Human rights groups have voiced concerns that the new EU-Turkey plan to deal with refugees agreed March 18 may be in breach of international law. The plan includes sending one Syrian refugee from Turkey to Europe (via the legal asylum-seeking process) in return for each Syrian refugee sent from the shores of Greece back to Turkey. The number of Syrians to be re-settled in Europe is capped at 72,000 people. In return the EU has agreed to deliver six billion euros to Turkey to cover the costs of hosting refugees, and to open up new chapters in Turkey’s EU accession process.
Human Rights Watch refugee programme director Bill Frelick declared that “the parties failed to say how individual needs for international protection would be fairly assessed during the rapid-fire mass expulsions they agreed would take place” and the deal thus “contradicts EU principles guaranteeing the rights to seek asylum and protection from collective expulsions.” A similar critique came from Amnesty International, which declared that “the very principle of international protection for those fleeing war and persecution is at stake.” The United Nations High Commission for Refugees (UNHCR) expressed concerns over the collective expulsion of foreigners, legally prohibited under the European Convention of Human Rights.
What is the basis of these criticisms? The Charter of Fundamental Rights of the European Union says that “collective expulsion are forbidden” and the UN Convention on Refugeesprohibits contracting parties from expelling or pushing back refugees. Although the plan surprised many observers, it is not the foundation of a new EU policy; on the contrary, it is following a way that the EU had already paved before the summit with Turkey. Two things are crucial for understanding the ramifications of the deal: the concepts of Safe Country of Origin, and of Safe Third Country. By altering its use of these, the EU is deeply changing the Geneva Convention, without actually challenging it. In this deal, the EU is sitting on international norms and making small adjustments, without the need to gather all the signatories of the Convention and discuss how to reform it.
The Importance of Terminology: am I a Migrant or a Refugee?
A Safe Country of Origin is a country “where the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution […], no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict.” The concept is used to differentiate between refugees, asylum seekers, and economic migrants: understanding these terms is crucial if we are to unpick the effects of deals such as the EU-Turkey one on international refugee laws and definitions.
Since the beginning of the current refugee crisis, a debate has been going on at both media and political level concerning the differences between refugees, asylum seekers, and economic migrants. The discourse and definition of these categories is not an abstract intellectual exercise – it is in fact the basis of state and government policies, as each term carries different obligations for the hosting country. A key feature of the 1951 Convention on Refugees is the principle of non-refoulement, which obliges the signatory countries not to return a refugee to a territory where he or she would be at risk of persecution.
Both economic and forced migrants use illegal migration routes, via which they reach third countries’ borders without meeting the legal requirements for entry. However, forced migrants illegally crossing a country’s border are not considered ‘illegal’ as they are travelling for the purpose of applying for asylum and therefore they cannot be prevented from entering a country. To do so would contravene the non-refoulement principle. On the other hand, economic migrants – as opposed to refugees – illegally entering a country are considered illegal (or irregular) migrants and can be pushed back or expelled.
Our current definition of “refugee” is based on the Convention on Refugees, signed in 1951 in Geneva. A refugee is defined as “a person who is outside his or her country of nationality or habitual residence; has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail him- or herself of the protection of that country, or to return there, for fear of persecution.” Governments determine whether a person is a refugee, designating a National Commission to assess applications and decide whether they meet the criteria outlined in the Convention. Someone who crossed his or her country border looking for protection, but whose claim for refugee status has not yet been determined, is an asylum seeker. The third category to take into account is that of economic migrant. It is not a legal definition, but rather a broad term, aimed at defining all persons who are voluntarily choosing to leave their countries to improve their quality of life and economic conditions.
In spite of a precise international theoretical definition of the refugee and economic migrant categories, the difference between them is more nuanced in practice, as individuals have multiple and overlapping motivations for leaving their origin countries. It is problematic to describe with macro-categories a phenomenon that is in fact individual. For this reason, the Convention on Refugees suggests individual assessment as the preferred approach. In practice, this means that a migrant, if he or she asks for protection after crossing European borders, becomes automatically an asylum seeker. The status of an asylum seeker stands until the end of the assessment process, which could include an appeal against a negative decision of the National Commission. If the National Commission is in favour of the eligibility application, then the asylum seeker is recognized as refugee. The whole assessment process is individual, and none can be considered as refugee before the Commission’s positive response.
The rapid acceleration in the number of migrants reaching the European borders made it hard for EU countries to assess individually each asylum claim they would receive by welcoming allegedly asylum seekers onto EU territory. The EU has been struggling to find shared and accepted ways to handpick migrants, and leave borders open only toprima facie refugees, while leaving behind those not considered in real need of protection. For this reason, recent debates have focused on an a priori approach, defining some nationals – for instance Syrians, Eritreans, and Somalis – as refugees, and some others as not-refugees. This allows the Member States to handpick migrants and divide asylum seekers into different categories, with nationals of certain third countries considered safer or less urgent warranting less favourable procedural treatment.
The Safe Country of Origin provision institutionalized this concept. In 2015 the European Commission and other institutions made broad use of the concept of Safe Country of Origin. In particular, the European Commission often references the category of “those in clear need of international protection,” with the twofold aim of addressing the root causes of irregular migration and ensuring a faster assessment of prima facie refugees’ protection claim. This discourse soaked in to the media too: the terms are used interchangeably, and one result is that coverage of the refugee crisis often criminalizes people who have used the same routes as refugees by calling them “economic migrants” masquerading as refugees, implying that they have intentionally abused EU refugee law.
The Safe Country of Origin List: Europe washes its hands
In September 2015, as anticipated in the Agenda on Migration, the European Commission presented a proposal for a regulation establishing a common European Safe Country of Origin (SCO) list. It suggests that Western Balkans countries – Albania, Bosnia and Herzegovina, Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia, and Turkey – be included in a common EU Safe Country of Origin list, with the possibility of adding further countries in the future. Nationals coming from allegedly Safe Countries will not be able to cross the EU’s border to seek asylum, as the border police would give priority toprima facie refugees – those considered to have genuine reasons for fleeing because of the country they come from.
Most importantly, this shift paves the way for a a priori approach, with little or no space for individual assessment, which will lose significance over a general country assessment. This will have a whole series of unexpected consequences. First of these will be the division between first- and second-class migrants at the border, with the consequently high risk of abuses at the borders and also within EU territory. On the EU side, this is a clean and legal way to keep most of the migrants outside of European territory, just by claiming that they are not really seeking protection. Even if only Balkan Countries and Turkey are listed as Safe Countries of Origin, we can foresee more countries being included in the near future, to the detriment of the Convention on Refugee’s emphasis on an individual approach. The application of a safe country of origin notion risks precluding whole groups of people in need of international protection from obtaining refugee status, and ultimately resulting in refoulement.
Safe Third Country: Why the EU turned to Turkey for Help
While the Safe Country of Origin list defines who can be considered a refugee, the Safe Third Country concept rules on the admissibility of an asylum application, given that the asylum seeker could have presented the same request in another country. It has a direct impact on how to distribute refugees among EU member states.
Until now, the concept of Safe Third Country has been the basis of the Dublin regulation, an EU law stipulating that the EU member state responsible for handling an asylum application is the one where the migrant is first registered. The Dublin System assumes that all the signatories’ countries are Safe Third Countries – a country that is safe for asylum seekers of nationalities other than that of the country itself. The upshot of this is that pushing back migrants to the included countries would not amount to refoulement.
States justify this practice based on the “economic migration vs. forced migration” argument. According to this view, an asylum seeker genuinely fleeing persecution will seek protection in the first safe country entered and any secondary movement will be for economic purposes. With the number of sea arrivals and asylum request rising after 2012, the Dublin regulation soon revealed its inherent weaknesses: by tying the responsibility of examining the refugee status to the initial entry, it gave the burden of responsibility disproportionally on entry-point states – especially Greece and Italy. In order to derogate the rules under the Dublin system, in the May 2015 “EU Agenda on Migration,” the European Commission proposed the establishment of a temporary EU Relocation System. It introduces a model to allocate responsibility between the member states on the base of new criteria, which includes GDP, population, unemployment and other similar indicators. The first Package of Proposals for the implementation of the Agenda came at the end of May 2015 and established that 24,000 applicants from Italy and 16,000 from Greece would be relocated in other member states, according to mandatory quotas. The proposal immediately sparked critiques among EU member states, in particular Hungary, Poland, the Czech Republic, and Slovenia, who formed a blocking minority to stop the plan from being implemented. However, in September 2015 the resettlement proposal was forced through and adopted by a qualified majority.
In the following months the redistribution scheme proved to be ineffective, due to both the fierce opposition of Eastern European countries and the practical difficulties of implementation, and a shift in focus took place. Since no unanimous agreement was achieved over how to manage refugees in the EU territory, efforts were aimed at addressing the issue with the countries of origin and transit. As the Eastern and Balkan route became increasingly important during 2014-2015, one actor was identified as the one that could provide a solution to Europe’s chaos: Turkey.
Turkey was deemed a Safe Third Country by Greece on February 5, 2016. The announcement came after a meeting in Athens between Greek Interior Minister Panagiotis Kouroumblis and his French and German counterparts, proving that the EU was already preparing to implement the plan presented in the 7-8 March summit. The implication is that as of February 2016 no pushbacks from Greece to Turkey will be considered expulsions, as Turkey is deemed as a country capable of assessing the asylum claims. This is an extension of the Dublin Regulation to a non-EU country.
But does Turkey qualify?
Now, the core question is: is Turkey a safe country? Turkey ratified the 1951 Convention on Refugee and its 1967 Protocol, but maintains a geographical limitation for non-European asylum seekers, which mean it recognize only refugees originating from Europe. Syrian refugees in Turkey are subject to a temporary protection regime, formalized by a Regulation on Temporary Protection in October 2014. The idea behind the temporary protection is that Syrian will most probably return to their origin country once the war is over; for this reason, they have access to limited rights compared to asylum seekers in the normal procedure, in particular concerning access to education and employment. The EU pushed Turkey to improve the living conditions of Syrians, but did not request Turkey to fully apply the Convention on Refugees and lift the geographical limitation. In fact, recent debate has focused on Syrian refugees and not to the broader category of refugee.
The EU-Turkey plan focuses on Syrian nationals: the one-to-one deal agrees that for each Syrian sent back, a Syrian already in Turkey would be resettled in the EU. What about the refugees of other nationalities? There is nothing in the plan about them, although they will also be pushed back from Greece to Turkey and they will not even benefit from the temporary protection. Syrian nationals have been given priority, considering the magnitude of the Syrian refugee influx to other countries. However, deeming Turkey as a Safe Third Country will affect all nationals travelling in its territory; this was not been addressed by the EU during the meeting with Turkey, nor during any other EU meetings. Thus the real question may not be whether Turkey is safe or not, but whether the EU cares or not.
A Quick Fix is No Solution
EU institutions have proved to be ineffective in addressing the current refugee crisis. Indeed, the global migration crisis unveiled the depth of the European political crisis, revealing the fact that European institutions’ indecisive and ineffective policies on the migration issue result from divisions in member states’ interests, and consequently imprecise directives. While member states have experienced the incoming refugees as an emergency, they have been unable to elaborate a shared and unanimous solution. Now, there is an urgent need to address the immediate emergency, in order to make rational debate on long-term solutions possible. The solution the EU was looking for was a way to keep refugees from entering EU territory. By expanding the concepts of Safe Country of Origin and Safe Third Country, the EU managed to pave a legal way to keep not only economic migrants, but also potential refugees outside the EU. The essential partner in this plan is Turkey. With this coalition, the EU has managed to build a wall not made of bricks but of words.
This, together with the EU-Turkey deal signed on 18 March, undermine the foundation of the Convention on Refugee. In fact, both the individual assessment process and the non-refoulement principle are at stake. The Convention on Refugees was adopted in times when such a massive movement of people could not be anticipated. For this reason, it may not be the best tool to confront the current situation. But hiding behind technicalities by implementing legislations that undermine the validity of the Convention without reforming it, will solve nothing.
 “No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Convention and Protocol Relating to the Status of Refugees Article 33
 For the scope of this research, we will only look at illegal border crossing. However, we should remember that migrants overstaying their visa or their residence permit are also considered as illegal or irregular. In this case, the government can expel the migrant, assuming it is not going against the principle of non-refoulement.
 In countries that are not party of international refugee instrument, UNHCR may determine a person’s refugee status and provide protection.
 The EU Parliament defined prima facie refugees as nationals escaping conflict or generalized violence, for whom it is not necessary to hold an individual interview as it is generally evident why they have fled.
 In the EU framework, migrants entering illegally Europe are registered when their fingerprint are added in the EURODAC System.