In March 2016, Brussels and Ankara struck an agreement on the return of migrants in exchange for financial support.

Shortly after the refugee crisis of 2015 and in order to reduce the number of incoming migrants to EU countries, especially to Greece, the European Union and Turkey agreed on a so-called Joint Statement – an agreement to cooperate on the flow of refugees into the EU.

Initially, the German government took the lead and approached the Turks. Later, it was EU Commission Vice-President Frans Timmermans who negotiated the deal with Ankara. The governments of the EU member states supported the declaration.

In it, Turkey agreed to take back migrants arriving irregularly in the Greek islands. For each Syrian refugee returned to Turkey in this way, the EU agreed to accept another Syrian from Turkey entitled to protection under the international conventions, up to a limit of 72,000. This was dubbed the “1:1 Mechanism”.

The central idea of the joint statement was to provide adequate protection and prospects for refugees in Turkey to prevent them from migrating to the EU illegally or through human smugglers.

Main elements of the deal

  • Turkey to better protect its borders with Greece and Bulgaria to prevent migrants from entering the EU
  • Anyone who arrives in Greece illegally as a refugee or migrant is to be sent back to Turkey
  • For every person returned by Turkey, a migrant already there is allowed into the EU
  • Humanitarian aid to refugees is provided within Turkey; the EU is to pay €6 billion in two tranches over a period of four years for activities and projects to support migrants in Turkey.
  • The common customs union between the EU and Turkey is to be strengthened
  • EU accession (membership) talks with Turkey are to be revived
  • Visa-free travel for Turkish citizens to the EU is envisaged, subject to certain conditions
  • Once irregular crossings between Turkey and the EU have been substantially reduced, a Voluntary Humanitarian Admission Scheme is to be activated

Since the adoption of the Statement and the Action Plan, the number of refugees and migrants arriving irregularly in the EU via the Aegean Sea dropped significantly.

However, very few irregular arrivals were returned to Turkey under the 1:1 Mechanism. In 2019, for example, less than 200 migrants were deported, against a backdrop of 48,550 new arrivals coming from Turkey into the EU. The figure of irregular arrivals from there dropped significantly, by around 70 percent, in 2020, according to a confidential report by the EU Commission. It is now at the lowest level since 2015.

However, in February 2020, Turkey temporarily opened its borders and encouraged migrants to move on to Greece. Tens of thousands attempted to enter Greece and were fought back with drastic means by Greek border police.

Only a few managed to enter EU territory, despite claims of Turkish officials that up to 75,000 people had moved into the EU. This affair caused strong frictions between Ankara and Brussels – on top of existing tensions over a range of other issues. It also led to claims that the 2016 agreement was no longer operational.

Prior to that, Turkey alleged that the EU had reneged on its commitments under the deal, including the promise of visa-free travel for Turks and an acceleration of the EU membership talks.

Financing

The €6 billion in financial assistance for the care of refugees in Turkey was to be paid out over the course of four years, until 2019. These funds were earmarked and paid to well-established aid organisations (UNICEF, UNHCR, etc.) as well as local project partners. The money was not paid directly to the Turkish government.

According to the EU, the funds allowed for the construction of more than 180 hospitals and health centres with a total of 2,900 medical staff. In addition, more than 300 new schools were built, allowing around 685,000 refugee children to attend school and employing 4,000 teachers. Moreover, 700,000 refugee children have received vaccinations and around 2 million pregnant women gynaecological examinations.

The funds are managed by the EU Facility for Refugees in Turkey and distributed through aid agencies and project partners on the ground.

Turkey repeatedly accused the EU of reneging on its commitments as not all of the €6 billion had been disbursed until the end of 2019. Today still, only €4,5 billion were spent by the EU for Syrian refugees in Turkey.

EU values at stake

Human Rights & Rule of Law

Asylum is granted to people fleeing persecution or serious harm in their own country and therefore in need of international protection. Asylum is a fundamental right across the EU, and granting it is an international obligation. This was first recognised in the 1951 Geneva Convention on the protection of refugees. The NGO Human Rights Watch claims that this treaty “contradicts EU principles guaranteeing the right to seek asylum and against collective expulsions”.

Common EU-wide asylum procedures are governed by the Asylum Procedures Directive of 2013, which binds all countries except Ireland and the UK. It includes different administrative processes for examining an application for international protection. Beyond the regular procedure, European countries apply accelerated, border and admissibility procedures.

Member states must register an asylum application within three working days if the application is made to the authority competent under national law for such registration, or no later than six working days if it is made to other authorities who are likely to receive asylum applications but are not competent to register them, such as for instance at the border or in detention.

The time limit for registration can be extended to ten working days in case of large numbers of third-country nationals applying for asylum simultaneously. Some EU countries, e.g. Belgium or Cyprus, have time limits for making an application after entering the territory. However, a person who has made an asylum application must have an effective opportunity to lodge the asylum application as soon as possible. EU member states may require that asylum applications are lodged “in person and/or at a designated place”. The new fast-track procedure has been found detrimental to human rights as minors and survivors of sexual assault are not given the necessary care. Reception facilities have been turned into detention centres not equipped to deal with vulnerable asylum seekers. The EU-Turkey deal has deteriorated the conditions of life of migrants, all concentrated on the Greek territory. Camps are over-capacitated and EU members lack cooperation.

The Dublin Regulation enhances the protection of asylum seekers during the process of establishing the State responsible for examining the application, and clarifies the rules governing the relations between states. It creates a system to detect early problems in national asylum or reception systems, and address their root causes before they develop into fully fledged crises.

The EU asylum rules allow member states in certain clearly defined circumstances to declare an application “inadmissible”, i.e. to reject the application without examining the substance. There are two legal possibilities that could be envisaged for declaring asylum applications inadmissible, in relation to Turkey:

  1. First country of asylum (Article 35 of the Asylum Procedures Directive): where the person has been already recognised as a refugee in that country or otherwise enjoys sufficient protection there;
  2. Safe third country (Article 38 of the Asylum Procedures Directive): where the person has not already received protection in the third country but the third country can guarantee effective access to protection to the readmitted person.

Particular attention has to be paid to the situation of vulnerable groups, in particular unaccompanied minors – all decisions must be “in their best interests.” Moreover, specific attention is given to persons who have members of their close family in EU member states. All asylum seekers can appeal a negative decision and are guaranteed the right to stay on EU territory pending that appeal.

The EU agreement with Turkey states that the return of migrants to Turkey will “take place in full accordance with EU and International law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of “non-refoulement”. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order.

“Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey.”

In practice, this means that people who apply for asylum in Greece will have their applications treated on a case by case basis, including interviews, individual assessments and the rights of appeal if rejected. The EU has repeatedly stressed that there would be no blanket or automatic returns of asylum seekers to Turkey. It has however proven difficult to assess the vulnerability of an individual going through the fast-track procedure. Moreover, illegal migrants arriving to Greece and qualifying for international protection can be sent back to Turkey as a group, which may be argued to be a collective expulsion contrary to EU principles.

The bilateral agreement automatically recognises that Turkey is a safe country to send back migrants. Reports in the camps and a number of judicial decisions by national EU courts have determined that it is not the case. Turkey has been proven to send back migrants to war zones and unsafe states.

Human dignity

The EU has committed to upholding humanitarian standards for all migrants. Migrants who enter the EU in an irregular way are being sheltered and provided with basic necessities in Greece. They are also registered there.

In addition, under the agreement between Turkey and the EU, many of the refugees sent to Europe have special needs. Ankara was criticized in 2016 by Germany for not allowing highly qualified asylum seekers to leave the country. According to reports, Turkish authorities repeatedly withdrew travel permits that had already been granted because the refugees had been found to be well-trained engineers, doctors or skilled workers.

The EU is committed to providing funds for refugees and migrants stranded in Turkey. In the meanwhile, Turkey keeps asking for more funds as it argues that it cannot provide for adequate living conditions for all migrants on its territory. It has also asked for less supervision of the financing by the EU so that it can allocate it itself.

Freedom & Security

The EURODAC Regulation was adopted to allow law enforcement officers access to the EU-wide database containing the fingerprints of asylum seekers in order to prevent, detect or investigate the most serious crimes, such as murder, and terrorism.

Freedom of movement within the EU only applies to EU citizens, not asylum seekers. However, the EU Family Reunification Directive also applies to refugees, which means that they have a right to bring in members of their family once accepted as a refugee.

Democracy

When the 2015 migration crisis struck the EU, many member states – while initially open to welcoming refugees – tried to closer their borders, following the influx of large numbers and pressure from population. In various countries, far-right or populist parties exploited the migration issue for their benefit, forcing government to take a much harder stance. This was visible in Austria, Germany and a number of other countries.

Member states in central and eastern Europe refused squarely to take in any refugees, causing severe resentment in other member states. This eventually led to pressure on the European level to better protect the EU’s external borders against illegal immigration.

The EU-Turkey agreement can therefore be seen as expressing the will of a majority of European citizens, despite criticism of it by human rights organisations and others.

Legal aspects

While the EU-Turkey statement of March 2016 is basically a statement of intent, it is based on the premise that people who do not have a right to international protection can be immediately returned to Turkey. However, the legal basis for the return of rejected asylum seekers is the 2013 “Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation”, which replaced a bilateral agreement between Greece and Turkey.

This agreement was signed by then EU Commissioner Cecilia Malmström and the Turkish government in 2013 and approved by the Council of Ministers. Similar agreements exist between the EU and other third countries that are considered “safe havens” for refugees and migrants.

However, human rights groups have criticized the agreement over Turkey’s lack of substantial human rights with respect to migrants and refugees, including arbitrary detention or deportation despite being eligible for refugee status. Also contentious is discretion left to the authorities of an EU member state when examining protection claims and inconsistent respect of international obligations in connection with the treatment of intercepted irregular migrants subject to readmission returns, therefore undermining the right to asylum in the EU. NGOs have also accused a lack of transparency, monitoring and accountability over the implementation of the agreement with Turkey.

Was it effective?

The implementation of the agreement is overseen by a joint working group made up of the European Commission and representatives of the Turkish government. Despite recent rows and hiccups, it appears that the agreement has contributed to a reduction in the influx of migrants coming to Europe from Turkey.

Nonetheless, Ankara has turned lukewarm on honouring its commitments, which was on display in the spring of 2020 when Turkey temporarily opened its borders to Greece. Moreover, political tensions have arisen between Turkey and the EU countries over a lack of progress with the accession talks and visa-free travel for Turks. Many in the EU, including governments and a majority in the European Parliament, want to freeze EU accession negotiations with Turkey, which have been ongoing for almost 20 years.

Human rights organisations also point to the fact that few of the more than three million migrants currently in Turkey benefit from this agreement and from financial aid by the EU. Syrians in particular in Turkey live below the poverty line, and are often detained in Turkish detention centres pending their local asylum application. Rejected asylum seekers are often deported to their countries of origin, including to Syria.

It is also contentious that Turkey can be considered a “safe third country”. Critics argue that the EU-Turkey deal has eroded the rights of refugees and migrants and prolonged their legal, physical and psychological insecurity. It is true that Turkey has the highest number of refugees, with 4 million people (including 3,6 million from Syria). However Turkey has deported hundreds of refugees back to the Syrian border since 2014, violating the principle of non-refoulement. Overall, human rights of migrants are not protected in Turkey to the extent required by EU values.

Authors: Hélorie Duval/Michael Thaidigsmann