Brussels and Ankara, the bad deal

The migration deal between EU and Turkey is illegal and must be changed, says CoE Commissioner for Human Rights. There are other ways to address the migrants crisis, complying with the member States obligations to protect those who flee wars and persecution

Nils Muižnieks is the Council of Europe Commissioner for Human Rights

The following op-ed was first published yesterday on tagesschau.de

As the European Council is set to meet again in Brussels tomorrow [today – Ed.] to address the migration crisis, one topic should be prominent on its agenda: fundamentally changing the migration deal with Turkey.

The proposed deal foresees that Turkey would take back all irregular migrants crossing from its territory into Greece, while the EU would take an equivalent number of Syrians from Turkey. The problem of such an arrangement is that it would allow for automatic forced returns of irregular migrants, a practice which is illegal, irrespective of the country with which this agreement is reached.

Such a practice in fact makes it impossible to assess notably the protection needs of migrants, thus undermining the fundamental human right of individuals to seek and enjoy asylum established by the 1948 Universal Declaration on Human Rights. It also violates the guarantees established by the UN Refugee Convention which recognises that, in specific circumstances, seeking asylum can require refugees to breach immigration rules.

Moreover, blanket returns of irregular migrants carried out without reasonable and objective examination of each individual case contravenes the European Convention on Human Rights, which has a Protocol, ratified by all EU member States but Greece and the UK, that explicitly forbids collective expulsions of aliens.

International law does not call into question a states’ right, in principle, to repatriate persons not in need of international protection. However, it does prohibit practices which are not compatible with international legal obligations.

To better understand this point, it is useful to read the case-law of the European Court of Human Rights - whose judgments are legally binding on all member states - which has consistently applied these standards over the past 15 years.

In 2002, the European Court of Human Rights condemned Belgium in a collective expulsion case finding that the domestic “procedure had not afforded sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account.”

Ten years later, the Court reaffirmed this principle in a case against Italy concerning Somalian and Eritrean migrants travelling from Libya who had been intercepted at sea by the Italian authorities and summarily sent back to Libya. Moreover, the Court, for the first time, applied its jurisdiction to the operations carried out by a member state outside its national territory, thus recognising the paramount importance it attaches to states’ effective compliance with European human rights law.

The Strasbourg Court has also made it clear in two subsequent judgments that the prohibition of collective expulsions applies regardless of whether a person enters or resides lawfully in the territory of a state. The first case concerned Russia which was condemned for the expulsions of Georgian nationals in 2006. The second case concerned a group of Afghan, Sudanese and Eritrean nationals who had entered Italy irregularly and were expelled immediately to Greece.

No doubt the current movement of refugees, asylum-seekers, and other migrants puts huge pressure on European states, straining particularly their asylum systems and draining resources. However, they must not use this objective difficulty as an excuse to trample on their obligations to protect those who flee wars and persecution.

If a quick fix to this problem is not possible, it is still doable to adopt now human rights compliant measures that will pay off in the medium and long-term.

One of the most urgent measures is to strengthen the relocation within the EU of asylum seekers from Greece and Italy. They should also set up a Europe-wide system able to assess asylum claims, distribute refugees in an equitable way, and return individuals who do not qualify for refugee protection.

In addition, European countries have to increase the legal avenues for refugees to seek protection in our continent safely, without undertaking dangerous routes and paying smugglers. There is a large variety of measures, including humanitarian admission programmes and family reunification schemes, and some countries – including Germany - have already used them. The latest case in point is Italy, which admitted 93 Syrian refugees directly from camps in Lebanon last month. This shows that it is possible to find effective legal and safe ways to help refugees and European States should use them more often. They will have a concrete opportunity to do so next 30 March, at the high-level ministerial meeting that UNHCR – the United Nations Refugee Agency - is organising in Geneva to promote legal avenues for admitting Syrian refugees.

However, the most important factor to find effective solutions to the migration crisis is that European countries renew their willingness to cooperate – and stop looking with suspicion at each other. The chaotic response seen so far has led even the most generous countries, like Germany and Sweden, to raise the white flag, resigning themselves to the reality that their fellow countries were unwilling to share the responsibility in receiving asylum-seekers.

This is a trend that must be reversed. The upcoming EU Council is the right occasion to find a response to the migratory movement which holds true to European countries’ moral and legal commitments to protect refugees, and at the same time upholds the principle of solidarity between member states.