1. Introduction
1. The unprecedented numbers of
refugees and migrants arriving in western Europe via the Eastern Mediterranean
and Western Balkans route in 2015 generated political tensions in
many States and an institutional crisis in the European Union. European
States failed to arrive at a solution based on solidarity and responsibility
sharing. Instead, States along the Western Balkans route from “the
former Yugoslav Republic of Macedonia” to Austria introduced progressively
more restrictive border policies, outside the EU context and without
consulting Greece. As for Turkey, it now hosts over 2.7 million
Syrian refugees, on whom it reports having spent over €7 billion.
2. Against this background, the EU-Turkey summit of 18 March
2016 adopted an agreement aimed at “deepening Turkey-EU relations
as well as addressing the migration crisis”. This agreement raises
several serious human rights issues relating to both its substance
and its implementation now and in the future, as do certain parallel
initiatives in closely related areas.
2. The essential features of
the EU-Turkey Agreement
3. “In order to break the business
model of the smugglers and to offer migrants an alternative to putting their
lives at risk, the EU and Turkey … decided to end the irregular
migration from Turkey to the EU”, to which end they agreed on the
following “action points” (reordered by relevance below):
i. All new irregular migrants, whether
persons not applying for asylum or asylum seekers whose applications
have been declared inadmissible, crossing from Turkey to the Greek
islands as of 20 March 2016 will be returned to Turkey, in full
accordance with EU and international law.
ii. For every Syrian returned to Turkey from the Greek islands,
another Syrian will be resettled directly to the European Union
from Turkey, taking into account the United Nations Vulnerability
Criteria, whilst giving priority to those who have not previously
entered or tried to enter the European Union irregularly.
iii. Once irregular crossings between Turkey and the European
Union are ending or have been substantially reduced, a Voluntary
Humanitarian Admission Scheme will be activated.
iv. The European Union will, in close co-operation with Turkey,
further speed up the disbursement of the initially allocated €3
billion under the Facility for Refugees in Turkey. Once these resources
are almost exhausted, the European Union will mobilise up to €3
billion more to the end of 2018.
v. The European Union and Turkey will work to improve humanitarian
conditions inside Syria, in particular in certain areas near the
Turkish border, to allow for the local population and refugees to
live in safer areas.
vi. Turkey will take any necessary measures to prevent new
sea or land routes for irregular migration opening form Turkey to
the European Union.
vii. Fulfilment of the visa liberalisation roadmap will be
brought forward to the end of June 2016.
viii. The accession process will be re-energised in various
ways.
ix. Reference was made to ongoing work on the upgrading of
the Customs Union.
3. Specific legal and practical
concerns
3.1. New arrivals are systematically
detained in inadequate conditions on an uncertain legal basis
4. The European Commission has
stated that arrivals on the Greek islands are now accommodated “either in
open or in closed reception facilities”, whilst recalling that EU
law allows the detention of asylum seekers, “especially if there
is a risk of absconding” but must “only ever be a means of last
resort and must be proportionate”.
5. Article 14 of the new Greek Law 4375/2016, adopted on 2 April
2016 with immediate entry into force in order to permit implementation
of the EU-Turkey Agreement, provides for potentially continuous
detention during initial processing and then pending removal.
The European Commission
has stated that the “hotspots” have been “transformed … into closed
reception facilities to avoid irregular migrants absconding when
they are subject to return decisions”.
Detention in the hotspots seems
to be universal and automatic: at least initially, there seemed
to be no individual assessment of the necessity of detention, or
consideration of less coercive alternatives.
6. Article 5.1.
f of the
European Convention on Human Rights (ETS No. 5, “the Convention”)
permits detention of a person either “to prevent his effecting an
unauthorised entry into the country” or “against whom action is
being taken with a view to deportation or extradition”, “in accordance
with a procedure prescribed by law”. The European Court of Human
Rights (“the Court”) has stated that “States’ legitimate concern
to foil the increasingly frequent attempts to circumvent immigration
restrictions must not deprive asylum seekers of the protection afforded
by [the 1951 Refugee Convention and the Convention].”
The Committee
of Ministers’ 2009 Guidelines on human rights protection in the
context of accelerated asylum procedures state that “detention of asylum
seekers should be the exception”.
7. As regards the first ground for detention permitted under
the Convention, the Court has accepted that fast-track processing
of an asylum application made upon arrival may amount to a legitimate
measure to prevent unauthorised entry, such that detention of an
asylum seeker during that period may be legitimate.
Article 43
of the EU Asylum Procedures Directive (2013/32/EU, “APD”) allows
EU member States to decide on certain applications for asylum at
the border, during which time the applicant may be detained. A decision
on the application must be taken within a reasonable time; if it
is not taken within four weeks, the asylum seeker has to be granted
entry to the territory and given access to a “normal” asylum procedure.
Any further detention during the asylum procedure has to be strictly
necessary and in compliance with the specific conditions of Articles
8 to 11 of the EU Reception Conditions Directive (2013/33/EU).
8. As regards the second ground, the Court has held that detention
with a view to deportation or extradition is justified only for
as long as deportation or extradition proceedings are in progress;
if they are not pursued with due diligence, detention becomes unlawful.
9. Whether during initial processing of an asylum application
or pending removal, detention must be carried out in good faith,
be closely connected to the permitted purpose, be in an appropriate
place and conditions, and not exceed a length of time reasonable
for the purpose pursued.
10. Under Law 4375/2016, detention pending registration can last
up to three days and be extended to a total of 25 days. A further
decision should then be taken on whether to detain further or release
an asylum applicant. In the case of hotspots, this would most probably
be on grounds relating to “prevention of unauthorised entry”. Law
4375/2016 stipulates a maximum of three days between application
and notification of the first decision, and six days between lodging
an appeal and notification of the determination.
The registration,
decision-making and appeal bodies are still far from being operational
(see below), however, and many asylum seekers who arrived on 20
March have still not even had their applications registered.
People subject to
removal, including back to Turkey, may be detained for up to 18
months. In these circumstances, it is questionable whether detention
is “closely connected to the permitted purpose” and/ or whether
its length “exceeds that reasonably required for the purpose pursued”.
11. The three largest hotspots (Lesvos, Chios and Samos) rapidly
exceeded their intended capacity and became overcrowded. Conditions
of detention deteriorated, with poor quality food, insufficient
shelter, poor sanitation and inadequate access to appropriate medical
care.
The
national authorities seem not to have filled the gaps in provision
of basic services caused by the withdrawal of the Office of the
United Nations High Commissioner for Refugees (UNHCR) and numerous
non-governmental organisations (NGOs) in protest at transformation
of the hotspots into detention centres.
Detainees
suffer from anxiety and frustration which has led to mass protests
and outbreaks of violence.
These
are not appropriate conditions of detention. It may be recalled
that arbitrary detention and conditions of detention, as well as
inadequate reception facilities and subsistence support for asylum
seekers, in Greece had in the past been found by the Court to violate
Article 3 of the Convention.
12. Law 4375/2016 allows for the detention of unaccompanied children
“in very exceptional cases” for up to 25 days (which can be extended
by a further 20 days “due to exceptional circumstances”, making
a total of over six weeks) pending their referral to an appropriate
accommodation facility. There have been reports of pregnant women,
women travelling alone with children, families with babies and small
children, as well as other vulnerable people including persons with
disabilities, trauma and serious illnesses being held in the hotspots. This
would be contrary to the requirements of EU law and international
standards on the immigration detention of children and vulnerable
persons.
Other reports, however,
suggest that the Greek authorities have begun transferring at least
some vulnerable persons into alternative accommodation.
3.2. Returns to Turkey may not
meet the requirements of EU and international law
13. The EU-Turkey Agreement relies
on two, alternative provisions of EU asylum law – Articles 35 and
38 of the EU Asylum Procedures Directive – to return asylum applicants
to Turkey. Article 35 allows return to a “first country of asylum”
where a person either has already been recognised as a refugee and
can still benefit from protection, or enjoys “sufficient protection”,
including from
refoulement,
and to which they will be readmitted. Article 38 allows people to
be returned to a “safe third country” where they will not be at
risk of persecution, serious ill-treatment or
refoulement,
and where they will be able to request refugee status and, if recognised,
“receive protection in accordance with the Geneva Convention”; in
addition, the applicant should have a “personal connection” to the
third country that makes return reasonable. In both cases, the applicant must
be given the opportunity to challenge the application of the concept
in his or her particular circumstances. Should it be found that
there is a “first country of asylum” or “safe third country” to
which an applicant may be returned, their asylum application may
be rejected as inadmissible without further substantive examination. The
European Commission has confirmed that “[o]nly asylum seekers that
will be protected in accordance with the relevant international
standards and in respect of the principle of non-refoulement will
be returned to Turkey”.
14. As regards returns to Turkey as a “first country of asylum”
under Article 35 of the APD, it should be noted that Turkey only
extends refugee status under the 1951 Convention to persons fleeing
from persecution in Council of Europe member States. In practice,
therefore, none of those potentially subject to return under the EU-Turkey
Agreement will have already been recognised as a refugee by Turkey.
Applications from non-Europeans can thus only be considered inadmissible
if it is found that they enjoy “sufficient protection” in Turkey.
It is possible that this approach will be applied to Syrian asylum
seekers, who may benefit from “temporary protection” status in Turkey
under a special regulation.
The
question is whether this “temporary protection” is “sufficient”.
The UNHCR recommends that for protection to be “sufficient”, there
should be no risk of persecution or onward
refoulement,
compliance with international standards on living standards, work
rights, health care and education, access to a right of legal stay,
assistance to persons with specific needs and timely access to a
durable solution. Since “sufficient protection” is not defined in
the APD, however, the UNHCR encourages the Greek courts to make
a reference to the European Court of Justice for its interpretation.
15. I refer to my colleague Annette Groth’s report on “a stronger
European response to the Syrian refugee crisis” (
Doc. 14014) for further information on the difficult conditions
facing Syrian refugees in Turkey. That report describes how “non-camp”
Syrian refugees in Turkey have problems in accessing accommodation, education
and labour markets and occasional difficulties with access to health
care, and that many live in poverty and debt. I also note more recent
reports of “large-scale forced returns of refugees from Turkey to
war-ravaged Syria”.
There are serious
doubts as to whether the requirements of either EU or international
law are satisfied.
16. As regards Turkey as a “safe third country” under Article
38 of the APD, Turkey’s Law on Foreigners and International Protection
foresees “conditional refugee” status for those satisfying the definition
of the 1951 Refugee Convention and “subsidiary protection” for those
at risk of generalised violence, torture or the death penalty. It
is uncertain whether non-Syrians have effective access to an asylum
procedure in Turkey, since the new asylum system itself is still
not fully operational, certainly to the extent necessary to administer
Turkey’s overwhelming case load.
Indeed,
this has been recognised by European Commissioner Avramopoulos,
who on 4 April stated that he had discussed with the Turkish authorities
“how to ensure access to asylum procedures for all non-Syrians who
are returned and wish to apply for protection.” There have been
reports of “forcible return of around 30 Afghan asylum seekers …
without granting them access to an asylum procedure.”
Both
“conditional refugees” and beneficiaries of “subsidiary protection”
have only temporary status in Turkey and no prospect of long-term
legal integration; the presumption is that they will be resettled elsewhere,
although very few actually are. In the lengthy meantime, their rights
under the Law on Foreigners and International Protection cannot
be considered to amount to “protection in accordance with the Geneva Convention”.
As regards Syrians, the fact that, as non-Europeans, they are unable
to “request refugee status” in Turkey under the 1951 Refugee Convention
means that they too should not be returned in reliance on Article 38
of the APD.
17. These concerns suggest that Turkey cannot under current circumstances
be considered a safe third country to which asylum seekers could
be returned from Greece.
3.3. The Greek asylum system
lacks the capacity to process applications
18. The Greek national asylum system
has for many years been seriously deficient. The Court found in
2011 that the Greek asylum system was unable to ensure protection
against
refoulement on account
of failures to apply the relevant legislation in practice and of
major structural deficiencies.
In
March 2016, an NGO submission to the Committee of Ministers of the
Council of Europe noted that “persisting obstacles to accessing the
asylum procedure before the Asylum Service leave asylum seekers
at serious risk of deportation without an individual assessment
of [the risk of
refoulement]”,
and that “the insufficient staffing of the Asylum Service … can
generate long delays in the asylum procedure”.
The
Committee of Ministers has yet to close its supervision of execution
of this judgment by Greece, indicating that insufficient progress
has been made in resolving the problems found by the Court. The
extremely short time limits under the border procedure of Law 4375/2016
(see above) will make it even more difficult for the Greek asylum
system to ensure that asylum seekers’ rights are effectively respected,
and make procedural failures even more likely.
19. Perhaps most significantly, the Greek asylum system will require
very extensive additional resources. The European Commission has
estimated that 200 Greek asylum service case workers, along with
400 asylum experts (all of which have apparently been pledged) and
400 interpreters from other member States (of which only 46 had
been pledged by 6 April) will be needed.
The Director of the Greek Asylum
Service has suggested that far more may be necessary.
Given
the number of potential asylum applicants and a backlog of at least
10 700 applications in mainland Greece,
it seems
unlikely that the national asylum system has the capacity to transfer
200 trained staff to the hotspots. It is also unclear how many of
the other member States’ pledges have actually been fulfilled; previous
experience shows that fulfilment of such pledges is often a very lengthy
and ultimately incomplete process. By 4 April, there had still been
no asylum requests processed at the Greek hotspots for those who
arrived after 20 March.
20. On 12 April, it was reported that 46 asylum officials from
Greece and other countries had arrived on Lesvos, where they were
expected to process a total of 50 applications a day (given that
there are over 3 500 applicants on Lesvos, this implies that they
will have to wait up to three months for a decision; it should be
noted that Law 4375/2016 requires a decision within two days).
On Chios,
however, there is still no functioning asylum system: it has been
reported that there is only one case worker, who by 8 April had
processed just 9 out of 1 206 cases; only three more officers were
scheduled to arrive, and not until the end of May.
21. Article 22 of the APD requires that asylum seekers be given
the opportunity to consult, at their own cost, in an effective manner
a legal adviser or other counsellor, which may be an NGO. Article
23 stipulates that legal advisers must have access to closed areas
such as detention facilities for the purpose of consulting that applicant.
It is unclear whether these provisions are being effectively respected
in practice (for further detail, see below with respect to appeals).
22. Serious practical problems are already emerging. The UNHCR
reported that of the 202 people returned to Turkey on 4 April, Greek
police had “forgotten” to process the asylum applications of 13
of them, mainly Afghans.
Whilst
this may have been due to transient circumstances, it does not augur
well for the future. (It was reported that following their arrival
in Turkey, the 13 Afghans were placed in detention, pending rapid deportation,
and that the UNHCR had been denied access to them.
) It appears
that so far, only people who have not claimed asylum have been returned
to Turkey.
On 5 April, Greece
admitted that it had been overwhelmed by the fact that virtually
all new arrivals have claimed asylum and temporarily suspended further returns
to Turkey.
The UNHCR has asserted that “the
first Syrians … are unlikely to be returned any time soon”.
There have
also been reports of inadequate provision of information and documentation
to asylum seekers, lack of interpretation and, already, a rapidly
growing backlog of applications.
3.4. There is inadequate access
to an effective remedy against removal to Turkey
23. The Convention gives asylum
seekers the right to an effective remedy with automatic suspensive
effect against a removal decision. The mandate of the previous Greek
appeals board, however, expired in October 2015. Law 4375/2016 establishes
new appeal committees but these are not yet operational; past experience of
attempts to reform the Greek asylum system suggests that this may
take quite some time. In the meantime, it is difficult to envisage
how the tight appeals deadlines in Law 4375/2016 can be respected.
24. It is unclear whether an appeal has automatic suspensive effect
in the hotspots, as Law 4375/2016 seems to suggest that under the
border procedure, an appellant has the right to remain on the territory
only when execution of a return order has been suspended by a judicial
decision. For appeals against inadmissibility decisions based on
the “safe third country” concept, it is not clear whether this is
in compliance with Article 46 of the APD, which requires automatic
suspensive effect in such cases. Article 46 of the APD does not
require automatic suspensive effect for appeals against inadmissibility
decisions based on the “first country of asylum” concept, but it
is not clear whether this is in conformity with the Convention,
which requires that a remedy have automatic suspensive effect whenever
it is argued that removal would lead to a real risk of exposure
to the death penalty, persecution or serious ill-treatment, as could
be the case in appeals against removal of asylum seekers to Turkey.
25. Article 20 of the APD requires that the Greek authorities
ensure that free legal assistance and representation are granted
to appellants on request. Law 4375/2016 provides that free legal
aid will be granted for appeals. It is not clear, however, whether
there are sufficient legal advisers/representatives in the hotspots to
ensure that appellants can actually enjoy the right to legal assistance
implicit in these provisions,
or even whether legal advisers
are allowed access: Human Rights Watch has reported that “nobody
is allowed to go into the camp or talk to the refugees”.
26. As with the initial decision-making process, considerable
additional resources will be needed to administer the appeals process.
The European Commission has estimated that 30 Greek judicial officers,
as well as 30 judges with expertise in asylum law from other member
States and 30 interpreters will be needed. Again, there must be
doubts as to how quickly, and indeed whether these resources can
actually be made available, and legitimate concern as to how the
Greek authorities and the European Union will deal with the legal
and practical consequences of insufficient resources in the meantime.
The European Union should also ensure that sufficient finance is
available so that appellants in hotspots can in fact exercise their
right to free legal aid.
3.5. Resettlement of Syrian refugees
should not be linked to the number of returns or arrivals
27. The EU-Turkey Agreement makes
resettlement of Syrian refugees from Turkey dependent initially
on the number of Syrian refugees who are returned from the Greek
islands and then, once arrivals have more or less halted, on a “Voluntary
Humanitarian Admission Scheme”. The UNHCR has called for the most
vulnerable 10% of Syrian refugees to be resettled from neighbouring
countries, a total of 480 000; yet the Geneva Conference of 30 March
2016 led to only “modest” increases in the number of places promised.
It
should also be recalled that of the 22 504 places promised by EU
member States in 20 July 2015, only 5 677 refugees had actually
been resettled by 8 April 2016.
Furthermore, the EU member States have
yet to agree to the European Commission’s proposal to make available
for resettlement from Turkey 54 000 of the 160 000 places originally
intended for relocation from Greece and Italy, but not yet allocated.
The extent to which member States will
be prepared to any further humanitarian admission is unknown. Against
this background, the approach of the EU-Turkey Agreement is indefensible.
The European Union has an unconditional moral duty to open humanitarian
pathways, including resettlement, for substantial numbers of Syrian
refugees from both Turkey and other countries such as Lebanon and
Jordan.
28. Furthermore, the intention of giving priority to migrants
who have not previously entered or tried to enter the European Union
irregularly, if applied indiscriminately, may lead to vulnerable
persons not being given the priority they need. Finally, the UNHCR’s
plea that “EU resettlement from Turkey should not be at the expense of
the resettlement of other refugee populations around the world who
also have great needs” should not be forgotten.
3.6. Europe must provide financial
support to Syrian refugees in Turkey
29. Last November, the European
Union promised €3 billion in financial assistance for activities
to support Syrian refugees in Turkey, and a further €3 billion is
promised for when that runs out. It took the EU member States quite
some time to agree on where the initial sum would come from, and
it seems that little if any has yet reached Turkey. As with resettlement,
the European Union has a clear moral duty to support the 2.7 million Syrian
refugees in Turkey (as well as those in Lebanon and Jordan), regardless
of what happens in the Aegean. Provision of this support should
not be made conditional on a reduction in the number of arrivals
on the Greek islands, or on fulfilment by Turkey of other provisions
of the Agreement.
4. Related concerns
4.1. The EU-Turkey Agreement,
coupled with closure by “the former Yugoslav Republic of Macedonia”
of its border, has increased the pressure on Greece
30. In the weeks preceding the
EU-Turkey Agreement, “the former Yugoslav Republic of Macedonia”,
in co-ordination with and supported by countries to its north along
the Western Balkans route, closed its border with Greece to all
refugees and migrants. There are now some 11 000 migrants camped
at the border;
on 10 April, the police of “the
former Yugoslav Republic of Macedonia” made protracted use of tear
gas, water cannons and rubber bullets to repel protesting refugees
and migrants, resulting in at least 300 people being injured.
The decision
to close the border, contrary to the spirit of solidarity and responsibility
sharing, has blocked some 46 000 refugees and migrants in Greece,
which lacks the necessary reception capacity. By obliging the Greek authorities
also to provide for and process the asylum applications of new arrivals
on the Aegean islands, the EU-Turkey Agreement has only added to
the pressure on a country already struggling with the effects of budgetary
and financial austerity.
4.2. The rate of relocations
of refugees from Greece is shamefully slow
31. As with resettlement, EU member
States have failed to fulfil their commitments to accept the relocation of
refugees from Greece, despite the ever increasing pressure the country
is under. By 11 April, of the commitments to relocate 63,302 refugees
from Greece foreseen in the EU Council Decisions of September 2015,
only 2,943 places had been formally pledged and only 615 – less
than 1% – actually relocated.
4.3. It is premature to suggest
that Dublin transfers to Greece could be resumed
32. On 4 March, the European Commission
announced that ahead of the June 2016 European Council, it would
present an assessment of the possibility of resuming Dublin transfers
to Greece.
Only
a few weeks earlier, the Commission had reported that “further efforts
still need to be made by Greece to ensure that its asylum system
is functioning in full alignment with the requirements of [EU] law”,
“reception capacity for asylum seekers in Greece … is not yet sufficient”,
and “many asylum seekers are currently not provided with the necessary
free legal aid to enable them to pursue an appeal”, amongst other
shortcomings.
One should also recall
that the Committee of Ministers of the Council of Europe does not
expect to resume its supervision of execution of the
M.S.S. judgment by Greece until
December. In the circumstances, it is premature to talk about resuming
Dublin transfers to Greece; in fact, it is close to irresponsible,
given the enormous difficulties Greece will have dealing with the
thousands of refugees and migrants detained at the hotspots and
the tens of thousands blocked on the mainland.
4.4. The EU-Turkey Agreement
should not set a precedent for other situations
33. Perhaps in response to the
closure of the Eastern Mediterranean and Western Balkans routes,
there has been a significant increase in the number of refugees
and migrants taking the Central Mediterranean route to Italy: the
Italian coast guard rescued some 4 000 on 11 and 12 April, part
of a reported 80% increase in the first quarter of this year, as
compared with 2015. The Italian Minister of the Interior, referring
to the EU-Turkey Agreement, has called for the European Union to
reach agreement with African States to provide economic aid in return
for taking back their citizens “and preventing new flows”.
Whilst this proposal
may relate only to readmission agreements covering nationals of
the receiving countries, the EU-Turkey Agreement – highly problematic
in itself, as described above – cannot be replicated for other countries
even less capable of protecting refugees and migrants.
5. Conclusions
and recommendations
34. The EU-Turkey Agreement, however,
at best strains and at worst exceeds the limits of what is permissible
under European and international law. Even on paper, it raises many
serious questions of compatibility with basic norms on refugees’
and migrants’ rights. It has so far given every indication of being even
more problematic in practice.
35. The Assembly should take position on these issues, as described
in this report, and make practical recommendations to States and
the European Union on how they should be handled so as to ensure compliance
with European Union, European and international legal standards
on refugees’ and migrants’ rights.