16 May 2024

Litigating the EU-Turkey Deal

On 8 April 2024, three Dutch NGOs, supported by a Dutch human rights law firm, sued the Netherlands for approving and carrying out the EU-Turkey deal. They argue that the Dutch government should be held responsible for the dire conditions under which asylum seekers have been held under on Greek islands since the deal has been concluded, which have repeatedly been found to violate human rights. The legal proceedings were initiated after an earlier warning last year by the same NGOs. This warning is required under Dutch procedural law, as proceedings cannot be initiated if the matter has not been attempted to be resolved otherwise.

In this blog, I sketch the context of litigation surrounding the EU-Turkey deal which has driven the NGOs to sue in the Dutch national legal system and explain the particularities of Dutch procedural law that renders the suit possible. The case is part of a trend whereby civil society actors turn to the courts to litigate matters related to asylum to seek policy change (strategic litigation), given the inability to do so through political levers. While strategic litigation thus constitutes an important way in which the rule of law and fundamental rights might be upheld, it can also serve to undermine them by causing political backlash, with governments attempting to limit judicial review.

The (Im)possibility of Legal Action at the EU Level

In 2016, the EU-Turkey deal was concluded by way of a statement. Migrants who arrived irregularly in Greece would be returned to Turkey, as a response to the refugee ‘crisis’ of 2015. In exchange, per one returned Syrian migrant, a Syrian migrant residing in Turkey would be resettled in the EU. Many critiqued the deal, arguing that Turkey is not a safe country, reporting about the gravity of the situation of those returned to Turkey, and the negative impact on human rights the deal had on the situation in Greece. Something driving the development highlighted in this blog, the General Court (GC) famously decided in 2017 in three similar cases (NF, NG, and NM) that it had no jurisdiction to review the deal, as the EU institutions had not concluded the deal but the Member States. The deal has subsequently been a blueprint for other agreements to ‘control’ migration, such as the one between the EU and Tunisia.

Although I share the critique that followed the GC cases, my purpose here is not to revisit this debate, nor the effectiveness and consequences of migration deals. The lack of judicial review by the EU Court, however, explains why civil society actors have sought other ways to challenge the deal. Indeed, in the Dutch case the appellants use the NF case to argue that the Dutch court has jurisdiction to adjudicate the case. Otherwise, as the appellants state, there would be a complete lack of judicial review of the EU-Turkey deal. Such lack of review is undesirable given the grave human rights violations happening at the EU’s borders.

The Dutch Actio Popularis

The Dutch legal system lends itself procedurally for strategic litigation via class actions (art. 3:305a Dutch Civil Code). Any legal entity that is ‘sufficiently representative’ of an affected group or interest can initiate litigation against the State as well as against companies. This requirement is interpreted less strictly if an organisation is pursuing an idealistic goal and has a limited financial interest in a claim. NGOs have made use of these permissive standing requirements in relation to various human rights-related matters. Successful examples include cases on ethnic profiling by the Dutch border police and on a risk profile system that violated the privacy of citizens. This form of class action is not unique within the EU, with there being, for example, a right to an actio popularis under the Portuguese Constitution. Yet Dutch organizations appear to be the most frequent users of it.

Nevertheless, the possibility for litigation is not unlimited under art. 3:305a Dutch Civil Code as the civil route is closed off when there is a more suitable administrative legal procedure possible. This constitutes an important limitation in the field of migration and asylum law. Here, civil litigation against the government is often foreclosed because there is an individualized administrative procedure open to applicants. As a result, the Netherlands is not a full-blown ‘laboratory’ when it comes to actio popularis in the migration field. Still, exceptions exist, for example in a 2023 case when the Dutch Council for Refugees (which has a Strategic Litigation Committee) successfully sued the Dutch government for the situation in the asylum reception center in Ter Apel.

The (Un)likelihood of Legal Success

The chances of success in the Dutch case against the EU-Turkey deal are slimmer. The applicants argue that the Dutch government can be held responsible for the situation in the Greek camps that flowed from the EU-Turkey deal, partly because the Netherlands was president of the Council of Ministers of the EU when the deal was concluded. Additionally, relying on internal government documents, the appellants argue that the Dutch state considers itself the ‘architect’ of the deal and that it played an important part in drafting the deal and making the arrangements with Turkey. They rely on rhetoric by Dutch civil servants to corroborate this argument.

However, there are two potential problems with regards to establishing the required causal link between the Dutch role in the EU-Turkey deal and the situation in Greece. First, it is uncertain to what extent the EU-Turkey deal was responsible for the situation in the Greek camps. Despite convincing evidence from civil society, the situation in Greece was already problematic before the deal was concluded, making a definitive causal link difficult to establish. The applicants in the Dutch case attempt to show this link through statistics which show that the number of asylum seekers on the Greek islands rose significantly after the EU-Turkey deal.  Second, the responsibility of the Dutch government for the situation in the Greek camps is not clear-cut. Simply put: is it not the responsibility of the Greek government to bring their national asylum system in line with human rights obligations? The NGOs try to ground the Dutch government’s responsibility by showing its awareness of the insufficient implementation of the deal through messages from the Dutch embassy in Greece.

The Rise of Strategic Litigation

This case can be placed in a broader trend of strategic litigation in the field of migration and asylum law in Europe. Strategic litigation can be defined as (the threat of) legal action in which the aim of the litigating party exceeds the individual interest, or even the case itself. This aim is often political or social change but it can also consist of structural legal change. An example of the latter is the CJEU case A & S, in which the Court clarified that national policies need to take the date of the asylum application as the point of departure to determine the status of unaccompanied minor and the subsequent right to family reunification. The case was brought with the help of a law clinic from the Vrij Universiteit Amsterdam, who noticed the structural effects of this Dutch national policy and wanted to bring about change in this regard. Through an individualized preliminary ruling, the CJEU case managed to impose changes in all national policies on unaccompanied minors and family reunification. Individualized cases in asylum can, therefore, have broader (policy) implications.

Because civil society actors in the migration field have few political entryways left, they have increasingly turned to the use of litigation strategies. Civil society actors are even starting litigation procedures in different judicial fora at the same time (‘integrated legal strategies’) to prevent and tackle accountability gaps. One example of such litigation efforts is on migration control policy between Italy and Libya, where action has been taken before national courts, the European Court of Human Rights, the European Court of Auditors, and the International Criminal Court. Because European governments fail to implement or otherwise respond to existing judgments, strategic litigation efforts are then continued before national and supranational courts.

The Double-Edged Sword of Strategic Litigation

Several strategic litigation cases regarding asylum law have been won, bringing about broader policy and legal change than the case itself. Important precedents include ECtHR Hirsi Jamaa (prohibiting pushbacks), CJEU N.S. (introducing structural requirements for asylum procedures under the Dublin system), and CJEU FMS (prohibiting closed transit zones for asylum seekers), which are all cases in which civil society actors (overtly or covertly) played a role in the designing and outcome of the case. Bringing such cases thus serves an important role in upholding rule of law standards, especially as supranational rules are not always implemented correctly at national level. Crucially, even if strategic litigation cases are not won on the merits, they can still have a positive impact by showing injustices or mobilizing others. Bringing cases can generate media attention, as the Dutch example shows here and here, and foster public debate on the issues it draws attention to. Although the political climate surrounding migration is not particularly favorable, there are examples of politicians such as MEP Tineke Strik who tirelessly continue to bring human rights violations in the field of migration in the EU to the table.

However, litigation of polarizing issues such as (im)migration can also pose a threat to the rule of law because it feeds into discussion of the separation of powers. It allows opponents to claim that the judiciary is overstepping and giving rise to a ‘counter-democracy’, and can give ammunition to those seeking to reduce the courts’ ability to review legislation and executive action. A case in point are the events in the UK. After (strategic) litigation efforts against the policy of the UK government to transfer asylum seekers to Rwanda, both before the European Court of Human Rights and national courts (specifically the UK Supreme Court), the UK government introduced the Safety of Rwanda Act. This Act, adopted in April 2024, explicitly forbids courts and tribunals from reviewing a decision on Rwanda as a safe country, which directly contravenes the decision of the UK Supreme Court. Moreover, there is no judicial power to enforce interim measures on the same matter from the European Court of Human Rights. This development raises serious concerns as to the system of checks and balances. In the Dutch context, politicians have turned their attention to the access to civil litigation based on art. 3:305a Civil Code, as parliamentarians want to make it more difficult for organizations wishing to litigate for idealistic purposes.

Conclusion

If the Dutch Court were to hold the government responsible, this would solve an accountability gap in Dutch and EU asylum policy. However, at the same time it is likely going to cause considerable political backlash from Dutch and other EU governments. This could, in turn, lead to further non-implementation of judgments and attacks on access to courts. Conversely, if the Dutch judge were to decide that there is no procedural ground to review the EU-Turkey deal, it would show, once again, the lack of effective judicial oversight of informal migration cooperation by the EU. This would deepen the severe deficiency in the system of checks and balances and by extension the rule of law in Europe. As Sarah Singer put it: ‘If government action remains unchecked, one might ask “First they came for the asylum seekers, who will they come for next?”’