As it is stated in UNHCR’s statement, refugee policies are regulated by international and European norms that foresee “the possibility of returning persons seeking and/or in need of international protection to a safe third country on the basis of the ‘first country of asylum’ or ‘safe third country’ concept. Strict substantive criteria and procedural safeguards, which are set out in the EU recast Asylum Procedures Directive, regulate the application of these concepts. Further, under the EU Dublin Regulation another member state may be responsible for examining the asylum application in particular on the basis of family unity and the best interests of the child, precluding return to a safe third country”.
Forced migration is correlated to a recurring situation that puts refugees in a vulnerable position when compared to the rest of the population; a position whose determination is at the discretion of the state which has the power to grant rights and to determine legal relationships. Refugees, after they are settled, are seen as migrants, and therefore strive for better social and economic positions in a country where they do not possess citizenship nor enjoy political rights. The most important issues are the dependency of residence and work for individuals on conditions set forth by continuously shifting policies both at the state and at the EU level, which attempt to implement international refugee law.
The “refugee crisis”, as the intense flow towards Europe has been named, refers to the ongoing discussion on temporary migration during the war in Syria/Iraq/Afghanistan. Bilateral and international agreements should rely on the fundamental premises of the international and European legal framework, which, inter alia, prohibits refoulement to a non-safe country. This also applies to the decisions and the conclusions of the meetings of the European Council and the Euro-Turkish summits, the NATO involvement in the Aegean Sea. Lately, a crucial new dimension has been added making the migratory phenomenon even more complicated: according to the March 2016 Euro-Turkish agreement, all new migrants/refugees moving towards Europe should be returned to Turkey for eventual resettlement in European countries in a ratio 1:1 linked to Syrians returned from Greece. This new regulation strengthened the idea of protecting the European borders first and then adopting some measures for the protection of refugees.
More and more, the refugee and migratory mobility towards the EU is viewed openly by the EU organs through the lenses of border security. Securitisation had already become a strict filter affecting all kinds of migration towards Europe and therefore it is shaping the transformations that temporariness is undergoing. The result is that migrants and refugees are not the recipients of special protection policies but an element for discussion at the negotiation table. At the same time, EU Member States contravene EU policies as they adopt unilateral measures that fragment EU law and policies, and, in effect, jeopardise the political cohesion of the EU. Migration policies cannot focus on integration as long as “fences” of all kinds (ethnic profiling, occasional opening of the borders, numerical threshold on admissions etc.) are built along internal and external European borders. Militarisation is gradually being imposed against an invisible foe potentially constituting a threat to territorial integrity and sovereignty. In that framework, refugees became an inevitable ‘burden’ and ‘threat’ and European states have unilaterally taken to imposing new conditions while implementing a distorted version of international refugee law. Temporary protection is being transposed to a third country, Turkey, which is hardly consonant with international standards. On the other hand, more than a million refugees have already managed to settle in a few European countries, mostly Germany, Austria and Sweden. Moreover, Italy and Greece, formerly transit countries, are now required to accommodate more than 50,000 refugees, all waiting (possibly in vain) for the relocation scheme to be activated.
Refugees already have preferences as to which country they want to settle in: namely those with minimum social uncertainty with regard to unemployment, health care, insurance, regulation of their status and housing. These factors regulate the choices of asylum seekers and therefore the permanent or temporary nature of their stay. Germany, Austria, Sweden and the UK are the most preferred destinations in Europe. However, under European law a complex and often chaotic or asymmetric situation has arisen. Dublin III has relaxed the rule according to which the first country of entry (Greece, Italy, Spain) would receive the bulk of refugees. However, thousands of refugees are entrapped in conditions in which there is no guarantee of fair treatment regarding asylum or humane living conditions. Both permanent and temporary are determined by national or EU law and policies through criteria that are not always predictable or consonant with the fundamental principles of the rule of law. On the other hand, applying the basics of the rule of law is a premise for inclusive policies. How can this be done when the EU opts to establish an agreement with a third country not respecting human rights and not satisfying the conditions of ‘safe country’ in order to redirect the migration flow far from her borders and create buffer zones between the EU and unwanted migrants/refugees?
The refugee agreement reached between Turkey and the EU at the Council meeting of the 18th of March 2016 generates more problems than it tries to solve. The otherwise non-negotiable human rights, regarding refugees and migrants, were reduced to a simple negotiation card between the EU and Turkey. The references to international law remain superficial as at least two aspects of the agreement entail serious problems of a legal nature. According to the European Commission the agreement is to be implemented in concert with special refugee rights and general human rights: such returns will be in accordance with international and European law. It is stated that the legal bases for these returns are to be found in the EU reformed Asylum Procedures Directive (APD), in particular as regards the ‘first country of asylum’ and the concept of ‘safe third country’ through an admissibility procedure. However, one of the crucial points of the agreement is the notion of ‘safe country’ as far as Turkey is concerned. Carrera and Guild states that UNHCR, among others, has repeatedly expressed concerns on this point based on evidence that Turkey could not be deemed an overall safe country with no individualized investigation of each case. Scrutiny of the legal details of the agreement would suggest that there are points of non-compliance with the Geneva Convention on Refugees, Directive 2013/32 and the European Convention on Human Rights. According to Mülteci-Der, a refugee-rights organization based in İzmir, refugees’ fundamental right to seek asylum has been violated by the protocols and joint action plans signed among states and the rule of law has lost its meaning. Mülteci-Der observes possible violation of the right to access to legal aid and of the principle of non-refoulement for non-Syrian refugees readmitted to Turkey in early April. Turkey is far from providing “sufficient protection” for refugees from Syria and elsewhere. Turkey clearly does not provide asylum seekers with protection in accordance with the 1951 Convention relating to the Status of Refugees.
On the other hand, the implementation of the agreement relies on the political will of EU Member States to voluntarily share the responsibility and receive refugees from Greece, Italy and Turkey through the relocation scheme. As far as EU Member States are concerned and resettlement as far as Turkey is concerned, how far and how deep can this scheme that challenges European law and democratic tradition go? The logic that suggests that the EU would be ‘relieved’ of several hundred thousands of refugees calls into question the democratic fundamentals of the European construct which rests without exception on respect for the rule of law. This is a real and manifest danger: not only the refugee issue in and of itself but also the very credibility of European and international law is in danger; and indeed the retreat of the European construct to another political paradigm.
Temporariness is transformed and extrapolated through rigid legal thresholds of acceptance. Refugees are placed in a field of public life divided by a threshold into ‘them’ and us’ This threshold that is set through legal requirements according to which an alien can be ‘accepted’ or ‘rejected’. In other words, it is simultaneously a tool of inclusion and exclusion. The axis accept – reject (a refugee) becomes crucial, shadowing the axis of the temporary – permanent nature (of the stay of a refugee): the political will to accept someone as a refugee is of greater importance if than how long someone would be accepted as refugee. The failure of the European Council to impose its own decisions on a group of Member States, to implement the relocation scheme (from Greece and Italy), or to enhance the idea of resettling refugees from Turkey, and the deviation from the fundamental principles and norms of international and European law marks the critical issue that Europe is facing. The refugee crisis is merely a controversial issue that is linked to migration policies: “In the long run, finally, the EU and its member states lack a strategic vision regarding human mobility. There is no clear reflection about how the phenomenon will evolve in the future, what should be the political responses and who should lead the process” as Pascouau states.
The revoking of refugee rights is detrimental to the wider political programme of the establishment of the European acquis as regards democracy and human rights. The recent developments set in a totally different light the mainstream perception of “others’” rights: it imposes the idea that the best way to override the difficulties that their rights confront us with is to get rid of their presence, any time, any way. This line of thought undermines the prospects for social integration in Europe. The settlement of the refugees in Europe is already a fact and the challenges related to societal integration are crucial for the very political cohesion of Europe. Not because refugees and migrants are alienating the ‘European character’ of the EU but also because most European leaders are reluctant to admit that Europe is changing and that in the long run they need to formulate a new inclusive discourse and policies. Mistakes of the past should become crucial lessons for a migration policy of respect and integration. No democracy is worthy of the name if it does not remove the conditions that render that country non-safe for refugees; this does not facilitate integration for those dwelling long term within that political community. For those who would stay temporarily, enhancing respect for their fundamental rights is a one-way irrefutable obligation.
UNHCR, Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum concept, 23.4.2016, Available at: http://www.refworld.org/docid/56f3ee3f4.html
European Commission, EU-Turkey Agreement: Questions and Answers, 19.3.2016, available at: <http://europa.eu/rapid/press-release_MEMO-16-963_en.htm>
UNHCR, op.c. See also Sergio Carrera and Elspeth Guild, “EU-Turkey plan for handling refugees is fraught with legal and procedural challenges”, CEPS, 10.3.2016, available at: <https://www.ceps.eu/publications/eu-turkey-plan-handling-refugees-fraught-legal-and-procedural-challenges>
Yves Pascouau, “EU-Turkey Summit on the refugee crisis Law and (dis)order?”, Viewpoint(s) 2/2016, available at: <http://europeanmigrationlaw.eu/documents/pdf/Communications_COM/VIEWPOINTS_2-EU-Turkey_Deal.pdf >