Externalizing Asylum

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Migration Cooperation for Externalization and Legal Responsibility for Containment of Human Mobility

Gamze Ovacık, Postdoctoral Researcher, McGill University [1]

 

EU-Turkey cooperation in the field of asylum and migration gained increased importance as the influx from Syria reached European shores in 2015. With the purpose of preventing arrivals to Europe couple with an important financial assistance component, EU-Turkey cooperation became a model for the EU policies for externalization of migration control. Building on extensive fieldwork conducted in Turkey between June and October 2021, this paper analyses the political, legal and financial instruments through which the EU and Turkey have cooperated in the field of migration and asylum between 2015 and 2021. The paper offers an analysis of the EU-Turkey Statement of March 2016, the EU-Turkey Readmission Agreement, and the Facility for Refugees in Turkey (FRiT) with respect to transparency, accountability, conformity with international law, results, promoting containment or mobility and finally, the alignment with the Global Compact on Refugees (GCR). The paper than explores avenues for international legal responsibility for containment of human mobility in the context of migration cooperation between the EU and Turkey.

 

Introduction

Due to its strategic location, Turkey has been a transit country for most migrants and refugees, and a necessary stop on their way to Europe.[2] However, while Turkey is a party to the 1951 Refugee Convention and the 1967 Protocol, it has limited its international law obligations to refugees fleeing “events occurring in Europe” and generally avoided regulating the field and establishing a national framework until the early 2000s. Largely driven by the EU accession processes, Turkey implemented legislative, institutional, and policy reforms related to asylum and began making gradual changes to align its asylum and migration structures with the EU framework from 2001. Cooperation between the EU and Turkey in the field of asylum and migration significantly changed with the so-called migration crisis in the EU in 2015. The EU-Turkey Statement in 2016[3] which foresaw the delivery of one of the most significant financial assistances of EU history relating to refugees, became a model for the EU’s future externalization policies. It is imperative to conduct a comprehensive analysis of the EU-Turkey cooperation arrangements in the field of migration and assess their implementation over the last eight years.

This piece is based on extensive fieldwork conducted in Turkey between June and October 2021, and analyses the political, legal and financial instruments through which the EU and Turkey have cooperated in the field of migration and asylum between 2015 and 2021. The analysis covers the EU-Turkey Statement of March 2016, the EU-Turkey Readmission Agreement[4], and the Facility for Refugees in Turkey (FRiT)[5] and these instruments are analyzed at six points; transparency, accountability, conformity with international law, results, promoting containment or mobility and finally, the alignment with the Global Compact on Refugees[6] (GCR). The paper than explores legal avenues for international responsibility for containment of human mobility in the context of migration cooperation between EU and Turkey.

The EU-Turkey Readmission Agreement was signed on 16 December 2013 and took effect on 1 October 2014. The agreement includes provisions related both to the readmission of the nationals of the EU Member States and Turkey, and to the readmission of any other persons including the third country nationals and the stateless persons that entered, or stayed on, the territory of either side, directly arriving from the territory of the other side. As of February 2022, the Turkey Readmission Agreement was not fully in force.

In October 2015, the EU and Turkey agreed on a Joint Action Plan to “step up their cooperation on support of Syrians under temporary protection and migration management.”[7] Within this framework of cooperation in November 2015, the European Commission announced the establishment of the Refugee Facility for Turkey (later renamed the Facility for Refugees in Turkey, FRiT).[8] The FRiT has a total budget of €6 billion in two tranches, and funded actions were gathered under two categories: humanitarian and development. Furthermore, the Facility also identified six priority areas: humanitarian assistance, education, health, municipal infrastructure, socioeconomic support, and migration management.

On March 18, 2016, the EU and Turkey adopted the EU-Turkey Statement the purpose of which is to end irregular migration from Turkey to the EU. The Statement foresaw that after 20 March 2016, migrants who do apply for asylum or whose applications have been found unfounded or inadmissible under the EU Asylum Procedures Directive,[9] will be returned to Turkey.  In return for the readmission aspect of the arrangement, the EU agreed that ‘[f]or every Syrian being returned to Turkey from the Greek Islands, another Syrian will be resettled from Turkey to the EU, taking into account the UN Vulnerability Criteria. The Statement noted that priority would be given to those who have not previously entered or tried to enter the EU irregularly. This arrangement is sometimes referred to as the 1:1 resettlement scheme. The EU-Turkey Statement also included incentives for Turkey to implement the agreed instruments, such as allocation of considerable funds by the EU for refugees in Turkey, accelerating the visa liberalization roadmap, and re-energizing the EU accession negotiations.

 

EU-Turkey Migration Cooperation for Externalization

Concerning transparency, the texts of the Statement, the Readmission Agreement and FRiT are public. The preparation of the Statement was intransparent, but that is characteristic for this kind of political document. The preparation of the Readmission Agreement was comparatively transparent, as it is an international agreement subject to parliamentary approval. Respondents found the preparation of projects to be funded under FRiT transparent, in particular during its second phase. The implementation of all three instruments is intransparent. The European Commission ceased to publish regular updates on the implementation of the Statement in late 2017, and since then has provided only fragmented and brief information. The Turkish authorities provide some information, but do so infrequently. As a result, it is not clear how many persons have been returned from Greece to Turkey under the Statement, and how many Syrians have been resettled under the 1:1 scheme. Concerning the Readmission Agreement, it is unclear whether it is still in force at all, and if so whether the provision regarding the readmission of third country nationals by Turkey is still in force. The European Court of Auditors expressed concerns about the two migration management projects funded through FRiT.

Accountability of the EU, its Member States, and Turkey for the acts and arrangements under the EU-Turkey Statement is difficult to establish before courts. The failed attempts before the Court of Justice of the European Union[10] and the European Court of Human Rights[11] that sought to challenge the legality of the Statement arrangements support this conclusion. The EU Court of Justice chose to declare itself not competent, and the European Court of Human Rights chose to lower its usual standards under Article 3 ECHR in light of the challenges the Greek authorities were facing. This case law leaves an accountability gap, in particular concerning the restriction of the liberty of asylum seekers on the Greek islands, and the detention/reception conditions there.

Compared to the EU-Turkey Statement, establishing accountability under the EU-Turkey Readmission Agreement is more straightforward since it is a formal international agreement. Due to the absence of any specific monitoring or supervising bodies or accountability mechanisms, shortcomings or misconduct taking place during projects implementing of the Statement and the financial instruments cannot be identified. Respondents mentioned that nearly all stakeholders including Turkish institutions, UN agencies, international institutions, and NGOs have internal accountability mechanisms. These mechanisms can be used, but do not conform to international law standards concerning effective legal remedies (Article 13 ECHR, Article 47 CFR).

The conformity with international law of the EU-Turkey instruments under review is problematic. Turkey’s geographical limitation to the 1951 Convention, the shortcomings in the Turkish asylum system, and the fact that the Turkish capacity for hosting refugees is overburdened, make it difficult to assume that Turkey is a safe country for all asylum seekers and refugees. This raises serious issues with regard to conformity with international law of the returns under the Statement and/or the Readmission Agreement from Greece to Turkey. Our respondents suggest that, although the EU-Turkey Statement on paper does not violate international law, its implementation (and especially its containment focus) raises issues with regard to the compatibility of these arrangements with fundamental rights including the right to seek asylum. Furthermore, the implementation of the Statement has led to an immediate deterioration of the conditions on the Greek islands, which are problematic in light of the prohibition of inhuman and degrading treatment, and the right to liberty. Finally, the Statement has been accompanied by the closing of the Syrian-Turkish border, denying Syrians the right to seek asylum and to be protected against persecution and inhuman treatment in Syria.

The results of the instruments are mixed. The projects funded under FRiT have been, and continue to be instrumental in providing Syrian refugees in Turkey with essential support. The sustainability of this, however, depends on continued funding. As to the effect of the EU-Turkey Statement on maritime crossings from Tukey to Greece, UNHCR figures show that the number of irregular arrivals to Greece by sea from Turkey had already decreased at the before it was adopted. Hence, the Statement cannot be credited with having led to the decrease. The 1:1 resettlement scheme established by the Statement provides minimal number of Syrians in Turkey with a durable solution (0,8% of the Syrian refugee population in Turkey), and is in that sense an insignificant result. Two envisioned results of the Statement that would have benefited Turkey (abolition of the EU visa requirement for Turkish nationals, and kick-starting the negotiations on Turkish accession to the EU) did not materialize.

Do the instruments promote containment of refugees or their mobility? The EU-Turkey Statement, the EU-Turkey Readmission Agreement, and FRiT all seek to contain migrants and refugees in Turkey, and even within Syria. They limit the mobility of refugees within Greece and Turkey as well. This is acknowledged by many interviewees and one of the respondents underlined, “although the instruments have containment purpose, it is not spoken of to avoid being politically incorrect”.

The alignment of instruments with the Global Compact on Refugees varies. The first objective of the GCR is to ease pressures on host states. The Statement and the Readmission Agreement go against this, because they increase the pressure on Turkey by requiring Turkey to prevent new arrivals to the EU and requiring Turkey to readmit those who have transited through Turkey to reach the EU. Closing the Turkish-Syrian border does ease pressure on Turkey, but at the expense of what international law was designed to provide, namely: protection against persecution and inhuman treatment. The number of Syrians resettled under the 1:1 scheme is insignificant and does not constitute a contribution to easing the pressure. At the same time, most projects funded under the FRiT, including but not limited to Emergency Social Safety Net (ESSN) and Conditional Cash Transfer for Education (CCTE), contribute to the self-reliance of refugees and, to a certain extent, to easing pressures on Turkey. Hence, in that respect these projects are in line with the GCR. The instruments do not contribute significantly to the third main objective of the GCR, i.e. expanding access to third-country solutions.

 

Legal Responsibility for Containment of Human Mobility

EU Third Country Arrangements to pursue common objectives in the field of migration control, refugee protection or both are complex matters. They bring together a multitude of actors and are implemented in a context where issues related to migrant and refugee rights may arise. These arrangements unite a number of actors in the pursuit of cooperation, which entails what is known as ‘the problem of many hands’ (Thompson, 1980). Where the number of authors of an act increases, so does the difficulty of determining any individual responsibility of each author for that act. A further difficulty results from the informality of certain aspects of these arrangements: not all actors are capable of formally assuming responsibility under the law of international responsibility.

The effectiveness of the UN Global Compact on Refugees (GCR) depends on increased cooperation among various parties for the protection of refugees. One interest the EU pursues through its collaboration with third states such as Turkey, Tunisia, Serbia, and Niger, and with international organizations such as UNHCR and IOM, is that of collectivized migration control. However, such collaboration could lead to excessive complexity, making it difficult to discern the extent of each party’s involvement and to attribute responsibility for wrongful acts. Where collaboration rests on informal arrangements, attributing responsibility becomes more challenging. Reduced accountability may be one of the reasons for engaging in such conduct. However, when the EU collaborates through third parties, progressive developments in the law of international responsibility increase the likelihood of the risk of encountering arguments on responsibility attribution that were previously inaccessible. It is these risks that the present report seeks to identify.

 

A Possible Responsibility Attribution Agreement?

Against this background, a study of a possible responsibility attribution agreement is presented here, in the context of substandard protection and reception of migrants, including refugees, for cases related to all four countries. This is done to offer insights into the potential risks that the EU and its Member States take in their attempts to engage in migration control and refugee protection cooperation with Third Countries. The wrongful acts that are the basis of responsibility attribution are the violation of the right to leave any country, including one’s own, and the right to seek asylum as a consequence of the containment of refugee movements in Turkey following the implementation of the EU-Turkey Statement.

From the perspective of containment, the EU-Turkey Statement resulted in the following developments at the borders and in the territories of Turkey and Greece:

  • Turkey prevented new arrivals to the EU and took measures to prevent the opening of any new sea or land routes for illegal migration from Turkey to the EU;
  • Greece designated Turkey as a safe country and, as a consequence, regular classification of asylum claims by those who have arrived by sea were deemed inadmissible;
  • Refugees from Greece whose asylum claims were rejected or found inadmissible were readmitted;
  • Reported pushbacks by Greece together with Frontex operations at the Aegean Sea actively restricting mobility;
  • Prolonged detention and confinement of refugees who have arrived in the Greek Islands by sea in hotspots, in detrimental conditions which deter mobility towards Greece;
  • Funding of projects by the EU to support border management and the return capacity of Turkey.

The first five developments serve to contain potential and actual refugees in Turkey, while the last development serves to confine potential and actual refugees in Syria.

In the aftermath of the EU-Turkey Statement, Turkey closed its border with Syria and introduced visa requirements for Syrians. This denied Syrians in need of international protection the possibility to avail themselves of the right to seek asylum and to be protected against persecution and inhuman treatment in Syria. Turkey also took active measures to prevent irregular passages to Greece. Thus, the adoption of the EU-Turkey Statement resulted in confining displaced persons to Syria as well as to Turkey, which was an infringement of the right to leave any country including its own and the right to seek asylum.

The intention of containment that underlies the EU-Turkey Statement opens the door to arguments on systemic responsibility attribution to the EU and its Member States.

The right to asylum is guaranteed in Article 18 of the EU Charter of Fundamental Rights. The EU-Turkey Statement makes it more difficult for individuals from Syria in need of international protection to make use of their right to seek asylum due to their confinement in Turkey and Syria. The right to leave any country including one’s own is laid down in Article 13(2) of the UDHR (as such not binding as a matter of international law) and Article 2(2) of Protocol No. 4 to the ECHR (ratified by neither Turkey nor Greece). This right also finds a legal basis in Article 12(2) ICCPR which is binding for both Turkey and Greece as well as for EU Member States.

The question arises whether the right to leave any country is infringed by measures of containment. One could anticipate an argument against there being a breach once alternative destinations are available for exercising the right. For example, it could be claimed that the harm sustained by the individuals contained in Turkey, Serbia, and Niger cannot be regarded as an infringement of their right to leave since the possibility of leaving for any other country, including their countries of origin, might still be open. This would apply even though the route to leave these countries bound for EU countries might be blocked (unless a person qualifies for resettlement in the case of Turkey and Niger).

This proposition should be rejected primarily because the possibility of leaving for other countries (for example, Niger’s neighbors) cannot per se rule out an infringement of the right to leave.[12] As held by the Human Rights Committee, triggering the application of Article 12(2) of the ICCPR need not entail a complete inability to leave the territory of a particular state. The Committee has found the provision applicable to circumstances where individuals could leave for one particular country but could not go to a country where they specifically wished to go.[13]

One could also anticipate an argument against the applicability of the right to leave in cases of contained mobility, based on the claim that countries of destination are precisely seeking to facilitate such movement in an orderly fashion through their cooperation with host third countries (such as Turkey, Serbia, and Niger). However, that objective does not consume the right to leave. This conclusion is strengthened further, once we consider the level of protection in these host countries or the expected level of protection that migrants can avail themselves of in any alternative destination.

On this basis, we would like to emphasize that the right to leave any country including one’s own might engender arguments attributing legal responsibility to actors jointly embarking on containment-related conduct. However, due to evidentiary and justiciability concerns, as well as the sizeable endeavor of capturing the overall policy purposes underlying the EU-Turkey Statement, this case is a likely candidate for an argument for systemic responsibility attribution.

As expressed by the respondents in the field study on Turkey, ‘although the EU-Turkey Statement on paper does not violate international law, its implementation (and especially its containment focus) raises issues with regard to the compatibility of these arrangements with fundamental rights including the right to seek asylum’[14]. In general terms, containment aims to prevent movement of irregular migrants and asylum seekers towards the EU. Part of its rationale is to evade legal responsibility of the EU or its Member States by preventing the establishment of a jurisdictional link between a relevant third country national and European actors. The limitation of the freedom of movement, the right to leave any country including one’s own, and the right to seek asylum is the purpose of the EU-Turkey Statement. Moreover, despite considerable support by the EU to improve conditions in Turkey through the funds mobilized in connection with the EU-Turkey Statement, the implementation of the Statement has increased the pressure on protection systems in Turkey and Greece and thus conflicts with the GCR objective of easing the pressures on host countries.

 

Conclusion

Concerns exist about the transparency of the projects funded under the FriT. It is difficult to establish the accountability of the EU, its Member States, and Turkey before courts, for the acts and arrangements under the EU-Turkey Statement. Since the EU-Turkey Readmission Agreement is a formal international agreement, demonstrating accountability under it is more straightforward than under the EU-Turkey Statement. Furthermore, there are issues with the EU-Turkey instruments’ compliance with international law. Given Turkey’s geographic limitations under the 1951 Convention, shortcomings in the asylum system, and its overburdened capacity for hosting refugees, it is exceedingly difficult to consider Turkey a safe country for all asylum seekers and refugees. The implementation of the Statement has led to an immediate deterioration of the conditions on the Greek islands and to Syrians being deprived of their right to apply for asylum and protection from persecution and cruel treatment in Syria. The 1:1 resettlement scheme established by the Statement provides a minimal number of Syrians in Turkey with a durable solution and is in that sense an insignificant result. There has been no progress on the abolition of the EU visa requirement for Turkish nationals, and kick-starting the negotiations on Turkish accession to the EU did not materialize. Furthermore, it should be noted that the Statement did not reduce the number of irregular arrivals from Turkey to Greece. Also, all three instruments aim to contain migrants and refugees in Turkey, and even within Syria, thus restricting mobility of refugees within Greece as well. Concerning the alignment of instruments with the Global Compact on Refugees, the Statement and the Readmission Agreement increase the pressure on Turkey by requiring Turkey to prevent new arrivals to the EU and Turkeyto readmit those who have transited through Turkey to reach the EU. Although closing the Turkish-Syrian border may alleviate the pressure on Turkey, it does so at the expense of international law’s designed purpose of providing protection against persecution and inhuman treatment. The number of Syrians resettled under the 1:1 scheme is insignificant and does not constitute a contribution to easing the pressure. However, most projects funded under the FRiT contribute to the self-reliance of refugees and, to a certain extent, to easing pressures on Turkey. Hence, in that respect these projects are in line with the GCR.

In its future collaborations with third parties, whether they be international actors or not, the EU and its Member States should be mindful that the law of international responsibility is developing in ways that obliterate lacunae in attribution. The risk of being held responsible before a court of law – or, indeed the court of public opinion – is growing and systemic attribution might come to play a role in it. Over time, the law catches up with those seeking to evade it.

 

Footnotes

[1] The contents of this essay are based on Ovacık, G., Ineli-Ciger, M., Ulusoy, O., Spijkerboer, T., “Country Report TURKEY”, ASILE Project (2022), accessible here: https://www.asileproject.eu/wp-content/uploads/2022/08/D5.2_WP5-Turkey-Country-Report-Final.pdf; and Karageorgiou, E., Noll, G., Ovacık, G., “Responsibility Allocation and UN GCR Implementation”, ASILE Project (2023), accessible here: https://www.asileproject.eu/responsibility-allocation-and-un-gcr-implementation/.

[2] Kirişçi, K., “Turkey’s New Draft Law on Asylum: What to Make of it?” in S Pacaçı Elitok and T Straubhaar (eds), Turkey, Migration and the EU: Potentials, Challenges and Opportunities (Hamburg Institute of International Economics, 2012) 63; F Yilmaz-Elmas, F., Kutlay, M., Buyuk, H. F. and Gumus, O., ‘Q&A Debate EU-Turkey Cooperation on ‘Refugee Crisis’: Is It on the Right Track’ (2016) International Strategic Research Organization (USAK) Policy Brief No 22.

[3]European Council. EU-Turkey Statement. (2016, 18 March). https://www.consilium.europa.eu/en/press/pressreleases/2016/03/18/eu-turkey-statement/

[4] Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation [2014] OJ L 134.

[5] EU-Turkey Cooperation: A €3 billion Refugee Facility for Turkey. (2015). https://ec.europa.eu/commission/presscorner/detail/en/IP_15_6162.

[6] Global Compact on Refugees. (2018). https://www.refworld.org/docid/63b43eaa4.html

[7]EU-Turkey Joint Action Plan MEMO/15/5860 https://ec.europa.eu/commission/presscorner/detail/en/MEMO_15_5860

[8] Spijkerboer, T. and Steyger, E., ‘Articles European External Migration Funds and Public Procurement Law’, European Papers, 4.2 (2019), 493–521, p. 517.

[9] Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32013L0032.

[10] NF and Others vs. European Council, ECLI:EU:C:2018:705.

[11] JR and Others vs. Greece App no 22696/16, ECtHR, 25 January 2018.

[12] Stoyanova, V. (2020), ‘The Right to Leave Any Country and the Interplay between Jurisdiction

and Proportionality in Human Rights Law’, International Journal of Refugee Law 403–439.

[13] HRC, Loubna El Ghar v Libya, UN doc CCPR/C/82/D/1107/2002 (15 November 2004).

[14] Interview with a migration practitioner in Turkey, July 2021.

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