Legal Complications and Outcomes of the EU-Turkey Statement

by Margaux Garcia (MALD ’22) in collaboration with Professor John Cerone

Aim:  

The goal of this project was to compile an overview of the legal arguments against the EU-Turkey Statement, and to track where its implementation has succeeded, failed, and evolved since 2016.  

Background:  

The EU-Turkey Statement was originally formulated on March 18^th, 2016, to control and decrease the massive flow of refugees from Turkey to the EU, with the secondary stated goal of improving refugee safety by dissuading people from attempting dangerous raft trips. 

As a brief overview of the Statement, the EU and Turkey agreed that “all new irregular migrants crossing from Turkey to the Greek islands as of 20 March 2016 will be returned to Turkey” and “for every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU.” As an incentive to Turkey, the agreement also promised to “accelerate” visa liberalization, and “welcomed” the ongoing work of upgrading the Customs Union to potentially include Turkey in the EU. The EU also promised to speed up the disbursement of a previously allocated €3 billion, and an additional €3 billion by the end of 2018.  

Overview: 

Legal Status and Authorship 

The legal identity of the statement is deliberately kept vague by its authors. Although it may at first appear to be a nonbinding agreement, an analysis of its functionality and text suggest it is actually a binding international agreement.  

To avoid taking legal responsibility for the statement, in 2017, the General Court dismissed three cases, saying that it lacked jurisdiction, because the statement was not made by an EU institution, but by member states. This interpretation is somewhat dubious.  

However, if the EU-Turkey Statement truly was authored by member states rather than the EU, that presents its own legal challenges.  In areas of shared competences, member states are only allowed to exercise their competence to the extent that the EU has not already exercised its competence. Given that the EU has previously handled this specific topic, member states cannot enter into an agreement with Turkey in this case. On the other hand, if this were member state authorized international agreement, some national parliaments may also be able to examine or block it. The EU attempted to dodge this complication by treating the EU-Turkey Statement as a nonbinding political commitment rather than a binding international agreement. 

Non-Refoulement and “Safe Third Country” 

The principle of non-refoulment forbids returning people to a country in which they would face torture, cruel, inhuman, or degrading treatment or punishment, and other irreparable harm. Therefore, for the EU-Turkey deal to be legal, Turkey must be a “safe third country” which will not severely mistreat refugees. It also should not deport them to an unsafe country via chain refoulement.  

According to Article 38 of the EU Asylum Procedures Directive, refugees can be returned when they haven’t yet received protection from a third country, but that country can guarantee effective access to protection in accordance with the Geneva Convention. The third country (Turkey) does not need to be a party to the Geneva Convention, so long as it is in accordance with it.  Turkey ratified the 1951 Geneva Convention and its 1967 Protocol, but with a geographical limitation for non-European asylum seekers. The refugees returned through the EU-Turkey deal are obviously not Europeans, so Turkey has no legal obligation from the Geneva Convention not to deport them to unsafe countries. It does have some lesser obligations of non-refoulement for these refugees through other mechanisms: the temporary protection regime (TPR) for Syrians, and the Law on Foreigners and International Protection (LFIP) for non-Syrians.  

TPR and LFIP technically allow refugees to stay within Turkey, and ensure access to some limited rights, but not to the level of what is guaranteed to normal asylum seekers. Many non-Syrian asylum seekers are pressured to sign “voluntary” papers that would facilitate their return to their country of origin. Furthermore, education and employment rights, which are typically provided to asylum seekers, are inadequate for Syrians and non-Syrians in Turkey.  

The Greek Asylum Service, the Turkish Government, and the European Commission all agree that the protection provided by Turkey is “sufficient protection or protection equivalent to that foreseen by the Geneva Convention.” The international legal community, NGOs, and refugees themselves have understandably been less convinced. 

Perhaps most importantly, for Turkey to be considered a safe third country, it is important to determine that refugees are not likely to face torture or excessive violence in Turkey itself. Thankfully, Turkey is not a systematically dangerous place for refugees. That said, Anti-Syrian sentiment in Turkey seems to have intensified over the last several years, and it is concerning that 83% of Turkish respondents said they view Syrians negatively. Furthermore, while violence in Turkey is not a non-refoulement level threat to returning refugees as a whole, it may be a more potent threat for Kurds, or for refugees in certain regions of Turkey.  

Under Article 38 of the Asylum Procedures Directive, Turkey can only qualify as a safe third country after individual assessment of any asylum claim before rejection.  Collective returns are prohibited in Article 4 Protocol 4 of the ECHR. While the EU and the Greek Asylum Service maintain that every case is assessed individually, some observers have taken issue with their process in Greek hotspots.  

For a refugee to be returned to a safe third country, Article 27 of the EU Procedures Directive requires a connection or link between the refugee and the third country, enough to make it reasonable for them to live there. For the EU-Turkey deal, there has been some controversy over whether transit through Turkey alone is enough to constitute a connection between Turkey and the refugee. 

In 2020, the CJEU decided that transit alone “cannot constitute as such a valid ground in order to be considered that the applicant could reasonably return in this country.” This decision requires asylum processors to implement more individual scrutiny.  

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