Politics & The World

On 20 March 2016, the siblings Javid and Nahid Raoufi and their friend Abdul Majid Rahimi arrived on the Greek island of Chios after having fled Afghanistan via Turkey. Upon arrival, they were detained in the so-called „Hotspot“ of Vial, an EU-initiated registration facility for asylum seekers converted into a detention centre. There, they had to endure abhorrent detention conditions: neither did they have access to medical care nor was the food sufficient or of acceptable quality. The sanitary conditions were appalling, with frequent cuts in water supply and extremely dirty toilets and showers.

Their story is not only one about personal suffering, but about the EU abandoning its commitment to human rights and international protection in the name of migration control. The day Mr and Ms Raoufi and Mr Rahimi reached Chios, the EU-Turkey statement of 18 March 2016, known as the EU-Turkey Deal, entered into force. It declares that any irregular migrant arriving on the Greek islands from Turkey will be sent back. This includes asylum seekers with inadmissible or unfounded claims. In exchange, the EU promised to resettle one Syrian from Turkey for every Syrian returned and to put in place a humanitarian scheme to take in more Syrian refugees from Turkey. The EU furthermore pledged to provide 6 billion € to support Syrian refugees in Turkey and to allow Turkish nationals visa-free entry into the Schengen Area. It is probably not very contentious to state that deporting asylum seekers to a country which hosts 3 million refugees, is mired in civil war and governed in an increasingly authoritarian fashion can hardly be considered a policy of providing international protection in a spirit of solidarity. What is more, the implementation of the deal raises serious questions as to its compliance with human rights and EU asylum law.

At Vial, Mr and Ms Raoufi and Mr Rahimi claimed asylum and on 19 April they filed a complaint with the European Court of Human Rights. They claim that they had not been informed of the reasons for their detention, that their detention was arbitrary and that they did not have access to legal aid or representation. Greek law allows for the detention of asylum seekers of up to 25 days with a possible extension of up to 3 months. The current policy appears to be to detain anybody arriving irregularly on the Greek Aegean islands for 25 days and then to release them with a restriction order, limiting freedom of movement to the island concerned, but the three claimants have been detained for longer. The complaint also alleges that the detention conditions at Vial amounted to inhuman and degrading treatment. The claimants’ reports in this regard have been confirmed by NGOs such as Human Rights Watch: In both the open and the detention sections of the “Hotspots”, extreme overcrowding forces people to sleep on the floor and in small tents. The hygienic conditions are extremely poor, with toilets overflowing and feces covering the surrounding floor. Medical care is either absent or insufficient and asylum seekers report frequent violent clashes and high levels of sexualized violence and harassment, which the Greek authorities did not provide protection against. Frequently, women, families and unaccompanied minors are not provided separate accommodation.

This state of affairs violates EU asylum law and the European Convention on Human Rights in multiple ways. Under the EU Reception Conditions Directive, detention of asylum seekers must be based on an individualized assessment. It may be applied only if a less coercive measure would not be adequate and if it is necessary and proportionate to achieve a legitimate aim. The policy to automatically detain all asylum seekers violates these requirements. Furthermore, both the EU Reception Conditions Directive and the European Convention on Human Rights require that detainees must be informed about the reasons of their detention and be granted the possibility to challenge its legality before a judge – this did not happen in the case of Mr and Ms Raoufi and Mr Rahimi. Unfortunately, this seems to be the norm rather than the exception.

Furthermore, the European Convention on Human Rights prohibits inhuman and degrading treatment; the EU Reception Conditions Directive grants asylum seekers an adequate standard of living which guarantees subsistence, protects mental and physical health and, in any event, covers basic needs. The European Court of Human Rights has repeatedly held that detention conditions in Greek detention facilities for asylum seekers amounted to inhuman and degrading treatment – the claimants had been detained in overcrowded facilities under appalling hygienic conditions, without access to showers or clean toilets. Judging by the complaint of Mr and Ms Raoufi and Mr Rahimi as well as NGO reports, EU funding and support have not prevented the same deplorable and illegal detention conditions from materializing in the „Hotspots“.

Besides the illegality of the detention practice, the plan to return asylum seekers whose application is declared inadmissible to Turkey raises serious legal issues. This part of the deal is applied via admissibility interviews on the basis of which the Greek Asylum Service determines if Turkey is a safe third country or a first country of asylum for the interviewed asylum seeker – the logic being that a person for whom this is the case can avail themself of protection in Turkey.

For a country to be a safe third country under the EU Asylum Procedures Directive, there may neither exist a risk of persecution nor of serious harm, e.g. through torture or armed conflict. Furthermore, there must be no risk of a further deportation to a situation where such risk exists and there has to exist the possibility to apply for refugee status and to receive protection in accordance with the Geneva Refugee Convention. For a country to constitute a first country of asylum, the applicant must have been granted refugee status or enjoy an otherwise „sufficient protection“ in that country. It seems logical to assume that the requirements for such sufficient protection should be as demanding as they are with regard to the safe third country standard.

As of 15 June, the Greek committees that decide on the appeals against inadmissibility decisions of asylum claims have denied that Turkey is a safe third country in 70 out of 72 cases. This is because there are NGO reports about mass expulsions of asylum seeking Iraqis and Syrians to their countries of origin from Turkey as well as about violent rejections of asylum seekers at the Turkish borders. Furthermore, the committees doubt that the temporary protection status which Syrian refugees are granted in Turkey amounts to protection in accordance with the Geneva Refugee Convention, as it is often only granted with unacceptable delays, does not allow for access to the labour market and is only of temporary nature. Non-Syrians can obtain a „conditional protection“ status – however, this hardly seems to be applied in practice. Against this backdrop, returns to Turkey cannot be considered safe, although the Turkish government has provided assurances that deported Syrians will be granted temporary protection and that other returned persons will be protected from deportation to a situation where their life or liberty would be at risk. The appeals decisions demonstrate that the Greek institutions are capable of providing an independent scrutiny of the deal’s implementation. But as they call into question the entire scheme, they also put the Greek administration under enormous political pressure to overcome this obstacle to a smooth execution of the deportations.

The EU Commission maintains its assessment that Turkey is a safe third country and that the temporary protection available to Syrians amounts to protection in accordance with the Geneva Refugee Convention. It welcomed a recent reform which changes the composition of the Greek appeals committees and scraps a second hearing before the appeals decision – ostensibly to speed up proceedings. Most commentators however fear that the recomposition of the committees will undermine their independence; in an open letter, members of the previous appeals committees accused the Greek Migration Ministry of recklessly trying to clear the way for mass deportations to Turkey.

Hence, the implementation of the EU-Turkey deal violates EU asylum law and the European Convention on Human Rights in multiple ways: with regard to the legality of the detention of asylum seekers in Greek „Hotspots“, the appalling detention conditions and the assumption that asylum seekers can safely be returned to Turkey. This has not hindered the deal’s implementation, although article 2 of the Treaty on European Union declares respect for human dignity, human rights and the rule of law to be amongst the EU’s founding values. The EU and its member states seem content to betray their values, as long as this brings down the arrivals of asylum seekers at their shores. It is people like Mr and Ms Raoufi and Mr Rahimi who bear the cost. Ms Raoufi reportedly intented to commit suicide twice since being detained.



Simon Rau also published this article already in March on the Mercator Blog: https://nefia.org/blogs/Simon-Rau/The-implementation-of-the-EU-Turkey-Deal-betrays-European-Values

Politics & The World

by Louise Bicknese

Lately, with the process of increasing European integration, votes have gone up to develop a common European migration policy. The advantages are obvious: more clarity for the immigrant, a more regular distribution of immigrants over all member states (right now, 50% of immigrants go to 5 of the 28 member states), and less refugees getting lost in or out of the system and ending up on the streets. So why is it not here yet?

The answer is simple. A common policy 1) would be quite a harsh intrusion of states’ sovereignty and 2) the collection of European migration policies is incredibly diverse. Even within member states, immigration is a popular subject of debate and a headliner on political party programmes. Migration policies in the European Union comes in all sorts and flavours and right now, it is difficult to see an extensive common policy developing through so many different opinions. Point number one could be refuted by Article 63a in the Treaty of Lisbon, which gives the Union the right and competence to ‘develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States…’[]

Point number two, however, invites a more complicated debate. First of all, countries who are dealing with a less severe immigration problem have no incentive to participate in the ‘burden sharing’ which Mr. Schulz, President of the European Parliament is so eagerly encouraging. This is already visible in the stance of the Dutch State Secretary of Justice, Fred Teeven, who is of the opinion that we should not necessarily aid boat refugees on the Mediterranean Sea, but rather offer help in the conflicted regions themselves – a very different opinion than the ones generally offered by European officials and politicians of southern European member states, who face this problem every day.

Then there is the ever-returning problem of diversity in member states’ policy. To illustrate this, we may look at Denmark, France and Germany and the focus of their immigration and integration policies. Denmark, for example, relies heavily on economic integration as the means but also as the goal of integration. This is combined with relatively closed borders; they almost never allow family or marriage migration, for example. Sanctions will be enacted if an immigrant does not show enough effort in finding a job. In France, however, it is a taboo to make a law for one specific group (in this case, immigrants or minorities) because of their historically essential ideas of equality and brotherhood. They spend a lot of money and resources on a contract between immigrant and state and target the first five years of residence in France as an important phase in integration. Lastly, Germany has some problems coordinating its policy between the national and regional level and the very important NGO’s. Their focus lies mainly with youth: 25% of immigrants are below 25. It is however interesting to see that Germany already has problems coordinating its policy within the state; imagine what kind of problems this could cause when applied to the entirety of Europe.

Even though most Western European countries are struggling with immigration problems and the call for a European policy is understandable, it is hard to see or predict which form this policy would have. Is it possible to find consensus between member states whose problems are quite different, say Spain and Finland? Spain houses 14,77% of non-EU immigrants while Finland stays at just 0,58%. The original nationalities of these immigrants differ as well: Spain’s foreign citizens are mostly from Morocco, Ecuador and Colombia. In Finland, however, they are mostly from Afghanistan, Iraq, Thailand, Somalia and China.

Different groups of immigrants have different needs and the European Union has to avoid the trap of making a policy which is too generalizing. This lack of attention to specific needs for different kinds of immigrants could possibly hurt them even more than the current system. However, if the policy is too complicated, the current despised bureaucracy could become even worse.

From these observations, the conclusion can be drawn that even though a common European migration policy could solve a lot of problems, the content of this law will be subject to a lot of discussion. Finding a balance between diversity and unity requires quite a lot of rope-balancing and the needs of the member states will often be in conflict with the needs of immigrant. A common policy would be a befitting next step in integration – nevertheless, the migration problem is probably one of the hardest to be tackled.