In 2015, more than one million refugees and migrants have arrived irregularly in Europe by sea whereas more than 3,700 people have lost their lives while trying to reach the European shores. Refugees and migrants still today risk their lives to reach Europe and arrival of irregular flows to the Europe shows no sign of stopping; according to UNHCR, more than 203,000 refugees and migrants have arrived irregularly in Europe by sea since January 2016. In the light of increasing number of refugees and migrants arriving in Europe, this blog post discusses how better responses to the asylum crisis in Europe and Syria Refugee Crisis can be developed through temporary protection. In doing so, this post examines why temporary protection is still a relevant protection framework to respond to mass influx situations today in the light of temporary protection of Syrians in Turkey and the EU-Turkey cooperation in the field of migration.
Temporary protection has long been a state response to mass influx situations. Some well-known examples include temporary protection regimes introduced by European states to cope with the large influx of Bosnians and Kosovars fleeing war and violence in 1990’s. Why temporary protection is still a relevant protection framework to respond to mass influx situations today? The answer lies within temporary protection being a practical and efficient protection framework that is tailored for mass influx situations. Mass influx situations create many challenges for host states. The vast number of persons seeking refuge usually overwhelms the asylum and reception capacities of host states. Protecting the mass flows is costly. Mass influx situations also create problems with regard to security. In view of the identified challenges that mass influx situations bring, their legal, humanitarian and moral obligations aside, states may be reluctant to open their borders and admit all persons seeking refuge to their territories. In those cases, temporary protection offers two crucial benefits to persons seeking refuge: It secures access of not only refugees as defined under Article 1 A 2 of the Refugee Convention but a broader category of persons to the territories of host states and protects them from refoulement until durable solutions are available. Aside from this crucial benefit, temporary protection by offering persons seeking refuge at least the minimum basic treatment that consists of shelter, food, emergency medical care and means of subsistence satisfies their immediate needs. These benefits can be best illustrated with the Turkish temporary protection example. In October 2011, the Turkish government introduced a temporary protection regime to protect all persons fleeing armed conflict and violence in Syria. Turkey has maintained an open door policy with the exception of border closures in 2016 and admitted all persons fleeing war and violence in Syria to the Turkish territories, granted them basic minimum treatment and protected them from refoulement.
Temporary protection also provides crucial benefits to states hosting mass flows. Temporary protection can be implemented as a group protection hence; it does not require individual refugee status determination. For example, all Syrians, Palestinian refugees, and stateless persons living in Syria as a group qualify for temporary protection in Turkey though; their individual asylum claims will not be processed until the temporary protection regime ends. Temporary protection offers protection beneficiaries a more limited category of rights compared to the rights of refugees secured under the 1951 Convention. For instance, under Turkish law Syrians are entitled to information and advice on the temporary protection regime in their own language, free access to emergency health care and a temporary right to stay in Turkey. Syrians in Turkey also have right not to be detained for the sole reason of irregular entry, right to access to family unification mechanisms, legal aid and free access to translation services, rehabilitation and other health services. Despite this, the Turkish law does not provide an explicit and unlimited right to work, access to social security, and social assistance for Syrians. Mindful of the limits of states’ freedom to regulate rights of temporary protection beneficiaries which stem from international and human rights law, the fact that temporary protection gives an option to states not to provide the full set of refugee rights in accord with the Refugee Convention, it lightens the burden of host states, especially first asylum states, that could be overwhelmed by large scale influx.
Temporary protection continues for only a limited time and repatriation is the preferred durable solution following termination of temporary protection regimes. The preferred durable solution following termination of temporary protection regimes is repatriation. As temporary protection is a group protection, once temporary protection is terminated following elimination of the cause of flight, temporarily protected persons can be repatriated as a group and this facilitates the repatriation process for states. In addition to this, temporary protection regimes, due to their flexibility, can be used as a mean to implement burden sharing in mass influx situations. These features make temporary protection a practical and realistic protection option that states are actually willing to implement even now. The fact that more than 2.7 million Syrians in Turkey have been protected within a temporary protection regime proves that it is still a relevant protection framework. Despite this relevancy and the outlined benefits, the Council Directive 2001/55/EC of 20 July 2001 on Minimum Standards for Giving Temporary Protection (the Temporary protection directive), which formalised temporary protection on supranational level in 2001, has not been activated so far even though in 2015 more than one million refugees and migrants have arrived irregularly in Europe by sea. Instead of activating the Temporary protection directive, the EU has adopted various measures and policies to respond to the asylum crisis and these policies include the EU-Turkey Joint Action Plan and the controversial March 2016 EU-Turkey agreement.
In October 2015, the European Commission reached an ad referenda agreement with Turkey on a Joint Action Plan which was activated on 29 November 2015. The Joint Action Plan identified actions to be implemented by the EU and Turkey for better migration management and pursued three objectives: to address the root causes leading to the massive influx of Syrians, to support Syrians under temporary protection and their host communities in Turkey, and to prevent irregular migration flows to the EU. This Joint Action, at least on the outset, looked quite promising since one of its agendums was to support Syrians under temporary protection and their host communities in Turkey. This attempt to eliminate the pull factors by improving protection available to Syrians made sense and suggested a more humane way to prevent irregular migration compared to building fences all over Europe. However, potential positive outcomes of the EU-Turkey Joint Action Plan were overshadowed by the March 2016 EU-Turkey agreement to end irregular migration.
The controversial March 2016 EU-Turkey agreement to end irregular migration is the most recent manifestation of the desire to prevent irregular arrival of refugees and migrants to Europe. Yet, serious concerns have been raised regarding the legality of this agreement and respect for the human rights of those transferred back to Turkey pursuant to it. It must also be mentioned that the recent declarations of the Turkish president and the EU Commission cast serious doubts as to how long this agreement will continue. Many commentators including Peers and Roman, Carrera and Guild, Tsitselikis et al. and Human Rights Watch identified serious problems in terms of the agreed measures compatibility with international and European refugee law. Since legal flaws of the March 2016 EU-Turkey agreement are clear and have been examined by the outlined commentators, this post will not repeat what have already been said but will only agree that Turkey, for now, is not a ‘safe third country’ or a ‘first country of asylum’ as defined by the Procedures Directive 2013/32 for Syrians as well as other asylum seekers and refugees from Iraq, Afghanistan, Iran and other countries.
Turkey maintains geographical reservation to the 1951 Convention and does not grant refugee status to persons who originate from outside of Europe. Turkey, though, has generously opened its borders and granted temporary protection to more than 2.7 Syrians, with numbers of persons seeking protection in Turkey rising, the Turkish ‘open door’ admission policy has come under increased strain, as has the domestic temporary protection regime. Turkish laws governing temporary protection regime namely, the Law on Foreigners and International Protection and Temporary Protection Regulation adopted in 2014 provide important safeguards to Syrians including prohibition of non-refoulement, access to education, labour markets and medical care. Despite this, protection available to Syrians and other refugees in Turkey falls below the level of protection guaranteed to refugees under the Refugee Convention. In practice Syrians, especially those living outside of designated refugee accommodation centres; have substantial problems accessing education, labour market, subsistence and social assistance in Turkey. For instance, though Syrian children have a right to education in Turkey, Turkey’s Disaster and Emergency Management Authority reported in March 2016 that “Only some 30 percent of Syrian children in Turkey have access to education.” Similarly, although following adoption of the EU-Turkey Joint Action Plan, Turkey granted Syrians a right to apply for work permits thus, a conditional access to the Turkish labour market in January 2016, the Guardian noted in April 2016 that “fewer than 0.1% of Syrians in Turkey currently stand to gain the right to work under much-vaunted Turkish labour laws.” In addition to these challenges, as reported by Multeci-der and Tsitselikis et al. Syrians and refugees coming from other countries have serious difficulties accessing legal aid and legal representation in Turkish Courts. These challenges suggest that Turkey, though it deserves appreciation for its open door policy and providing refuge to more than 2.7 million Syrians, is not a safe third country or a first country of asylum as defined by the Procedures Directive 2013/32 for Syrians as well as other asylum seekers and refugees in Turkey.
There are certain limits to temporary protection. International Law Association notes that “present international law sets certain limits to the freedom of states to conceptualize temporary protection but, at the same time, does not promote one particular model.” There is simply no structured legal regime governing all aspects of temporary protection, even though the principle of non-refoulement limits freedom of states to return persons fleeing humanitarian emergencies to the territories of states where they are in risk of persecution and torture. Taking into account that there are usually a considerable number of refugees among temporarily protected persons, rights and entitlements of the temporary protection beneficiaries should be formulated after having reviewed the Refugee Convention and universal human rights instruments including the ICCPR, ICESCR and ECHR. In addition to this, temporary protection and suspension of individual refugee status determination should be limited to a certain timeframe. Hathaway and Neve recommend this time limit as five years whereas the Temporary protection directive sets this limit as three years. Since the war and violence in Syria shows no sign of stopping it is crucial for Turkey to recognise the limits of temporary protection, set a maximum time limit and tailor policies for transition of Syrians to a more secure protection category. It is also crucial for Turkey to improve access of Syrians to education, labour market and social assistance. However, this is no easy task and Turkey cannot do this alone. The EU can help Turkey not just by providing financial assistance as agreed in the EU-Turkey Joint Action but also through humanitarian admission programmes and temporary protection. One way to do this is to activate the Temporary Protection Directive.
I argued elsewhere that the EU can activate the Temporary Protection Directive and implement this directive as part of a humanitarian admission programme. Such a humanitarian admission scheme has already been recommended by the EU Commission in December 2015 but this scheme is not active today. Why not implement such a humanitarian admission programme together with the Temporary Protection Directive to evacuate certain groups such as Syrians, Eritreans and others fleeing conflict, violence and human rights violations from Turkey and grant them legal and safe entry to Europe. Here is how it can work. The EU can activate the Temporary Protection Directive and designate certain groups seeking refuge in Turkey as temporary protection beneficiaries. Then, Member states can transfer a certain number of persons eligible for temporary protection from Turkey to their territories. Those temporary protection beneficiaries would have a legal status up to three years in Member states and would be protected from refoulement. Temporary protection beneficiaries would also have access to temporary residence permits, emergency health care, shelter, social assistance, education for minors as well as limited access to the labour market and a limited right to family reunification. Moreover, with the activation of the Directive and its burden sharing mechanism, this would suggest better prospect of burden sharing compared to the distribution of asylum seekers under the Dublin Regulations. Eventually, this could also lighten the burden of Italy, Greece, Hungary as well as Germany and knowing that they have a chance to arrive Europe regularly, forced migrants would less likely undertake the dangerous sea journey.
Activation of the Temporary Protection Directive as part of a humanitarian admission programme would certainly improve responses to the current asylum crisis in Europe and the Syria Refugee Crisis. I acknowledge that the political situation in Europe supports neither the activation of the Temporary Protection Directive nor the humanitarian admission programme at the moment. Yet, it is hard to contest that this could lighten the burden of the Turkish government and lead to improvement of protection available for Syrians and other refugees in Turkey. In addition to this, this could also provide a safe and legal entry possibility for forced migrants wishing to enter European territories and provide a better response to the asylum crisis compared to present restrictive and security driven policies. In conclusion, positioning temporary protection as a vital part of the response to the asylum crisis and the Syria Refugee Crisis can make a meaningful contribution to preventing irregular flows to Europe and providing humane treatment of those in need of international protection.
European Commission Recommendation of 15.12.2015 for a voluntary humanitarian admission scheme with Turkey < http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/securing-eu-borders/legal-documents/docs/commission_recommendation_for_a_voluntary_humanitarian_admission_scheme_with_turkey_en.pdf> accessed 1 June 2016.
Hurriyet Daily News, ‘Only 30 pct of Turkey’s Syrian children have access to education: Disaster agency head’ 31 March 2016 <http://www.hurriyetdailynews.com/only-30-pct-of-turkeys-syrian-children-have-access-to-education-disaster-agency-head.aspx?PageID=238&NID=97133&NewsCatID=341> accessed 1 June 2016.
International Law Association, Report of the Committee on Refugee Procedures of the International Law Association (Delhi Conference, 2002). Final Report and Draft Guidelines on Temporary Protection, 2002, < http://www.refworld.org/docid/428090994.html> accessed 1 June 2016.
James C. Hathaway and R. A. Neve, ‘Making International Refugee Law Relevant Again: A Proposal for Collectivized and Solution-Oriented Protection’ (1997) 10 Harvard Human Rights Journal pp. 115.
Kenneth Roth, Salil Shetty and Catherine Woollard ‘Say No To A Bad Deal With Turkey’ Human Rights Watch, 17 March 2016 < https://www.hrw.org/news/2016/03/17/say-no-bad-deal-turkey> accessed 1 June 2016.
Konstantinos Tsitselikis, Ilke Şanlier Yüksel, Kerstin Schmidt and Mustafa Aksakal, ‘EURA-NET Kickoff: Temporary migration, refugees and the crisis in Europe’ Euronet, 24 May 2016, <http://blogs.uta.fi/eura-net/2016/05/24/temporary-migration-refugees/#more-137> accessed 1 June 2016.
Meltem Ineli-Ciger, ‘Implications of the New Turkish Law on Foreigners and International Protection for Syrians seeking protection in Turkey’ (2014) 4 (2) Oxford Monitor of Forced Migration pp. 28-36.
Meltem Ineli-Ciger, ‘Time to activate the Temporary Protection Directive: Why the Directive can play a key role in solving the migration crisis in Europe?’ (2016) 18 European Journal of Migration and Law pp. 1–33.
Patrick Kingles, ‘Fewer than 0.1% of Syrians in Turkey in line for work permits’ the Guardian , 16 April 2016 < http://www.theguardian.com/world/2016/apr/11/fewer-than-01-of-syrians-in-turkey-in-line-for-work-permits> accessed 1 June 2016.
Sergio Carrera and Elspeth Guild, ‘EU-Turkey Plan for handling refugees is fraught with legal and procedural challenges’ CEPS Commentary, 10 March 2016, < https://www.ceps.eu/publications/eu-turkey-plan-handling-refugees-fraught-legal-and-procedural-challenges> accessed 1 June 2016.
Steve Peers and Emanuela Roman, “The EU, Turkey and the Refugee Crisis: What could possibly go wrong?’ EU Law Analysis, 5 February 2016 < http://eulawanalysis.blogspot.com.tr/2016/02/the-eu-turkey-and-refugee-crisis-what.html> accessed 1 June 2016.
UNHCR, Refugees- Migrants Emergency Response, <http://data.unhcr.org/mediterranean/regional.php> accessed 1 June 2016.