Lessons learnt from EU-Turkey agreement on refugees

Milan (Italy) – Four months have passed since the entry into force of the agreement between the EU and Turkey. This deal received widespread criticism with some claiming that it will remain unimplemented or, worse still, ignored by Turkey. Afronline analyzes the state of the art with Professor Chiara Favilli, lecturer in European Union law from the University of Florence. Favilli also compares the Brussels-Ankara agreement with the new EU strategy on migrations in Africa.

The key points

Professor Favilli, what is the current status of the agreement between the EU and Turkey?
The agreement comprises several documents which set out the content. The final document, the statement of 18 March 2016, came into force on 20 March 2016 and it was at that point that the various instruments provided for by it became effective. One particular example is EU funding for Turkey, which partly impacts the European Union budget and partly that of individual member states.

What figures are we talking about?
We are talking about three billion euro one billion of which is covered by the EU budget and two billion by the member states. This funding has many aims, one of which is to support Turkey in receiving refugees, in particular Syrians, who enjoy only temporary protection in Turkey, rather than genuine refugee status. Then there is obviously the support for Turkish border control both to tackle human traffickers and to prevent people leaving Turkey and using illegal ways of reaching the Greek islands. In a nutshell, these are the two main areas for EU funding.

The European Union provides funding and Turkey undertakes to “receive and contain” the flow of migrants and tackle human traffickers…
This is the more operational part of the agreement. The funding has been identified and the states have already given instructions for paying out the funds. On the other hand, we can also see that Turkey is introducing a series of measures aimed at both receiving refugees and tackling human trafficking. With regard to reception, Turkey was asked (and has agreed) to provide legislative assurances that Syrian citizens can have access to employment. As they had not been granted refugee status but only temporary protection, these citizens had been unable to access the employment market until the legislative amendment implemented through this agreement. Turkey was also asked to guarantee effective protection of Syrians, including those who had returned to Turkish territory after leaving it. In actual fact, the law granted the Syrians temporary protection; however, it was relinquished by those who left the country. The EU therefore asked Turkey to grant or maintain the protection also to those who were returning to Turkey after leaving.

Repatriation – an unusual mechanism

2,800,000 people have been received in Turkey. The fact that the EU is providing Turkey with funding seems fair enough. In fact, we could well describe it as the natural order of things. However, are there not some more worrying aspects to the agreement?
The problematic part is the identification of a repatriation mechanism for asylum seekers. This is the first time we have had a legislative instrument, written in black and white, which makes express provision for the repatriation of asylum seekers. This is a highly concerning legislative development. Until now the cardinal rule has been for asylum seekers to be granted access to EU territory and it has also been the duty of the member states to examine applications and receive those who have been granted protected status, on the understanding that there are standards in the EU which comply with the Geneva Convention. This understanding is rarely found in other states. Until now anyone who arrived in Europe to seek asylum could stay in Europe. But a new instrument has now become operational – repatriation.

How have we arrived at this instrument?
By applying an EU directive, no. 2013/32, which makes provision for considering asylum requests inadmissible.

Without even examining them?
Let us describe the examination as cursory. In this case, the goal is to check whether Syrians who arrived in Greece after 20 March, coming from Turkey, may return to Turkey, since Turkey, for such persons, may be classed as the first country of asylum or classed as a third state where they may, in any event, obtain protection.

So this repatriation mechanism is linked to readmission…
In fact, a “one-to-one” mechanism is under discussion. For every Syrian readmitted to Turkey, one must be, as the agreement says, “reinserted” (or, as I would put it, “admitted”) into the EU. This meets the needs of having legal channels of entry to discourage illegal entry, by showing that whoever arrives illegally will be repatriated, even asylum seekers and, at the same time, anyone who has not done so may enter because there is a legal admission channel for Syrians.

How is the mechanism working at the moment?
The data were published on 15 June. From these data, we can see that 511 Syrians were admitted, while 31 were repatriated. Moreover, these persons were all repatriated on a voluntary basis. So far, no asylum seeker has been forcibly repatriated from Greece to Turkey…

So according to the numbers, the agreement is working…
According to the numbers of landings, yes the agreement has certainly achieved its targets as regards the need to interrupt the flow of migration from Turkey to Greece. The daily average has gone from around 1,300 Syrians per day to 47 per day. The number of deaths at sea has also fallen dramatically.

What has enabled the achievement of this target?
Certainly not the repatriation mechanism. Only 31 people were repatriated. It is therefore clear that it is not the repatriations or fear of repatriation which has reduced the number of landings, but rather Turkey’s launch of effective measures to tackle the networks of traffickers and monitor its borders, something it had failed to do until now.

The key aspects

Is it possible to give a positive verdict on the EU/Turkey agreement?
We need to assess the effectiveness of the agreement, based on its actual objective, rather than anything else. And this objective was to contain flows. Then we need to ask ourselves the question of whether the agreement also provides an answer to the humanitarian tragedy suffered by the Syrian refugees. At this point the question changes: is Turkey offering adequate protection to Syrian refugees? I believe there are still certain concerns on this point.

Perhaps we need to understand how the funding verification mechanisms work. Things change if the money which comes from the EU is intended solely for monitoring borders or whether it is intended for improving the conditions of the refugees…
We are talking about 3 billion, plus another 3 billion to be provided subsequently. Focusing on how it will be spent is crucial, as is understanding what protection standards people in Turkey enjoy.

Let us return to the number of persons repatriated: only 31, a rather unexpected figure…
The European Directive provides for the possibility of considering asylum applications inadmissible, but protects the individual right to lodge an appeal against such decisions. There must be a formal decision, an individual examination and an appeal.

What has happened during these two months?
There are still 2,300 Syrians awaiting a decision and a few hundred inadmissibility decisions against which appeals have been filed. The Greek Appeals Committees have upheld all the appeals…

What were the reasons for this?
It is based on the fact that Turkey cannot be considered a first country of asylum or a safe third country for applicants. It is one thing to say that, in general and theoretical terms, Turkey is a safe third country; it is quite another – and this is the specific work which the committees are carrying out to say so for a specific case concerning a particular person. It is for this reason that the repatriation mechanism has not worked. The Greek Appeals Committees have upheld all the appeals. And this is the reason, irrespective of certain complicated profiles, which makes the agreement legitimate. Is there a genuine repatriation of asylum seekers? At the moment, no, since the persons who were repatriated volunteered. However, ten days ago, a reform in Greece changed the composition of the Appeals Committees. Press reports state that this reform was implemented under pressure from the European Commission to ensure that a different composition of the Committees will produce different results. Until now, two of the members of these Committees were representatives of organisations such as the UNHCR…

Thus far we have been talking about an agreement between the EU and Turkey, but the one we are discussing now is not classed as such…
We actually have a declaration, a communication from the European Commission and a prior understanding, dated 6 February. We have analysed the content of these three documents and none of them is classed as an “agreement”.

Why not simply produce an agreement?
Because, in order to conclude an international agreement, the procedure established in the Treaty on the Functioning of the European Union must be followed which requires the involvement of the European Parliament. However, in this case, another, highly informal, procedure was followed…

And one in which the European institutions do not even play a leading role…
The declaration was agreed by the heads of state and government of the European Union, and not by the European Council, which is also composed of the heads of state and government of the EU. The declaration was not agreed upon by the institution. This is a sign of the great current weakness in the situation in Europe. Governments have replaced the European institutions within European Union competence, using the seats of the EU and also a part of its financing, while flouting all the prerogatives of the rules and procedures.

Weak decision makers and institutions in crisis

The agreement only seems to be the fruit of decision making; in actual fact, it marks a crisis in the decision-making process…
This is also clear today in the post-Brexit debate. The declarations from the German Finance Minister, Wolfgang Schäuble, who is seeking a removal of the powers of the Commission and greater intervention from the individual governments, is also a step in this direction.

What is wrong with these agreements?
There is a line that should never be crossed. an international agreement should not be used to achieve goals which cannot be achieved nationally. Yet, the governments are doing this, at both domestic and EU level. In this case, the plan has been to create an informal agreement, using it to create obligations for states: just consider Greece. Greece has modified the law on the composition of the committees, but has also modified one of its own laws to facilitate the declaration of inadmissibility which we mentioned earlier.

Europe as an alibi

We have seen this in Austria and Hungary, with continuous tensions over refugees…
We believe that, at national level, immigration has lost its central position. The balances have shifted and other issues have now become key – the economy, social issues and culture.

So obviously we need to talk of the political level here…
Shifting the axis at European level does not mean handing it over to the technocrats.

Yet the situation is very different: the pressure remains on the local axis, with politicians capitalising on the tension while new scenarios are arising. What is your view?
For instance, using the agreement with Turkey as a model for other countries. This is what they want to do and, at least in part, what they actually are doing. On 28 June, the European Council approved a document on cooperation with third countries, particularly with African countries. It is precisely these countries which are the biggest causes of concern and the aim is to employ the “more to more” principle to the funding for such countries: i.e. more aid in exchange for greater control of flows and better tackling of traffickers. This externalisation model for immigration control policy has been brewing since 2003, is now back and seems to have become the key for relationships with third countries. A new idea is being developed, i.e. that cooperation funding should be channelled to development to ensure orderly management of migration flows. Until this point, it has been possible to maintain the specific nature of the funds for cooperation and for development. These funds must be specifically targeted at the development of a state, rather than aimed at achieving the objectives of the European Union. The latter must have their place, but cooperation has a purpose and is known as such if the primary purpose is the development of the beneficiary communities.

Otherwise, this is a policy activity…
Otherwise, the risk is that it is people and, as always, the weakest amongst us, who will lose out.

By Marco Dotti (Afronline.org)

This interview was published in the framework of an editorial project that gathers Afronline and 25 African independent media.

Article also published on Vita.it and Vita International

Photo Credits: Getty Images/Chris McGrath

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