Protection Elsewhere – The New Norm of the Common European Asylum System?

By Maria Hennessy

Legal Officer at the Irish Refugee Council Independent Law Centre 

In March 2016, the European Union (EU) Turkey Statement heralded a new era of the Common European Asylum System (hereinafter CEAS), one which focuses on deterrence, inadmissibility, exclusion and externalisation. What became commonly known as the ‘EU-Turkey Deal’ consisted of an agreement “whereby every person arriving irregularly on the Greek Islands from Turkey, including those seeking international protection, would be returned to Turkey in exchange for visa free travel for Turkish citizens to Europe, substantial financial aid and increased EU resettlement of Syrians from Turkey along with a voluntary humanitarian admission scheme once arrivals significantly diminished.”[1]

The European Council, in unveiling the EU-Turkey Deal, declared that it was agreed upon “in order to break the business model of smugglers and to offer migrants an alternative to putting their lives at risk.”[2] The Council also stated that the return of migrants from Greece to Turkey will only be a “temporary and extraordinary measure…to end the human suffering and restore public order.”[3]  Yet, more than a year onwards, the deal is now being employed as a blueprint for the next phase of the CEAS and is leading to an erosion of respect for international human rights laws and norms.

Furthermore, numerous reports show the underlying premise of the agreement – that Turkey is a safe country for refugees – is flawed.[4] Indeed, at the time of writing, a decision in relation to the return of two Syrian asylum seekers is pending from the Greek Council of State, the Supreme Administrative Court of Greece, on whether Turkey is a “safe third country” (see below).[5]

Safe third country status is enshrined in EU law from the 2013 recast Asylum Procedures Directive along with its 2005 predecessor.[6] However, there is no similar provision in the 1951 Refugee Convention or its 1967 Protocol, of which all EU Member States are party to and indeed, the Treaty of the European Union requires that EU common asylum policy is in accordance with that Convention and other relevant international treaties.[7] The safe third country concept is part of “protection elsewhere” regimes whereby refugees are required to seek protection in a country other than where they currently are present.[8] Professor Hathaway has noted that other than in the narrow circumstances set by Articles 1(D) and 1(E) of the Refugee Convention, there is no legal basis to deny refugee status on the grounds of a duty to seek protection elsewhere.[9] That does not prevent, as noted by Hathaway, the development of responsibility sharing agreements between States, as long as they respect the rights of refugees, including, but not limited to, the principle of non-refoulement.

So is that the case in Turkey? Turkey currently hosts more than 3.2 million registered refugees along with many more unregistered refugees.[10] Under such strain, forced-pushbacks and instances of refoulement have occurred at the Syrian-Turkish border and individuals outside official camps live in challenging conditions with limited access to basic facilities.[11] Syrians only receive temporary protection in Turkey with other nationalities often receiving even less, and the first Turkish asylum law was only established in 2013 so the asylum procedure is virtually in its infancy there.[12] Coupled with that is the fact that Turkey ratified the Refugee Convention with a geographical limitation and recently the monitoring committee of the Parliamentary Assembly  of the Council of Europe raised its concern as to the “serious deterioration of the functioning of democratic institutions” in Turkey.[13] Therefore it is difficult to see how Turkey can be considered a safe third country, and on an individual basis many Greek Appeal Committees have overturned inadmissibility decisions by the Greek Asylum Service on grounds that Turkey cannot be considered as such.[14]

Many EU leaders hail the EU-Turkey Deal as a success despite the human cost of the agreement and its questionable compliance with international refugee law, but even more worrying is the move to use the EU-Turkey Deal as a model for engagement with other countries such as the European Partnership Framework with Third Countries. Although the European Commission came out strongly against the idea to replicate the Turkish agreement in Libya this year, the EU action plan to support Italy involves ensuring Libya is provided with assistance to improve its migration control on Libya’s southern borders.[15] Furthermore, the EU Trust Fund on 28 July adopted a programme aimed at reinforcing the migration and border management capacities of the Libyan authorities.[16] Under the agency’s new mandate – Frontex, the European Border and Coast Guard Agency, is also permitted to carry out operations on the territory of neighbouring third countries, subject to prior agreement.[17] These activities, although they focus on operational cooperation in areas such as border control technologies,  are essentially to prevent people arriving in Europe and seeking protection here. It also brings Europe ever closer to reigniting debate around off-shore processing centres as inspired by the Australian model.[18]

Within the European legal framework itself, inadmissibility has come to the fore in this stage of the CEAS. The application of the safe third country concept along with the concept of first country of asylum may become mandatory in the admissibility procedure foreseen in the proposed revised Dublin IV Regulation.[19] This will mean that when an asylum seeker seeks protection in any EU Member State, the national authorities concerned must systematically examine whether the application is inadmissible on grounds that the applicant comes from a first country of asylum or a safe third country. Its mandatory nature is particularly problematic because even though many European Member States had previously incorporated the concept in their national legislation it was not systematically used. In practice, this admissibility check under the revised Dublin Regulation could lead to many refugees not receiving protection in Europe and, unless carried out in full compliance with international human rights law, it may seriously undermine the right to seek asylum and related rights such as family unity under the EU Charter.[20]

In addition, as part of the European Agenda on Migration, a common list of safe countries of origin has been drawn up by the Commission and is currently at the final stage of the trilogue negotiation process.[21] Though the European Union has not reached final agreement on the list of specific countries, the whole aim of such list is to fast track applications for international protection. This approach of designating people to different protection procedures based on their citizenship undermines the principle of non-discrimination on the grounds of nationality. Similarly, a differential treatment is creeping into national practice: refugees who arrive via a resettlement programme frequently receive more support than those who individually seek asylum in national protection systems.[22] Rather than focusing on individual protection needs, the emphasis is placed on the journey the person has made, his or her connections to other States and other peripheral matters. Responsibility sharing has become responsibility shifting to States outside the European Union.

Overall these measures have led to an erosion of refugee protection principles and norms. Institutionalizing the EU-Turkey Deal and embedding it in the CEAS framework is not the way forward. We are now witnessing the highest levels of global displacement on record but it is not unprecedented. Lessons can be learnt from history, this coupled with the resilience of the Refugee Convention and its Protocol shows the way forward. For example, in 1922 the Nansen passport, a product of the League of Nations High Commissioner for Refugees, enabled 450,000 refugees from countries such as Russia, Armenia and Turkey, to travel and find protection.[23] The passport was honoured in many countries and could be used as a model for humanitarian visas or other humanitarian schemes which provide safe legal passage for refugees to find true protection. Overall, the way forward is for Europe to uphold its commitment under Article 18 of the European Charter of Fundamental Rights – the right to seek asylum.

(This article is an expression of the author’s own views, and not those of the Irish Refugee Council. )

Footnotes

[1] Agreement between the European Union and the Republic of Turkey on the Readmission of Persons residing without Authorisation, July 5, 2014, O.J. (L 134/3), https://perma.cc/C9V9-N9NC.

[2] EU Turkey Statement, Council of the European Union, 18 Mar. 2016, https://perma.cc/3MPS-L2AF.

[3] Id.

[4] See e.g. A Blueprint for Despair: Human Rights Impact of the EU-Turkey Deal, Amnesty International, 14 Feb. 2017, https://perma.cc/GKL9-JKEC; Elizabeth Collett, The Paradox of the EU-Turkey Refugee Deal, Commentary, Migration Policy Institute, March 2016, https://perma.cc/4EX8-6ZR4.

[5] Alessandro Accorsi, Stakes high as Greek Court set to decide fate of EU-Turkey migrant deal, Middle East Eye, 10 Mar. 2017, https://perma.cc/JV6U-QDXL.

[6] Council Directive 32, 2013 O.J. (L 180/60) (EU), https://perma.cc/6FH7-LKPBl ; Council Directive 85, 2005 O.J. (L 326/13) (EC), https://perma.cc/58ZV-QSHT.

[7] Treaty of the European Union, 26 Oct. 2012, 2012 O.J. (C 326) [hereinafter TEU], https://perma.cc/99TT-GJRN. (The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.)

[8] See e.g. The Michigan Guideline on Protection Elsewhere, Mich. J. Int’l L., Winter 2007, at 209, https://perma.cc/T6D6-9KBK.

[9] James C. Hathaway and Michelle Foster, The Law of Refugee Status 33 (2013).

[10] Turkey: Refugee Crisis, Echo Factsheet, European Commission, European Civil Protection and Humanitarian Aid Operations, Apr. 2017, https://perma.cc/GK26-5KWF.

[11] Id.

[12] Orcun Ulusoy, Turkey as a Safe Third Country?, University of Oxford Faculty of Law Blog (29 March 2016), https://perma.cc/P45Z-8NNX.

[13] The Monitoring Committee calls for the monitoring procedure in respect of Turkey to be re-opened, Council of Europe, Parliamentary Assembly (8 March 2017) https://perma.cc/T7JL-3CHY.

[14] Greece: the Appeals Committee issues decisions on Turkey as a Safe Third Country, European Database of Asylum Law (17 May 2016) https://perma.cc/BA3A-ECYJ.

[15] Central Mediterranean Route: Commission proposes Action Plan to support Italy, reduce pressure and increase solidarity, EUROPEAN COMMISSION, MIGRATION AND HOME AFFAIRS, 4 Jul. 2017 http://europa.eu/rapid/press-release_IP-17-1882_en.htm

[16] EU Trust Fund for Africa adopts €46 million programme to support integrated migration and border management in Libya, EUROPEAN COMMISSION, MIGRATION AND HOME AFFAIRS, 28 Jul. 2017 http://europa.eu/rapid/press-release_IP-17-2187_en.htm

[17] In March 2017, for example, the European Council adopted a decision authorising the Commission to open negotiations with Serbia and the former Yugoslav Republic of Macedonia on agreements for the deployment of Frontex teams on their territories.

[18] In Australia, Operation Sovereign Borders (OSB) is a military-led border security operation whereby asylum seekers are kept in detention centres in Nauru and Papua New Guinea.

[19] The Proposed Asylum Procedures Regulation, Position Paper, Amnesty International, European Institutions Office, 31 Mar. 2017, https://perma.cc/2AHV-4TGQ.

[20] For further information see Jean-Baptiste Farcy and Amanda Taylor, Mirza and the application of the Safe Third Country concept under the Dublin Regulation, a foreboding of things to come?, European Database of Asylum Law (12 Oct. 2016) https://perma.cc/ZQK8-U4NQ.

[21] Safe Countries of Origin: Proposed Common EU List, European Parliament, EU Legislation in Progress, Feb. 2017, https://perma.cc/JJ3S-V56M.

[22] Natalya Pestova, Differential Treatment for Refugees in Ireland, Forced Migration Review (Feb. 2017) https://perma.cc/LE3S-FJ6S.

[23] Alexander Betts, “Let Refugees Fly to Europe,” Opinion, NY Times (Sept. 24, 2015), https://perma.cc/S63H-3AWE.

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