Why the EU-Turkey Deal Violates Fundamental Rights

Wars and conflicts have forced more people to flee their countries than any time since World War II. In Europe, more than a million migrants arrived in 2015, sparking a ‘migration crisis’ as countries struggled to cope with the numbers. The Common European Asylum System (CEAS), which has gradually been set up and expanded since 1999, contains relatively high standards of protection and rights-based procedures to assess asylum claims compared to other countries in the world. Nevertheless, over the past few years numerous barriers have been created that prevent asylum seekers from setting foot on European territory, which prevents the protection obligations set out in the CEAS from being triggered. Instead, asylum seekers – or migrants in general – become stranded in countries of first arrival or transit, which have less capacity to guarantee protection of fundamental rights in accordance with international and European standards. This trend of the externalization of responsibilities seriously jeopardizes the individual rights of migrants.

Turkey as a safe third country

The possibility to send an asylum applicant to a third state dates back to 1990, as it was included in the asylum paragraph in the Schengen Convention, which stated that ‘every contracting party shall retain the right to refuse entry or to expel any applicant for asylum to a Third State on the basis of its national provisions and in accordance with its international commitments’. Nevertheless, until 2016 this possibility was hardly used. The adoption of the EU-Turkey deal in March 2016 brought a change: the forced return of irregular migrants crossing from Turkey to Greece is based on Turkey being designated a safe third country. After Lebanon, Turkey hosts the largest number of refugees relative to its population roughly 4.3%[1], while in the EU, migrants represent a mere 0.3% of the total population. Besides the general ambiguities of the safe third country concept – few notions in migration and refugee law are as controversial as this one – and the lack of a common practice in the EU in qualifying third countries as safe, the concrete application of this concept to Turkey has demonstrated its problematic use in the light of fundamental rights protection. Organizations as Human Rights Watch, Amnesty International, the UNHCR as well as renowned Turkish human rights lawyers all regard the qualification of Turkey as safe highly questionable.

Turkey retains a geographical limitation to the Refugee Convention – the cornerstone of international refugee law, meaning that only people coming from Europe have the possibility to obtain refugee status in line with the Convention. Nonetheless, in the past few years it has developed, under pressure from the EU and the UNHCR, some form of temporary legal protection for people coming from other countries, most notably for Syrians. However, the lack of a tradition to manage migration and the security based approach towards migration historically present in Turkey still leaves the current asylum system far away from European standards. Despite the high influx of asylum seekers, a proper asylum system in the form of the Directorate General for Migration Management has only been established a few years ago, in 2013. The Temporary Protection Regime, under which Syrian nationals fall, has been established in 2014 granting Syrian nationals basic health care, education, social assistance and access to employment. For other nationals, such as Afghans, Iraqis and Iranians, it remains difficult to access their rights. The EU-Turkey deal does not only address Syrians, but all migrants coming to the EU from Turkey, raising concerns as to the status of non-Syrians once readmitted under the deal.

The safe third country notion: inherently flawed?

The idea of sending asylum seekers to countries through which they have transited for the examination of their claim is based on several assumptions: First: only those asylum seekers who come directly from the country they are fleeing from are believed to be real refugees. Second: even if someone is in genuine need of protection, protection must be sought in the geographically closest place. Thus, those who choose to transit through an intermediary country after they escape their own country are not actually seeking protection, but rather improved living conditions. Consequently, their claim must be inadmissible. In my opinion, this is a flawed assessment. Forced return to third countries can have a significant impact of the individual rights of asylum seekers: it disregards familial connections in other countries (thereby violating the right to family life), the criteria for determining a safe third country are often wrongly implemented or without sufficient safeguards, and the automatic returns risk to fundamentally undermine the possibility to have access to an individualized asylum procedure.

The idea that asylum seekers should seek protection in neighboring countries rather than in the EU is problematic. Rather than outsourcing responsibility to accept asylum seekers, the EU should participate in receiving asylum seekers based on human rights standards and solidarity. The increased externalization of migration as part of EU policy to contain and control migration directly and significantly impacts the rights of asylum seekers. Having developed high standards and procedures to assess asylum claims, the EU should guarantee that applicants have access to those rights and safeguards within the EU as well. It is at least remarkable that individual protection standards are increasingly harmonized and raised within the EU, but asylum seekers are sent to ‘safe’ third countries where those rights are certainly not guaranteed.

Daphnie Ploegstra is IFLRY’s Human Rights Programme Manager and an active member of the Jonge Democraten in the Netherlands. She studied law at Utrecht University, focusing on European law, human rights and migration law. She is currently living in Utrecht. You can reach her at: daphne.ploegstra@iflry.org

[1]According to the European Commission, there are 3.4 million refugees in Turkey: http://ec.europa.eu/echo/files/aid/countries/factsheets/turkey_syrian_crisis_en.pdf

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