The current crisis at the Greek-Turkish frontier due to the border openings as well as the Covid-19 Pandemic put a spotlight on “EU’s failure to agree on a common migration policy” and raises the question if the present EU-Turkey Statement is collapsing. A global crisis cannot be solved durably by using entry-point states as a shield for the EU and these challenges can no longer be solved sustainably by one country alone and not even by Europe itself.
By Daniela Guggenbühl
The Syrian civil war had displaced an estimated 11.7 million Syrians by the end of 2015, making it the largest forced displacement since the end of the Second World War. This global crisis has become a serious political, logistical and humanitarian challenge for Europe; in particular since a high number of migrants and refugees reached Greek shores in 2015. The EU-Turkey Statement shapes and embodies Europe’s response to the refugee crisis, and regulations, which do not achieve the intended results, reveal that the EU’s current migration policy is failing to bridge the gap between its policy goals and its policy implementation.
Wars, human right violations and climate change will continue to force individuals to flee their homes and are reasons for people to migrate in order to improve their quality of life. We can only marginally control whether these things happen: what matters is how we respond and whether we learn from our mistakes when approaching this problem. No policy decision will make refugees “vanish”, and therefore it is important to address the issue with sustainable solutions. It is time to stop coping with the problem, but rather time to rethink Europe’s response.
What is the EU-Turkey Statement?
The reactions to the civil war by Syria’s neighbouring-states were gradual border closures and visa restrictions, which lead to an increase of Syrian refugees moving to Turkey. In 2012 Greece closed its land-based border with Turkey, due to which irregular migrants changed their routes to enter Greek islands by sea. With approximately 4.1 million refugees, Turkey hosts the largest number of refugees in the world.
On 18 March 2016, EU Member States and Turkey agreed to the EU-Turkey Statement with the aim to address the 2015 refugee crisis, by ending the irregular route from Turkey to the Greek islands, replacing it with legal channels to Europe. In short, the deal addresses irregular migration from Turkey to Greece via the Eastern Mediterranean route. Turkey takes all necessary measures to prevent new routes to be opened for illegal migrants from Turkey to the EU and allows Greece to return all new irregular migrants to Turkey. For every returned Syrian, another Syrian will be resettled from Turkey to the EU, with a maximum of 72’000 Syrian refugees. In exchange, Turkey will receive funding and a number of political benefits.
EU-Turkey Statement in action
Does the drastic drop in arrivals to Greek islands since the EU-Turkey Statement was adopted mean that it is a success? This depends on how one measures success.
1. Arrivals to Greece and returns to Turkey
The total number of arrivals to Greece by sea was 41’038 in 2014, drastically increased to 856’723 in 2015 and plummeted to 59’726 by 2019. The very high peak in 2015 makes the percentage drop of 94% so impressive. However this massive drop is not solely a consequence of the deal, there are various other reasons that are not to be forgotten, such as the developments in the Syrian war or migrants changing their route. Total returns from Greece to Turkey between April 2016 and March 2020 were only 2’140, proportionally less every year.
2. Resettlement to the EU
Action Point 2 aims to replace human trafficking with legal pathways to the EU. After four years, approximately 27’000 Syrian refugees have been resettled from Turkey to EU Member States, meaning that the EU has taken far less Syrian refugees than planned. The idea of a one-for-one swap (for Syrians only) cannot be legally challenged, but treating refugees as interchangeable goods is controversial and morally wrong.
According to the deal this mechanism will end if more than 72’000 Syrian refugees should make it to the Greek islands. With many Syrian refugees unwilling to stay in Turkey, and the end of the Syrian war remaining unlikely in the near future, it is almost certain that more refugees will reach the Greek islands. If the EU had implemented the deal correctly, more refugees should have been resettled by now.
3. Financial Aid
As of 31 March 2020, 4.7 (of a total of 6) billion Euros were contracted and more than 3.2 billion Euros disbursed. Given that the Turkish government claims that the hosting of refugees has amounted close to 37 billion Euros, 6 billion is a very small sum.
4. Visa Liberalization
If Turkey fulfils the remaining criteria of the visa liberalization roadmap, the visa requirements for Turkish citizens will be lifted by the end of June 2016. However, by May 2016 there were five requirements that were not fulfilled, therefore, up until now, Turkish citizens do not have the right to travel visa-free to the Schengen area.
5. Accession Negotiations
Action Point 8 intends to accelerate Turkey’s EU accession negotiations after past stagnation. In July 2016 (only four months into the EU--Turkey Statement) a military coup was attempted in Turkey, followed by a much-criticized “ensuing purge” and negotiations were suspended in November of the same year. In 2018 Turkey’s accession negotiations effectively stalled and are currently de facto frozen.
Outcome and recent developments
The returns of migrants to Turkey were declared as a “temporary measure”, and in reality the temporariness is also of political nature. A deal only remains in place if both sides consider the continuation to be in their interest and, as can be seen, both parties have not fulfilled all their obligations. Erdoğan’s repeated threats to open the borders were made on 28 February 2020, herewith setting the stage for a new refugee crisis as well as violating its obligations under the EU-Turkey Statement. He claimed that Turkey could not absorb another refugee wave and that the EU had not kept its promises under the deal. Greece responded to the influx of refugees at the Turkish-Greek border with violent pushbacks, refused entry to almost 35’000 refugees, suspended new asylum applications for a month and announced that asylum services were to stop receiving claims due to the Covid-19 pandemic. Despite the fact that these measures violate EU and international law, Greece’s decisions have been supported by various political leaders, who fear that the 2015 migration crisis could repeat itself, such as Ursula von der Leyen (president of the European Commission) and Charles Michel (president of the European Council).
Challenges and solutions
Even though the current deal is collapsing, it is essential for the EU to reach a new arrangement with Turkey. What are the EU-Turkey Statements’ core flaws and how should future negotiations be approached?
1. Legal Basis
There has been disagreement about the real nature of the EU-Turkey Statement. Asylum-seekers challenged its legality in 2016 before the European Court of Justice (CJEU). The court ruled that the deal was published in the form of a statement and was concluded between EU Member States and Turkey. The court therefore lacks jurisdiction to rule on the legality of the deal, because it was not a measure adopted by any EU institution. As a consequence of the CJEU ruling, the deal as such cannot be challenged by European legal mechanisms. However the implementation of it is made up of actions by EU Member States, and can therefore be legally challenged.
2. International and EU law violations
The 1951 Refugee Convention and its 1967 Protocol are the key international legal frameworks for refugee protection, and in the EU the minimum procedural guarantees during asylum procedures are anchored in the Asylum Procedure Directive (APD) 2013/32/EU. International asylum law applies to both parties of the deal, and EU asylum law applies to those who reach Greece. However, when taking people back, also Turkey (as a non-EU member) must meet the relevant standards. Did the return of migrants to Turkey violate international and EU law?
Returns to Turkey and Greek asylum system
As from 20 March 2016, Greece agreed to return all new irregular migrants to Turkey. Migrants are qualified as irregular if they neither (A) apply nor (B) qualify for asylum. (A) The first step is therefore an asylum application, thus a fair and effective procedure to determine the status of the individual. Given the massive increase in applications, Greece was clearly unprepared for a law-abiding asylum procedure. Due to the deal Greece’s hotspots were transformed into detention centres overnight, where new arrivals were trapped in overcrowded centres in inhumane conditions. (B) A person does not qualify if they came from a first country of asylum (Art. 35 APD) or a safe third country (Art. 38 APD). The problem here is that Turkey is the only country part of the Convention that still applies geographical limitations. As a result, only asylum seekers fleeing persecution in Europe are considered refugees under Turkish law and individuals from non-European countries are referred to as conditional refugees. Furthermore, the non-refoulement principle (Art. 33(1) APD) prohibits states to return individuals to a country where they would be at risk of serious human rights’ violations. Various NGO’s stated that for Turkey is not considered a safe place to return to for asylum-seekers, because refugees are at risk of mistreatment. Turkey has also been forcibly returning refugees to countries such as Iraq and Syria.
The examination of Action Point 1 demonstrates that the implementation was not carried out in accordance with the agreed protection. Firstly, Turkey denies full refugee status to non-Europeans. Secondly, the EU-Turkey Statement was based on the false, but willingly ignored, assumption that Turkey is a safe country for refugees. Lastly, Greece is not able to cope, let alone deal with, the overwhelming application procedures, leading to miserable conditions for migrants on Greek islands.
3. EU’s fragmented response
Are securitised measures effective to reduce “unwanted” migration movements, and what are the consequences of a fragmented EU response?
EU’s securitised migration policy
Migration challenges are often discussed in relation to other issue-areas, namely debates about „migration and security“. Concerns about economic difficulties or the fear of an influx of terrorists with the refugees shifted the initial warm welcome for migrants towards a security approach. The EU-Turkey Statement is based on the assumption that the influx of refugees into the EU is a security threat. Looking at migration primarily through the security lens is the EU’s mistake, because this leads to restrictive policy measures, instead of humanitarian ones. An additional challenge is that from the Member States’ perspective, states do not always benefit from cooperation, on the contrary: they see it as an obstacle to repel irregular migrants. Due to Member States repeatedly pointing out the inability of certain Schengen members to protect their borders, the 2013 Schengen reform stated that in such cases, internal borders could be reintroduced. In the same year the Dublin Regulations were revised, stating that migrants must remain in their first country of entry to the EU. However, this internal EU return-regime has not been very efficient, due to the fact that various entry countries have stopped enforcing Dublin transfers. The EU attempted several times to reintroduce effective burden sharing, but without the Member States’ compliance, “speech acts” (e.g. EU asylum policy) fail in practice and highlight the core problem: that non-deportability is not only present externally, but also internally.
The paradox of the EU’s measures is that they fail to achieve more security for European citizens and more safety for migrants, because by closing border checkpoints to irregular migrants, they “avoid official registration even more”. And because one can only board a plane with a valid visa, the decision as to who is eligible for asylum in Europe, and refugee protection more generally, is de facto outsourced to non-EU countries. The tightening of legal gateways into the EU does not stop people from coming; they simply change their route. The closure of the shortest routes results in migrants risking their lives, with smuggling becoming professionalized, instead of made redundant. Migration movements are considered a crisis, but numerically and compared to other refugee-concentrations in the world (i.e. Lebanon), it is not something the EU cannot logistically manage. We are neither lacking the instruments nor the capacity to solve it, but the political will to do so. The refugee crisis is really an internal EU crisis, because Member States cannot agree on a fair distribution of asylum seekers and have refused to comply with their obligations under EU law. It seems as if Member States agree and act together when it comes to keeping migrants out, yet bold return policies remain a difficult undertaking. The underlying causes of the refugee crisis have not changed. Therefore the EU is coping with the problem rather than solving it, which leads to situations like the one currently at the Greek-Turkish border, in which European asylum and fundamental human right laws are disregarded.
4. EU-Turkey Relations
The EU-Turkey Statement addresses a global crisis with a deal that also includes issues not related to the migration crisis. Why were various issues linked together, and can this approach lead to successful international cooperation?
At the core of EU-Turkey relations are readmission agreements, the visa roadmap and accession talks. There are various unresolved issues between Turkey and the EU, such as Turkey’s involvement in the Syrian civil war since its outbreak or its unstable economic and political structure more generally. However, geopolitical factors force the EU to find a compromise with Turkey. The 2015 refugee crisis changed Turkey’s negotiation power, as it has become a transit point for illegal migrants trying to reach Europe.
Interest, Power and ideas
Policy fields that involve trans-boundary movements require cooperation. In order to overcome cooperation challenges, one must identify a state’s interests, power and ideas. Interests define the prospects for mutually beneficial cooperation; the identification of important actors and their power provides us with an understanding of which interests are influential: the states’ understanding of the migration crisis is of course shaped by their ideas. The key actors were Germany and Turkey, leaving non-state actors (e.g. UNHCR) out of the policy-making process. The result was that a global issue was handled at a regional level. Such negotiations are problematic, since Member States tend to use international relations as an anarchic self-help system, where the prime target of a state is to maximize its own interests.
Power-asymmetry in migration is often related to the sending-receiving dichotomy. In practice, Turkey is a sending, receiving and transit country. However, the deal focused on Turkey only as a migrant-receiving country, making Turkey an implicit maker of migration governance.
Tying migration issues to political benefits
The crux of the EU-Turkey Statement was indeed that the various existing interests were linked. The parties used tactical linkage, which combines issues with no substantive relationship in the same negotiations. The EU’s interest in limiting irregular migration and Turkey’s political interests dominated the issue of refugee movements. In reality, the deal represents an “outsourced border control in return for money and political benefits”. where Turkey strategically used migrants as a negotiation chip to the great disadvantage of the refugees. Issue-linkage is a way of mitigating power asymmetries. Nevertheless, the EU-Turkey Statement is failing, because the EU is promising Turkey political benefits it currently simply cannot deliver. Additionally, Turkey is agreeing to benchmarks that are unlikely to be fulfilled in the near future. Issue-linkage can only be successful if the promised Action Points are not only theoretical, but also practicable. In order to avoid further mismanagement of the bargaining process and further deterioration of the EU-Turkey Statement, future negotiations must involve more actors, and Action Points that can be realistically implemented.
The outcome of examining the EU-Turkey Statement in its fourth year of existence, is that while the deal itself is arguably legal, the implementation thereof is considered illegal in various occasions. If one does not limit the examination of the deal to EU arrival numbers, but rather includes factors such as the non-compliance with other Action Points and the well-being of migrants, the deal is certainly not a success.
Another focus draws on the need to rethink how we perceive refugee movements. With the EU-Turkey Statement, the EU opted for a short-term response to the influx in 2015, which has now become a medium-term strategy. Intensified border controls result in the lack of legal routes into Europe and consequently increase irregular migration. A fortress approach to migratory movement will never be an adequate response to one of the most basic human constraints: “to move in search of a better life”. The uncooperative behavior within the EU challenges its principles of unity and solidarity and shifts the EU’s focus to external measures. This leads to a loss of ground in negotiations with non-EU members, resulting in a deal which is bound to fail, due to issue-linkage, which includes promises that will not be kept.
In short, EU-internal problems have a direct impact on EU-external ones, and therefore it is time to recognize the importance of collective action within the EU. With the EU-Turkey Statement problems are not being solved, but are rather becoming increasingly aggravated and prolonged. The EU-Turkey Statement is a prototype of the EU’s flawed ways to replace irregular routes with legal ones. A bold action like Erdoğan’s border opening is a clear reminder that the EU failed to use the time the deal gave them to introduce a sustainable asylum policy. However, Turkey can no longer deal with the refugee problem on its own as much as the EU cannot fully externalize it, because it is illusory that it is possible for a state to shield itself from the effects of the Syrian war. Whether the EU and Turkey like it or not, “the two sides are stuck together on this issue”.
This post reflects the content and conclusions of my research for the course on the “Legalization of EU Politics” sponsored by the Jean Monnet Chair in EU Law & Politics (EUPoLex) (611925-EPP-1-2019-1-DKEPPJMO-CHAIR) at the Faculty of Law and Department of Political Science at the University of Copenhagen.