European Union and migration

Referring to the long lasting protectionist and selective immigration policy of EU, Henk van Houtum and RoosPijpers claims that Europe has come to `resemble a gated community in which the immigration is a matter of over control and management'(Pijpers, 2007 ). The ten points of immediate actions and following regulations for relocation with selective and discriminatory approach have actually proved the continuity of `gated community' understanding in the EU asylum regime.

Sharing responsibility through solidarity mechanisms must be a priority for the EU and Member States, however any kind of enforced obligation without the political will and consent of the member state might be deteriorating rather than beneficial for the long term coherence in EU asylum regime. It should be carefully implemented, monitored and assessed by EU institutions.

Chapter III. Analysis of the EU-Turkey Deal

The deal between Turkey and the EU is considered as turning point or `historical shift' by some in regards with the development of refugee crisis and European policy response. Most of the EU leaders and also Turkish Prime Minister, Ahmet Davutoglu, glorified the deal by claiming that this is a historical moment. European Commission President Jean-Claude Juncker called the plan a `real game-changer' by insisting that it is `legally feasible'See the article; https://www.yahoo.com/news/eus-tusk-says-days-irregular-migration-europe-over-010404789.html?ref=gs while German Chancellor Angela Merkel also expressed her feeling by saying that she is `confident that the deal gave Europe the tools it needs bring the refugee crisis under control. We hope that the irregular immigration will come to an end. I think Europe will succeed in passing this difficult test.” See the article; http://www.independent.co.uk/news/world/europe/turkey-deal-eu-leaders-finalise-historic-agreement-to-stem-flow-of-refugees-a6940341.html

However, in consideration of the core values of the EU asylum regime, the deal raised several critical questions and considerable legal and political controversies expressed by human rights organizations, some political groups and especially by the volunteers and activists working on the ground.

Mark Provera, policy and advocacy analyst for Jesuit Refugee Service Europe, described the main concerns about the deal in a very clear way:

“The EU-Turkey deal represents a seismic shift in the European Union's policy towards forced migrants and its international protection obligations. The deal is historic but, regrettably, for all the wrong reasons - it represents a serious challenge to the basic principles of international refugee law, the rule of law and democratic accountability.” (Provera, 2016)

In order to be able to provide a better analysis, there is a need to understand the political landscape of the Europe by 2016 which paved the way for the agreement.

3.1 Political Agenda and Context

3.1.1 Consolidating Anti-Immigrant Narrative in European Political Landscape

Since the dramatic photos of shipwrecks or dead bodies on the shores appeared on European media in 2015 and led the public opinion move towards a rather humanitarian position, several important incidents in European countries have changed the political atmosphere. Those incidents affected public debates and political actions of the institutions in the following period which ended up in the deal with Turkey. Significantly the most crucial event was the terror attack in Paris, in November 2015, which left behind 130 people dead and hundreds wounded. See the article in; http://www.bbc.com/news/world-europe-34818994 After the incident, “We are in war!” was the response of French President Hollande accompanied by the declaration of state of exception with army forces involvement for security in the country. A similar tragedy of the terror attack also occurred in Brussels, the capital of the EU, in March, with 32 victims and three perpetrators were killed, and over 300 people were injured. See the article in; http://www.bbc.com/news/world-europe-35911401

Another crucial incident, which could be assumed as influential on the political narrative about the refugees and migrants, took place in Germany on New Year's Eve. According to the police reports, hundreds of sexual harassments and abuses towards woman happened in the Cologne Central train station on New Year's Eve. Although the German police has never reached to a concrete link between the incident and refugees, the speculations helped anti-immigrant groups, especially PEGIDA (extreme right wing party in Germany), increase the tone of objections towards Germany's `open border' policy. See the article in; http://www.independent.co.uk/news/world/europe/cologne-only-three-out-of-58-men-arrested-in-connection-with-mass-sex-attack-on-new-years-eve-are-a6874201.html Immediately after the incident Angela Merkel agreed a deal with her coalition partners to `speed up deportations of failed asylum seekers and restrict family reunions for people granted partial protection'. See the article in; http://www.independent.co.uk/news/world/europe/cologne-attacks-support-for-refugees-in-germany-plummeting-amid-far-right-protests-and-vigilante-a6808616.html The political pressure and debates were resulted in an action of border closure to the new coming refugees in January, and asylum seekers were refused to enter into Germany from Austria.

In March 2016, the regional elections took place in Germany. The electoral results were interpreted by some as rising populism in response to Angela Merkel's open door policy with the far-right Alternative fьr Deutschland party making substantial gains in three states by gaining seats first time in part history. However, while Merkel's party CDU, who campaigned in some regions against Merkel's `open border' policy' to gain the votes of right wing voters, lost votes in three states, nevertheless strong majorities voted for the major parties backed Merkel's policy, according to exit polls. Indeed, across all three states, a significant majority showed that they support the refugee policy of Merkel by voting for Greens Party, who is strong defendant of open border policy. See the article in;http://www.theatlantic.com/international/archive/2016/03/germany-elections/473586/

The results in fact showed a political landscape that is increasingly polarized around the debates on refugees. The two centrist parties, the CDU and the SPD, lost voters; the AfD, a party that supports more restrictive approach to the refugees, and Greens Party who is in favor of more open door policy were the only two parties that gained in all three regions. From the electoral results and increased public protests, we can assume that the tendency in public opinion is polarizing around refugee policy, and even though anti-refugee politics could find a chance to consolidate itself after the security incidents, it is difficult to assume a merely increased anti-refugee sentiment.

Consolidation of populist, right wing politics over anti-refugee narrative was also seen several other countries in Europe in a period of time. According to poll results in March in the Netherlands, the Freedom Party (PVV), led by right-winger Geert Wilders, who has denounced Islam as a “fascist” ideology and promoted anti-refugee policies, could win an unprecedented 29% of the vote in the next parliamentary elections. The governing People's Party-Labour Party (VVD-PvdA) coalition scored 27 seats in the poll, compared to the 79 they took in the last election. See article in; http://europe.newsweek.com/dutch-anti-islam-politician-geert-wilders-surges-polls-419080?rm=eu

Under the circumstances of polarized political landscape, “it came as a great relief to European leaders - particularly those under the most domestic political pressure - that a deal was struck between the EU and Turkey, with the unanimous support of the EU's 28 member states” (Ashworth, 2016).

3.1.2 Border Closure in East Europe

In November 2015, Austria began construction of a border barrier on its border with Slovenia which is also within the Schengen area. The stated aim of the barrier was to help control the flow of refugees and migrants. It was initially planned along 3.7-km at the busiest crossing from Slovenia into Austria, near Spielfeld. According to Austrian Interior Minister Johanna Mikl-Leitner, the border barriers are planned 2.2 meters high. The construction began in early November and completed in January 2016. See article in; http://www.telegraph.co.uk/news/worldnews/europe/austria/12048224/Austrias-border-fence-could-have-800-yard-gap-as-local-winemakers-make-a-stand.html

Following Austria's decision, The Slovenia also decided to seal off the border with Croatia with a border barrier as a response to the European migrant crisis. Both Slovenia and Croatia are EU members which mean that the barrier is actually located on an internal EU border as Austria and Slovenia. ibid.

Right after the first statement between the EU and Turkey on 7^th March, Slovenia, Croatia, Serbia and Macedonia announced, in a bid to close the 'Balkan route' into Europe, that only migrants who plan to seek asylum in the country, or those with explicit humanitarian needs will be allowed entry and that those without valid documents, planning to transit into Europe, would be turned back. See article in; http://www.bbc.com/news/world-europe-35760534

3.1.3 Moving Back to Dublin Procedures in Greece

Another important development in regards with the refugee context in Europe was the proposal of the Commission, in September 2016, to normalize of the situation in Greece, and return back to the Dublin rules in Greece within six months period. The fulfillment of Greece's responsibilities under Dublin regulation that requires transfer back the refugees to Greece from other EU countries since Greece was the first country on entry in the EU was intended to be implemented. An extremely contentious proposal because since 2011 the European Court of Human Rights and European Court of Justice suspended Dublin transfers back to Greece due to the persistent deficiencies in the Greek asylum system cause violation of an individual's fundamental rights and the EU law in terms of refugee protection.

The Commission then proposed to Greece to increase measures to enable return transfers to continue by March 2016. The measures include increasing capacity for the reception and asylum assessment although even by the Commission's own admission, `Greece still needed to do more in order to comply with Union law, adding the deficiencies of reception capacity and provision of free legal assistance to appeal the asylum decisions'. Communication To The European Parliament, The European Council And The Council Managing The Refugee Crisis: Immediate Operational, Budgetary And Legal Measures Under The European Agenda On Migration, available in; http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/communication_on_managing_the_refugee_crisis_en.pdf It was seen as an attempt to contain the refugees in Greece in order to prevent more arrivals and secondary movements in the heart of Europe.

The Council of Europe, Europe's leading human rights body, also indicated these accumulated factors that might challenge the process of implementation of the deal by reporting that;

“Certain closely related circumstances, in particular closure of its border by `the former Yugoslav Republic of Macedonia', States' failures to fulfil commitments to relocate refugees from Greece, and premature discussion of resuming Dublin transfers to Greece, are also problematic” (STRIK, 2016)

3.1.4 The Roadmap with Turkey

The deal between Turkey and the EU is not a `one night' event, but rather should be seen as a last step in chains of development since the European Agenda on Migration was manifested in May 2015. Being the neighbor country where refugees mostly taking the departure to Europe, and at the same time hosting more than three million refugees (2.7 million Syrians, around 300 thousands Iraqi, Afghani, Pakistani, and other nationalities UNHCR Data; by 31.03.16, available in; http://www.unhcr.org/turkey/uploads/root/tr(42).pdf) brought Turkey to the central place in debates about `preventing' the refugee inflow. The first action was taken on the EU level in September 2015 when the Commission proposed it to be included in a proposed regulation for a common list of safe countries of origin. European Commission (2016), Proposal for a Regulation of the European Parliament and of the Council establishing an EU common list of safe countries of origin for the purposes of Directive 2013/32/EU of the European Parliament and the European Council on common procedures for granting and withdrawing international protection, and amending Directive 2013/32/EU, COM(2015)452 final, Brussels, 9 September; available in; http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/proposal_for_regulation_of_the_ep_and_council_establishing_an_eu_common_list_of_safe_countries_of_origin_en.pdf The list of `safe countries of origin' directive was revised by the Commission to provide structural solutions for a better management of the crisis in addition to the immediate measures.

“A country is considered as a safe country of origin where, on the basis of the legal situation, the application of the law within a democratic system and the general political circumstances, it can be shown that there is generally and consistently no persecution as defined in Article 9 of Directive 2011/95/EU2 , no torture or inhuman or degrading treatment or punishment and no threat by reason of indiscriminate violence in situations of international or internal armed conflict” (Commission, COM2015)

In this consideration, European Commission has come to the conclusion that Albania, Bosnia and Herzegovina, the former Yugoslav Republic of Macedonia, Kosovo, Montenegro, Serbia and Turkey are safe countries of origin.

In the following months, the EU-Turkey Action Plan was presented of which the main objectives were described supporting the Syrian community in Turkey by allocating of a EUR3 billion refugee facility fund, and stepping up the cooperation to prevent irregular migration flows to the EU. The Plan was also lined with the measures to build on the visa liberalisation dialogue, the visa roadmap and the provisions of the Greece-Turkey bilateral readmission agreement. European Commission (2015), Fact Sheet - EU-Turkey joint action plan, Brussels, 15 October; available in; http://europa.eu/rapid/press-release_MEMO-15-5860_en.htm Accordingly, the statement on 7 March 2016 of the EU-Turkey deal and its `one-for-one' negotiation (one Syrian would be resettled from Turkey to EU in return of one Syrian from Greece to Turkey) which was eventually resulted at the European Council meeting on 18 March 2016 could be seen as a culmination of consistent relation between two parties over the months. Framing the action plan in the same line with the Visa liberalization process with Turkey was highly criticized in this period due to merging two different policies in the same action plan to create more interest for Turkey to step up its implementation for readmission and prevention of refugees. This can be also seen as an initial step by the EU to create a buffer zone for the Syrian refugees between Syria and the EU zone.

3.2 What is the EU-Turkey Deal about?

The goal of the deal was described in the statement as `ending the irregular migration from Turkey in order to fight against smugglers.' The similar narrative of `fight against criminal networks and irregular migration' has been employed by the EU policy makers since the beginning the crisis.

“In order to break the business model of the smugglers and to offer migrants an alternative to putting their lives at risk, the EU and Turkey today decided to end the irregular migration from Turkey to the EU.” (Commission, 2016)

In order to achieve this goal, the EU leaders and Turkey agreed on the following action points:

1. Return of all irregular migrants crossed from Turkey to the Greece by 20^th March 2016.

2. Resettlement of Syrians from Turkey to the EU, for each Syrian returned from Greece to Turkey one Syrian will be resettled from Turkey in the EU

3. Prevention of crossing from Turkey to Greece with increased security and prevention mechanisms both on Turkish Coastal Land and at Sea

In the following section, I will analyze the `deal' and its implications on the ground from the perspective of four core values and interests of the EU.

3.3 Rule of law and Democratic Transparency

What is the legal basis of the deal? How the decision making process took place? These questions are expected to highlight the contradictions of decision making process with the values of the rule of law and democratic accountability among the EU institutions.

The legal nature of the deal in the lights of `rule of law' principle of the EU has been vastly speculated, and raised the concerns about its compatibility with international Geneva Convention and human rights law, as well as European law and decision making process. (Heijer & Spijkerboer, 2016)

In terms of the legal construction of the deal, it is worth to note that the primary question is whether this is a deal as such `an international agreement or treaty' or a `statement' with no binding nature for the parties. It was released on the European Council webpage as a statement right after the meeting between Turkish PM Ahmet Davutoglu and Members of the European Council on 18^th March.

According to Lisbon treaty, which ensures the co-decision model in ordinary legislation by including the European Parliament in the decision making process, the treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field) between the EU and a third country laid down in Article 218 of TFEU Treaty on the Functioning of the European Union - PART FIVE: EXTERNAL ACTION BY THE UNION - TITLE IV: RESTRICTIVE MEASURES - Article 218, available in; http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:12008E218 . This article determines the EU's procedure for negotiating and concluding treaties with third countries with the approval of the European Parliament by also adding the condition that EP `shall be immediately and fully informed at all stages of the procedure' (Article 218(10) TFEU). The objective of this condition is preventing any pressure on the Parliament to not transpose into EU legislation measures which did not take its consent beforehand and not to jeopardize the further policy process with the concerned third country.

Despite the generic title as `statement' there is a clear position and provisions in the deal as an `agreement' or in other words as an international treaty with mutual monitoring and implementation responsibilities for both parties. However, an essential mechanism of inclusion of the EP in the ordinary legislative procedure, once again sidelined and EP's role circumvented in the process. The deal was negotiated by some Member States leaded by Donald Tusk and Angela Merkel, with the participation of the Commission, and then finalised in the meeting with PM Ahmet Davutoglu.

Immediately after the statement was released on public, the European Parliament member Birgit Sippel, on behalf of the S&D Group, addressed the following -rightful- questions to the Council. Parliamentary Questions, 22 March 2016, http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+OQ+O-2016-000053+0+DOC+XML+V0//EN

1. “Does the Council consider that the `EU-Turkey Agreement', which covers domains currently under EU exclusive and shared competence, is binding under international law and/or EU law?”

2. “If so, why was the Agreement not negotiated and concluded in compliance with Article 218 TFEU?”

3. “If not, has the Turkish counterpart been informed of the non-binding nature of the Agreement and of the fact that some aspects may not be implemented as expected?”

The questions have been so far remained unanswered, but nevertheless, they revealed a crucial contradiction between the actual policy process and the core values of the Union, especially one of the most desired values of the Europeans, the democratic accountability under the rule of law. The political initiative of the Member states and the Council to reach the goal of ending the movement from Turkey to Greece has shaped the deal and by-passed the rule of law and the normal democratic process in the sense that sidetracking EU Parliament and ordinary legislative procedures.

“That the institutional role of the EP has been neglected confirms the worrying trend that intergovernmental decision-making is taking over in the Union, and that national interests increasingly often prevail over the common values of the Union. This is bad for European democracy.” (Heijer & Spijkerboer, 2016)

This is not only a contradiction of values in regards with the decision making procedures, but also non-binding, purely political nature of the deal makes the legal appeals in policy making process impossible.

As Kapolina Babicka stresses

“The deal agreed during the last EU summit is a big political gesture with so far small legal impact. Its positive outcome could be some realistic help provided to Greece and more mutual solidarity of EU member states. Its core however runs against international and European human rights standards. They statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.” (Babicka, 2016)

3.4 Refugee Protection and Question of Inadmissibility

The ultimate objective of the EU leaders to stop, and then strip the Greek Islands in its essence brings many questions. Leading question is, obviously, whether it contradicts the principle of non-refoulement or endanger the right to asylum? The fundamental principles of the Geneva Convention and the European asylum regime laid down on these principles, but the policy goal of returning all irregular' migrant who arrived in Greece by 20^th March might undermine right to access to asylum. Despite the verbal guarantee of the EU institutions to protect the rights of asylum seekers under the provisions of the EU law and international conventions, the concerns about `mass expulsion' and return conditions have been capitalized in public protests of Europe citizens. The rallies, under one united slogan saying that `Open the Borders', took place all across the Europe from Madrid to Greece; from Brussels to Amsterdam or London. See the article in; http://www.bbc.com/news/world-europe-35854413

According to the deal, in compliance with the EU law, people who cross to Turkey from Greece could be returned to Turkey according to two conditions:

1. Irregular migrant

The individuals who do not apply or do not qualify for asylum under the asylum directive of the EU are automatically considered “irregular migrants”. Their deportation would be proceeding under an existing readmission agreement between The European Union and Turkey Agreement Between the European Union and the Republic of Turkey on the readmission of persons residing without authorization, available at; http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A22014A0507(01) . The readmission agreement was made in June 2013 with the condition of admitting the third country nationals after three years of implementation which means by 1 June 2016. This implementation has not been started yet.

2. Asylum Seekers

The main concern regarding the refugee protection and right to asylum is rather about this second circumstance in recent deal. According to the arrangement, the asylum claims of individuals who arrive to Greece from Turkey by 20 March 2016 will be assessed if their application is admissible or not and this initial assessment will determine wheter they can be deported back to Turkey.

There are two legal possibilities for inadmissibility condition according to the common EU asylum rules Directive 2013/32/Eu Of The European Parliament And Of The Council Of 26 June 2013 On Common Procedures For Granting And Withdrawing International Protection (Recast), available in; http://eur-lex.europa.eu/legal-content/en/ALL/?uri=celex%3A32013L0032 :

1) first country of asylum (Article 35 of the Asylum Procedures Directive): where the person has been already recognized 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.

In other words, the return of the asylum seekers is possible according to the condition of having already refugee status or `sufficient protection' in the country that he or she flees from (Turkey) OR having the possibility to have protection there prospectively. In this case an important issue appears about provision of the protection for asylum seekers: Is Turkey a safe third country for the returnees of which the EU can guarantee protection when the asylum seekers are returned.

3.4.1 The Criteria of Inadmissibility

After the summit meeting, in his press statement Juncker justified the decision to return people on the condition of `safe third country' and said that `Article 33 and 38 of the Asylum Procedure Directive clearly open the way for a solution of this kind. Because article 33, paragraph 2, letter C indicates that a country can refuse to consider a claim if a non-EU country is considered as a safe third country.'

“Member States may consider an application for international protection as inadmissible only if: (c) a country which is not a Member State is considered as a safe third country for the applicant, pursuant to Article 38” (Procedures Directive II)

A `safe third country' in a simple definition is a country which guarantees protection mechanisms and provides safe environment for asylum seekers of nationalities other than that of this country. In other words, it is the country where a person (asylum seeker) could find protection and access to asylum status but has not done so far.

There are several political assumptions here that might be laid down on Geneva Conventions but the most important for our case study is the assumption that a person who flee from persecution should apply for asylum in the first country of arrival or in other words in the neighbor country. This assumption is based on the Article 31(1) of the Geneva Convention which provides impunity to the asylum seekers in the case of illegal border crossing directly from the country where she or he was under substantial threat.

“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence” (Article 31(a), International Geneva Convention, 1951)

Yet, some scholars have already claimed that this interpretation contradicts the main core of the convention and undermines the initial goal of Article 31 (Byrne and Shacknove 1996; Costello 2005). The objective of this international refugee protection mechanism is to prevent neighbor countries closing their borders to the people fleeing from war or persecution, but it does not bring an obligation for asylum seekers to apply asylum in the first country that they flee in. In fact, the `first country of arrival rule' only exists in Europe described under the Dublin regulation which has already failed to accomplish this objective in last years. Therefore the article of Geneva Convention is instrumentalized by the European politicians in order to justify unlawful regulation of `safe third country' classification for inadmissibility condition, and indirect act of deportation (which could be seen as non-refoulement if the justification falls in the gap). Moreover, the Geneva Convention itself does not contain any expression or classification of `safe third country' rule in the provisions on the definition of refugee nor on the cessation or exclusion from being a refugee at all. (Roman, Baird, & Radcliffe, 2016)

In the EU regulations of revised Procedures Directive, Article 38 Directive 2013/32/EU9 (rAPD) determines that Member States or the EU institutions may apply the safe third country concept only when there are certain principles are ensured in the third country to provide international protection to the person seeking asylum.

These principles, which are cumulative, are the following Article 38(1), Procedures Directive II

* life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion;

* there is no risk of serious harm as defined in Directive 2011/95/EU10;

* the principle of non-refoulement in accordance with the 1951 Geneva Convention is respected;

* the prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected; and

* the possibility exists to request refugee status and, if found to be a refugee, to receive protection;

* the existence of national law requiring a connection between the applicant and the third country concerned, including the admittance to the territory of the country concerned and reasonableness for the applicant to go to that country and apply for asylum there

3.4.2 Is Turkey a Safe Third Country?

Under the light of these principles, there are four important concerns about considering Turkey as a safe third country.

The first and the most evident challenge is about lack of provision of `refugee' status and international protection for the asylum seekers in Turkey. As Steve Peers also emphasize a country can only formally be declared “safe” for foreign asylum seekers if “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.” However, Turkey is not full signatory of Geneva Convention, but there is a geographical condition for Turkey to accept `refugee' status. According to this condition, Non-European citizens cannot apply for asylum or refugee status in Turkey. Thus Turkey is recognizing refugees originating only from Europe (i.e. from countries which are members of the Council of Europe) The geographical limitation thus provides the first barrier to accessing asylum in the country. (Roman, Baird, & Radcliffe, 2016) Currently around 265.494 people from other nationalities than Syrian (Afghani, Iraqi, Iranian, Somalian, etc) UNHCR Data; by 31.03.16 - http://www.unhcr.org/turkey/uploads/root/tr(42).pdf live in Turkey with no legal status and protection. They have no access to medical, social or economic services, and they live with the constant fear of being deported. In practice, thus, none of the asylum seekers return under the EU-Turkey Agreement could have a refugee status in Turkey before arriving to Greece.

In this case, asylum claims of Non-Europeans can thus only be considered inadmissible if it is found that the applicants enjoyed “sufficient protection” in Turkey before or potentially in the future. This condition can be applied to Syrian asylum seekers, who may benefit from “temporary protection” status in Turkey under a special regulation. However, there are also substantial problems in regard with Syrians in Turkey. Turkey is currently hosting 2.749.140 registered Syrians, GDMM Figures; by 31.03.16 - http://www.goc.gov.tr/icerik6/temporary-protection_915_1024_4748_icerik of which only around 280 thousands live in the camps, under temporary protection that is provided by “The Law on Foreigners and International Protection (LFIP)”. It was adopted in 2013 by the Turkish Parliament and came into power in April 2014, and provides basic human rights: access to legal counselling and a lawyer, prohibition of torture and ill treatment, extended protection, rights for minors, and so on. However, a human rights lawyer from Turkey, Orcun Ulusoy states that the law is not practiced to provide protection for refugees in Turkey on the ground, and he lists 5 main issues (Ulusoy, 2016):

- the newly established Directorate General of Migration Management (DGMM) lacks capacity and experience to respond the needs

- the Syrian Refugee influx created pressure on the newly established system and the unprecedented number (2.7 million Syrians in 5 years and still increasing) has already parallelized the system

- There is no accommodation or livelihood support for Syrians who live outside the camps (which is %90 percent of the total number of Syrians)

- a retroactive migration management tradition and security based approach to migration in Turkey is still dominant

The third problem about recognizing Turkey as a safe third country is the documented unlawful practices on its border with Syria. According to many reports Turkey frequently engages in policies of non-entrйe, towards those fleeing from Syria on its southern border. Documentation has also surfaced on the violent, sometimes, lethal push backs at the border committed by Turkish authorities. Amnesty International, in the beginning of April 2016, reported that “Turkish authorities have been rounding up and expelling groups of around 100 Syrian men, women and children to Syria on a near-daily basis since mid-January”. “Turkey: Illegal mass returns of Syrian refugees expose fatal flaws in EU-Turkey deal” available at; https://www.amnesty.org/en/latest/news/2016/04/turkey-illegal-mass-returns-of-syrian-refugees-expose-fatal-flaws-in-eu-turkey-deal/ Moreover a report also by Human Rights Watch stated that:

“Turkey has all but closed its borders to Syrian asylum seekers and is summarily pushing back Syrians detected as they try to cross. Turkish border guards intercepted the refugees at or near the border and mistreated even in some cases by beating them, and pushing dozens of refugees back into Syria or detaining and then summarily expelling them along with hundreds of others” (Human Rights Watch, 2015)

Both practices are explicit examples of violation of the foundational principle of international refugee law: non-refoulement. Beyond any reports or documents, I have also personally witnessed and heard several mistreatment both on the border or in the country (urban areas) towards the Syrian refugees during my work with Medecins Sans Frontiers on the border of Syria during the period of 2013-2014. For the local police forces of the town, the illegal deportation was a usual practice to punish Syrian refugees who is involved in criminal activity such as homicide, robbery, thief and so on.

The last but not least issue is about increased human rights violations, undemocratic governance, restricted press freedom, increased bomb attacks (7 bombs in big cities in last 8 months, which caused more than 230 death), and escalated conflict with the Kurdish group PKK in southeastern region. Despite legal protections, media freedom in Turkey has steadily deteriorated over the last five years. Since 2013, Freedom House ranks Turkey as "Not Free.” Reporters without Borders rank Turkey at the 149th place out of over 180 countries. See the report of `Reporters Without Borders' available in; https://rsf.org/en/ranking Turkish Government are engaging in widespread criminal prosecution of academics, and jailing of journalists. See the article; http://www.theguardian.com/world/2016/jan/15/turkey-rounds-up-academics-who-signed-petition-denouncing-attacks-on-kurds

The empirical evidences show that Turkey does not fulfill the required principles for recognition as a `safe country' under the Procedures Directive of the EU. Therefore, qualifying Turkey either as a safe country of origin or a safe third country will allow the EU to create an indirect channel for refoulement and violation of the fundamental refugee protection for the asylum seekers who arrive in the Member State.

3.4.3 Refugee Protection in Practice

The concerns in relation to a denial of access to the asylum procedure and potential refoulement should be considered with the limited capacity of the registration system in Greece, and practical challenges that asylum seekers face on the ground.

The UNHCR reported that Greek police “forgot” to process the asylum applications of 13 -mainly Afghani- refugees who were returned to Turkey in the first group in April. Whilst this may have been due to transient circumstances, it does not augur well for the future. See the article; http://www.theguardian.com/world/2016/apr/05/greece-deport-migrants-turkey-united-nations-european-union There have also been reports of inadequate provision of information and documentation to asylum seekers, lack of interpretation and, already, a rapidly growing backlog of applications.

According to a report very recently came public from a local NGO in Izmir called Halklarin Koprusu (People's Bridge) who provides medical screening, humanitarian aid, and legal support voluntarily to the refugees in Izmir region, some of the refugees were not informed about the deportation but told that they were going to be transferred to another Greek Island http://www.birgun.net/haber-detay/multeciler-yunanistan-denilerek-turkiye-ye-geri-getirildi-111206.html . The report was very terrifying with the findings about violations of human rights and access to protection recognized under Geneva Conventions and, unworthy to say but EU regulations as well.

Similar findings were also found when a delegation of three members of European Parliament from European United Left / Nordic Green Left (GUE/NGL) to Turkey to make an assessment of conditions of returnees in the deportation center in Turkey.

A group of Pakistani national asylum seekers who had been detained in Turkey for two months said that:

“We were not given the opportunity to apply for asylum in Greece. Some of us were given the opportunity to speak to UNHCR but nothing happened after. We had no interpretation in Urdu, we could therefore not communicate on the islands. Then, we have been handcuffed for 10 to 12 hours on a boat to the north of Greece where we were not allowed food, water or to go to the restroom. It was on the 2nd of March. We have also no Urdu interpreters here. They are not listening to us, we are tired”. Full report is available in; http://www.guengl.eu/uploads/news-documents/GUENGL_report_Situation_of_refugees_since_EU-Turkey_deal_2016.05.10.pdf

Another group of Moroccan nationals and from Western Sahara confirmed the same situation:

“They did not give us the opportunity to apply. In the islands some had asked to apply, they said you will be given this opportunity once in the camp, but then we were sent here.”

In Greece, the applications for asylum were categorically rejected (inadmissibility) and some couldn't even meet the asylum officials to have an asylum interview. These reports have already prove that the deal between Turkey and the EU might endanger the core principles of refugee protection, and thus create a significant violation of the EU law.

It is totally unacceptable that the European Union is reneging on their previous commitment on protecting refugees fleeing from war and conflict. If every country were to apply these same rules and practices that in effect means in reality there is no protection for refugees and rights anymore. The legitimacy of returning people must be questioned deeper. Every individual is a real person with very real needs, but deporting them to Turkey, a country already hosting around 3 million Syrians fleeing war cannot provide a solution for their need for protection. Surely, the European countries must play their part in protecting the fundamental refugee rights and needs of people fleeing for their lives.

Sarah Lйonard argues that the activities of Frontex in the field of return operations represents a high level of sophistication in the coordination of operations attempting to expel certain groups of migrants amongst a large group of states (Lйonard 2010:246); therefore, they can be regarded as securitizing practices with severe implications for individuals.

The practice of returning people in groups violates their right to have their cases processed on an individual basis and the possibility to bring forth arguments for their own cases, which both are fundamental rights referred to in the European Charter. However, for these rights to have any value, people must have access to an effective remedy in cases where their fundamental rights are violated

3.5 Respecting Human Rights and Human Dignity

The EU-Turkey deal has raised serious concerns about the core value of the European Union; respecting human rights and human dignity from the policy structure till the implementation there are numerous issues have appeared in regards with serious human rights abuses, inhumane conditions and lack of dignified manner towards the refugees and migrants. Observations and evidences about disregarded rights in the process of the deal is alarming not only for the life of people who are exposed to these policies, but also for the future of European asylum regime, and indeed for the future of Europe. Because respecting human rights and human dignity is not an obligation that emerges only for refugee crisis. They are universal values that are embedded in the core essential of the construction of Europe that needs to be safe guarded by the States in every sphere of social and political life.

“All migrants, including those who are not entitled to claim the protection of the Refugee Convention, are entitled to protection of their human rights, and States need to ensure that this protection is effective and meaningful. See the full version of the statement: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=19913&LangID=E ” (Nils Muiћnieks Council of Europe Commissioner for Human Rights)

3.5.1 People or Bargaining Chips?

The negotiations of the deal between the EU leaders and Turkish Prime Minister, initially, brought the first concern about the lack of humane approach towards the refugees during the negotiations to finalize the deal. The calculations over the number of people with six billion euro financial support and the decision to resettle one Syrian refugee in Europe in return of one Syrian who will be returned back to Turkey was interpreted rather as a `bargain' for business rather than human oriented policy making. The approach was far from a human rights oriented process by reducing people to mere numbers, denying them humane treatment and discarding their right to seek protection as well.

A similar narrative that was also employed in relocation policy by the EU leaders could be observed during the negotiations as well, in which the refugees and migrants have been referred as an abject in passive position by ignoring their fundamental rights and human existence.

After the deal was finalized, in a joint letter See the full version of letter: http://www.oxfam.org.uk/media-centre/press-releases/2016/03/eu-border-clsoures-worsen-humanitarian-crisis Oxfam, the International Rescue Committee and 17 other leading agencies warned the EU leaders to stop bloc bargaining its core values and abandoning fundamental legal obligations.

Oxfam's migration policy lead, Sara Tesorieri, stated that:

"The decision to `end' the Balkans route is a piece of political theater in which the European Union has pandered to domestic politics at the expense of its values. It doesn't solve the real crisis of people arriving in Europe. There is no doubt that the European Union and Turkey should work together, and they need each other. However, the proposed horse-trading between Turkey and the EU uses human beings as bargaining chips. When they meet on Friday, EU and Turkish leaders need to put people's rights and safety first." (Tesorieri, 2016)

Tesorieri's urge about `putting people's right and safety first' is quite crucial to understand what the priorities are for the European leaders in the process of deal-making, and building the tools in order to reach the goal of `ending migration flow'. A similar warning See the statement: https://www.amnesty.org.uk/blogs/yes-minister-it-human-rights-issue/five-reasons-why-eu-deal-turkey-refugees-inhumane#.VuMbtpSA8HA.facebook also arose from Amnesty International by stating that the deal is `dehumanizing':

“The trading of refugees is abhorrent and completely lacks any concern for the human beings at the centre of this crisis. Unsettlingly, this plan would make every resettlement place in Turkey dependent upon another Syrian risking their life by embarking on the deadly sea route to Greece. This would be a serious erosion of refugee rights and have international legal ramifications far beyond Europe.” (Amnesty International, 2016)

3.5.2 Hotspots Become Detention Centers after the Deal

Dehumanizing and lack of dignity in the implementation of the deal became the most obvious in Hotspots in Greece which was initially planned as merely a registration and identification center. Especially after the new legal regulation was adopted by the Greek Government in order to comply with the requirements and action plan of the deal a swift transformation has been observed in those places both on Islands and mainland of Greece. It was already discreetly foreshadowed in the Commission Communication in which the next operational steps of the deal were presented in March 2016:

“Another important element would be a substantial increase in reception capacity in the islands. This could include separate facilities for irregular migrants and those undergoing the longer procedure of an asylum request, and would require sufficient detention capacity to be put in place for individuals who present a risk of absconding.” (European Commission, COM2016; 166)

Following the recently introduced Greek Law 4375/2016 provided the legal conditions for asylum seekers to be detained in the hotspots for entire asylum process. See the full text of the regulation: http://www.refworld.org/docid/525e84ae4.html The new regulation frames the detention under exceptional circumstances where the asylum seeker is already detained for immigration reasons

(a) to establish their identity or origin;

(b) to examine main elements of the claim where there is a risk of absconding;

(c) when the person had the opportunity to seek protection and applies solely to avoid deportation;

(d) when the person poses a threat to national security or public order;

(e) to conduct a Dublin transfer where there is a significant risk of absconding

However, the practice of detention in the case of persons arriving in the registration and identification centers in hotspots or mainland has become a standard implementation. New arrival asylum seekers are restricted on freedom of movement and detained in those centers during the registration, reception and even in asylum process. While the provision does not refer to detention, evidence from the conditions of the Centers on the islands and reports from the NGOs have proved that people are being kept in Reception and Identification Centres are deprived of their liberty in practice.

Nils Muiћnieks, Human Rights Commissioner, explicitly stated that practice in his speech to Austrian delegates in the parliament in April 2016:

“Depriving migrants of their liberty - in places that may be called hot spots or registration or reception centres, or prisons - migrants who have not committed a crime, but seek only refuge from violence or despair: this would be deplorable. I have serious concerns about the EU-Turkey agreement - concerns which I share with many others in the human rights community. First, it has led to increased detention in hotspots in Greek islands. I am concerned that much of this detention is arbitrary and is often in conditions that can simply never be justified, particularly as concerns migrant children, both accompanied and unaccompanied.” (Nils Muiћnieks Council of Europe Commissioner for Human Rights)

3.5.3 Dehumanized Place without Dignity and Worsening Living Conditions

Systematic and indefinite detention conditions were mentioned in the interviews that I carried out during the field research as well. An Italian activist, who has worked voluntarily on Greek Islands in different time periods in last one year, shared his observations about the duration of stay and conditions of these Hotspot/detention centers:

“Most people in detention since March 20 are still in detention now, well beyond the 28 maximum days allowed by law. The first week VIAL hosted 1800 people, although having capacity for 800 according to UNHCR, and 1200 according to the authorities. The conditions in VIAL are extremely poor, refugees were given one meal a day consisting of only and always potatoes. A couple of times maggots were found in the food. Food for babies was also inadequate and insufficient. Families are sleeping in containers with no private space, sharing a small container with up to 15 people.” (Interview)