The EU-Turkey Statement that was adopted on 18 March 2016 by the European Council and the Turkish government was presented as a game changer for the migration crisis that emerged in Europe last year.
A couple of months later, the number of migrants arriving irregularly in the EU has indeed significantly dropped, but that does not mean the work can now be considered as complete. Decreasing this number is just one element of the deal while it remains crucial that all other components are implemented as well.
Just as crucial is the notion that the EU should always operate within the framework of international law and its own acquis, especially in the field of asylum and the rights of refugees. Even though all parties involved are very much trying to do this, there are still many problems regarding the implementation of this deal with Turkey.
For example, on the mainland of Greece there are thousands of people that are no longer able to travel onward to other European Member States and should therefore request asylum in Greece, but its ministry for migration is utterly lacking funds and means to deal with these high numbers of asylum applications. As a result, there are major problems with the procedures such as the obligation for asylum seekers to register themselves through Skype, which is only possible in English and only twice a week — if the call is answered by the Greek asylum service at all, which is often not the case. In the meantime these people have no other option than to wait in camps that are not complying with basic minimum standards.
However, on the Greek islands the situation is quite different. Migrants that have arrived there are actively being registered and assessed individually on their situation, which is a legal requirement. If a migrant has arrived after 20 March 2016, and cannot be considered as vulnerable according to the eight categories in Greek law, that person might be eligible to be returned to Turkey. If a person is however, considered as ‘vulnerable’, he or she is transferred to a separate camp and will be contacted directly by the Greek asylum service. Giving priority to vulnerable groups of people seems therefore to result in a better protection of rights for those who need it the most.
In contrast to the above, in order to accelerate asylum procedures and to prevent migrants from travelling to the mainland, all migrants are transferred to a closed facility immediately after arrival on the islands. In other words, they should await the start of their asylum procedure in overcrowded detention centres such as camp Moria on Lesbos. According to Greek law, one cannot be detained for longer than twenty-five days in this case. Despite this, for many people the procedure takes longer than that, so the effectiveness of detaining them is at least questionable, especially on a relatively small island.
Further, unaccompanied minors are being detained despite the fact that these children are legally considered as a vulnerable group and could therefore not be returned to Turkey anyway. On this issue it is thus quite clear that fundamental rights are not being respected as they should be. Considering all this, it is clear that the EU should increase its assistance to Greece in order to improve the conditions for refugees and enhance the capacity of the Greek asylum service.
In addition to the discussion on the situation within the EU, it was heavily debated whether Turkey could be considered as a ‘safe third country’ in order to make it possible to return migrants to Turkey. That debate is not over yet because not all legal problems on this issue have been resolved so far. Nevertheless, several outstanding issues have altered positively in Turkey during the last months. The ‘temporary protection regime’ for Syrians is being extended to other nationalities, and the Turkish labour market has opened up for registered refugees as well. Also, the UN Refugee Agency (UNHCR) is now granted access to all refugee camps in Turkey and will be involved in appeal procedures. Despite many concerns on the situation in Turkey, these developments do improve the legal protection for (returned) refugees.
Overall, the recent assessment of the Council of Europe that the deal “at best strains and at worst exceeds the limits of what is permissible under European and international law” might be accurate. Nevertheless, if all aspects of the deal start to function — including large-scale relocation and resettlement of refugees to the EU — and if fundamental rights problems will be addressed properly, it might just be the most humane approach to manage the migration crisis in Europe.