The EU Turkey Agreement
In November 2015 the EU and Turkey held a bilateral summit to discuss the migrant crisis affecting the region. Vast numbers of people were making their way from the Middle East, Asia and and Africa to Turkey with the intention of making the onward journey across the Aegean Sea into the EU. We now know that just under 900,000 migrants made that journey and entered Greece in 2015 alone.
A Joint Action Plan was agreed under which Turkish authorities would take greater enforcement action against the people smugglers operating along Turkey’s west coast and that Syrians living in Turkey would be allowed to apply for work permits. In exchange the EU would offer €3 billion in funding. The EU and Turkey met again in March 2016 where a further agreement was reached which sought to address the crisis at a more fundamental level.
It was agreed that all migrants arriving in Greece from Turkey from 20th March 2016 would be returned to Turkey. For every Syrian returned to Turkey another would be resettled in the European Union. The purpose of this was to discourage migrants from making the journey to Greece. There were a number of steps that had to be taken before migrants could be returned to Turkey and which made this agreement possible.
1. Greek domestic law had to be changed to declare Turkey a ‘safe country’ for the purposes of removing irregular migrants.
Under Article 33 of EU Directive 2013/32 on Asylum Procedures it is possible to declare an application for asylum as inadmissible if “another country that is not a member state is considered as a safe third country for the applicant, pursuant to Article 38.” Under Article 38 a country can be considered a safe third country where:
a) “life and liberty are not threatened” on account of characteristics outlined in the Refugee Convention such as race, religion etc.;
b) there is “no risk of harm” as per EU Directive 2011/95/EU;
c) the “principle of non-refoulement in accordance with the Geneva Convention is respected”;
d) the “prohibition of removal, in violation of the right to freedom from torture, and cruel, inhuman and degrading treatment” is respected.
e) there is the possibility of requesting refugee status.
Finally, the rules on the safe country concept must be laid down in national law, hence Greece had to change domestic legislation in order to pave the way for the implementation of the second agreement.
2. Greek authorities had to change the way in which they dealt with asylum applications, declaring them inadmissible rather than assessing the substance of the claim.
Under Article 33 of the EU Directive 2013/32 on Asylum Procedures, member states can declare applications as inadmissible on the following grounds:
a) another member state has granted the applicant international protection;
b) another country that is not a member state is considered as a first country of asylum for the applicant, pursuant to Article 35;
c) another country that is not a member state is considered as a safe third country for the applicant, pursuant to Article 38.
Prior to this agreement, applications for asylum have been assessed for their substance regardless of whether or not the above two grounds (b) and (c) applied.
Declaring applications from third country nationals who land in Greece via Turkey as inadmissible is perfectly within the law of the Directive but does deviate from existing practice within the EU which has been to hear the substance of all applications lodged within the territory of the member state.
The Mediterranean Route from North Africa to Italy
In 2014 the Central Mediterranean route from North Africa to Italy was under severe pressure – 170,000 were detected by Frontex making the crossing; far more than the 50,000 who crossed the Eastern Mediterranean Route from Turkey to Greece in the same year.
However in 2015 criminal networks turned their attention to the much shorter and less dangerous Turkey-Greece crossing. Now a deal has been struck between the EU and Turkey and if the deal is successful a perception may well take hold that entry to the EU via Greece is no longer an option. It is more than likely that the Central Mediterranean route will become the primary route for irregular migrants making their way to Europe.
This poses various problems for the EU since a deal similar to that struck with Turkey could not be agreed with any North African countries and therefore the capacity of the EU to stem the flow of migrants is extremely limited.
To begin with, most migrants are setting off from Libya, Egypt and Tunisia.
At present Libya has no one effective government controlling the entire country. This lack of control over the entire territory has allowed an organisation which pledges allegiance to the so called Islamic State of Iraq and the Levant to take control of territory in the North including coastal towns of Sirte.
Despite press speculation, it would almost certainly not be possible to do a deal with Libya akin to that achieved with Turkey due to the political volatility there.
Some migrants have been setting off from Tunisia and Egypt. The political situation in Egypt and Libya is less unstable, however it would be difficult to establish with clarity that migrants set of from Tunisia or Egypt, rather than Libya, making a deal difficult.
Moreover, and more fundamentally, it is unlikely that either Libya, Egypt or Tunisia could be classed as either a safe third country or countries which it could be reasonably argued represented a first country of asylum for nationals fleeing conflict. Therefore, it would not be possible to declare asylum applications as inadmissible and therefore the substance of the applications for asylum lodged by anyone who landed in Italy would have to be heard on an individual basis and failed applicants would also be entitled to an appeal against the refusal.
With no possibility of a deal the numbers could be substantial. Migrants will make the crossing knowing that removal is extremely unlikely and that their chance of remaining in the EU is high.