Unsafe Third Country: Greek Court Returns Syrian Refugees to Turkey

by Michael Goodyear

First-year student at the University of Michigan Law School.

On September 22, 2017, the Hellenic Council of State (“Council of State”), Greece’s highest administrative court, released Decisions No 2347/2017 and 2348/2017. The Council of State ruled that Syrian asylum seekers could be returned to Turkey because it was a safe third country and that Syrian refugees returned from Greece to Turkey face no danger of torture, inhumane treatment, or punishment. This decision not only affects the two Syrian men who were parties in the case, but all similarly situated Syrian refugees in Greece, as this decision is final binding precedent from the highest administrative court in Greece. This decision opens the door to a breach of international refugee law. The prospective return of Syrians from Greece to Turkey violates the principle of a safe third country by sending refugees back to a country whose treatment of Syrian refugees has included refoulement and violations of the Human Rights Convention.

Safe-Third Country Doctrine

The 2005 EU Directive allows Greece and the EU to send refugees back to their first country of asylum, the first country in which they received “refugee status or otherwise sufficient protection.”[1] Alternatively, if an individual travels through a safe third country their application for asylum is unfounded and denied on the premise that they could safely seek asylum in that previous country instead.[2] Article 27 of the directive states, however, that the safe third country may only apply if, among other conditions, “life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion” and “the principle of non-refoulement[3] in accordance with the Geneva Convention is respected.” For most Syrian asylum seekers that enter Greece, their first country of asylum and the first safe third country that they entered is Turkey.

The European Court of Human Rights (ECHR) and the EU’s Dublin Convention have also enshrined the 2005 EU Directive’s principles relating to safe third countries. The ECHR has reasoned that states are responsible “for all and any foreseeable consequences of extradition suffered outside their jurisdiction.” This would implicate the EU and Greece in any foreseeable harms that befall Syrian asylum seekers that are sent back to Turkey.

Under the European Union’s Dublin Regulation, the first member state in which an asylum seeker arrives is the state that is responsible for assessing the migrant’s status and providing refugee protection. For most Syrians fleeing unrest in their country, this first member state of entry has been Greece. Under the Dublin Regulation, the first member state of entry can also send asylum seekers to safe third countries instead. The ECHR has understood the Dublin Regulation to impose a duty that “[s]tates must make sure that the intermediary country’s asylum procedure affords sufficient guarantees to avoid an asylum seeker being removed, directly or indirectly, to his country of origin without any evaluation of the risks he faces.” In this case, Greece has a duty to not return Syrian asylum seekers if there is a serious risk of refoulement.

The 2005 EU Directive, the ECHR, and the Dublin Convention all follow the spirit of Article 33 of the 1951 Refugee Convention, which explicitly bans refoulement.[4]

The systematic return of Syrian migrants to Turkey is premised on the March 2016 EU-Turkey Statement (“the Statement”) on the joint-action plan between Turkey and the European Union. The Statement stipulated that the European Union would return all new Syrian migrants that arrived without going through proper immigration and customs procedures in Greece to Turkey in exchange for European financial assistance to Turkey and increased EU settlement of Syrian refugees.

The Statement is premised on the notion that Turkey is a safe third country for refugees. Even in the immediate aftermath of the Statement’s release, this was questionable and some lower Greek courts originally held that Turkey was not safe for Syrian refugees. If Turkey were held to be an unsafe country for Syrian asylum seekers, the EU-Turkey joint-action plan would be a non-starter since they could not be returned to Turkey under the safe third country doctrine.

The Council of State could have referred this case to the European Court of Justice to answer whether Turkey was indeed a safe country, but this was rejected by a narrow majority of 13 to 12 members. This referral would have been fitting since the concept of safe third country was not enshrined in the Refugee Convention but in the 2005 EU Directive.[5]

Now that the highest Greek administrative court has ruled that Turkey is in fact a safe third country for Syrian migrants, lower tribunals will likely follow their precedent. Decisions No 2347/2017 and 2348/2017 removed a legal barrier to the Turkey-EU agreement and allow the removal of Syrian refugees to move forward.

Turkish Refugee Law

It is uncertain that Turkey’s treatment of Syrian refugees affords them sufficient protections against refoulement. Turkey has signed both the Refugee Convention and its 1967 Protocol, but it has kept reservations to the full meaning of refugee. Turkey’s Law on Foreigners and International Protection, implemented in 2013, still only recognizes refugees as those from Europe, per Article 1(B)(a) of the Refugee Convention, meaning the three million Syrians in Turkey are not considered refugees by the Turkish government. This limits the recognition and rights that are available to the Syrians in Turkey who would likely be considered refugees in many European countries.

Syrians who fled their country can register with the Turkish government for temporary international protection status. However, under Article 16 of the Temporary Protection Regulation, based on Article 91 of the Law on Foreigners and International Protection, those who receive temporary protection cannot separately apply for international protection.[6] This means that all Syrians are afforded in Turkey is temporary protection status, not international protection status.

Even this temporary protection is fragile. Under Articles 11[7] and 15,[8] the temporary protection regime may be terminated or temporarily suspended by the Board of Ministers at any time without guaranteeing international protection procedures, including the prohibition of refoulement enumerated in the Refugee Convention. This protected status is tenuous at best, and it is not to the “sufficient protection” standard of the EU Directive or the “sufficient guarantees” standard of the ECHR.

Conditions for Syrian Refugees in Turkey

The Turkish government, in light of the size of the Syrian refugee crisis, is pleased with its response. Mevlüt Çavuşoğlu, the Turkish Minister of Foreign Affairs from 2014 to 2015, noted that Turkey has “opened its doors to Syrians . . . by strictly adhering to international law, particularly to the principle of non-refoulement.”

Turkey is currently home to the largest number of foreign refugees in the world. Turkey’s efforts have been commendable in many regards, but Turkey’s adherence to international law is questionable. Syrian refugees’ conditions are not free of human rights abuses. Many refugees live in poverty in Turkey. Turkish soldiers have prevented Syrian refugees from entering Turkey and the Turkish government has even built a wall to keep more refugees out. Between April and December of last year, Turkey has denied the UNHCR access twenty-five percent of the time to temporary refugee camps in Turkey where Syrians coming from Greece are transferred.

Turkey’s human rights abuses toward Syrians would violate numerous articles of the Refugee Convention if they recognized non-Europeans as refugees. Syrians are faced with a lack of public housing beyond restricted camps, despite the existence of government housing programs for the native population, which runs counter to Article 21 on providing fair housing. Article 22 is likely violated since education opportunities for Syrian children in Turkey are limited, with difficulties enrolling in public schools and low quality of teaching in temporary education centers.

Even more alarming, after its invasion of northern Syria last August, Turkey has sought to move thousands of Syrian refugees back into the “liberated” portion of the country, although the situation in Syria is far from stable, even with the fall of the Islamic State’s base at Raqqa. According to Amnesty International, a number of Syrian refugees are being sent back to their country of origin, where they face human rights violations and possibly death. Turkey may not recognize Syrians as refugees, but under European law, Greece and the EU are responsible for sending Syrian asylum seekers back into these conditions and, according to the ECHR, “for all and any foreseeable consequences of extradition suffered outside their jurisdiction.”


Turkey’s actions are in direct defiance of the principle of non-refoulement that European and international law follow. If a third country, such as Turkey, is likely to violate the principle of non-refoulement, then the country adjudicating the claim would also be in violation of refugee law under the Dublin Convention and the Refugee Convention. By sending asylum seekers back to Turkey, Greece and the EU are putting them in danger of refoulement and other refugee rights abuses, violating the EU Directive, ECHR precedent, the Dublin Convention, and Article 33 of the Refugee Convention.

By ruling that Turkey was a safe third country,despite proof of human rights abuses and refoulement, the Council of State authorized a potential violation of European law and the Refugee Convention if these practices continue in Turkey. Under European law and the Refugee Convention, countries that send refugees back to unsafe third countries are also responsible for subsequent refoulement. It is not just Turkey, but also Greece and the EU that have endangered the safety of Syrian refugees and will potentially violate EU law, ECHR precedent, and the Refugee Convention.

[1] Article 26: “A country can be considered to be a first country of asylum for a particular applicant for asylum if: (a) he/she has been recognised in that country as a refugee and he/she can still avail himself/herself of that protection; or (b) he/she otherwise enjoys sufficient protection in that country, including benefiting from the principle of nonrefoulement; provided that he/she will be re-admitted to that country.”

[2] Article 36: “1. Member States may provide that no, or no full, examination of the asylum application and of the safety of the applicant in his/her particular circumstances as described in Chapter II, shall take place in cases where a competent authority has established, on the basis of the facts, that the applicant for asylum is seeking to enter or has entered illegally into its territory from a safe third country according to paragraph 2.”

[3] Refoulement is the return of refugees or asylum seekers back to a country where they would likely face persecution.

[4] “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

[5] “Furthermore, with respect to certain European third countries, which observe particularly high human rights and refugee protection standards, Member States should be allowed to not carry out, or not to carry out full examination of asylum applications regarding applicants who enter their territory from such European third countries. Given the potential consequences for the applicant of a restricted or omitted examination, this application of the safe third country concept should be restricted to cases involving third countries with respect to which the Council has satisfied itself that the high standards for the safety of the third country concerned, as set out in this Directive, are fulfilled.”

[6] Article 16: “Individual international protection applications filed by foreigners under this regulation shall not be processed in order to ensure the effective implementation of temporary protection measures during the period of the implementation of temporary protection.”

[7] “The Ministry may propose Council of Ministers to terminate the temporary protection. Temporary protection shall be terminated by a Council of Ministers decision.”

[8] “The Council of Ministers may decide to restrict or to temporarily or indefinitely suspend temporary protection measures in implementation, in case conditions amounting to a threat to national security, public order, public security, or public health arise.”


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