Weekly Editorial: Dirty deals done dirt cheap
The impact of the EU Turkey – Deal is widely debated and often misrepresented. The triumphant progress reports of the Commission hail the drop in numbers of refugees arriving in Greece and people drowning in the Aegean, but ignore the wider devastating impact of Europe’s containment policy on the international protection regime and beyond. If anything, one-year into its existence the deal has “succeeded” in contributing to problematic developments in four inter-linked ways:
It is a key factor in the transformation of the political debate at EU level, which moves towards a consensus that a legitimate objective for the EU Member States to pursue is undermining rather than ensuring the right to asylum (enshrined in the EU Charter of Fundamental Rights) is.
By endorsing this deal, the EU has jeopardized not only its own credibility as a global human rights actor but also the values of democracy, respect for fundamental rights and the rule of law upon which it is based.
It has become the blueprint for outsourcing Europe’s protection responsibility to third countries often characterized by instability and with problematic human rights records in exchange for development aid or political favours as if refugees were tradable commodities.
Finally, it has transferred substantial political capital from the EU to the regimes in question, leaving the EU beholden –with Turkey itself as the most obvious example of the increasing ability of these third countries to influence Europe rather than the other way around.
No, for Europeans who believe in universal human rights there is nothing to celebrate but lots to regret at the one-year anniversary of the EU-Turkey Deal!
Catherine Woollard, ECRE Secretary General
For an in-depth review of the EU Turkey – Deal see this weeks Op-ed by the respected Turkish academic Cavidan Soykan.
Cavidan Soykan: The EU – Turkey Deal One Year On: The Rise of Walls of Shame...
Dr. Soykan is a member of Mülteci-Der and an independent researcher working on the Turkish asylum system. She has a PhD in Sociology from the University of Essex in the UK. She has a background in political science and law as well. For her doctoral studies, she conducted an extensive legal ethnographic fieldwork on asylum seekers from different backgrounds, living in transit in Turkey. In 2015, she had another fieldwork on Syrians living under temporary protection in Gaziantep with a colleague. Her research interests are asylum, trans-national migration, sociology of rights and sociology of law. Her most recent publication, Access to Asylum –Border issues in Turkey appeared in States, The Law and Access to Refugee Protection: Fortresses and Fairness, Stevens, D. & O’Sullivan, M. (eds) (Hart Publishing March, 2017).
This week marks the anniversary of the controversial EU–Turkey Statement of 18 March 2016. The Statement placed responsibility for halting irregular crossings and deaths in the Aegean Sea in the hands of two countries: Greece and Turkey.
The Statement is a prime example of externalization policy, an attempt to harden the borders of the EU against unwanted migration through readmission agreements and prevention of access to asylum in Europe. However, the fear generated in Greece and Turkey that their territory would become a buffer zone for asylum seekers and refugees who failed to reach other European countries has led them to imitate the same restrictive strategies.
Turkey has signed thirteen bilateral readmission agreements with third countries since 2001. As of February 2017, the construction of half the 511-kilometer long concrete wall on the Turkish-Syrian border had been completed.[i] In early 2016, Turkey had already imposed a visa regime for Syrians arriving from third countries.[ii] Together these measures mean that Turkey’s highly appreciated open door policy for Syrians has come to an end. It has also been reported that Syrians living in the EU with residence permits are having difficulty acquiring Turkish visas to visit family members. Syrian refugees are now trapped in Turkey under the temporary protection system, which the EU Commission claims is “sufficient” protection or protection equivalent to that provided by the Geneva Convention.[iii]
As of 14 March 2017, 916 people had been returned from Greece to Turkey under the deal and, in return, 3,919 Syrian refugees had been resettled in different EU member states from Turkey.[iv] Since the beginning of the process the EU Commission has argued that Greece can consider that Turkey is a safe third country within the meaning of the Asylum Procedures Directive. In reality, the protection provided by Turkey under the temporary protection system cannot be considered either “sufficient” or equivalent to the Geneva Convention’s standards.
Above all, Turkey still maintains the geographical limitation meaning that it does not grant refugee status to non-European applicants. Syrians cannot become refugees in Turkey because non-European applicants can only acquire conditional refugee status. In addition to these clear breaches of EU law, problems of access to protection by returnees were reported by human rights NGOs in Turkey.[v] The change made in the Temporary Protection Regulation for Syrian returnees on 5 April 2016 does not guarantee automatic access to the system.
Criminalization of migration is also evident in the increasing use of administrative detention and deportation. Let us assume, for the sake of argument, that non-Syrian returnees from Greece can easily seek international protection in Turkey. They are nonetheless considered irregular migrants and put into administrative detention for deportation purposes because they previously violated the rules on legal entry into and exit from Turkey. The protection requests of these migrants are then assessed under the fast-track procedure.
On the other hand, together with formal standards, protection from refoulement is an important guarantee, with the principle of non-refoulement set out in Article 4 of Decree 676. However, a change was made to the Law on Foreigners and International Protection under the state of emergency. According to this new provision, a removal decision can be taken for international protection holders and applicants if they are considered to be linked to a terrorist organisation (Article 54/2). Lawyers report that removal decisions are being processed for international protection applicants under administrative detention. Since the Statement was published, Turkey has expanded its detention capacity by turning reception facilities into removal centres. With the twelve new centres being built with EU funding, Turkey’s detention capacity will be raised to 8,470 in one go.[vi]
Were it not for the walls of shame being built within and around the country, it is unlikely that trapped Syrians and other asylum seekers would choose to live a life in Turkey which has no integration policy. The geographical limitation to the Geneva Convention still shapes the asylum and immigration profile of Turkey by leaving more than three million people in legal limbo.
http://www.hurriyetdailynews.com/more-than-half-of-turkey-syria-border-wall-complete-housing-agency.aspx?pageID=238&nID=110198&NewsCatID=341 (Last accessed on 16 March 2017)
http://www.dw.com/en/turkey-imposes-visa-regime-on-syrians-arriving-from-third-countries/a-18967722 (Last accessed on 16 March 2017)
http://europa.eu/rapid/press-release_MEMO-16-4321_en.htm (Last accessed on 16 March 2017)
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_eu-turkey_en.pdf (Last accessed on 16 March 2017)
See the statement of Multeci-Der: http://www.multeci.org.tr/en/haberler/press-release-readmissions-from-greece-to-turkey-what-happens-after-readmission/ (Last accessed on 15 March 2017)
http://www.goc.gov.tr/icerik3/planlanan-geri-gonderme-merkezleri_323_326_4613 (Last accessed on 17 March 2017)
No change in deeply dysfunctional Dublin system, AIDA figures reveal
A statistical update published by ECRE’s Asylum Information Database (AIDA) releasing figures for 12 European countries from 2016 reveals persisting fundamental dysfunctions in the Dublin system. The inefficiency is illustrated by disproportionately low transfers compared to procedures, its inconsistency by contradictions with the EU emergency relocation scheme, and its inadequacy in safeguarding rights by Member States’ restart of transfers to Greece.
“While the EU legislature has started difficult and complex negotiations on the ‘fourth-generation’ Dublin Regulation, the message given by statistics remains unchanged: Dublin is a bureaucratic behemoth, entailing severe human, administrative and financial costs for both individuals and national authorities, with minimal effect on regulating the actual movement of asylum seekers in Europe”, says Minos Mouzourakis, AIDA Coordinator.
Dublin continues to be highly inefficient in terms of actual transfers compared to the number of procedures initiated in Member States through Dublin requests. Although Sweden had a 43.2% transfer rate, Germany (by far the main operator of the system) had a rate of 7.1% and Italy only 0.4%. Countries such as France and Belgium, have announced policy measures to increase the number of Dublin transfers in the future.
The operation of Dublin also seems highly paradoxical for the countries assisted by the EU emergency relocation scheme, since the two mechanisms run in parallel. In the first eleven months of 2016, Italy transferred 1,864 people to other countries under Dublin family reunification and relocation, but received more people (2,086) from other countries under Dublin.
Greece has not faced such a situation, as Dublin transfers were generally suspended until now and just 3 people were returned in 2016. However, following a European Commission Recommendation of December 2016, several countries including Germany, Austria and Belgium have announced their intention to restart transfers, despite severe concerns on the human rights conditions facing asylum seekers in Greece. A total 946 people were transferred out of Greece under the Dublin Regulation in 2016, the majority reuniting with family members elsewhere in Europe.
The implementation of the relocation scheme was also examined in depth by a European Parliament study, calling for a faithful application of Dublin family reunification provisions before relocation is applied. The study also called for dignity-based transfers of asylum seekers and avoidance of coercion.
Figures on the Dublin system are one of the most challenging aspects of data collection in the Common European Asylum System, as Eurostat has never been able to obtain statistics for all countries operating the system.
The main operators of the Dublin Regulation in 2016 were:
- Germany: 55,690 requests and 3,968 transfers
- Switzerland: 15,203 requests and 3,750 transfers
- Sweden: 12,118 requests and 5,244 transfers
Most requests from Switzerland (98.1%) were addressed to countries of first entry or where asylum applications had already been registered, while Germany’s requests (69.1%) mostly relied on ‘hits’ in the Eurodac fingerprint database.
Among the main countries receiving Dublin transfers were:
- Germany: 31,523 requests and 12,091 transfers
- Italy: 26,116 requests and 2,086 transfers
- Poland: 9,503 requests and 1,420 transfers
For further information:
Hungary approves controversial law allowing automatic detention of asylum seekers
On 7 March 2017, the Hungarian Parliament approved a new law under which asylum seekers will be automatically detained in “container” camps at the borders. Among concerning aspects of the new law, is the fact that applications will be declared inadmissible for anyone who entered Hungary from Serbia or a “safe third country” and that the period of appeal will be limited to three days.
NGOs and international organisations have raised serious concerns about the new legislation. The Council of Europe’s Commissioner for Human Rights stated that the new law “would be in clear violation of Hungary’s obligations under the European Convention on Human Rights”, while UNHCR highlighted that Hungary would be in violation of both international and European law. On its part, Afshan Khan, UNICEF’s regional director in Europe, warned that the law “effectively criminalizes children and robs them of their rights”.
The new law is yet another example of Hungary’s continued crackdown on asylum seekers’ rights. The new legislation will further reinforce the already systematic use of immigration detention, as demonstrated in the updated AIDA report on Hungary. The legislative initiatives are accompanied by a systematic human rights violations by police and border authorities. Médecins Sans Frontières outlined that it treated 106 patients with intentional injuries allegedly perpetrated by Hungarian border patrols, from January 2016 to February 2017 alone.
The European Commission is being called by NGOs and parliamentary groups, such as the Greens/EFA, to launch new infringement proceedings against Hungary, since the proceedings launched on December 2015 due to already existing concerns with the Hungarian asylum law seemed to reach no result.
On 14 March, the European Court of Human Rights ruled that the border-zone detention of two asylum-seekers was unlawful and that their expulsion to Serbia exposed them to a real risk of being subjected to inhuman or degrading treatment.
For further information:
Refugees in the UK, returned after five years?
The Home Office issued a new guidance in the beginning of the month, introducing a policy of reviewing refugee statuses after five years. If the official reviews find that the refugee’s home country is safe enough for the person to return, their refugee status is lifted.
The new Home Office guidance states: “All those who apply for settlement protection after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered.” If the review finds that people can safely return to their home country, they will become an overstayer without permission to work and access to mainstream benefits. In case the review finds that people cannot be safely returned, they can apply for settlement protection.”
The British Refugee Council has warned that this change will increase the anxiety of refugees’ and negatively impacts their integration chances into British society, as it creates a barrier to employment and education. Wafa Shaheen, Head of Integration at Scottish Refugee Council comments: “It will be particularly difficult for families and parents doing their best to raise their children here despite deep insecurity about their futures. How do you plan for your child's future or support them through their education when the Home Office threatens to remove you from the country after five years?”
The Home Office move, is considered a follow up on Theresa May’s speech at the 2015 Conservative party conference, where she stated: “We’ll introduce strengthened ‘safe return reviews’ – so when a refugee’s temporary stay of protection in the UK comes to an end, or if there is a clear improvement in the conditions of their own country, we will review their need for protection. If their reason for asylum no longer stands and it is now safe for them to return, we will seek to return them to their home country rather than offer settlement here in Britain.”
For further information:
REPORTS & NGO ACTION
ECRE Report: How CJEU Judgements and the EU Charter of Fundamental Rights have influenced national asylum policies
A newly released ECRE report shows significant impact of three asylum-related cases from the Court of Justice of the EU (CJEU) and of the EU Charter of Fundamental Rights on the national asylum policies of eight Member States.
The report included seven Member States; Belgium, Bulgaria, France, Germany, Sweden, the Netherlands, the UK and Italy and showed how judgments on the determination of LGBTI asylum applications: X.Y.Z and A.B.C, and detention conditions of persons subject to Dublin transfers: Cimade and Gisti, affected overall national legislation - often leading to a shift in national practices and internal guidance, and sometimes even to formal legislative changes.
While the report establishes an overall influence from EU to national level the findings also reflect a more complex reality. While the judgements were clarifying certain provisions, they left others unclear and often with a wide margin of interpretation from national judiciaries. As for the EU Charter of Fundamental Rights, the study found that State authorities often preferred to rely on more established instruments, such as the European Convention on Human Rights, and that additional time and training were necessary to resolve this issue.
The report therefor recommends that future questions addressed to the Court on the interpretation of EU law should be framed to ensure clarity. Additionally, domestic asylum case-law and national internal guidance should be available online to ensure harmonization of the interpretation between Member States and ensure transparency. The report further recommends that national legislation and practices should at all times be in line with EU Charter provisions; national authorities should proactively apply and rely on EU Charter provisions in order to make it a “real living instrument”.
AIDA 2016 Update: Sweden
The updated Country Report on Sweden tracks developments in the country’s asylum system following substantial reforms introduced in 2016. Sweden introduced amendments to the Aliens Act entering into force on 1 January 2017, with a view to transposing the recast Asylum Procedures Directive. The law spells out the grounds for considering an application manifestly unfounded and provides that an appeal with suspensive effect is allowed for decisions that can immediately be enforced until the court’s final review of the appeal. The same rules apply for appeals against decisions of the Migration Agency to deem a first subsequent application inadmissible.
However, the most notable reform concerns the rights conferred to those granted international protection. Up until 20 July 2016, the vast majority of residence permits granted to persons in need of international protection or on humanitarian grounds were all permanent. This situation changed from 20 July 2016, when the new temporary law on migration was adopted and entered into force for a 3-year period until 2019.
Convention refugees will be granted a 3-year temporary permit with the right to family reunification if the application is made within three months of the reference person receiving their permit. Beneficiaries of subsidiary protection will be granted an initial period of 13 months temporary residence permit with no right to family reunification. The permit can be extended another 2 years if protection grounds persist. Persons whose removal would contravene Sweden’s international convention-based obligations and who do not qualify for convention or subsidiary status can be granted an initial temporary permit of 13 months which can be prolonged for 2 years if the grounds persist. If such a permit is granted in a subsequent application, then the permit is first granted for thirteen months and then one year at a time subject to the same grounds. This category has no right to family reunification.
The Migration Court of Appeal ruled on 18 January 2017 that the length of the residence permit per se cannot be appealed by a beneficiary of international protection, though an appeal against the type of protection granted is possible.
Owing to the rapid drop in numbers of asylum seekers, the previous congestion in reception centres is no longer a problem. There is a gradual return to normal accommodation standards. The subsistence payments are still at the same level as 1994.
Read the full country report here.
AIDA 2016 Update: Ireland
The updated Country Report on Ireland tracks developments in the country’s asylum system following substantial reforms introduced in 2016. The main change is the commencement of the International Protection Act, which was signed into law in December 2015 and officially entered into effect on 31 December 2016.
The Act introduces a single procedure whereby applications for international protection encompass a concurrent determination of eligibility for refugee status; subsidiary protection and permission to remain, respectively. An applicant now makes a single application under which all grounds for protection will be considered. Up until 2017, these assessments have been carried out separately, in a bifurcated procedure, leading to applicants spending a significant amount of time in the asylum process. Additionally, the 2015 Act will abolish the Office of the Refugee Applications Commissioner, which will be subsumed into the Department of Justice as the International Protection Office (IPO). The Refugee Appeals Tribunal will be replaced by the International Protection Appeals Tribunal (IPAT).
Ireland still has no legal framework for reception. The Irish Refugee Council made extensive recommendations to the government on the draft of the International Protection Bill at the time calling for a legal framework for reception conditions and facilities to be included, however this has not been addressed in the adopted legislation. Asylum applicants continue to be housed in the Direct Provision system and although the Department of Justice and Equality has stated that the Working Group report on improvements to the Protection Process, including Direct Provision and other supports for asylum seekers recommendations have been implemented, partially implemented or are in progress, there is only little changes in practice.
The new Act introduces more restrictive provisions for family reunification than those contained in the previous legislation. Under the new provisions, the definition of “member of the family” excludes such people as siblings and parents for adult beneficiaries of international protection, children over the age of 18 and dependents such as grandparents and other extended relatives. Furthermore, restrictive time limits have been placed on sponsors in which they can lodge an application for family reunification (within 12 months of receiving international protection status) and on family members in which they can enter the state upon being granted permission to enter the state (by “a date specified by the Minister when giving the permission”).
Read the full country report here.
AIDA 2016 Update: Germany
The updated country report on Germany provides in-depth insight into the transformation and reform of the German asylum system in the aftermath of large-scale arrivals of asylum seekers. According to estimates by the Federal Ministry of Interior, 280,000 asylum seekers came to Germany in 2016, in comparison to an estimated 890,000 in 2015. In spite of this, the number of registered asylum applications increased significantly, from 476,649 in 2015 to 745,545 applications in 2016, due to the registration of applications made in the previous year. The backlog of non-registered asylum applications has been cleared in 2016.
The overall protection rate was on a very high level in 2016 (62.4% of decisions resulting in refugee status, subsidiary protection or humanitarian/national protection). However, due to a policy change in the first months of 2016, the Federal Office for Migration and Refugees (BAMF) granted subsidiary protection instead of refugee protection in a record number of cases. This policy change affected Syrian nationals in particular, but also asylum seekers from Iraq or Eritrea.
The policy change at the BAMF coincided with a legislative change in March 2016, according to which family reunification was suspended for beneficiaries of subsidiary protection until March 2018. This change came into effect only eight months after beneficiaries of subsidiary protection had been given the same privileged position as refugees in terms of family reunification conditions. Tens of thousands of beneficiaries of subsidiary protection appealed against the authorities’ decisions in order to gain refugee status (“upgrade-appeals”), with a success rate of more than 75% in 2016.
Further elements of the German asylum system have been reformed throughout the year, inter alia:
- Since August 2016, refugees and beneficiaries of subsidiary protection are generally obliged to take up their place of residence within the Federal State in which their asylum procedures has been conducted. (“residence rule”).
- Accelerated procedures were introduced in March 2016 for certain groups of asylum seekers, most prominently, asylum seekers from safe countries of origin. At the end of 2016 these accelerated procedures were only carried out in two branch offices of the BAMF, so this amendment did not have a major impact in practice.
- Criteria for “inadmissibility” of asylum applications, were clarified in August 2016. They now include “Dublin cases” (responsibility of another Member State of the Dublin regulation for the asylum procedure) as well as cases in which another EU member state has granted international protection and cases in which a secondary application does not lead to an initiation of a new asylum procedure.
The BAMF intensified its efforts to fast-track procedures with the establishment of more than 20 new “arrival centres”. In these centres various processes such as registration, identity checks, the interview and the decision-making are “streamlined”. Asylum seekers are categorised in “clusters” with the aim of conducting the asylum procedure for some groups of asylum seekers – those with an alleged low chance and those with an alleged high chance of being granted protection – within a few days.
The quality of many asylum procedures was strongly criticised in a “memorandum” published by twelve NGOs in November 2016. One important issue of the memorandum was that many decisions in asylum procedures are not taken by the BAMF staff member who has conducted the interview but by a decision-maker in a remote location (called decision-making centres). This point has since been confirmed in an official statement, according to which more than 66% of asylum decisions were taken in “decision-making centres” in 2016.
Read the full country report here.
- March 19, 2017, Brussels, Book Launch, Cast Away: Talk and Q&A, Cast Away: Stories of Survival from Europe’s Refugee Crisis
- March 23,20017, Amsterdam, Seminar: Racial Exclusion in and at the Borders of Europe, Migration & Diversity Centre
- March 26, 2017, Brussels, Screening: No Man is an Island, Millennium Festival
- March 28,2017, London, Debate: Migrant Detention in the EU: Thriving Business, Statewatch
- March 30,2017, London, Report Launch: Making the asylum appeals process fair for women, Asylum Aid and NatCen
- March 30 – 31, 2017, Dublin, Conference: Separated Children in Judicial Proceedings : Recourse to European and International Mechanisms, Seperated Children in Judicial Proceedings Project
- May 4 -5, 2017, Budapest, Conference: Protecting Stateless Persons from Arbitrary Detention, European Network on Statelessness
- May 10, 2017, Oxford, Lecture: Nostalgia and Legitimacy : Externalization of European Migration Policy – Thomas Spijkerboer, Refugee Studies Centre
- June 5-9, 2017, Vicenza, Training course: Combating Human Trafficking alnog Migration Routes : Live Stimulation Training Course, OSCE
- July 3 – 14, 2017, Brussels, Summer School: EU Immigration and Asylum Law and Policy, Odysseus Network
- July 2017, Warsaw, Summer School: Solidarity Beyond Borders, Transsol
- July 2-14, 2017, Oxford, Summer School: International Summer School in Forced Migration, University of Oxford
- July 4 – 13, 2017, Lesvos, Summer School: Culters, Migrations, Borders, University of the Aegean
VACANCIES & CALLS FOR PAPERS
- Scottish Refugee Council, Digital Communications & Information Officer, Deadline: March 17, 2017
- Aire Centre, Legal Project Manager, Deadline: March 23, 2017
- Call for Paper: Borders and Boundaries: Territories, Technologies, Transgressions, LSE and Glodsmith College, Deadline: March 21, 2017
- Call for Paper: Irregular Migrants, Refugees or Victims of Human-Trafficking? Analysis, Advocacy and Assistance between Categorizations and (Self )Identifications, Salya Trafficking Seminar, Deadline: March 31, 2017
- Call for Paper: Migration, Societies, and Change, University of Manchester, Deadline: April 30, 2017
- Care4Calais, Operations Manager, Deadline: Unspecified