Guest post by Dr Meltem Ineli-Ciger, Assistant Professor at the Suleyman Demirel University, Faculty of Law. She holds an LLM in international law and a PhD degree from the University of Bristol. Meltem has published widely in the area of international and European asylum law  and is the author of Temporary Protection in Law and Practice (Brill forthcoming). She currently acts as a consultant to the International Centre for Migration Policy Development (ICMPD) and her current research focuses on Turkish asylum law, Syrian refugees and the EU-Turkey cooperation in the field of migration. 

Today, Turkey is host to approximately 3.4 million refugees and asylum seekers, including more than 3.2 million Syrians. Due to its strategic location, Turkey has been a transit country for migrants and refugees, a necessary stop on their way to Europe. In 2015, nearly one million people arrived irregularly in Europe by sea, with more than 856,723 refugees and migrants traveling to Greece by sea from Turkey. This explains why cooperation with the Turkish government has become an essential part of the European policy to manage migration.

Photo: Angelos Tzortzinis/AFP/Getty Images

On 18 March 2016, EU and Turkey adopted the EU-Turkey Statement, which aimed to end irregular migration from Turkey to the EU. In particular, both parties agreed that ‘[a]ll new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.’ Since 20 March 2016, migrants who do not apply for asylum or whose applications have been declared unfounded or inadmissible in accordance with the Recast Asylum Procedures Directive, have been returned to Turkey. The legal basis for returning people is the ‘first country of asylum’ and the ‘safe third country’ rules, as enshrined in, respectively, Article 35 and Article 38 of the Recast Asylum Procedures Directive. These returns are assumed to be in line with EU law.

In a landmark decision, in September 2017, the Greek Council of State, that nation’s highest administrative court, upheld the earlier decisions of the Greek Appeals Committees that Turkey is a safe third country. Amnesty International noted that this decision can pave the way for forced returns of more Syrians from Greece to Turkey in the future. However, the view that Turkey can be considered a safe third country has been refuted by a number of organisations and scholars (see for example,  ECRE, Peers, Roman et al and Ulusoy and Battjes). In this blog post, I do not aim to repeat these arguments; I rather seek to point out an important gap in the EU Commission’s reports on the progress made in the implementation of the EU-Turkey Statement. This gap refers to the failure of its reports to account for the total number of people returned. 

As of October 2017, the EU Commission has published seven reports on the progress made in the implementation of the EU-Turkey Statement. These documents are among the few resources available to assess whether the EU-Turkey Statement arrangements are being implemented in a manner consistent with EU law, the Convention relating to the Status of Refugees (1951 Convention) and the principle of non-refoulement. However, there are a number of inconsistencies in these reports. 

The European Commission has noted, in its seventh report published in September 2017, that the total number of persons who have been returned from Greece to Turkey following the adoption of the EU-Turkey Statement is 1,896; of those, the report states, 1,307 were returned to Turkey under the EU-Turkey Statement and 589 under the Greece-Turkey Bilateral Protocol. The report clarifies that among those returned, 831 non-Syrians were subsequently returned to their countries of origin, while 57 non-Syrians submitted international protection applications to the Turkish authorities. All returned Syrians were pre-registered for temporary protection in Turkey with the exception of 16 persons who decided to return voluntarily to Syria; 19 Syrians decided to stay in the accommodation facilities provided by the Turkish authorities and 177 of them chose to live on their own.

The Commission, thus, gives an account of what has happened to 1100 persons who have been returned from Greece to Turkey since 20 March 2016. Even if it is assumed that the EU Commission reports only about the EU-Turkey statement returns, i.e. 1,307 persons, this fails to give an account of 207 returnees. What has happened to them? Have they been detained in Turkey pending removal? Have they returned to another state? Have they reached European shores via other routes? Are they living in Turkey as international protection applicants? These questions beg for an answer especially in view of allegations of violations of the non-refoulement principle and the right to effective remedy in Turkey.

Photo: europarl.europa.eu

A similar gap exists in all the previous EU Commission reports: for instance, in the sixth report, at least 255 persons who have been returned from Greece to Turkey, are left unaccounted for. These reports are published in order to explain what has happened to all those who have been returned from Greece to Turkey following the EU-Turkey Statement. One of their aims is to assure the public that no one is subjected to refoulement upon their return to Turkey; thus ascertaining that Turkey is indeed a safe third country. Therefore, the fact that these documents omit a considerable number of persons raises serious concerns about whether the returns under the EU-Turkey Statement respect the principle of non-refoulement and if they are being monitored closely enough.

The reporting gap may simply arise from a different calculation method employed by the EU Commission or from a simple mistake. If this is the case, it could simply be remedied with an additional explanation or a note in future reports. However, if the Commission cannot explain what has happened to the people unaccounted for in its reports upon their return to Turkey, this could raise serious questions regarding the conformity of the EU-Turkey Statement arrangements with EU law, the 1951 Convention and the principle of non-refoulement. If the EU Commission wishes to prove its claim that Turkey is a safe third country and to address the legal criticisms raised by a number of studies and NGO reports, it needs to provide credible and clear data on the returnees since March 2016 in a manner which leaves no room for doubt and uncertainty.

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How to cite this blog post (Harvard style)

Ineli-Ciger, Μ. (2017) Mind The Gap! A Closer Look at the Inconsistencies in the EU-Turkey Statement Progress Reports. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/10/mind-gap-closer (Accessed [date]).