Mass Influx migration and Turkish legislation on refugees

The issue of the Greek migration route

More than a year has passed since Turkey’s EU agreement came into play to regulate the relocation of irregular migrants and Syrian refugees. The statement signed on March 18th, 2016, is designed to stem irregular arrivals in Europe. In particular, the European Union sought to halt the so-called desperate journeys that have led thousands of people into drowning in the Aegean Sea and the Mediterranean. People have been fleeing for economic reasons or from war-torn countries, desperately trying to reach safe ports of arrival, such as Greece and Italy [1].

Unfortunately, these days the news coming from the South of Italy show an alarming truth: in Palermo, Catania, Augusta and Reggio Calabria there have been more than 2500 arrivals in the sole day of June 12, 2017, indicating a rising trend. For years, Europe has been dealing with this kind of “massive” immigration that has to do only in part with the Syrian conflict that is still underway since 2011. As a matter of fact, according to UNHCR data, since January 2017, there have been 83,650 arrivals by sea and migrants from the Syrian Arab Republic accounted for only 1.4%[1]. People arriving to Italy come mostly from Nigeria, Bangladesh, Guinea, Ivory Coast, Gambia, Senegal, Morocco, Mali, Eritrea and Sudan. However, where do these flows come from? UNHCR highlights that 97% of arrivals in Italy originate from Libya. Only a very small percentage embarks from Turkey. This seems to mean that one of the most effective measures to stop mass migration flows is to draw up specific agreements that involves cooperation between the governments concerned by such phenomena[2].

Indeed, the agreement between Turkey and the EU marks a new level of cooperation between Countries. Since the trend of arrivals in Greece was turning to a real plague both for Athens and for those migrants who are daily putting their lives at risk, the EU tried to find a solution to stem the issue. In 2011, the European Court of Justice found that 90 per cent of all irregular entries into Europe happened through the Greek borders, making it the major gateway of undocumented migrants and asylum seekers from Africa and Asia[3].

To prevent migrants from continuing to the Old Continent, addressing their hopes to smugglers and/or by continuing their exodus undertaking the Western Balkans route, the EU started a program of improvement of management and reception for the people who are reaching the Greek islands through the Anatolian peninsula[4].

But did it succeed? All in all, yes.

The EU-Turkey deal

One year on, the EU-Turkey Statement saw the collaboration between Greece, Turkey and the EU. Their actions led to a drop by 97% of illegal arrivals by sea on the Greek shores. Some data could be helpful to understand the situation prior to the implementation of the EU-Turkey Statement. In 2015 alone, more than one million people arrived in the EU. 885,000 of them reached the EU coasts through the Greek route: the large migration influx led to a complete collapse of the country’s registration hotspots.

Those people who could not register through the Greek reception centers usually continued their dangerous path through the Western Balkan route, to reach wealthier States in the heart of the EU territory. To protect its Eastern borders, the EU created an ad-hoc agreement between the Ankara government and the EU institutions. Signed in March 2016, the Turkey-Eu agreement committed to handle four main issues:

  1. After an individual assessment of their asylum request, in line with EU and international law, all new irregular migrants[5] or asylum seekers crossing from Turkey to the Greek islands would be returned to Turkey.
  2. For every Syrian being returned to Turkey, another Syrian would need be resettled to the EU from Turkey (1:1 mechanism of voluntary resettlement).
  3. The hand out of 3 billion Euros aimed at improving projects and facilities for migrants in Turkey.
  4. Improvements on Turkey’s talks for admission to the EU should be made, linked to the guarantee that Turkey’s people coming to EU Countries would not need to request VISAs anymore [6].

The last point resulted in a political fight, rather than a humanitarian commitment.

The positive outcome of the EU-Turkey statement, which entered into force on March 20, 2016, has been immediate: since the first day of implementation, the daily average of people who reached the Greek shores has dropped to 47 (prior to that, there were more or less 1,740 daily crossing to the Greek islands). In October 2015, in a single day, 10,000 people had reached Greece. Consequentially, the number of deaths in the Aegean decreased from 1,145 (number referred to one year before the statement), to 80 in the following year. Preventing migrants to follow the Greek route proved to be an effective strategy, at least from a life-saving perspective [7].

However, the Turkey-EU Statement has resulted controversial. This Statement was designed to keep Turkey as the main destination for migrants. In addition, there have been many allegations that claimed the incompatibility of the agreement with basic norms on refugees and migrants’ rights [8].

As repeatedly stated by the EU and the Member States of the EU, who warmly backed the entry into force of the treaty, those people who are going back to Turkey are only those who are irregular migrants or people not in need of international protections intercepted in Turkish waters, in line with EU and international law requirements and fully in respect of the non-refoulement principle. It is useful to notice that who applies for asylum in Greece has its own application treated on a case-by-case basis, in order to arrange reliable individual interviews and, whenever needed, rights of appeal; only after this process, migrants who are eligible and admissible to receive asylum, will be treated by the Greek authorities. Those people who are not considered admissible for asylum are readmitted to Turkey[9].

However, since a regime of protection for people who are migrating in search for international protection already exists, why do some States need an additional agreement to regulate migration influx? Are there not any principles of International Law aimed at protecting migrants?

Protection of individuals in international law

The core of international protection for refugees is governed by the 1951 Geneva Convention Relating to the Status of Refugees. In general, the territorial State is the direct responsible for the protection of citizens. When the state authority is no longer able to provide protection to the people within its borders, causing some of them to migrate in search of protection, the Convention comes into play. Therefore, this treaty acts as a “substitute protection” tool, to be applied in specific cases[10].

Individuals who leave their country for the reasons set out within the 1951 Convention may apply for the international protection status.

The right of an individual to apply for asylum, as well as the legitimacy of their request, is guaranteed and limited by two core principles outlined in the 1951 Geneva Convention:

Non-Refoulement Principle – It is the main tool according to which, individuals cannot be rejected and sent back to their country of origin, if requiring international protection in the country of arrival. It is a bedrock for what concerns international protection, as it is now accepted as a customary norm[11].

Criteria – Individuals must meet certain criteria for having access to international protection, thus receiving the refugee status. Requests are to be individually analyzed by the appropriate bodies, such as UNHCR, in collaboration with the state organs of the country of arrival [12].

When an individual does not meet the criteria for receiving international protection, they cannot, however, be rejected, according to the non-refoulement principle enshrined in Article 33 of the Convention. This principle is a useful tool which provides shelter, even though limited, to those who are not fully entitled to international protection, as no one can be rejected to their country of origin if there are risks of persecution for race, religion and other sorts of discrimination. Consequentially, whenever a country of origin is unable to fulfill its duties regarding the protection of citizens, migrants cannot be sent back hither.

However, if the International Convention on Refugees is so precise in claiming that every individual has the right to adequate protection, in accordance with the provisions of the Universal Declaration of Human Rights, in accordance with the bedrock of the principle of non-refoulement, then why is the Syrian migration crisis considered an emergency?

The answer is that the current migration constitutes “mass influx migration“.

The conundrum of mass influx migration and temporary protection

The 1951 Convention does not provide provisions regarding mass migration and the current situation only refers to the non-refoulement principle as valid in order to provide limited protection to aspiring asylum-seeking migrants.

In the so-called hard law, there is no definition of mass influx migration. Not even the 1951 Convention does express in this regard. As for soft law, there is a definition given by the UNHCR in the EXCOM CONCLUSION No. 100 (8 October 2004), that represents a non-binding principle and defines the “mass influx” situation as being characterized by three factors:

– Rapid arrival of migrants

– Inadequate absorption capacity of migrants by the State of arrival, particularly during emergency situations.

– The inability by states to properly process the individual requests of migrants for asylum[13].

In the case of mass migration flows, UNHCR is therefore suggesting to provide a so-called “temporary protection” which is not included in the 1951 Geneva Convention. This provision would give a pragmatic temporary protection to manage situations of mass migration crisis. For a short period of time (for instance, for as long as necessary for the analysis of refugee asylum applications or for a longer period in case of problems), temporary protection provides individuals with the protection of basic human rights and ensures minimum standards for individuals (above all, medical protection).

UNHCR already published a report on Temporary Protection (UNHCR EXCOM CONCLUSION N ° 22), defining its essential characters:

– Temporary protection is a complementary instrument to the achievement of the international protection status provided by the Geneva Convention of 1951;

– It is intended to provide a pragmatic support to exceptional and urgent cases such as mass migration flows;

– It should not be translated as an alternative to international protection, rather as a complementary tool for obtaining the international protection status.

To sum up, temporary protection should only be used as a complementary instrument aimed at achieving the international protection provided by the Convention and serves to safeguard the fundamental rights of the individual in the examination process of individual asylum applications. In addition, UNHCR is trying to ensure that this temporary protection is established as a customary rule in accordance with the principle of collective responsibility: if all countries have to comply with the non-refoulement custom, this means that they are collectively accountable for the protection of individuals who are forced to flee their home country to safeguard their own safety[14],[15].

Having considered that temporary protection owns a peculiar and important value for those who are seeking asylum in situations of large-scale influx, then why Turkey needed an ad hoc agreement with the EU?

The evolution of Turkey’s specific legislation on protection of individuals

Turkey’s case is one of a kind. In fact, its domestic legislation on the protection of incoming migrants is quite recent. It is worth recalling that Turkey ratified the 1951 Geneva Convention with a geographical limitation: refugee status can only be granted to those who have become refugees as a result of events occurred in Europe. For all other cases, Turkey respects the Convention by allowing temporary protection to incoming migrants, in accordance with the non-refoulement rule[16].

Due to the deterioration of the Ankara-Damascus relations, the sharpening of the Syrian civil war and as a legislative adjustment to foster the EU accession talks, in 2013 the Turkish government managed to implement a major reform to regulate the treatment of people seeking shelter in Turkey. The biggest challenge was posed by the regulation of thousands of arrivals of migrants who constitute a case of mass influx migration. The whole process translated itself in the Law on Foreigners and International Protection, adopted in 2013 by the Turkish President Abdullah Gül. This legislation has been warmly welcomed by the UN and the UNHCR as an important step forward to the adaptation to international standards of refugees’ protection[17].

As a matter of fact, this piece of legislation has been the first Turkish domestic law on foreigners requesting asylum ever.

Strange but true, the EU-Turkey statement of March 2016 helped Ankara to recognize a situation that already existed as a customary system. Under the Regulation on Asylum created in 1994, Turkey’s asylum process has always run in parallel with UNHCR. When non-European applicants for asylum were recognized as refugees by both Turkey and UNHCR, they became eligible for resettlement in third countries. No guarantees for a resettlement were actually given by new legislation, until the EU-Turkey statement set the necessary legal basis for, more non-European refugees to be resettled voluntarily to other European countries[18],[19].

To protect its domestic security, Ankara’s authorities still own a right to investigate fraud marriages and suspicious situations between their citizens and foreigners[20].  Moreover, according to Article 16 of the Law on Foreigners and International Protection, people who might pose a potential risk to Turkey are not eligible for VISAs and, therefore, do not fall under the international protection provided by the Geneva Convention of 1951, even if they still could be given temporary protection, in accordance with UNHCR’s EXCOM 22 conclusions.

Even though the obtained status should be complementary to achieving full international protection, such transition would result complex, as, according to Article 16 of the Law on Foreigners and International Protection, the asylum requests of such individuals under temporary protection are automatically blocked.

These people end up being in a sort of limbo, and the only way to receive Turkish citizenship (as a response to the inability of receiving international protection) is through marriage with Turkish citizens or through adoption.

Article 91 and 92 of the Law are trying to stem the problem, as they take into consideration that those who arrive in Turkey and do not have the possibility to return to their country of origin can receive temporary protection. The Directorate General for the Management of Migration of Turkey (DGMM) will have to work with the United Nations, UNHCR and NGOs to create bodies to provide a correct and adequate analysis of requests for international protection.

The EU-Turkey pact

The EU-Turkey Pact is inserted in this context.  The first purpose of the statement is to limit the mass migration of Syrian origin, as well as irregular migrations, giving to both Greece and Turkey proper tools to face the emergency. Turkey has always undertaken an open-door policy without having a clear internal law regulating international protection (the geographic reserve set by Turkey to the 1951 Geneva Convention limits its effect). The EU-Turkey statement consists of a complementary protection aimed at filling the gaps left by Turkish migration legislation. Nevertheless, the agreement does not tend to follow sources of law, being instead an ad hoc agreement to try and stop the issue of migrants. Human rights in this sense are considered secondary, even though still crucial for the good implementation of the agreement.

The pact is indeed in line with European and universal humanitarian law, however, some unresolved issues are challenging its effectiveness:

– The Pact is a political statement rather than a keeper and warden of human rights;

– Doubts have arisen on whether Greece and Turkey may be considered as safe first or third countries (many NGOs and international organizations denounce that the treatment of migrants in these countries is inappropriate and many basic human rights are not safeguarded). The EU-Turkey Joint Plan defines Turkey as a safe-third-country; therefore migrants (in this case Syrian), can be resettled from Greece without any particular legal issues;

– The ability to analyze asylum requests by the bodies in these countries is inadequate.

In conclusion, the need for encouraging agreements that could trigger a virtuous cycle of leading to more countries being able to host and give the necessary protection to migrants is highly necessary. International agreements such as the 1951 Geneva Convention are fundamental tools to provide a legal basis for refugees. However, there are no effective measures for enforcing this legislative framework. Indeed, many countries are still not relocating nor even pledging to relocate refugees who arrive to Greece and Italy.  Hungary never accepted to share the responsibility of other countries’ migrants, even after the adoption of the Council Decision establishing provisional measures in the area of international protection for the benefit of Italy and Greece[21]; Poland halted the process of relocation in April 2016; Czech Republic has withdrawn from the implementation of the provision since May 2016. Since August 2016, the Country has relocated only 12 applicants from Greece and none from Italy.

The EU should work as a leader to enhance the reception capacity, not only as a compulsory action but also as a fundamental value inherent in the EU project. Unfortunately, at the latest meeting in which the Ministers of Interiors of the 27 Member States were supposed to find a definitive solution to the relocation problem held in Tallin, on July 6, 2017, EU Members rejected the Italian proposals to open more EU ports to migrants – request made in an attempt to relieve the burden and the pressure on the ports of just one country.

In addition, the plan to open migration centers in North Africa found only a timid support: even though possible in theory, the problem would not be solved by any of these kinds of panaceas, as it is not possible preventing people from reaching EU borders. Agreements with Tunisia, Libya, and Egypt to halt smugglers and human traffickers are only an option on the table, albeit difficult to put in practice, since there are no signs that those States are willing to keep refugees within their borders[22].

In this particular context, the Turkey agreement should be reconsidered as an attempt to show EU Countries that it is possible to host a little percentage of foreigners. All thing considered, Turkey is hosting 3,800,00 migrants and refugees: 3,269,258 of them are seeking international temporary protection, while 530,606 migrants are trying to work, study and join their relatives[23]. All 27+1 Members State of the European Union are currently hosting 5,2 million of refugees. These numbers speak for themselves[24].

Samuele De Tomas Colatin – June/July 2017


Samuele De Tomas Colatin is one of the Founders and former Members of the Board of the Venice Diplomatic Society (VDS). He is now Director of the VDS Press Team.

He graduated in International Relations in 2017 at Ca’ Foscari, University of Venice. His Master’s Dissertation deals with the UN Security Council and the Syrian Crisis (The Syrian Crisis and the UN Security Council system: An International Law Stalemate). In particular, he analyzes the R2p doctrine in the Syrian context and the involvement of the International Criminal Court (ICC) to end the impunity for grave violations of human rights.

In 2016, he undertook an internship at the Italian Embassy in Ankara, Turkey, where he covered the process of implementation of the EU-Turkey agreement on the resettlement of refugees.


NOTES

[1] UNHCR data, Mediterranean Sea, data updated 30th June, 2017, available at:  https://data2.unhcr.org/en/situations/mediterranean/location/5205

[2] UNHCR, Italy sea arrivals dashboards, pdf available at: https://data2.unhcr.org/en/documents/download/57750

[3] International Organization for Migration (IOM), Greece data available at: https://www.iom.int/countries/greece

[4] European Commission, Commission welcomes Member States’ agreement on Refugee Facility for Turkey, available at: https://ec.europa.eu/home-affairs/what-is-new/news/news/2016/20160204_1_en

[5] In the official EU-Turkey statement, the definition of irregular migrants means those people not in need of international protections, namely those migrants not applying for asylum or whose application has been found unfounded or inadmissible according to UNHCR Asylum Procedures Directives).

The Asylum Procedure Directive, pdf available at: http://www.unhcr.org/protection/operations/4a9d12ef9/asylum-procedures-directive.html

[6] Consilium Europa, EU-Turkey statement, 18 March 2016, available at: http://www.consilium.europa.eu/en/press/press-releases/2016/03/18-eu-turkey-statement/

[7] European Commission – Fact Sheet – Implementing the EU-Turkey Statement, 8 December 2016, available at: http://europa.eu/rapid/press-release_MEMO-16-4321_en.htm

[8] Amnesty International led a strong media campaign against the EU Turkey deal, as according to depositions and interviews to refugees and migrants affected by the negative externalities of the statement, every individual arriving irregularly on Greek islands – including asylum-seekers – should be returned to Turkey. This fact constitutes a case of collective expulsion and a breach against the principle of non-refoulement.
Amnesty International, The EU-Turkey deal: Europe’s year of shame, available at: https://www.amnesty.org/en/latest/news/2017/03/the-eu-turkey-deal-europes-year-of-shame/

[9] Frontex, How does the readmission process work?, available at: http://frontex.europa.eu/pressroom/faq/frontex-s-role-in-eu-turkey-statement/

[10] UNHCR, The 1951 Refugee Convention, available at: http://www.unhcr.org/1951-refugee-convention.html

[11] 1951 Geneva Convention Relating to the Status of Refugee, Article 33.

[12] UNHCR, UNHCR Note on the Principle of Non-Refoulement, available at: http://www.refworld.org/docid/438c6d972.html

[13] UNHCR, EXCOM CONCLUSION No. 100 (8 October 2004), available at: http://www.unhcr.org/excom/exconc/41751fd82/conclusion-international-cooperation-burden-responsibility-sharing-mass.html )

[14] UNHCR, EXCOM CONCLUSION No. 22, 21 October 1981, available at: http://www.unhcr.org/excom/exconc/3ae68c6e10/protection-asylum-seekers-situations-large-scale-influx.html

[15] UNHCR, Guidelines on Temporary Protection or Stay Arrangements, February 2014, pdf available at: http://www.unhcr.org/protection/expert/5304b71c9/guidelines-temporary-protection-stay-arrangements.html

[16] Human Rights Watch, Turkey’s geographical limitations, available at: https://www.hrw.org/reports/2000/turkey2/Turk009-10.htm

[17] AIDA, Introduction to the Asylum context in Turkey, available at: http://www.asylumineurope.org/reports/country/turkey/introduction-asylum-context-turkey

[18] The Law Library of Congress, Constance Johnson, Turkey: New Law on Foreigners and International Protection, April 18, 2013, available at: http://www.loc.gov/law/foreign-news/article/turkey-new-law-on-foreigners-and-international-protection/

[19] Unfortunately, as demonstrated by the table Member States’ Support to Emergency Relocation Mechanism from Italy and Greece, the difference between the numbers of the places formally pledged and the remaining places for commitment for each Country is high. This is due to the capacity of the hotspots to analyse in a reasonable period of time the numerous requests for asylum. As of 16.5.2017, 62,000 migrants are still present in Greek territory. In Italy, 45,130 migrants have arrived since the beginning of 2017, a 40% increase compared to the same period of 2016. Although the vast majority of the arrivals do not belong to nationalities in clear need of international protection, they still need a qualification for eligibility for relocation.

European Commission, Twelfth report on relocation and resettlement, pdf available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170516_twelfth_report_on_relocation_and_resettlement_en.pdf

[20] Republic of Turkey, Ministry of Interior, Law on Foreigners and International Protection, Article 37. Full law in English available at: http://www.goc.gov.tr/files/files/eng_minikanun_5_son.pdf

[21] EUR-LEX, COUNCIL DECISION (EU) 2016/1754 of 29 September 2016, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32016D1754

[22] Politico EU, Germany rejects Italian proposal to open EU ports to migrants, available at: http://www.politico.eu/article/germany-rejects-italian-proposal-to-open-eu-ports-to-migrants/

[23] Data found in the IOM Turkey Compendium, updated March-April 2017, full pdf available at: http://www.turkey.iom.int/compendium.pdf

[24] Lenius, Quanti sono i rifugiati in Italia e in Europa?, available at: https://www.lenius.it/quanti-sono-i-rifugiati-in-italia-e-in-europa/