11 März 2016

Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway

There are many open questions and objections against the EU-Turkey deal on an agreement whose details are yet to be negotiated to manage the Syrian refugee crisis. In particular on the reciprocity part: could the agreement as an easily available tool by Turkey to blackmail visa liberalization and progress in the EU Accession negotiations? How will the EU make sure the proper treatment of all returnees? How is the resettlement of   refugees from Syria to the EU (and to Germany) going to take place?

James Hathaway on this blog has listed three legal requirements for the agreement to be legal. In my view none of these are likely to block an agreement.

Ad 1: James Hathaway argues that any individual is entitled to decide for him/herself where to seek recognition as a refugee and therefore efforts to preclude would-be refugees to reach Greece would be in violation of the Convention.

This conclusion cannot be derived from the Convention. True, nobody can be forced to file an asylum claim in a specific country. That does not mean however that there is a freedom of choice where to seek protection.   The Convention does not provide a right of admission to those who have not yet reached a border where entry may be requested for the purpose of international protection.

The only individual right is the right not to be refouled (expelled or returned) to a country of persecution or inhuman or degrading treatment. There is no obligation to assist in reaching a border post or point of entry for the purpose of filing an asylum claim. That applies definitely for any action outside the Greek territory. But even within the highly controversial territorial waters off the Greek island it is at least doubtful whether EU cooperation with Turkey in establishing a more effective border control to prevent those not in possession of the necessary documents to enter the EU triggers the application of the Geneva Convention.

Art.31 of the Convention does not support such an assumption providing for impunity for those coming directly from a territory where their life or freedom was threatened – which is clearly not the focus of the draft agreement. Even the EctHR’s Hirsi judgment of 2012 cannot be interpreted as a right to admission to the EU for the purpose of filing an asylum application. Non refoulement is clearly limited to an exercise of quasi territorial jurisdiction and the obligation not to transport boat refugees to a country where they would in all likelihood face inhuman treatment as a direct result of such action.

Ad 2: James Hathaway argues that Turkey would have to withdraw its geographical limitation. This is clearly not the legal position of the EU and neither a requirement of international refugee law for the application of a safe third country concept. Art. 38 of the Procedures Directive 2013/32 defines the concept of safe third country explicitly with regard to the material obligations of the Convention including non-refoulement and receiving protection “in accordance with the Convention”.

One may argue on the interpretation of this provision. It is fairly clear however from the comparison with the “concept of European safe third country” in Art 39 that a ratification without a geographical limitation is not required. Nevertheless, Turkey must meet in substance the material standards of the Convention which may raise issues, particularly with regard to non-Syrian refugees under the new Turkish legislation of 2014 (see N. Eksi, The New Turkish Law on Foreigners and International Protection , 2014, p.83 ff).

Ad 3: The third legal barrier exposed by Hathaway is the jurisprudence of the European Court of Human Rights on the prohibition of collective expulsion of aliens under Art. 4 Prot.No. 4.

Hathaway mentions slight doubts on the reasonableness of this jurisprudence with respect to responsibility sharing agreements. Hathaway is right. But not only with respect to the requirement of an individuated assessment of an applicant’s circumstances to such agreements. The Courts application of the prohibition of collective expulsion to border control and rejection largely ignores the wording and purpose of the provision.

Expulsion affects the situation of aliens who have already acquired some kind of a residential or at least tolerated status. It is reasonable and at the heart of Art. 4 that a decision of removal must take into account the individual circumstances of each case. Rejection of persons at the border or prevention of illegal entry by return is a completely different matter.   It does not generally require an individual examination of the circumstances of each case. If a question of non-refoulement arises it is the non-refoulement clause and its procedural implications which regulates the procedural requirements rather than Art. 4.

Yet, even if Hirsi and subsequently Klaifia v. Italy (Nr. 16483/12 ) are taken at its face value it is highly doubtful whether the Court will strike down a EU-Turkey agreement on responsibility sharing for potential asylum seekers on the ground that it does not provide for an indiduated assessment of all circumstances of a case – provided that Turkey can be reasonably assumed to comply with its obligation to grant protection to all persons returned (rather than expelled) under the agreement.


SUGGESTED CITATION  Hailbronner, Kay: Legal Requirements for the EU-Turkey Refugee Agreement: A Reply to J. Hathaway, VerfBlog, 2016/3/11, https://verfassungsblog.de/legal-requirements-for-the-eu-turkey-refugee-agreement-a-reply-to-j-hathaway/, DOI: 10.17176/20160311-151627.

6 Comments

  1. Steve Peers Fr 11 Mrz 2016 at 16:03 - Reply

    The third point is an assertion, not an argument. Since the ban on collective expulsion applies on the high seas, why would it not apply at the borders? If the agreement ignores the requirements set out in the case law, why would it not infringe the Convention? In any event, it also ignores the wording of the EU asylum acquis, which states that any application for asylum at the borders or on the territory must be considered by a Member State.
    Like the Commission, you only partly quote the procedures Directive. It says that a possibility must exist to ‚request refugee status‘ in accordance with the Geneva Convention. How can someone request Convention refugee status in a State which does not apply the Convention to the person concerned? And the procedures Directive does not only say that: asylum applicants must be able to make a case that Turkey is not safe in their individual case; there must not be refoulement from Turkey; and there must be decent treatment in Turkey. Even if these criteria are satisfied in many cases it is clear from NGO reports that they are not satisfied in all; that is why individuals must be able to explain why they are not safe in their particular circumstances, which is consistent with the ECHR interpretation of the prohibition of collective expulsion.

  2. Maximilian Pichl Fr 11 Mrz 2016 at 17:16 - Reply

    Steve Peers is right. And insofar, the EU must guarantee asylum seekers entrance and access to asylum procedues on European territory to clarify if the „safe third country“ concept is applicable in their individual (!) case. The EU-Turkey Deal is the complete contradiction to this principle.

  3. Thomas Matthies Fr 11 Mrz 2016 at 20:31 - Reply

    But it may not be an indissoluble contradiction: The return of all migrants from Greece to Turkey is a principle in itself. The statement states: „They agreed to work on the basis of the principles they contain…“. So they can still agree on rules in accordance with the asylum procedure directive. I admit though that the statement lacks a phrase like „in accordance with the asylum acquis“.

    To Ad 2 of Mr Hailbronners article: Me too, I wondered about the phrase: “Turkey would have to withdraw its geographical limitation”. I dare an interpretation: Mr. Hathaway may not have conceived his phrase in a lawful but more in a legal-political manner. If the rules are finally in place Turkey has to grant refugees pushed back to Turkey rights in accordance with the Geneva Convention. It would be absurd not to grant these rights to all refugees in Turkey. The non-granting of these rights would possibly „push“ (at least not discourage) refugees to cross borders to Greece just to be pushed back to Turkey to get there the rights granted. So wouldn’t the most feasible solution be to grant all refugees these rights? The geographical limitation of Turkey would be weakened rather strongly in praxis. Maybe Mr. Hathaway had this in mind, when he spoke about the need to withdraw the geographical limitation.

    Disclaimer: These are just my thoughts as I read the article and the comments so I may have not considered all the obstacles, arguments and counter-arguments 🙂

  4. Steve Peers Fr 11 Mrz 2016 at 21:00 - Reply

    I agree with Thomas Matthies, it is not clear whether the agreement is intended somehow to ignore the EU law rules on considering claims individually, even where the ’safe third country‘ rules allegedly apply. If there is a genuine opportunity for people to argue that they would be refouled by Turkey or face poor treatment in Turkey in their individual cases then the agreement is much less problematic.
    That would only leave open the question of whether Turkey’s non-application of the Geneva Convention to non-Europeans is problematic. In my view it twists the obvious meaning of the procedures Directive to say that Turkey meets the criteria on this point. Given the goodies the EU is offering Turkey it would have been better to settle this question properly by Turkey agreeing to lift its geographical limitation on the Convention.

  5. Daniel Thym So 13 Mrz 2016 at 17:21 - Reply

    @ Thomas Matthies and Steve Peers:

    I can understand that journalists read the language of a 2-page summit communiqué as a quasi-definitif statement about what will be done and assume, on this basis, that there will be a ‚rapid‘ ‚return of all new irregular migrants‘, a sort of collective and quasi-automatic pushback. That reading of a political text arguably informs much of the legal cirticism.

    As legal academics, we should be careful not to support such misunderstanding, since implementation will, of course, require compliance with the EU asylum acquis, incl. the prescription of an individualised assessment in Art. 38(2)(c) Asylum Procedures Directives (an aspect, James Hathaway also fails to mention). We can argue whether international law requires more or whether EU legislation could/should be changed. Doing so would have to be done in accordance with the ordinary legislative procedure – and nothing of that is indicated in the communiqué. If, therefore, we should assume that existing legislation has to be complied, I see now reason why the outcome should violate either EU and international law (as explained in my longer blogpost https://verfassungsblog.de/why-the-eu-turkey-deal-is-legal-and-a-step-in-the-right-direction/).

    By the way, the ‚agreement‘ with Turkey will most probably not qualify as a treaty under international law, whose ratification would require the consent of the EP (plus, possibly, the national parliaments of those Member States consenting to resettlement directly from Turkey on the basis of national quota). The ‚implementation‘ of such political meeting of minds will be untertaken through unilateral action (in accordance with EU law and national rules).

  6. Thomas Matthies Di 15 Mrz 2016 at 10:17 - Reply

    @ Daniel Thym: It is clear to me that a statement of the EU heads of state or government cannot override directives. I just was of the opinion that for the need of clarification (which exists, I assume, as journalists misinterpret the statement as you say) it would have been better to amend a clause like „in accordance with the asylum acquis“. I responded to a comment above which stated that the phrase in the agreement is a complete contradiction to the principle of case-by-case-reviews. I was of the opinion that it is not an indissoluble contradiction though. I never wanted to say (and to my mind never said) that it will not be possible to agree on rules which are in compliance with the asylum acquis. So I totally agree with you on this point.

    On your last paragraph: If there are only unilateral actions, what is the legal basis for them? Will there be any? Turkey would only have to respect refugees’ rights in a derivative manner (because Greece has to respect its legal obligations due to the procedure directive). Turkey would not owe any rights itself to refugees on an international level. It does not owe them the rights nowadays on the national level either. That sounds to me as an unlawful rights-stripping to quote Mr Hathaway.
    EU member states would not have any legal obligations to resettle refugees. That will be the solution? I am not convinced that this will work considering the fact that the relocation scheme does not work properly even though there are supranational obligations.

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