Third Anniversary of EU-Turkey Statement: A Legal Analysis

Third Anniversary of EU-Turkey Statement: A Legal Analysis

During the EU-Turkey Summit held on 29 November 2015, parties agreed to support refugees fleeing civil war in Syria and their host country Turkey, and to implement a Joint Action Plan, adopted on 15 October 2015, which sought cooperation to prevent irregular migration flows to the European Union. (1) The underlying reason compelling parties to tailor such a plan was, undoubtedly, “the long summer of migration” that took place in 2015 commonly referred to as the “migration crisis” by European countries. (2) Indeed, in its report dated 10 February 2016 on the implementation of the EU-Turkey Joint Action Plan, the European Commission noted that since the beginning of 2015, a total of 880,000 people arrived from Turkey to Greece, and that due to the “immense” scale of this movement, the Commission had been working with Turkish authorities to reduce the scale of these arrivals.(3)

Given this background, a proposal was initially brought to the agenda with a view to advance the applicability of the provisions of the EU-Turkey Readmission Agreement, signed on 1 October 2014, regarding the readmission of third-country nationals from 1 October 2017 to 1 June 2016. However, whilst the legal process for advancing the date of effect of was still in the pipeline, on 18 March 2016, the parties announced that the EU and Turkey had reached an agreement to end irregular migration from Turkey to the EU.(4) The main features of this agreement (also known as the ‘EU-Turkey Statement’ or ‘EU-Turkey Deal’) included the following: the return of irregular migrants crossing from Turkey to the Greek islands from 20 March 2016 to Turkey; the establishment of a scheme in which for every Syrian being returned to Turkey from the Greek islands, another Syrian would be resettled from Turkey to the EU, taking into account the UN vulnerability criteria (i.e. the “1:1 Scheme”); the prevention of new routes opening for illegal migration from Turkey to the EU; once irregular crossings between Turkey and the EU ended or at least had been substantially reduced, the activation of a voluntary readmission scheme where the EU member states would contribute on a voluntary basis, provided that all benchmarks had been met, the acceleration of a visa liberalisation process with a view of lifting the visa requirements for Turkish citizens by the end of June 2016; the disbursement of 3 billion euros allocated under the Facility for Refugees in Turkey to support various projects, and an additional allocation of 3 billion euros funding under the same facility.

The legal framework of the Statement with respect to returns was the bilateral readmission protocol concluded between Turkey and Greece in 2002. (5) However, the parties failed to finalise the legal process aiming to advance the applicability of the provisions of the 2014 dated EU-Turkey Readmission Agreement on the readmission of third-country nationals by 1 June 2016. This failure rendered the protocol between Greece and Turkey to be the sole legal basis for the implementation of the readmission provisions of the EU-Turkey Statement. Although as per the Agreement, the provisions relating to the third country nationals were envisioned to enter into force by 1 October 2017, in its 2018 Turkey Report, the European Commission reported Turkey, citing the EU’s failure to take necessary steps towards visa liberalisation, has not implemented the Agreement. (6) Yet, the said report of the Commission also noted the implementation of the Protocol between Turkey and Greece had also deteriorated. (7) Indeed, Turkish Minister of Foreigner Affairs Mevlüt Çavuşoğlu, also stated this Protocol, which constitutes the legal basis for the implementation of readmissions based on the Statement, had been suspended. (8) On 22 July 2019, Çavuşoğlu, announced Turkey had suspended the readmission agreement, due to the fact that the visa liberalisation process for Turkish citizens had not been completed by the EU. (9)  Although it is not clear whether Çavuşoğlu referred to the official suspension of the Readmission Agreement of 2014 or to the suspension of the Statement of 2016, this declaration is likely to be taken as a sign demonstrating Turkey’s lack of intention to be bound by any arrangement regarding readmissions of third country nationals from the EU. On the other hand, it should be noted the readmissions based on the EU-Turkey Statement had continued even after Çavuşoğlu’s first announcement of the suspension of the Greece-Turkey Protocol as attested by multiple sources including the European Commission’s 2018 report on Turkey, the “Migration Statistics,” published by the Directorate General for Migration Management, and field studies. (10) (11) Meanwhile, there are several moot points both on the number of persons returned to Turkey and the number of persons readmitted by the EU under the 1:1 Scheme. According to the statistics provided by the Directorate General for Migration Management, as of 25 July 2019, a total of 22,729 Syrians have been resettled in various European countries under the 1:1 Scheme. (12) However, according to the statement delivered by the UN’s High Commissioner for Refugees (UNHCR), which relied on Greek sources, the number of migrants returned to Turkey as of 31 March 2019 was 1843. (13) Three-hundred forty-one of these individuals were Syrian nationals. According to the UNHCR, 45% of returnees did not express willingness to apply for asylum or withdrew their asylum claims in Greece. According to Turkish sources, the number of persons readmitted by Turkey was 1891, of which 357 are Syrian nationals. Yet, the Directorate General for Migration Management has not hitherto published any information on whether these persons had applied for international protection or whether they had been registered under the temporary protection regime. (14) Deportation Monitoring Aegean stated they have witnessed the last deportation on 11 July 2019, which is “an indication that the deportations have now been suspended in practice.”(15)

Lingering controversies over the adoption of the EU-Turkey Statement over the next three years have primarily focused on the following concerns: the implementation of the Statement would hinder the access to protection for persons seeking asylum; that it would result in returns; and that given Turkey’s geographical limitation to the 1951 Convention Relating to the Status of Refugees and its practice, it could not be considered a safe third country within the definition inscribed in EU law. (16) As these concerns may constitute a breach of international human rights law and/or EU law, this has also led several scholars to call the legal validity of the statement into question. (17) As a matter of fact, the EU-Turkey Statement, which did not possess the key formal requirements of an international treaty and yet, content-wise, created a contradictory impression, raised a number of questions with regards to its binding effect. In addition, the form and the content of the EU-Turkey Statement has not only resulted in controversies from an international law perspective, but also from an EU law perspective. (18) When the EU-Turkey Statement was announced in a press release on the webpage of the EU Summit, it was presented as EU’s response to the increasing migratory flows. This fact could also be clearly discerned from the content of the Statement. However, the order of the General Court, delivered in early 2017, in the case of ‘NF, NG and NM v. European Council’ portrayed an utterly different picture. (19) The case originated in an application lodged by two Pakistani nationals and one Afghan national who had made their way from Turkey to Greece. Applicants alleged their return to Turkey based on the EU-Turkey Statement would result in a risk of violating the non-refoulement principle. The applicants argued the EU-Turkey Statement was an international agreement, that it had been concluded between the European Council, acting in the name of the EU, and Turkey, and thus its validity must be reviewed by the Court of Justice (CJEU). However, the General Court ruled the EU-Turkey Statement was merely a political statement and cannot be considered as an act of any organs of the EU since it was concluded on the basis of negotiations, not between the EU and Turkey, but rather between the Heads of State or Government of the EU member states and their Turkish counterparts. The General Court has therefore dismissed the case on the grounds that it lacked the jurisdiction to examine the merits of applicants’ claims. This order was later subjected to an appeal. In its decision, dated 12 September 2018, the CJEU held the appeal, lacking clarity and specificity as required by the EU law, must be dismissed as “inadmissible.” (20)

From 18 March 2016 onwards, it appears this three-year time period encompasses a legal uncertainty. Yet, the practice of readmission, the very core of the EU-Turkey Statement, is directly related to human rights law predicated upon the principle of legal certainty. Moreover, while the EU referred to the migration flow consisting of 800,000 persons in 2015 as a “crisis” and its main response was concluding a readmission deal with Turkey, when it came to assuming the legal liability of this matter, the EU only further accentuated this uncertainty by claiming “it wasn’t me.” (21) Three years on, however, the most affected are still the migrants and asylum seekers. According to a 14 March 2019 dated joint press statement of 25 civil society organisations calling upon European leaders, the EU-Turkey Statement led as many as 20,000 people to be stranded in unsafe, unhygienic and inhumane conditions on the Greek islands. Although the number of asylum applications lodged in European countries has significantly dropped, the entire burden was left upon the weak and inadequate asylum systems of Greece and Turkey. The number of asylum applications in Lesvos has tripled over the last three years. (22) Finally, international refugee rights advocates also point to poor reception and housing conditions in Turkey and claim that these conditions might trigger voluntary returns. (23)

1. European Commission, European Commission Factsheet, EU-Turkey Joint Action Plan, http://europa.eu/rapid/press-release_MEMO-15-5860_en.htm (Accessed: 17 March 2019).

2. Bordermonitoring.eu, https://bordermonitoring.eu/ungarn/2015/09/of-hope-en/  (Accessed: 18 March 2019).

3. European Commission, Managing the Refugee Crisis EU-Turkey Joint Action Plan Implementation Report, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/docs/managing_the_refugee_crisis_-_eu-turkey_join_action_plan_implementation_report_20160210_en.pdf  (Accessed: 17 March 2019).

4. European Council, EU-Turkey statement, 18 March 2016 (Press Release), https://www.consilium.europa.eu/en/press/press-releases/2016/03/18/eu-turkey-statement/  (Accessed: 17 March 2019)

5. European Commission, EU-Turkey Statement Questions and Answers, http://europa.eu/rapid/press-release_MEMO-16-963_en.htm (Accessed: 18 March 2019)

6. European Commission, Turkey 2018 Report, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-turkey-report.pdf , s. 46. (Accessed: 17 March 2019).

7. Ibid.

8. TRT World, ‘Turkey suspends readmission deal with Greece-Cavusoglu’, https://www.trtworld.com/turkey/turkey-suspends-readmission-deal-with-greece-cavusoglu-18063 (Accessed: 18 March 2019)

9. Euroctive, ‘Turkey suspends deal with the EU on migrant readmission’, https://www.euractiv.com/section/global-europe/news/turkey-suspends-deal-with-the-eu-on-migrant-readmission/; Daily Sabah, ‘Readmission agreement with EU no longer functional, Ankara says’, https://www.dailysabah.com/eu-affairs/2019/07/23/readmission-agreement-with-eu-no-longer-functional-ankara-says; Deutsche Welle, ‘Çavuşoğlu: Geri Kabul Antlaşmasını Askıya Aldık’, https://www.dw.com/tr/çavuşoğlu-geri-kabul-anlaşmasını-askıya-aldık/a-49699277 (Accessed: 02 August 2019).

10. Deportation Monitoring Aegean, https://dm-aegean.bordermonitoring.eu/2019/03/09/7-march-lesvos-turkey/  (Accessed: 18 March 2019).

11. European Commission, Turkey 2018 Report, https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/20180417-turkey-report.pdf , s. 46; Göç İdaresi Genel Müdürlüğü, Göç İstatistikleri (Geri Alım): http://www.goc.gov.tr/icerik6/geri-alim_363_378_10093_icerik  (Accessed: 18 March 2019).

12. Directorate General of Migration Management Turkey, https://www.goc.gov.tr/gecici-koruma5638 (Accessed: 02 August 2019).

13. UNHCR, https://data2.unhcr.org/en/documents/download/68670  (Accessed: 02 August 2019).

14. Directorate General of Migration Management Turkey, https://www.goc.gov.tr/geri-alim  (Accessed: 02 August 2019).

15. Deportation Monitoring Aegean, https://dm-aegean.bordermonitoring.eu/2019/07/26/suspension-of-eu-turkey-deal-and-mass-deportations-from-turkey/ (Accessed: 02 August 2019).

16. Steve Peers, The Final EU/Turkey Refugee Deal: A Legal Assessment, http://eulawanalysis.blogspot.com/2016/03/the-final-euturkey-refugee-deal-legal.html;  ECRE, Debunking the Safe Third Country Myth, https://www.ecre.org/wp-content/uploads/2017/11/Policy-Note-08.pdf  (Accessed: 17 March 2019)

17. For instance see, Narin Idriz, The EU-Turkey Statement or the ‘Refugee Deal’: The Extra-Legal Deal of Extraordinary Times? in: Dina Siegel and Veronika Nagy (eds.), The Migration Crisis?: Criminalization, Security and Survival (Eleven Publishing); T.M.C. Asser Institute for International & European Law, Research Paper 2017-06; Steve Peers, ‘The draft EU/Turkey deal on migration and refugees: is it legal?’, http://eulawanalysis.blogspot.com/2016/03/the-draft-euturkey-deal-on-migration.html; Maarten den Heijer/Thomas Spijkerboer, Is the EU-Turkey refugee and migration deal a treaty?, http://eulawanalysis.blogspot.com/2016/04/is-eu-turkey-refugee-and-migration-deal.html (Accessed: 17 March 2019).

18. For further insights on the matter see, Narin Idriz, The EU-Turkey deal in front of the Court of Justice of the EU: An unsolicited Amicus Brief, 2017, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3080838 ; Sergio Carrera, Leonhard den Hertog ve Marco Stephan, ‘It wasnt me!’ The Luxembourg Court Orders on EU-Turkey Refugee Deal’, https://www.ceps.eu/system/files/EU-Turkey%20Deal.pdf  (Accessed: 17 March 2019); Julie De Vrieze, The Legal Nature of the EU-Turkey Statement, https://lib.ugent.be/fulltxt/RUG01/002/479/424/RUG01-002479424_2018_0001_AC.pdf (Accessed: 02 August 2019).

19. Cases T-192/16, NF v. European Council, Order of the General Court of 28 February 2017, ECLI:EU:T:2017:128; T-193/16, NG v. European Council, ECLI:EU:T:2017:129; ve T-257/16, NM v. European Council, ECLI:EU:T:2017:130 (Accessed: 17 March 2019).

20. Joint Cases C‑208/17 P to C‑210/17 P, ECLI:EU:C:2018:705, http://curia.europa.eu/juris/document/document.jsf?text=&docid=205744&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=406469  (Accessed: 17 March 2019).

21. Sergio Carrera, Leonhard den Hertog ve Marco Stephan, ‘It wasnt me!’ The Luxembourg Court Orders on EU-Turkey Refugee Deal’, https://www.ceps.eu/system/files/EU-Turkey%20Deal.pdf (Accessed: 16 March 2019).

22. Reliefweb, https://reliefweb.int/report/greece/eu-turkey-deal-leading-short-sighted-and-dangerous-migration-policies-three-years  (Accessed: 18 March 2019)

23. Ecre, https://www.ecre.org/eu-turkey-deal-reception-conditions-trigger-voluntary-returns/ (Accessed: 18 March 2019)

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