concept and that the existence of a connection between him and the STC should be rebuttable.
Regarding the argument of indirect refoulement made by Borchelt, art. 35 and 38 Procedures Directive make the respect for the non-refoulement principle in the receiving state a
prerequisite for the returning of an asylum seeker to a FCA or a STC. In addition, sending states have to make sure that an asylum seeker will be readmitted to a FCA and will be permitted to a STC. If not, the Member State has to ensure that access to a procedure is given in its own state.48 Furthermore, States are obliged to inform the authorities of the STC that an application has not been examined in substance.49 Lastly it is true that a state cannot be ‘safe’ for everyone. Therefore, applicants who are returned to FCA’s or STC’s should be able to challenge the application of the ‘safe country’ notion to their particular circumstances under art. 35 and art. 38(2)(c). Recital 42 confirms this importance: ‘it is important that, where an
applicant shows that there are valid reasons to consider the country not to be safe in his or her particular circumstances, the designation of the country as safe can no longer be considered relevant for him or her’.50
It can be concluded that the ‘safe country’ notions are embedded in state practice. Besides being part of state practice, nowadays the notions have been converted into binding legal 46 Ibid., p. 404-407.
47 Art. 288 TFEU.
48 Procedures Directive, art. 38(4). 49 Ibid., art. 38(3)(b).
instruments. The use of the ‘safe country’ concepts cannot be denied. Therefore, in my opinion it is pointless to question the legality of the use of the concept, since it has a widespread practice. In addition, the EU has tried to capture the most important procedural and human rights safeguards in the ‘safe country’ concepts in the Procedures Directive, which where the main points of critique against the notions. Since they are legal notions, they are supervised by the European Court of Justice. The ECJ can give its binding interpretation on the concepts, thereby developing the notions in its jurisprudence.
On 18 November 2016 the Administrative Court of Sofia referred a preliminary question to the CJEU regarding among others Article 35(b) of the Procedures Directive. The Court was asked whether the assistance granted by the UNRWA to a stateless Palestinian woman constituted otherwise sufficient protection. The woman was registered as a refugee with the UNRWA and was resident in that agency’s area of operations.51 An answer to this question could clarify what conditions qualify as ‘sufficient protection’ within the meaning of Article 35(b). The Court’s interpretation could stimulate the harmonization of the Member States’ practice.
Furthermore, UNHCR recognised the legitimacy of the concepts as long as states ensure protection of refugees and solutions to their problems.52
A more interesting topic of discussion regards the content of the ‘safe country’ notion. There has been discussion on whether ‘first countries of asylum’ and ‘safe third countries’ should have ratified the Refugee Convention as a prerequisite for sending back asylum seekers to those countries. This discussion will be examined in the next section.
51 Request for a preliminary ruling from the Administrativen sad Sofia-grad (Bulgaria) lodged on 18 November 2016, Case C-585/16.
52 UNHCR EXCOM Conclusion No 15 ‘Background note on the Safe Country Concept and Refugee Status’ UN Doc EC/SCP/68 (26 July 1991).
The ‘Safe Country’ Concepts and the Refugee Convention
Article 38(1)(e) Procedures Directives provides that there should be the possibility to request refugee status and, if found to be a refugee, to receive protection in accordance with the Refugee Convention. There has been a debate on how to interpret the words ‘in accordance with’ the Refugee Convention. Some argue that it should be interpreted in a way meaning that a third state should have ratified the Refugee Convention and its Protocol. Others say that the ratification of the Convention is not a necessary condition and that it should be sufficient when a third state has developed a practice akin to the Refugee Convention.
International Law
In a report on ‘The Meaning of Effective Protection’ for UNHCR Stephen Legomsky examined the question regarding the ratification of the Convention. He concluded that international law does not explicitly prohibit the return of refugees to third countries that are not parties to the Refugee Convention, ‘as long as the third country in actual practice
observes the Convention and otherwise meets all the requirements of effective protection […] then return should not be barred’.53 This view was reaffirmed in 2002 during an expert roundtable convened by UNHCR on the concept of ‘effective protection’. It set forth some ‘critical factors’ which could be used by states to determine whether a refugee has ‘effective protection’ in a FCA or STC. One of these ‘critical factors’ was the accession to the Refugee Convention. The Lisbon Expert Roundtable called the accession to and compliance with the Refugee Convention essential, unless the receiving state can demonstrate that it has developed a practice akin to the Refugee Convention. 54
Legomsky argued that the ratification requirement increases the chance that the UNHCR will have some influence in the third country’s policies, that the country will guarantee asylum seekers access to UNHCR, and that the country will otherwise cooperate with UNHCR in its supervisory role. According to its Statute the UNHCR can only fulfil supervision if a state has ratified the Refugee Convention. The supervisory role of the UNHCR will promote the ‘effective protection’ of the refugees in the third state. However, he notes that there are states
53 UNHCR Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning
of Effective Protection February 2003, PPLA/2003/01, p. 79, available at:
http://www.refworld.org/docid/3f4de85d4.html (14 June 2017).
54 UNHCR ‘Summary Conclusions on the Concept of "Effective Protection" in the Context of Secondary Movements of Refugees and Asylum-Seekers’ (Lisbon Expert Roundtable, 9-10 December 2002).
that have not ratified the Convention, but where the UNHCR still has some significant influence.55
Furthermore, states which have not ratified the Refugee Convention, might be parties to other important international human rights instrument. However, Legomsky notes that those states usually also lack domestic refugee legislation and thus tend not to have any formal refugee status determination procedures in place.56
Lastly, Legomsky gives a counterargument for the ratification requirement. He says that the ratification requirement is highly unlikely to promote accession to the Convention. In case the requirement would be applied, states are prevented from sending back asylum seekers to third countries that have not ratified the Convention. This would actually be an incentive not to ratify the Refugee Convention.57
To conclude, international law does not explicitly prohibit the return of refugees to third countries that are not parties to the Refugee Convention, as long as the receiving state can demonstrate that it has developed a practice akin to the that convention. This view has been contested in the context of EU law.
European Union Law
The most important topic of discussion in the European context is on the interpretation of the words ‘in accordance with’ the Refugee Convention of Article 38(1)(e) Procedures
Directive.58
According to Steve Peers the clause can only refer to states that have ratified and fully apply the Refugee Convention. He supports this interpretation with an illustration of the legislative history of the text.59 The original draft of 2002 made expressly clear that the clause could apply to states that had not ratified the Convention. After negotiations however, the final text was revised into the current clause. According to Peers, suggestions made by Member States 55 UNHCR Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning
of Effective Protection February 2003, PPLA/2003/01, p. 78, available at:
http://www.refworld.org/docid/3f4de85d4.html (14 June 2017). 56 Ibid., p. 78-79.
57 Ibid., p. 77.
58 Since the FCA notion assumes that a person has been granted already a form a protection, namely that he/she has already been recognised as a refugee or that he/ she otherwise enjoys sufficient protection in that country, it makes the question whether the country has ratified the Refugee Convention less relevant. The FCA notion is therefore less contested.
59 For the legislative history of the Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status see: http://eur-lex.europa.eu/legal-content/EN/HIS/?
to alter the clause so that alternative types of protection other than the Convention would trigger the clause, were not successful.
Secondly he argues that the ordinary meaning of the words ‘in accordance with’ is ‘in compliance with’. In addition the clause refers to ‘refugee status’ of which the definition can be found in the Refugee Convention. Peers argues that for this reason an asylum seeker cannot apply for a ‘refugee status’ in accordance with the Refugee Convention if the state concerned has not ratified the Convention.
Thirdly, Peers supports his interpretation with the a contrario rule. He says that if the drafters would have wanted to refer to alternative possibilities for the designation of a ‘safe third country’, besides the ratification of the Convention, they would have done so. The drafters mentioned specifically the possibility of applying for an alternative form of protection in art. 35(b). Where the drafters did not want to have a possibility for alternative protection, they mentioned this expressly as well, like in Article 39. Article 39(2)(a) explicitly states that a country can be considered a STC only when it has ratified and observes the provisions of the Refugee Convention without any geographical limitations.60
Besides Peers, other scholars have shared the opinion that ratification should be a condition for returning refugees. In an interview, James Hathaway argues that obligations cannot lawfully be shared with a state which has none. Therefore ratification is required, so that a state has obligations for which it can be held accountable.61 Furthermore E. Roman, T. Baird and T. Radcliffe state in their Article that they agree with Peers’ interpretation of art. 38(1) (e).62
The view that ratification is a prerequisite seems to be supported by UNHCR. After the EU-Turkey Statement UNHCR published a report on ‘Legal considerations on the return of
asylum-seekers and refugees from Greece to Turkey [...] under the safe third country and first country of asylum concept’. It said to understand art. 38(1)(e) to mean that access to refugee
60 S Peers and E Roman The EU, Turkey and the Refugee Crisis: What could possibly go wrong? EU Law Analysis, 5 February 2016, http://eulawanalysis.blogspot.nl/2016/02/the-eu-turkey-and-refugee-crisis-what.html, Annex I (14 June 2017).
61 J Hathaway Three legal requirements for the EU-Turkey deal: An interview with JAMES HATHAWAY, Verfblog, 9 March 2016, http://verfassungsblog.de/three-legal-requirements-for-the-eu-turkey-deal-an-interview-with-james-hathaway/ (14 June 2017).
62 E Roman T Baird and T Radcliffe Statewatch Analysis: Why Turkey is Not a ‘Safe Country’ (2016) Available at: http://www.statewatch.org/analyses/no-283-why-turkey-is-not-a-safe-country.pdf.
status and to the rights of the Refugee Convention must be ensured in law, including ratification of the Convention and/or the 1967 Protocol, and in practice.63 Where UNHCR considered a practice akin to the Convention to be sufficient before, it now seems to have shifted to seeing the ratification of the Convention as a prerequisite. However, the report continues by saying that therefore Turkey must allow, in accordance with rules laid down in national law, non-European nationals or stateless persons to request refugee status and have access to all rights conferred by the Convention. It does not explicitly state that Turkey should ratify the Convention and its Protocol. In addition, UNHCR suggest to submit a preliminary ruling to the CJEU on the interpretation of art. 38(1)(e) since there is no clear understanding of the meaning of this Article. Hereby UNHCR tones down the before mentioned strong position in favour of the ratification requirement. Therefore UNHCR’s position remains quite unclear.
Daniel Thym takes the opposite position, by saying that prior ratification of the Refugee Convention is not a requirement. He gives four arguments in support of his view.
Firstly, he argues that the drafters made an explicit distinction between ‘super-safe’ third countries (art. 39) and countries being just ‘safe’(art. 38). ‘Super-safe’ third countries require full ratification of the Convention without geographical limitation. ‘Safe’ third countries on the other hand must only grant protection ‘in accordance with’ the Refugee Convention. Secondly, according to Thym the ordinary meaning of ‘in accordance with’ is to follow or to obey a rule. Ratification is not needed in order to respect the Refugee Convention. He gives the example of the EU itself, which has never ratified the Convention but still respects the Convention. Thirdly applicants can be considered ‘refugees’ and can apply for a ‘refugee status’ even if a state has not ratified the Convention. The terms ‘refugee’ and ‘refugee status’ in the Procedures Directive must be interpreted as technical terms which are defined by the Directive itself in Article 2(j) and (d). These are definitions for the purposes of the Directive. States can afford protection to someone without prior ratification. Lastly, the drafting history, which was described by Peers as well, does not support the ratification requirement. On the contrary, Thym argues, it shows that the EU has kept the provision deliberately vague on the question of ratification, while ensuring that the substance of the Convention was fully complied with.64
63 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 23 March 2016, available at: https://data2.unhcr.org/en/documents/download/47237%20 (14 June 2017).
The European Commission affirms this view in a Communication: ‘the Commission
underlines that the concept of safe third country as defined in the Asylum Procedures Directive requires that the possibility exists to receive protection in accordance with the Geneva Convention65, but does not require that the safe third country has ratified that
Convention without geographical reservation’.66
In my view it is important to combine the arguments regarding international and European Union law to be able to form a well-founded opinion on the ratification requirement.
To start with the former, what seems crucial to me is to look at the most important source of the discussion, namely the Refugee Convention itself. States should not involve into practices which are contrary to the Convention. Since the Convention does not explicitly prohibit the return of refugees to third countries that are not parties to the Refugee Convention, there is legally speaking no problem in returning the refugees to countries that have not ratified the Convention.
Secondly, the ordinary meaning of ‘in accordance with’ does not seem to require the ratification of the Refugee Convention. The synonyms which both writers gave; ‘in compliance with’ and ‘to follow or to obey a rule’, do not support the interpretation of meaning that a state should have ratified the Convention. In my opinion ‘in accordance with’ means that states should have a ‘similar’ practice and not a practice which is exactly the ‘same’ as the Refugee Convention. The result is important (effective protection), not the means. This view is supported by the UNHCR in earlier documents when it stated that a state can demonstrate that it has developed a practice akin to the Convention.
Thirdly, in my opinion the a contrario rule does not support the ratification requirement. As Peers said, the drafters mentioned elsewhere in the Directive when alternative types of protection where possible (art. 35(b)) and when not (art. 39). This means in my view that if the drafters would have wanted to introduce the ratification requirement, they would have done so. Like Thym argued, the drafters probably remained deliberately vague on the question of ratification, thereby leaving it open for interpretation.
http://verfassungsblog.de/why-the-eu-turkey-deal-is-legal-and-a-step-in-the-right-direction/ (15 June 2017). 65 The Geneva Convention is a synonym for the Refugee Convention.
66 Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration COM(2016) 85 final, 10 February 2016, p. 18.
Furthermore, the drafting history shows that from the start on the clause was meant to apply to states that have not ratified the Convention as well. The proposal of 2002 made expressly clear that ‘a country that has not ratified the Geneva Convention may still be considered a
safe third country’.67 If we look at the pre-final draft two years later, the clause on safe third countries reads that in assessing whether a country can be considered safe ‘Member States
shall have regard to whether the third country has ratified the Geneva Convention, the legal situation otherwise, the application of the law and the general political circumstances in that country’.68 Two years after the initial proposal, the draft still keeps the option open for alternative types of protection. Only in the last draft this was changed into ‘in accordance with’ the Refugee Convention. Besides, a new proposal of the Commission for a regulation which has to repeal the Procedures Directive, refers to ‘protection in accordance with the
substantive standards of the Geneva Convention or sufficient protection’.69 This shows that the Commissions would like to keep open to alternative types of protection in the future as well.
In addition, the European Commission supports the idea that states that have not ratified the Convention can be considered ‘safe third countries’. The European Commission must ensure the application of adopted measures and oversees the application of Union law under the control of the CJEU according to Article 17(1) TEU.70 Therefore the Commission’s view on this question should be taken into account as well.
Lastly, as Legomsky argued, making ratification a prerequisite can be an incentive for third states not to ratify the Convention. This would be contrary to what states would like to achieve by introducing the ratification requirement. Instead of more and more states ratifying the Convention, less states would do so. The introduction of the ratification requirement could be counterproductive.
In conclusion, I would argue that Article 38(1)(e) Procedures Directive does not require the 67 Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status COM(2002) 326 final (18 June 2002), Annex I (2).
68 Amended proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, Council Doc. 8158/04, 5 April 2004, Article 27(4).
69 Proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM(2016) 467 final, 13 July 2016, Article 45(1)(e).
ratification of the Refugee Convention and that when a state has developed a practice akin to the Convention it should be considered a ‘safe third country’ if it fulfils the other
requirements of Article 38.
Now that we have established that ratification of the Refugee Convention is not a prerequisite for a state in order to be considered a ‘safe’ country, we will turn to the question whether Turkey can be considered a ‘safe country of asylum’ and/or a ‘safe third country’.
Turkey: a ‘First Country of Asylum’ or
‘Safe Third Country’?
This chapter will elaborate on whether Turkey can be considered a FCA or STC. To be able to examine this, it is important to understand Turkey’s international protection framework. Therefore, an overview will be given on this topic, before the FCA and STC criteria will be discussed.
Overview of Turkey’s international protection framework
With almost 3 million refugees on its territory, Turkey is the country that hosts the most refugees of the world.71 However, Turkey maintains a geographical limitation to the Refugee Convention. The country has ratified the Refugee Convention and its 1967 Protocol, but has maintained a geographical limitation for non-European asylum seekers. This means that only European asylum seekers can obtain a refugee status.
Turkey’s current legal framework for migration came into force in 2014. Turkey adopted a new ‘Law on Foreigners and International Protection’ (LFIP), which was the first-ever law governing matters of asylum. Under this law refugees can obtain three different ‘international protection statuses’ upon individual assessment. This procedure is administered by the new ‘Directorate General of Migration Management’ (DGMM).
For Syrian refugees however, Turkey put in place a temporary protection regime which is based on the ‘Temporary Protection Regulation’ (TPR). This status is provided on a group basis in situations of mass arrival. 72 The new asylum regime was developed as part of the EU accession process and is based on key concepts of the EU migration and asylum system.
International Protection Statuses
Refugees can have three different international protection statuses under Turkish law.
Persons who flee from European countries can obtain a ‘refugee status’, which replicates the Refugee Convention. There are very few European refugees in Turkey (less than a hundred), 71 UNHCR ‘Turkey’ http://reporting.unhcr.org/node/2544?y=2017#year (22 May 2017).
72 AIDA Country Report: Turkey (2015) Available at: http://www.asylumineurope.org/sites/default/files/report-download/aida_tr_update.i.pdf, p. 15.
which means that the vast majority of the asylum seekers in Turkey do not have this status.
Persons who are fleeing non-European countries, but who fall within the definition of the Refugee Convention are eligible for the ‘conditional refugee’ status . This is a temporary type of protection with limited rights pending their expected resettlement by the UNHCR. It gives the holders less rights than under the refugee status of the Refugee Convention. ‘Conditional Refugees’ are not offered the prospect of long-term legal integration , since it is based on the idea of resettlement.
Lastly, persons who fall outside the abovementioned two categories, but who would however be at risk of torture or indiscriminate violence when returned to their country of origin, qualify for a ‘subsidiary protection’ status. This status replicates the subsidiary protection status described in the Qualification Directive.
The Temporary Protection status
The temporary protection status was developed for cases of mass influx. Syrians and stateless people are eligible for this status. It grants beneficiaries the right to legal stay, protection from
refoulement and access to a set of basic rights and services, including free healthcare. As with
the conditional refugee status, the temporary protection status explicitly precludes any prospect of long term legal integration. 73
Assessment of the Situation in Turkey
When it comes to assessing the situation in Turkey there is a range of sources that could be used. It has been discussed by scholars, NGOs, as well as UN and EU bodies.
Scholars’, NGOs’ and UNHCR’s Perspective
Scholars Peers and Roman argued that Turkey could not be considered a FCA nor a STC.74 To
be a FCA, an applicant has to enjoy sufficient protection, including benefiting from the principle of non-refoulement. The authors say that Turkey has a historical record of
refoulement practices and that there are allegations of push-backs at the southern border and 73 Ibid., p. 15-17.
74 The writers were of the opinion that ratification was a requirement for countries to be considered safe. Since I have discussed that this is not a prerequisite, I will only refer to their other arguments.
deportations of Syrians and other asylum seekers. However they note that states can argue that the risk of non-refoulement should be assessed on a case-by-case basis and that this could influence the decision on whether the country can be considered a FCA.
Regarding the STC Peers and Roman say that the geographical limitation provides the first barrier to accessing asylum in Turkey. In addition, they mention the fact that the temporary protection status does not offer a prospect of long-term legal integration. Syrians have limited access to education and to employment and therefore they do not have refugee protection in the full sense of the Refugee Convention. Furthermore they note again the practices of
refoulement and that asylum-seekers face a number of obstacles which may increase their risk
of serious harm. Harsh detention conditions and the internal conflict between Turkey and the Kurdish rebels could pose threats to the lives of asylum seekers.75 The same arguments were
used in a more in depth analysis by Roman and two co-writers in ‘Why Turkey is Not a ‘Safe
Country’.76 In a different report Özlem Güraker Skribeland addresses the fact that there are
discrepancies between the de jure and the de facto asylum situation in Turkey. Turkey might have a new asylum law framework, but the implementation of it in practice differs
sometimes.77
It is interesting to note that Daniel Thym, who had a strong opinion on the ratification requirement, is however not so outspoken when it comes to applying the STC criteria to Turkey. He mentions the fact that Turkey’s asylum law provides for international protection. Furthermore, in January 2016 Turkey adopted a regulation which makes access to the labour market easier for Syrian refugees. In addition, the EU and Turkey consider access to
education to be a priority. Access to the labour market and education are important rights which the Refugee Convention covers. Thym admits that there are reasons of concern, for example the reports on refoulement, but he says that it cannot be concluded that therefore Turkey is not ‘safe’ since an individual assessment is needed. However, he seems hesitant in concluding that Turkey can be considered a FCA or STC and leaves the answer open for after the implementation of the EU-Turkey Statement.
75 S Peers and E Roman The EU, Turkey and the Refugee Crisis: What could possibly go wrong? EU Law Analysis, 5 February 2016, http://eulawanalysis.blogspot.nl/2016/02/the-eu-turkey-and-refugee-crisis-what.html
(19 June 2017).
76 E Roman T Baird and T Radcliffe Statewatch Analysis: Why Turkey is Not a ‘Safe Country’ (2016) Available at: http://www.statewatch.org/analyses/no-283-why-turkey-is-not-a-safe-country.pdf.
77 Norwegian Organisation for Asylum Seekers Seeking Asylum in Turkey; A Critical Review of Turkey’s
Asylum Laws and Practices (2016) Available at:
A very critical assessment of the asylum situation in Turkey was done by Amnesty
International in their report ‘No Safe Refuge, Asylum-Seekers and Refugees Denied Effective
Protection in Turkey’.78 The main arguments were that according to Amnesty the
asylum-seekers do not have access to fair and efficient procedures for the determination of their status. Secondly, asylum seekers do not have timely access to durable solutions like integration in Turkey or resettlement to third countries. Lastly, asylum seekers are denied access to means of subsistence sufficient to maintain an adequate standard of living. Therefore Amnesty calls the assumption that Turkey is ‘safe’ for refugees a ‘fiction’.79
UNHCR, which keeps a more neutral position in its ‘Turkey Response Plan for 2017’ sets out the main difficulties in Turkey. It mentions the fact that less than 10% of the refugees in Turkey live in camps. It says that integration into Turkish economic and social life remains a challenge, as well as the provision of all the refugees’ rights and entitlements provided by Turkish law. Even if Turkey introduced two Regulation on Work Permits of Refugees for both refugees under Temporary Protection and those benefitting from International Protection, a lot of obstacles remain. There are language barriers and refugees can apply for a work permit only after being registered for six months. As a consequence, most of the refugees work in the informal sector where they face discrimination, difficult working conditions and low salaries. In addition, child labour keeps being a problem and less than half of the 1 million Syrian school-aged children attend school.80 Access to work, healthcare and education
are provided for by the LFIP and the Temporary Protection Regulation, but in practice the implementation remains a challenge.
The European Commission’s Perspective
The European Commission on the other hand is convinced about the ‘safeness’ of Turkey. The Greek authorities made a request about the situation of Syrian nationals in Turkey. In a letter to the Greek authorities the Commission explains why Turkey is ‘safe’ for Syrians as well as non-Syrian refugees. It enumerates the regulatory amendments like the Temporary Protection Status and the LFIP, together with the two Regulations on work permits which
78 Amnesty International ‘‘No Safe Refuge, Asylum-Seekers and Refugees Denied Effective Protection in
Turkey’ June 2016, available at
https://amnesty.org.pl/wp-content/uploads/2016/02/EUR4438252016ENGLISH.pdf (19 June 2017).
79 Ibid., p. 5.
80 UNHCR Regional Refugee and Migrant Response Plan for Europe, January-December 2017 (December 2016), available at: http://www.unhcr.org/partners/donors/589497d07/2017-regional-refugee-migrant-response-plan-europe-january-december-2017.html, p. 27-28.
make the access to the labour market for Syrians and non-Syrians easier and the written assurances made by Turkey on the granting of Temporary Protection for Syrians and the ability to lodge an application for international protection for non-Syrians. The Commission is of the opinion that Turkey has taken all the necessary measures and that therefore the legal framework ‘appears to suffice to be considered as sufficient protection or protection
equivalent to that foreseen by the Geneva Convention’.81 Furthermore Turkey has started to
implement a roadmap aimed at reducing the backlog of pending applications for international protection. Lastly, the Turkish authorities have made a commitment to allow the EU and UNHCR to monitor the situation of the refugees who are returned to Turkey, including access to refugee camps and centres. Therefore Turkey should be considered a FCA and STC according to the European Commission.
In the last report regarding the implementation of the EU-Turkey Statement the Commission highlights the decrease of arrivals from Turkey to Greece since the Statement.82 In the
Commissions view, this proves the effectiveness of the agreement. According to the Commission the returns of asylum seekers to Greece are carried out strictly in accordance with the requirements of EU and international law and in full respect of the principle of
non-refoulement. Every asylum seeker who arrives in Greece has the right to apply for asylum.
The applications are processed individually in the light of the applicant’s particular circumstances, thereby excluding any kind of collective expulsion. In addition, applicants have the right to appeal and the right to an effective judicial remedy against any negative decision on their asylum application. The Commission says that Greece and Turkey have taken appropriate legal steps to ensure full respect of EU and international law. Furthermore the EU authorities confirmed that situation in the removal centre in Turkey where non-Syrians are brought after having been returned, complies with the required standard. 83
The European Union is also involved in facilities for refugees in Turkey. It has engaged in different projects to address the most critical needs of refugees and host communities in Turkey. An Emergency Social Safety Net has been set up, which provides monthly cash transfers to refugees. Around 250,000 refugees have received support through this programme. Regarding protection, a project which aims at improving the protective
81 European Commission ‘Letter to Secretary-General of Greece’ (2016)2149549, 5 May 2016. 82 See Annex I.
83 European Commission ‘Fifth Report on the Progress made in the implementation of the EU-Turkey
environment for 50,000 refugees has been set up. In addition, the EU signed a contract of 34 million with the UN to improve the access to education. The 2017 Humanitarian
Implementation Plan (HIP) for Turkey should provide some guidance for the EU as to determine which are the most acute humanitarian needs.84
The HIP is an interesting document to look at, since it gives a more critical view of the situation in Turkey. The document is prepared by the Humanitarian Aid and Civil Protection department (ECHO) of the European Commission. It gives a comprehensive overview of the
most acute humanitarian needs. It says that the situation for refugees in Turkey remains difficult. For the majority of the refugees meaningful and formal sources of income remain elusive. Limited legal access to the labour market result in a steady degradation of living conditions. As mentioned before less than 10% of the refugees live in camps, which means that the vast majority lives in urban centres or in the province and is forced to provide for their own needs. Most of the refugees are not able to cover their most basic needs like rent, food and transportation. In the camps access to education and health care are usually covered, but outside of the camps the access is still limited. The Turkish asylum framework guarantees access to a range of social services like health, protection, education and socioeconomic assistance. However this is often hampered by a lack of information on the legal framework, language and cultural barriers, transportation and inconsistent application of entitlements by different service providers across the country. To be eligible for these services, refugees need to be registered. The processes of these registrations however, can be very lengthy. In
addition, the services are in principle available across the country, but provinces with high refugee populations cannot deal with the high demand.85
To conclude, even if the EU has done a lot to improve the conditions of refugees, some significant difficulties can be distracted from different reports. The main problems which come back in all the reports mentioned in this chapter seem to be; legal access to the labour market, access to health care, education and housing and a lack of capacity in determining statuses of refugees which results into lengthy procedures.
84 Ibid., p. 10-12.
Case Law
Besides the opinions of scholars and the reports of NGOs and GOs it is interesting to look at international and domestic case law.
European Court of Human Rights
The Babajanov v. Turkey case concerned an Uzbek national who fled to Turkey in 2007, after having resided in Iran for two years where he did not have a refugee status. In Turkey he applied for a refugee status to the UNHCR and the national authorities. While his application was still pending, the applicant was detained and deported to Iran in 2008. A few days later the applicant managed to enter Turkey illegally again, where he had been living in hiding since then. The Court argued that the Turkish authorities had the obligation to assess the risk of ill-treatment if the applicant was deported to Iran with the risk of refoulement to
Uzbekistan. The applicant was not notified of a formal deportation. Therefore the Court concluded that because of the absence of a legal procedure providing safeguards against unlawful deportation and without a proper assessment of the asylum application, the deportation amounted to a violation of Article 3 ECHR. 86
Secondly, the applicant was of the opinion that he was currently under a threat of deportation to Iran or Uzbekistan, contrary to Article 3 and 13 ECHR. The Court noted that since his last deportation, a new legal framework was introduced, the LFIP. The new framework contains rules regarding the removal of foreign nationals from Turkey and important legal safeguards against unlawful and arbitrary deportation. The Court was not able to conclude that the applicant was anno 2015 still under the same threat of illegal deportation as he faced in 2008. Furthermore ‘there appear to be strong indications that’ the LFIP gives the opportunity to contact the national authorities to claim international protection and that different procedural safeguards are guaranteed under this new framework. The Court concluded that the applicant cannot be considered a victim at present time. Therefore the complaint is incompatible
ratione personae. However, this finding is without prejudice to any examination on the
application of the LFIP in the future. The applicant could lodge a new application in respect of any new circumstances that may arise regarding the application of the new framework.87
The Babajanov case illustrates not only a case where the prohibition of non-refoulement was
86 ECtHR 10 May 2016 Babajanov v. Turkey, No. 49867/08, para. 45-47. 87 Ibid., para. 77-83.
