Re-thinking EU-Turkey Deal: Asylum and Protection

Via Bosphorus Migration Studies (7th May 2018) – After the EU-Turkey readmission plan, the migrant flows in the Aegean Sea are decreased. However, raised concerns on human rights abuses leaded us to follow recent steps taken by the governments. Orçun Ulusoy and Jill Alpes, prominent scholars working on this topic answered Mehmet Enes Beşer‘s questions.

Why do you think there is limited access to people who have been readmitted from Greece to Turkey? Is it mostly due to lack of research on the part of international organisations or lack of data provided by both countries?

OU: In my opinion, limited access to the migrants who have been readmitted from Greeceto Turkey under the EU-Turkey Statement is a direct outcome of a policy approach. As Turkish authorities informed the European United Left/Nordic Green Left (GUE/NGL) delegation from the European Parliament, their aim is to deport all migrants who were readmitted to Turkey from Greece under the Statement to their country of origin. Furthermore, Turkish authorities repeatedly argued that readmitted migrants had opportunity to seek asylum in Greece, therefore if they didn’t apply for asylum or if their application was rejected in Greece, then they cannot seek asylum once again in Turkey. These two arguments led Turkish authorities to see the readmitted migrants as “irregulars in process of deportation” to their country of origin. And as our research team also witnessed in detention centres in Greek islands, migrants who are in the readmission procedure are regularly denied all communication with their families, NGOs or even with their lawyers. It must be also noted that while international organisations, such as UNHCR, does not have “unhindered and predictable access” to the detention facilities in Turkey, they did not publicly raise their concerns.

JA: Turkish authorities uphold that the 18 March Statement covers only returns of individuals who are not in need of international protection. As our research published with the European University Institute has demonstrated, however, access to legal assistance and human rights monitoring in Greece does not currently suffice to be able to guarantee that people with protection needs or vulnerabilities are not deported to Turkey. 17 out of 37 individuals in our sample, for example, reported that they had not been given a chance to apply for asylum prior to their return. Our research also revealed that Greek authorities do not carry out vulnerability screenings prior to return operations. As asylum procedures are long and living conditions in hotspots harsh, people can become suicidal or physically sick during their stay on Greek islands and thus should be exempted from returns. Finally, the Greek Ombudsman reported to lack information for the full investigation of specific incidents and UNHCR’s capacity to monitor returns is limited, too. The Greek police, for example, does not inform UNHCR about the names of the persons included in a particular return operation, nor about their legal and asylum situation.  As a result, asylum seekers who have been readmitted from Greece to Turkey might still have protection needs and thus need to be able to access lawyers from within Turkish detention centres. In addition, international and national legislation provides that any detained person shall be entitled to have the assistance of and be able to communicate and consult with legal counsel. Our research shows that Turkish authorities fail to live up to these standards.

What do you think are the main reasons for the suspicious approach both Greek and Turkish mainstream media take towards international NGOs working for migrants?

OU: I think the general approach of Greek or Turkish media (but also countless media outlets throughout the world) has a xenophobic, even racist, motivation when discussing international organisations and NGOs in the migration and asylum context. It is a de-humanisation attempt to a very humane issue. While some international organisations and NGOs deserve criticism regarding their work, mass media, often together with the policy makers, use them as scapegoats or actors of their conspiracy theories. While refugees and migrants are simply humans and hard to target directly in a civilised society, organisations and NGOs supporting the rights of these people, are ‘easy’ targets and they are constantly framed as “human traffickers”, “smugglers” or “foreign agents with suspicious agenda” all over the world. Mass media on both sides of the Aegean Sea is not an exception unfortunately.

Does current presidential decrees allowing deportation on the basis of suspicion of terrorism in Turkey not violate non-refoulement principle? How, then, do you evaluate Turkey passing as a safe third country in the EU- Turkey deal?

OU: The Presidential Decree no. 676 which was published on 29 October 2016, made significant amendments to the Law on Foreigners and International Protection (LFIP). In particular, Art. 36 of Presidential Decree no. 676 makes changes to Art. 54 LFIP, which determines for whom deportation decisions can be issued. According to the amendment, asylum seekers, international protection applicants and refugees “can be deported at any stage of their international protection application if they are recognised as “a member of a terrorist organisation”. The provision does not require a court decision or formal procedure for declaring a foreigner to be a member of a terrorist organisation. Moreover, it gives the administration the authority to make a deportation decision against persons recognised as refugees, fundamentally undermining this important protection status as well as several provisions of the LFIP, and creating a real risk of refoulement in violation of Turkey’s international obligations under the 1951 Refugee Convention and the European Convention on Human Rights.

However, the amendments by the Decree was published after the EU-Turkey Statement (March 2016) was signed and Turkey was declared as a safe third country by Greece (April 2016). The possibility to review the designation of Turkey as safe third country arose with two cases regarding Syrian nationals (cases no: 2348/2017 and 2348/2017) in front of the Greek Council of State (GCS) in 2017. On 22 September 2017, in a controversial decision, the Council of State found that the concept of “protection in accordance with the Geneva Convention” (as established in the definition of a “safe third country” under Article 38(1) of the recast Asylum Procedures Directive) does not require a third country to have ratified the Geneva Convention or to have adopted it without geographical limitations. It is sufficient, in the opinion of the Council of State, to provide protection of certain fundamental rights of refugees such as the right to health care and employment.

The Council of State refused to take recent changes in the Turkish legislation into account (the above-mentioned Decree and -at least- two expert opinions on the issue was submitted to the Council) and furthermore decided not to submit a preliminary reference to the CJEU with regard to the interpretation of the “safe third country” concept. Designation of Turkey as a safe third country for asylum migrants, asylum seekers and refugees stays as a political decision of the European leaders rather than an evidence based policy making in the light of overwhelming evidence from the field.

JA: As pointed out by Orcun above, the EU-Turkey Statement is based on the political desire to classify Turkey as a safe third country. Even though the EU-Turkey Statement has been hailed as a success, only 1,554 people were returned from Greece to Turkey between March 2016 and February 2018. These returns could have essentially been carried out also under the pre-existing bilateral readmission agreement between Greece and Turkey. The key innovation of the EU-Turkey Statement is to subject asylum seekers to admissibility, rather than eligibility procedures. Only 15 of these 1,554 returns, however, occurred because asylum claims were found inadmissible at 2nd instance. None of the 15 returnees had actually lost their case at the third instance. The legal discussion of whether Turkey is a safe third country is thus far from closed. Human Rights Watch published a new report as late as 3 February on border guards that shoot at and block fleeing Syrians at the Turkey/Syria border. In addition, Greek courts will have to decide whether it can be assumed that asylum seekers are able to access effective protection in Turkey against the backdrop of an increasing number of Turkish citizens who no longer feeling safe in their own country and apply for asylum abroad. In 2017, a record high of 1827 Turkish nationals applied for asylum in Greece. Besides the problematic nature of the very concept of a safe third country, it is highly questionable whether a country be a safe third country for foreigners if it is no longer so for its own citizens.

According to your research and observations, would you say that Duzici detention center functions in line with international human rights standards? 

OU: Düziçi Temporary Accommodation Camp for Syrian nationals in Osmaniye is one of the 21 camps (there are conflicting information about the total number of the camps) established for the temporary protection beneficiaries. However, while all other camps were established and run by AFAD, at the time of our research, the management of the Düziçi camp was taken over by DGMM. According to several reports from independent international bodies, Düziçi Camp became a de facto detention centre for Syrian refugees. During our research, interviewed lawyers, NGO staff and refugees those visited or stayed in this camp, provided a grim picture of the conditions. Syrian nationals in this camp are not allowed to leave the camp, kept in locked cells and have very limited communication opportunities and access to the outside world. The conditions present at the camp points several problematic issues and violations of human rights standards. However, it must be underlined that, our research is based on  testimonies of lawyers and refugees and an independent research in this location must be conducted to investigate these allegations in order to reach a conclusion.

JA: While formally called ‘temporary accommodation centres,’ Düziçi in Osmaniye city and the Islahiye 2 Camp in Gaziantep both serve as de-facto detention centres in which Syrians await the administration’s decision on their protection status and the finalisation of related paperwork. In our research, readmitted Syrians whom we interviewed said that they spent between 24 hours and three weeks in Düziçi. An Syrian man who travelled with his wife and two minor children told us in an interview that they were detained in Düziçi for twenty days without being given any information on the basis and the length of their detention. Another interviewed Syrian man described to us how Turkish authorities in Düziçi told him to go back to Syria if he objected to them opening his bags and throwing his belongings on the floor. A Council of Europe fact-finding mission found that staff at Düzici camp carried handcuffs and truncheons. Photos show that the camp is surrounded by a fence topped with barbed wire. Amnesty International reported problems of access to legal aid and health care in Düziçi.

How do you evaluate the (lack of) attempts of integration of mass numbers of Syrians in Turkey in short and long terms? Especially from the education perspective.

OU: Since the first group of Syrian refugees arrived to Turkey in 2011, Turkish authorities did not provide a comprehensive strategic plan or initiated public discussion on long-term integration of Syrian refugees. In my opinion, absence of strategic planning on integration is a result of two equally important factors; lack of experience and knowledge of the newly established DGMM and retro-active decision making “tradition” on migration issues among the Turkish politicians. Today the number of Syrian refugees in Turkey is significant but not paralyzing for a country of 80 million citizens. However, the longer Turkish policy makers and politicians delay addressing the long-term integration issue, the problems within the society will become structural.

JA: Indeed, only 59% of over one million Syrian children of school age are currently enrolled in formal education programmes in Turkey. Yet, integration – including through education – is only possible if Syrians are provided with long-term perspectives for legal stay. The Temporary Protection Regulation does not guarantee a long-term settlement prospect for Syrians in Turkey. Temporary protection status can be terminated unilaterally by a Council of Ministers’ decision, after which Syrians would be required to leave the country.

Considering the almost systematic aspiration for a secondary asylum move, could we say that migration route between Greece and Turkey viewed as a separate migration system with its own rules? Are there information flowing between the asylum seekers at both coasts?

OU: No, I don’t think so. All major migration systems and routes to Europe shows similar characteristics and these similarities are direct outcomes of the externalisation of the EU migration policies.  Several EU border control policies and techniques were introduced along the western Mediterranean route before the east, such as visa obligations (pre-border control) or satellite surveillance systems (at the border control). Today with the EU-Turkey Statement, it is the Greek-Turkish border that EU is “experimenting” with a new border control tool. And, as we know, this new approach is already hailed as a success story and proposed to be duplicated in the central Mediterranean route.  And the secondary movements (asylum shopping as the EU policy makers name it) is also quite common for member states those are ‘first country of entry’. Only exceptional component in this system is the types of human movements from, to or through Turkey; it is a target country for migrants and refugees, a transit country and, unfortunately today, once again, a country of origin for refugees. None of the other neighbouring countries along the EU borders (and within the borders) witness all types of human mobility (at least in extended periods).

JA: Asylum seekers on Greek islands communicate about conditions to family and community members in countries of origin. The information flows, however, do not necessarily have a deterrent effect on people’s migration aspirations. Flight reasons and protection needs remain burning issues also in the face of a European deterrence policy. Instead of not migrating to seek asylum abroad, aspiring migrants and migrants change their travel routes. In our research a Pakistani man had in 2016 paid 4,000$ to reach the Greek islands. On his advice, the son of a neighbour in 2017 gave 7,000$ to a smuggler who brought him straight to France. The EU-Turkey Statement thus made smuggling services more expensive.

This interview was published by Bosphorus Migration Studies