Is it Time to Self-Destruct the Migrant Swap Deal?

By Osman Cihan Sert

The world is currently confronted with the most serious refugee crisis since World War II. The destabilization of the EU’s neighboring countries in North Africa and the Middle East since 2011 has made the European continent a target of mass migration, with the civil war in Syria at the forefront of this crisis. It has also made Turkey the epicenter of the ubiquitously known policy of ‘mass return’.

“Children face Greek police officers after the border with Macedonia was closed. People grew increasingly agitated as news of the EU-Turkey deal reached Idomeni. “Are they going to send us back to Turkey?” many people kept asking us.” Source: Amnesty International

Source: Amnesty International

Contrary to popular belief, the issue of mass return is not a new phenomenon in Turkish-EU relations however. Turkey and the EU had in fact already made an agreement in December 2013 to provide for the mass return of Afghani, Tunisian and Algerian migrants, in return for planned visa liberation in the Schengen zone for Turkish citizens.

Since then, rapid changes in the demographics of refugees and “irregular migrants” have occurred. In comparison to last year, the number of Syrian refugees arriving in Europe has increased five-fold, reaching upwards of 600,000. As a result of the unregulated and unchecked human flow from eastern routes including Turkey to the EU countries, the EU has had to negotiate with Turkey in order to add “irregular” Syrian refugee issue to the agreement.

The “Mass-Return deal”, finalized and signed on March 18 2016, entered into force on March 20, 2016, and introduced an innovative “one-in-one-out” policy. Under the deal all new incoming irregular migrants, not only from Syria but any country, reaching Greece from Turkey will be returned to Turkey. In exchange for each refugee returned to Turkey, the EU countries will re-settle an equal number of Syrian refugees already living in Turkey in Europe, until the upper limit of 72,000 is reached.

Additionally, the EU will put up six billion euros to assist Turkey in attempts to provide temporary protection to Syrians arriving in its territory. In return, the EU has promised to accelerate the harmonization process and visa-free travel to the Schengen area for Turkish citizens, however both these pledges remain hotly contested.

Even though this deal appears to be a success in terms of stopping unchecked migration flows from Turkey since March 20, the deal is full of holes. In addition to legal concerns based on the fact that Turkey has a geographic limitation for refugees according to the 1951 Refugee Convention and its 1967 Protocol, and human rights concerns based on some European counties’, like Slovakia and the Czech Republic, discriminative attitude towards Syrian refugees, there are two final issues: questions of capacity and the future of EU-Turkey relations.

Before elaborating on these problems, it is important to note that the last stage of the deal features its very own self-destruct strategy. In case of the deal’s failure to stop unregulated migration to Europe, the program will be ended. In case of its success, a Voluntary Humanitarian Admission Scheme will replace it as a new code for resettlement from Turkey on the basis of recommendations from the European Commission.

After a sustainable reduction of the number of migrants, all Schengen zone states including non-EU members will be invited to take part in a voluntarily scheme for those Syrian migrants in Turkey who were registered before the EU-Turkey meeting on November 29, 2015. Their distribution to the member countries will be done according to the final decision of the United Nations High Commissioner for Refugees, and will take into account reception and integration capacities as well as population size, GDP, past asylum efforts, and national unemployment rates for this group.

Greek and Turkish Capacity: Insufficient at Best

In terms of capacity, Greece does not have an efficient and well-functioning infrastructure to accommodate and check such a large number of migrants. In accordance with international and EU law, Greece has to review applicants case by case. Mass accumulation of migrants in the modest facilities in Greece is indicated as one of the major factors hindering the implementation of the policy as specified in the deal.

The lack of a fully fledged asylum system consisting of courts and reception and detention centers was already indicated as a sufficient reason by the European Court of Human Rights five years ago to stop the process of sending mass migrants by other EU countries back to Greece. A report issued by the UN Refugee Agency in December 2014 highlighted the insufficient number of first reception services (FRS). Overcrowded identification centers and lower standards in police stations were also indicated as major flaws of the asylum system in the country.

In parallel, Turkey has to do more than just intensify border controls by law-enforcement agencies. This was emphasized in a report issued by the European Union’s Judicial Cooperation Unit (Eurojust) in February 2016. The report asserts that as long as there are violations of human rights, and an absence of specialized border or migrant control forces, sufficient visa legislation, or an independent judiciary, it will be almost impossible for Turkey to implement the deal as it should.

The report states at the same time that Turkey lacks a proper process for expelling migrants, who are freed after a few days and simply sent away from the country. In addition to the Eurojust Report, the Declaration of Amnesty regarding the Greek Detention Centers on April 7, 2016 and the report related to Turkish Detention and Deportation Centers in December 2015 clearly underline the necessity for dignified and humanitarian conditions for refugees, and the prevention of human rights violations in those centers. The report even recommended the establishment of an independent EU-Turkey High-Level Working Group to oversee the implementation of the Action Plan, providing it is in keeping with international standards.

In other words, as long as Turkey does not upgrade the detention and deportation camps to the humanitarian standards of 25 government-run migrant camps nearby the Syrian-Turkish border, Turkey’s migrant policy will remain incomplete and insufficient at best.

Friends Forever: Turkey and the EU

Increased cooperation with the EU in the long run is presented as the main benefit of the deal for Turkey. However, despite the joint declarations on the necessity of accelerating the process, there is another side to that coin.

Offering financial support to neighboring countries in order to deal with the issue of irregular migration is not a new EU policy, and in fact has been implemented over the last 20 years. In addition to the four-billion-euro grant to Gaddafi to deal with Libya’s refugee crisis in 2010, Morocco was granted 68 million euros between 2007 and 2010. Like Turkey, Morocco was offered a liberalized visa and work permit regime for Moroccan citizens in the 2013 Partnership Agreement with the EU. However, the contrast in the Turkish case is that the new partner for this policy is an official candidate country of the union. It seems rather unlikely that the EU would want to admit a country currently hosting the refugees ‘mass returned’ there.

Perhaps more significantly, the last EU progress report led to widespread criticisms of Turkey’s violation of fundamental rights such as freedom of speech, gender rights, and the full independence of the judiciary. Kati Piri, the EU parliament’s rapporteur on Turkish affairs, recently claimed that the reforms were themselves liable in this regression of rights, adding to growing concerns about the accession-refugee deal.

Following which the EU has not opened the five chapters blocked by Cyprus, in contrast to the early expectations of Turkey. It opened only the chapter on Budgetary and Financial Management, previously blocked by France and the Netherlands. Simultaneously the EU reminds Turkey of the necessity to meet 72 separated requirements for visa liberalization by June. The future will show us whether or not increased cooperation on the refugee issue will allow for a harmonization process between Turkey and the EU. Nonetheless, Martin Schulz, who is the current president of the European Parliament, has already asserted that Turkey`s harmonization process will be held separate from the negotiation on refugees.

The current nature of bilateral relations suggests that the refugee deal between the EU and Turkey should be evaluated within EU neighborhood policy, rather than within membership policy. In terms of the deal process itself, Turkey and Greece’s infrastructures have been caught unprepared for the rapid negotiation and closing of the refugee agreement. Third parties and even the some within the EU recommend that both sides enact serious legal and structural improvements.  Given these criticisms, the deal opens up more problems than it solves both in Turkish-EU relations, and for already vulnerable refugee communities; it may be time to push that self-destruct button after all.

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