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Resolution 2109 (2016)
The situation of refugees and migrants under the EU–Turkey Agreement of 18 March 2016
1. The Parliamentary Assembly takes
note of the European Union–Turkey Agreement (EU–Turkey Agreement)
of 18 March 2016, adopted against the background of the unprecedented
numbers of refugees and migrants arriving in western Europe via
the Eastern Mediterranean and Western Balkans route in 2015, which
has generated political tensions in many States and an institutional
crisis in the European Union. It recalls the fact that Turkey currently
hosts over 2.7 million Syrian refugees, on whom it estimates having
spent over €7 billion.
2. The Assembly considers that the EU–Turkey Agreement raises
several serious human rights issues relating to both its substance
and its implementation now and in the future, in particular the
following:
2.1. the Greek asylum
system lacks the capacity to ensure timely registration of asylum
applications, issuing of first instance decisions or determination
of appeals; the new Greek Law No. 4375/2016 may help to address
earlier shortcomings, but it will not ensure adequate capacity;
2.2. detention of asylum seekers in the “hotspots” on the Aegean
islands may be incompatible with the requirements of the European
Convention on Human Rights (ETS No. 5), due notably to procedural failures
undermining the legal grounds for detention and inadequate detention
conditions;
2.3. children and vulnerable persons are not systematically
referred from detention to appropriate alternative facilities;
2.4. returns of Syrian refugees to Turkey as a “first country
of asylum” may be contrary to European Union and/or international
law, as Turkey may not ensure protection that is “sufficient”, according
to the position of the Office of the United Nations High Commissioner
for Refugees (UNHCR), and there have been reports of onward refoulement of Syrians;
2.5. returns of asylum seekers, whether Syrian or not, to Turkey
as a “safe third country” are contrary to European Union and/or
international law; as Turkey does not provide them with protection
in accordance with the 1951 Convention relating to the Status of
Refugees, non-Syrians do not have effective access to the asylum
procedure and there have been reports of onward refoulement of both Syrians and
non-Syrians;
2.6. remedies against decisions to return asylum seekers to
Turkey do not always have an automatic suspensive effect, as required
by the European Convention on Human Rights;
2.7. resettlement of Syrian refugees from Turkey is made conditional
on the number of returns to Turkey from Greece and will subsequently
depend on the Voluntary Humanitarian Readmission Scheme, which in
practice is likely to generate unacceptably low levels of resettlement;
2.8. there have been unreasonable delays in the European Union’s
disbursement of the financial assistance promised to Turkey to help
support Syrian refugees in the country, which should not depend on
developments in the Aegean Sea.
3. The Assembly also has concerns relating to certain parallel
initiatives in areas closely related to the EU–Turkey Agreement,
in particular the following:
3.1. the
closure by “the former Yugoslav Republic of Macedonia” of its southern
border, coupled with the EU–Turkey Agreement, has added to the pressure
on Greece, a country already struggling with the effects of budgetary
and financial austerity;
3.2. most European Union member States have effectively failed
to honour their pledges to relocate refugees from Greece, despite
the growing pressure that country is under;
3.3. it is premature to consider resuming transfers to Greece
under the Dublin Regulation given the continuing inadequacies of
its asylum system, the additional pressure of its current situation
and the fact that the Committee of Ministers of the Council of Europe
has not yet closed supervision of execution by Greece of the judgment
of the European Court of Human Rights in the case of M.S.S. v. Belgium and Greece.
4. The Assembly therefore recommends that Greece, as an implementing
party of the EU–Turkey Agreement, and the European Union, insofar
as it provides relevant operational assistance to the Greek authorities:
4.1. refrain from automatic detention
of asylum seekers and ensure strict adherence to the requirements
of national law, the European Convention on Human Rights and European
Union law concerning both the grounds for and conditions of detention,
with adequate provision for alternatives where detention is not
justified or otherwise inappropriate, including following the expiry
of time limits;
4.2. systematically ensure that children and vulnerable persons
are promptly excluded from detention and referred to appropriate
alternative facilities;
4.3. ensure that the rights and provisions under Directive
2013/33/EU of the European Parliament and of the Council laying
down standards for the reception of applicants for international
protection are fully respected for all refugees and migrants arriving
in Greece;
4.4. refer the question of interpretation of the concept of
“sufficient protection” in Article 35 of Directive 2013/32/EU of
the European Parliament and of the Council on common procedures
for granting and withdrawing international protection (Asylum Procedures
Directive) to the Court of Justice of the European Union and, until
such interpretation has been given, refrain from involuntary returns
of Syrian refugees to Turkey under this provision;
4.5. refrain from involuntary returns of asylum seekers to
Turkey under Article 38 of the Asylum Procedures Directive;
4.6. ensure that sufficient resources from within the Greek
administration or from other European Union member States are rapidly
made available so as to allow effective access to a proper asylum procedure
and rapid first instance decisions and appeal determination, in
accordance with European Union law, especially for applicants in
detention;
4.7. revise the legislation to ensure that all appeals against
decisions to return to Turkey have an automatic suspensive effect;
4.8. ensure that all migrants and asylum seekers whose applications
are not accepted are treated with dignity and in full compliance
with Directive 2008/115/EC of the European Parliament and of the
Council on common standards and procedures in Member States for
returning illegally staying third-country nationals.
5. The Assembly also recommends to the European Union, its member
States, and States participating in European Union resettlement
schemes, as appropriate, that:
5.1. resettlement
pledges made under the 20 July 2015 European Union agreement on
resettlement be rapidly and fully honoured, regardless of developments
in the implementation of the EU–Turkey Agreement; beyond that, substantial
numbers of Syrian refugees should be resettled from Turkey;
5.2. family reunion of refugees be allowed without any delay
or complicated procedures, in order to prevent family members from
being forced to take an irregular route to reunification;
5.3. the financial assistance promised to Turkey in November
2015 to help support Syrian refugees be disbursed without further
delay;
5.4. commitments to relocate refugees from Greece be rapidly
fulfilled;
5.5. there be no further consideration of resuming transfers
to Greece under the Dublin Regulation until the Committee of Ministers
has closed its supervision of execution by Greece of the judgment
in the case of M.S.S. v. Belgium and
Greece.
6. Finally, the Assembly recommends that Turkey:
6.1. withdraw its geographical limitation
to the 1951 Convention relating to the Status of Refugees and recognise
the status and fully respect the rights of refugees under that convention;
6.2. refrain from any onward refoulement of
asylum seekers returned from Greece, ensuring access to the asylum
system and to an effective remedy with a suspensive effect against
removal as required by the European Convention on Human Rights;
6.3. ensure that all migrants and asylum seekers returned from
Greece are treated in full accordance with international standards,
including on detention.