EU-Turkey Agreement: is the EU's refugee return program legal?

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Over one million migrants have traversed the Aegean Sea from Turkey to Greece since January 2015, and over 4,000 of those migrants[1] drowned or went missing on their dangerous trek toward a better life.[2] The European Union (EU), seeing the effects of this massive influx, has struggled to find its role in aiding migrants and reducing the number of refugees flooding in.

Under the new EU-Turkey Agreement (The Agreement), all illegal migrants arriving in the EU from Turkey will be returned.[3]  The European Union has marketed this agreement as one that will ultimately protect migrants from “putting their lives at risk” on the journey to Europe[4] by implementing three major initiatives: (1) returning illegal migrants crossing from Turkey into Greece; (2) one to one resettlement in the EU from Turkey for every illegal Syrian refugee returned to Turkey; and (3) accelerated EU funds released to Turkey to better manage the migration crisis.[5] Despite these separate initiatives, the core of the Agreement is the return of illegal migrants back to Turkey in an effort to facilitate greater stability in the EU and halt the burgeoning smuggling market.[6] The Agreement took effect on March 20, 2016.[7]

Refugees From Turkey
Syrian and Iraqi immigrants getting off a boat from Turkey on the

Greek island of Lesbos. Photo via Wikimedia Commons.

Implementing the EU-Turkey Agreement

Before the Agreement, migrant conditions were already poor as thousands of migrants piled into overcrowded camps along the Greek border.[8] Since the Agreement took effect, however, bleak migrant conditions took a turn for the worse. [9] Rather than being taken to border refugee camps, refugees are being funneled into detention camps[10] that are more reminiscent of jails with their concrete walls and barbed wire.[11] Now, all refugees arriving in Greece are put under police guard.[12] Consequently, several prominent non-governmental organizations–including the United Nations High Commissioner for Refugees (“UNCHR”), Médecins Sans Frontières (“Doctors Without Borders”), the International Rescue Committee, Save the Children, and the Norwegian Refugee Council–have stopped operations in Greece in protest to the detention and deportation procedures of the Agreement.[13]

Amid the growing international law concerns, the Agreement has successfully decreased migrant inflows. The number of migrants flowing into Greece has steadily decreased and even included one day with no new migrant arrivals.[14] As a safeguard, the EU pledged thousands of staff workers to help Greece meander the migrant crisis according to international law. The EU pledged roughly 4,000 staff members to help Greece effectively implement the deal.[15] Thousands of staffers, including judges, migration officers, asylum experts, interpreters, and border patrols, began arriving on March 28, 2016 to process roughly 47,500 migrants still stuck in Greece.[16]

Even still, the UNCHR highlighted the lack of safeguards to protect migrant rights as they are being rapidly processed out of Greece.[17] Consequently the UNCHR halted operations in some Greek migrant centers because the new agreement essentially transformed registering centers into detention facilities.[18]

Complying with International Law

Though the EU is touting migrant safety as a primary concern for the Agreement, the implications could violate international law, despite several safeguards ensuring that the return mechanisms are legal.[19] Under the European Convention on Human Rights, the “collective expulsion of aliens is prohibited.”[20] Additionally, in 2008, the EU issued a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals to clarify the legal standards for returning illegal migrants.[21] The Directive stated that immigration decisions regarding illegal migrants should be addressed on a case-by-case basis and should be based on more than the migrant’s illegal entry.[22] The Directive also addresses how procedures should be adapted in emergency situations, stating that procedural and legal standards do not cease in times of crisis because member countries still have international law obligations and should follow procedural safeguards to protect migrant rights in emergencies.[23] The automatic return of migrants to Turkey under the EU-Turkey Agreement may violate the prohibition on collective expulsion of aliens and the Directive’s requirements that cases be addressed individually, rather than deciding the cases solely on the basis of illegal entry.

The Agreement does attempt to recognize these potential international law pitfalls and is assuring that every case will be treated individually to comply with international law.[24] Yet, despite this recognition, the Agreement also creates a caveat for “certain circumstances” in which “there is no need to examine the substance of the application.”[25] The EU, therefore, must be careful in its administration of the Agreement, as this caveat could become a blanket exclusion contravening the European Declaration on Human Rights.

Conclusion

Going forward, the implementation of the EU-Turkey deal should be monitored to ensure its compliance with international law. The EU must be careful that its ultimate goal of curbing the migrant influx through mass deportation does not overshadow its obligation under international law to respect migrants’ rights.



[1] More Than One Million Refugees Travel to Greece Since 2015, U.N. High Comm’n for Refugees (Mar. 16, 2016), http://www.unhcr.org/56e9821b6.html [https://perma.cc/ECM8-4HGH].

[2] Refugees/Migrants Emergency Response – Mediterranean, U.N. High Comm'n for Refugeeshttp://data.unhcr.org/mediterranean/country.php?id=83 [https://perma.cc/4R37-YSTE ].

[3] EU-Turkey Agreement: Questions and Answers, Eur. Comm’n (Mar. 19, 2016), http://europa.eu/ rapid/press-release_MEMO-16-963_en.htm [https://perma.cc/H4SD-U7FS].

[4] EU-Turkey Statement, 18 March 2016,  Eur. Council (Mar. 18, 2016), http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/ [https://perma.cc/N3TM-82QZ].

[5] Comm. from the Comm’n to the Eur. Parl., the Eur. Council and the Council, Next Operational Steps in EU-Turkey Cooperation in the Field of Migration, Eur. Comm’n 1, 2–6 (2016), https://ec.europa.eu/transparency/regdoc/rep/1/2016/EN/1-2016-166-EN-F1-1.PDF [https://perma.cc/MQ46-US4T].

[6] EU-Turkey Statement, 18 March 2016, supra note 4. Since 2015, smugglers have capitalized on the refugee crisis by charging refugees to cross into the EU. EU-Turkey Statement, 18 March 2016, supra note 4.

[7] European Commission, supra note 5, at 2–6.

[8] Id.

[9] See Derek Gatopoulos & Lorne Cook, Greece Sets up Detention Camps as Refugee Deal Hits Delays, ABC News (Mar. 21, 2016), http://abcnews.go.com/International/wireStory/turkish-monitors-arrive-greek-islands-migrant-deal-37806112 [https://perma.cc/CB8X-5C7W].

[10] Id.

[11] Kerin Hope, Contrast of two migrant camps highlights effect of Turkey-EU deal, Financial Times (Mar. 27, 2016), http://www.ft.com/intl/cms/s/0/14f9b53c-f28a-11e5-9f20-c3a047354386.html#axzz44E5DNgjB [https://perma.cc/5NUB-TJY4].

[12] Id.

[13] Oscar Webb & Martin Banks, Migrant crisis: Chaos on Greek islands as aid workers quit refugee camps in protest, Telegraph, http://www.telegraph.co.uk/news/worldnews/europe/greece/12205489/Migrant-crisis-Chaos-on-Greek-islands-as-aid-workers-quit-refugee-camps-in-protest.html [https://perma.cc/B8N8-WWK8].

[14] Stelios Bouras, Greece Sees a Lull in Migrant Inflows, Wall St. J. (Mar. 24, 2016), http://www.wsj.com/articles/greece-says-no-migrants-arrived-in-last-24-hours-1458830986 [https://perma.cc/AN7N-N9D7].

[15] EU-Turkey Agreement, supra note 3.

[16] EU staff arrive on Greek islands to start repatriation, EU Today (Mar. 28, 2016), http://eutoday.net/news/eu-staff-arrive-on-greek-islands-to-start-repatriation [https://perma.cc/YP7K-YPVV].

[17] UNHCR redefines role in Greece as EU-Turkey deal comes, U.N. High Comm’n for Refugees (Mar. 22, 2016), http://www.unhcr.org/56f10d049.html [https://perma.cc/2Z5D-DMHM].

[18] Id.

[19] Id.

[20] Convention for the Protection of Human Rights and Fundamental Freedoms art. 4, Nov. 4, 1950, 213 U.N.T.S. 221. In the EU alien is defined as “a person who is not a citizen of a EU country.” EU Immigration Portal Glossary, Eur. Comm’n, http://ec.europa.eu/immigration/glossary_en [https://perma.cc/RHP6-WCXY].

[21] See European Commission, supra note 5.

[22] Directive 2008/115 of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-country Nationals, 2008 O.J. (L 348) 98, 98–100.

[23] Id. at art. 18.

[24] European Commission, supra note 5, at 2.

[25] European Commission, supra note 5, at 2.



Posted by Keturah T. Reed on Thu. March 31, 2016 9:00 PM
Categories: European Union, Refugees/Asylum, Reports (longer, analytical blog posts)

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