# C_2018227EN.01002001.xml

| 28.6.2018 | EN | Official Journal of the European Union | C 227/20 |
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28.6.2018

EN

Official Journal of the European Union

C 227/20

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Opinion of the European Economic and Social Committee on ‘The role of Turkey in the refugee crisis’

(own-initiative opinion)

(2018/C 227/03)

| Rapporteur: | Dimitris DIMITRIADIS |
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Rapporteur:

Dimitris DIMITRIADIS

Dimitris DIMITRIADIS

| Plenary Assembly decision | 22.9.2016 |
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| Legal basis | Rule 29(2) of the Rules of Procedure |
| | Own-initiative opinion |
| Section responsible | Section for External Relations |
| Adopted in section | 7.11.2017 |
| Adopted at plenary | 14.2.2018 |
| Plenary session No | 532 |
| Outcome of vote
  (for/against/abstentions) | 227/6/12 |

Plenary Assembly decision

22.9.2016

Legal basis

Rule 29(2) of the Rules of Procedure

Own-initiative opinion

Section responsible

Section for External Relations

Adopted in section

7.11.2017

Adopted at plenary

14.2.2018

Plenary session No

532

Outcome of vote

(for/against/abstentions)

227/6/12

1.   Conclusions and recommendations

Conclusions and recommendations

| 1.1. | The EESC recognises that Turkey is playing a crucial and decisive role in managing the so-called refugee crisis in the Middle East and Mediterranean region and has endeavoured to tackle the problem using its own means, though with additional assistance from the EU and the international community. |
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1.1.

The EESC recognises that Turkey is playing a crucial and decisive role in managing the so-called refugee crisis in the Middle East and Mediterranean region and has endeavoured to tackle the problem using its own means, though with additional assistance from the EU and the international community.

| 1.2. | In the view of the EESC, despite the explosive situation of the so-called ‘refugee crisis’, to this day the EU has failed to put in place a credible and effective common European immigration policy or a common European asylum system, owing to the unjustifiable refusal by some Member States to comply with either their legal obligations set out in international conventions or the EU Treaties, together with those agreed to in decisions adopted unanimously at summits or meetings of the Councils of Ministers. It therefore urges the Council and the Commission to work more resolutely on this issue, and to oblige those Member States which fail to comply with their European commitments to take the required measures immediately. |
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1.2.

In the view of the EESC, despite the explosive situation of the so-called ‘refugee crisis’, to this day the EU has failed to put in place a credible and effective common European immigration policy or a common European asylum system, owing to the unjustifiable refusal by some Member States to comply with either their legal obligations set out in international conventions or the EU Treaties, together with those agreed to in decisions adopted unanimously at summits or meetings of the Councils of Ministers. It therefore urges the Council and the Commission to work more resolutely on this issue, and to oblige those Member States which fail to comply with their European commitments to take the required measures immediately.

| 1.3. | The EESC strongly condemns the xenophobic attitude of some Member States to the refugee crisis and considers this stance to be contrary to the fundamental values of the EU. |
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1.3.

The EESC strongly condemns the xenophobic attitude of some Member States to the refugee crisis and considers this stance to be contrary to the fundamental values of the EU.

| 1.4. | The EESC reaffirms its readiness to contribute in any way it can to addressing the refugee crisis, working with the European institutions and with civil society organisations (employers, workers and NGOs), as borne out by the significant work it has already carried both in the form of numerous opinions and in missions to the countries affected by this humanitarian catastrophe. |
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1.4.

The EESC reaffirms its readiness to contribute in any way it can to addressing the refugee crisis, working with the European institutions and with civil society organisations (employers, workers and NGOs), as borne out by the significant work it has already carried both in the form of numerous opinions and in missions to the countries affected by this humanitarian catastrophe.

| 1.5. | Since the signing of the EU-Turkey statement, there has been a significant and steady reduction in the number of people unlawfully crossing European borders or losing their lives in the Aegean. At the same time, however, a rapid increase is under way in flows to other southern countries, a source of particular concern to the EESC. The subsequent performance of the EU Member States in terms of both resettlement and relocation has continued to be disappointing. While the necessary foundations for implementing these programmes have been laid, the current pace is still slower than is required to meet the objectives set with a view to ensuring the resettlement and relocation of all eligible persons. |
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1.5.

Since the signing of the EU-Turkey statement, there has been a significant and steady reduction in the number of people unlawfully crossing European borders or losing their lives in the Aegean. At the same time, however, a rapid increase is under way in flows to other southern countries, a source of particular concern to the EESC. The subsequent performance of the EU Member States in terms of both resettlement and relocation has continued to be disappointing. While the necessary foundations for implementing these programmes have been laid, the current pace is still slower than is required to meet the objectives set with a view to ensuring the resettlement and relocation of all eligible persons.

| 1.6. | The EESC considers it necessary for Turkey to draw up a uniform system for granting international protection to asylum seekers, in accordance with international and European standards (1), which does not discriminate against those applying for international protection on the basis of their national origin, granting uniform protection to all of them. Among other things, it suggests removing the geographical limitation for non-European asylum seekers and the distinction between Syrian and non-Syrian asylum seekers (2). The principle of non-refoulement must also be guaranteed. |
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1.6.

The EESC considers it necessary for Turkey to draw up a uniform system for granting international protection to asylum seekers, in accordance with international and European standards (1

2

| 1.7. | The EESC considers it necessary to improve accommodation conditions in Turkey, as well as the policies on the social and economic integration of recognised refugees, in particular with regard to access to employment, healthcare, education and housing. Special attention should be paid to the protection of unaccompanied minors and children, particularly as regards access to education and protection from forced labour and forced marriage (3). |
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1.7.

The EESC considers it necessary to improve accommodation conditions in Turkey, as well as the policies on the social and economic integration of recognised refugees, in particular with regard to access to employment, healthcare, education and housing. Special attention should be paid to the protection of unaccompanied minors and children, particularly as regards access to education and protection from forced labour and forced marriage (3

| 1.8. | The EESC calls for a serious, independent monitoring and surveillance mechanism to be set up in respect of the EU-Turkey Statement on refugees in order to monitor — in cooperation with the Turkish authorities, international NGOs and specialised humanitarian organisations — both sides’ implementation of and compliance with the terms agreed, pursuant to international and European law (4). |
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1.8.

The EESC calls for a serious, independent monitoring and surveillance mechanism to be set up in respect of the EU-Turkey Statement on refugees in order to monitor — in cooperation with the Turkish authorities, international NGOs and specialised humanitarian organisations — both sides’ implementation of and compliance with the terms agreed, pursuant to international and European law (4

| 1.9. | The EESC considers it essential to strengthen the role of the European Border Guard Agency in order to dismantle trafficking networks and combat people smuggling, in line with international law (5). |
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1.9.

The EESC considers it essential to strengthen the role of the European Border Guard Agency in order to dismantle trafficking networks and combat people smuggling, in line with international law (5

| 1.10. | The EESC calls for full compliance on the part of the EU Member States that have not so far participated in the relocation and resettlement procedures, and for the relevant programmes to be speeded up. The judgements of the Court of Justice of the European Union and the efforts of the Commission to improve coordination between European institutions and the Member States represent a positive step in this direction. In its judgements, the CJEU directly condemns the behaviour of certain States that do not accept refugees on their territory which, as the Court points out, is contrary to the obligation of solidarity and fair burden-sharing incumbent upon the Member States of the Union in the area of asylum policy. |
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1.10.

The EESC calls for full compliance on the part of the EU Member States that have not so far participated in the relocation and resettlement procedures, and for the relevant programmes to be speeded up. The judgements of the Court of Justice of the European Union and the efforts of the Commission to improve coordination between European institutions and the Member States represent a positive step in this direction. In its judgements, the CJEU directly condemns the behaviour of certain States that do not accept refugees on their territory which, as the Court points out, is contrary to the obligation of solidarity and fair burden-sharing incumbent upon the Member States of the Union in the area of asylum policy.

| 1.11. | The EESC is deeply concerned about the general human rights situation in Turkey, especially since the failed coup d’état. We believe that the principles and values of the EU set out in Article 2 of the Treaty on European Union may be under attack by the current government of Turkey (6). Specifically, it is concerned that civil society organisations cannot function unhindered in Turkey, particularly in the wake of the declaration of a state of emergency, and considers that they play a key role in the humanitarian situation of refugees in both the planning and implementation of programmes to integrate refugees into local communities. |
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1.11.

The EESC is deeply concerned about the general human rights situation in Turkey, especially since the failed coup d’état. We believe that the principles and values of the EU set out in Article 2 of the Treaty on European Union may be under attack by the current government of Turkey (6

| 1.12. | The EESC is of the view that the social partners can and must play a prominent role in Turkey in order to address the refugee crisis. |
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1.12.

The EESC is of the view that the social partners can and must play a prominent role in Turkey in order to address the refugee crisis.

| 1.13. | The EESC is concerned at the tension that has recently marked EU-Turkey relations and the possible impact of any further heightening of tension both on the implementation of the agreement between Europe and Turkey and on European-Turkish relations in general. The EESC is still of the view that European-Turkish relations should be geared to maintaining Turkey’s accession prospects, in full compliance with the European acquis. |
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1.13.

The EESC is concerned at the tension that has recently marked EU-Turkey relations and the possible impact of any further heightening of tension both on the implementation of the agreement between Europe and Turkey and on European-Turkish relations in general. The EESC is still of the view that European-Turkish relations should be geared to maintaining Turkey’s accession prospects, in full compliance with the European acquis.

2.   Introductory comments: from the European Agenda on Migration to the Agreement of 18 March 2016

Introductory comments: from the European Agenda on Migration to the Agreement of 18 March 2016

| 2.1. | Following the outbreak of the war in Syria, which triggered a massive humanitarian crisis, and the explosive situation that has arisen in Iraq as a result of ongoing political instability, thousands of refugees began to cross the Turkish border, under inhuman conditions, with the ultimate aim of reaching the countries of the EU, those in central Europe in particular.
  Turkey found itself ‘hosting’ some three million people who, at the risk of their lives, had passed through war zones and — again at the risk of their lives — attempted and continue to attempt to cross Europe’s border irregularly into Greece. |
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2.1.

Following the outbreak of the war in Syria, which triggered a massive humanitarian crisis, and the explosive situation that has arisen in Iraq as a result of ongoing political instability, thousands of refugees began to cross the Turkish border, under inhuman conditions, with the ultimate aim of reaching the countries of the EU, those in central Europe in particular.

Turkey found itself ‘hosting’ some three million people who, at the risk of their lives, had passed through war zones and — again at the risk of their lives — attempted and continue to attempt to cross Europe’s border irregularly into Greece.

| 2.2. | As the first country of reception, Turkey has played and continues to play a particularly crucial role in the so-called ‘refugee crisis’, which has become one of the EU’s main ‘unresolved’ problems. |
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2.2.

As the first country of reception, Turkey has played and continues to play a particularly crucial role in the so-called ‘refugee crisis’, which has become one of the EU’s main ‘unresolved’ problems.

| 2.3. | The European Agenda on Migration, which emerged following difficult and protracted negotiations among the Member States in May 2015, represented the EU’s first attempt to tackle the plight of the thousands of refugees who risk their lives transiting war zones and attempting to cross the Mediterranean. For the first time, concepts such as internal relocation and resettlement were introduced. The Agenda sets out both immediate and longer-term measures to deal with the substantial migration flows faced by the EU — and in particular the Mediterranean countries — and the problems thrown up when handling crises of this kind. They include tripling financial resources for Frontex, relocating refugees and migrants in EU countries according to specific criteria and quotas, activating — for the first time — the emergency response mechanism provided for in Article 78(3) TFEU to assist Member States confronted with a sudden influx of refugees, and launching an operation in the Mediterranean under the Common Security and Defence Policy to dismantle trafficking networks and combat people smuggling, in keeping with international law. |
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2.3.

The European Agenda on Migration, which emerged following difficult and protracted negotiations among the Member States in May 2015, represented the EU’s first attempt to tackle the plight of the thousands of refugees who risk their lives transiting war zones and attempting to cross the Mediterranean. For the first time, concepts such as internal relocation and resettlement were introduced. The Agenda sets out both immediate and longer-term measures to deal with the substantial migration flows faced by the EU — and in particular the Mediterranean countries — and the problems thrown up when handling crises of this kind. They include tripling financial resources for Frontex, relocating refugees and migrants in EU countries according to specific criteria and quotas, activating — for the first time — the emergency response mechanism provided for in Article 78(3) TFEU to assist Member States confronted with a sudden influx of refugees, and launching an operation in the Mediterranean under the Common Security and Defence Policy to dismantle trafficking networks and combat people smuggling, in keeping with international law.

| 2.4. | The picture also includes the EU-Turkey statement of 18 March 2016, intended to limit the refugee crisis and which, for procedural reasons was labelled as an informal agreement on irregular migration from Turkey to the EU, to replace irregular migration with legal channels for resettling refugees within the European Union (7). Its provisions include:






  (i) | All ‘irregular migrants’ arriving in Greece from Turkey will, as from 20 March 2016, be returned to Turkey on the basis of a bilateral agreement between the two countries. |
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2.4.

The picture also includes the EU-Turkey statement of 18 March 2016, intended to limit the refugee crisis and which, for procedural reasons was labelled as an informal agreement on irregular migration from Turkey to the EU, to replace irregular migration with legal channels for resettling refugees within the European Union (7

(i)

All ‘irregular migrants’ arriving in Greece from Turkey will, as from 20 March 2016, be returned to Turkey on the basis of a bilateral agreement between the two countries.

| (ii) | All those who do not apply for asylum or whose requests are considered unfounded or inadmissible will be returned to Turkey. |
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(ii)

All those who do not apply for asylum or whose requests are considered unfounded or inadmissible will be returned to Turkey.

| (iii) | Greece and Turkey, assisted by EU institutions and agencies, will enter into any necessary bilateral agreements, including one on the permanent presence of Turkish officials on Greek islands and Greek officials in Turkey from 20 March onwards, in order to implement these agreements. |
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(iii)

Greece and Turkey, assisted by EU institutions and agencies, will enter into any necessary bilateral agreements, including one on the permanent presence of Turkish officials on Greek islands and Greek officials in Turkey from 20 March onwards, in order to implement these agreements.

| (iv) | For every Syrian returned to Turkey from the Greek islands, another Syrian will be settled in the EU. |
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(iv)

For every Syrian returned to Turkey from the Greek islands, another Syrian will be settled in the EU.

| (v) | A mechanism will be set up to implement the ‘one for one’ principle — in cooperation with the Commission, EU agencies, the UN High Commissioner for Refugees and the Member States — as from the first day that returns start. |
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(v)

A mechanism will be set up to implement the ‘one for one’ principle — in cooperation with the Commission, EU agencies, the UN High Commissioner for Refugees and the Member States — as from the first day that returns start.

| (vi) | Priority for resettlement in the EU will be given to Syrians in Turkey rather than in Greece, and of these, priority will be given to migrants who have not previously entered or tried to enter the EU. |
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(vi)

Priority for resettlement in the EU will be given to Syrians in Turkey rather than in Greece, and of these, priority will be given to migrants who have not previously entered or tried to enter the EU.

| 2.5. | In its additional fact sheet on the EU-Turkey statement of 18 March 2016 (8), the Commission stresses the possibility of classifying Turkey as a ‘safe third country’ (9). The communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration leads to the same conclusion, arguing that in its view the concept of safe third country — as defined in the Asylum Procedures Directive — requires not that there should be no reservations or geographical limitations when implementing the Geneva Convention, but that in principle protection can be obtained under the terms of the Convention (10). |
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2.5.

In its additional fact sheet on the EU-Turkey statement of 18 March 2016 (8

9

10

| 2.6. | For its part, EESC has expressed the view that the concept of safe country of origin should under no circumstances be applied in cases of infringement of press freedoms, undermining of political pluralism, or in countries where persecution takes place on the grounds of gender and/or sexual orientation, or of belonging to a national, ethnic, cultural or religious minority. In any case, the following (among other things) must be assessed regarding a country’s inclusion on the list of safe countries of origin: up-to-date information from sources such as the European Court of Human Rights, the United Nations High Commissioner for Refugees (UNHCR), the European Asylum Support Office (EASO), the Council of Europe (CoE) and other human rights organisations (11). |
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2.6.

For its part, EESC has expressed the view that the concept of safe country of origin should under no circumstances be applied in cases of infringement of press freedoms, undermining of political pluralism, or in countries where persecution takes place on the grounds of gender and/or sexual orientation, or of belonging to a national, ethnic, cultural or religious minority. In any case, the following (among other things) must be assessed regarding a country’s inclusion on the list of safe countries of origin: up-to-date information from sources such as the European Court of Human Rights, the United Nations High Commissioner for Refugees (UNHCR), the European Asylum Support Office (EASO), the Council of Europe (CoE) and other human rights organisations (11

| 2.7. | Since the signing of the EU-Turkey statement, there has been a significant and steady reduction in the number of people unlawfully crossing European borders or losing their lives in the Aegean (12). At the same time, however, a rapid increase is under way in flows to other southern countries, a source of particular concern to the EESC. The subsequent performance of the EU Member States in terms of both resettlement and relocation has continued to be disappointing. While the necessary foundations for implementing these programmes have been laid, the current pace is still slower than is required to meet the objectives set with a view to ensuring the resettlement and relocation of all eligible persons (13). |
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2.7.

Since the signing of the EU-Turkey statement, there has been a significant and steady reduction in the number of people unlawfully crossing European borders or losing their lives in the Aegean (12

13

3.   The safe country mechanism: safe third country and first country of asylum

The safe country mechanism: safe third country and first country of asylum

| 3.1. | The concepts of ‘safe country of origin’, ‘safe third country’ and ‘first country of asylum’ are set out in Directive 2013/32/EU on common procedures for granting and withdrawing international protection, which lays down common procedural standards and guarantees for those seeking international protection in the EU Member States. More specifically, the Directive provides for four categories of safe country. These are first country of asylum (Article 35), safe third country (Article 38), safe country of origin (Article 37) and European safe third country (Article 39) (14). |
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3.1.

The concepts of ‘safe country of origin’, ‘safe third country’ and ‘first country of asylum’ are set out in Directive 2013/32/EU on common procedures for granting and withdrawing international protection, which lays down common procedural standards and guarantees for those seeking international protection in the EU Member States. More specifically, the Directive provides for four categories of safe country. These are first country of asylum (Article 35), safe third country (Article 38), safe country of origin (Article 37) and European safe third country (Article 39) (14

| 3.2. | A joint reading of Directive 2013/32/EU’s Article 39 on European safe third countries and Article 35 on the first country of asylum reveals a greater and a lesser status of international protection, with the safe third country regime under Article 38 lying in between. Article 39 provides the highest level of protection, referring to countries that have ratified the Geneva Convention without geographical limitations, offer the maximum protection provided by the Convention, implement Article 36 of the Convention in full in the country and are subject to the Convention’s control mechanisms. Article 35 of the Directive, in stark contrast, is limited to providing protection to refugees or other sufficient protection, focusing on application of the principle of non-refoulement. |
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3.2.

A joint reading of Directive 2013/32/EU’s Article 39 on European safe third countries and Article 35 on the first country of asylum reveals a greater and a lesser status of international protection, with the safe third country regime under Article 38 lying in between. Article 39 provides the highest level of protection, referring to countries that have ratified the Geneva Convention without geographical limitations, offer the maximum protection provided by the Convention, implement Article 36 of the Convention in full in the country and are subject to the Convention’s control mechanisms. Article 35 of the Directive, in stark contrast, is limited to providing protection to refugees or other sufficient protection, focusing on application of the principle of non-refoulement.

| 3.3. | According to Article 38 of Directive 2013/32/EU, a country is considered to be a safe third country for a particular applicant if it complies overall with the following criteria: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) the country in question respects the principle of non-refoulement in accordance with the Geneva Convention; (c) there is no risk of serious harm to the applicant; (d) the country prohibits the removal of a person to a country where they would be at risk of torture or cruel, inhuman or degrading treatment or punishment, as laid down in international law; (e) the possibility exists to request refugee status and, if recognised as a refugee, to receive protection in accordance with the Geneva Convention; and (f) the applicant has a connection with the third country concerned on the basis of which it would be reasonable for that person to go to that country. Consequently, in the event that the competent authorities judge that a country, such as Turkey, constitutes a first country of asylum or a safe third country for an applicant, they issue a decision rejecting the application for international protection as inadmissible, without examining the substance (15). |
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3.3.

According to Article 38 of Directive 2013/32/EU, a country is considered to be a safe third country for a particular applicant if it complies overall with the following criteria: (a) life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion; (b) the country in question respects the principle of non-refoulement in accordance with the Geneva Convention; (c) there is no risk of serious harm to the applicant; (d) the country prohibits the removal of a person to a country where they would be at risk of torture or cruel, inhuman or degrading treatment or punishment, as laid down in international law; (e) the possibility exists to request refugee status and, if recognised as a refugee, to receive protection in accordance with the Geneva Convention; and (f) the applicant has a connection with the third country concerned on the basis of which it would be reasonable for that person to go to that country. Consequently, in the event that the competent authorities judge that a country, such as Turkey, constitutes a first country of asylum or a safe third country for an applicant, they issue a decision rejecting the application for international protection as inadmissible, without examining the substance (15

| 3.4. | The principle of non-refoulement is the cornerstone of the system of international refugee protection and is enshrined in Article 33(1) of the 1951 Geneva Convention (16). UNHCR has observed that this article introduces a central principle into the Convention, one that has now entered into customary international law and is thus binding on all States of the international community irrespective of whether or not they have ratified the Geneva Convention (17). |
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3.4.

The principle of non-refoulement is the cornerstone of the system of international refugee protection and is enshrined in Article 33(1) of the 1951 Geneva Convention (16

17

| 3.5. | Thus anyone who is a refugee under the 1951 Convention, or who meets the criteria of the definition of refugee set out in Article 1(a)(2) of the 1951 Convention, even though their status as a refugee may not have not been officially recognised, is covered by the protection afforded under Article 33(1) (18). This is of particular importance for asylum seekers, as it is possible that they may be refugees and should therefore not be removed or expelled from the country of asylum until a final decision on their status has been taken (19). |
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3.5.

Thus anyone who is a refugee under the 1951 Convention, or who meets the criteria of the definition of refugee set out in Article 1(a)(2) of the 1951 Convention, even though their status as a refugee may not have not been officially recognised, is covered by the protection afforded under Article 33(1) (18

19

4.   Turkey as a ‘safe third country’

Turkey as a ‘safe third country’

| 4.1. | Since 2011, Turkey has been hosting the highest number of refugees from Syria (more than three million — 3 222 000). At the same time, Lebanon, a country with a population of around 4,8 million, is hosting more than 1 million registered refugees. Jordan has the third largest number of refugees from Syria (654 582), whilst according to the latest official figures, Iraq and Egypt are hosting 244 235 and 124 534 registered refugees respectively (20). |
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4.1.

Since 2011, Turkey has been hosting the highest number of refugees from Syria (more than three million — 3 222 000). At the same time, Lebanon, a country with a population of around 4,8 million, is hosting more than 1 million registered refugees. Jordan has the third largest number of refugees from Syria (654 582), whilst according to the latest official figures, Iraq and Egypt are hosting 244 235 and 124 534 registered refugees respectively (20

| 4.2. | Turkey has ratified the Geneva Convention on Refugees and its 1967 Protocol, but retains a geographical reservation regarding non-European asylum seekers. In practice, it only recognises refugees from Europe, meaning countries that are members of the Council of Europe (21). In April 2014, Turkey passed a new Law on Foreigners and International Protection. The law provides for four types of protected status in the country: (a) ‘refugee status’ for recognised refugees under the Geneva Convention who are citizens of one of the 47 Member States of the Council of Europe; (b) ‘conditional refugee status’ for recognised non-European refugees; (c) ‘subsidiary protection’, which can be granted to European and non-European citizens who do not meet the criteria of the Geneva Convention in order to be recognised as refugees but, if returned to their country of origin, would be at risk of the death penalty, torture or other inhuman or degrading treatment, or of suffering harm as a result of armed conflict in their country; and (d) ‘temporary protection’ granted in the event of mass influxes (22). |
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4.2.

Turkey has ratified the Geneva Convention on Refugees and its 1967 Protocol, but retains a geographical reservation regarding non-European asylum seekers. In practice, it only recognises refugees from Europe, meaning countries that are members of the Council of Europe (21

22

| 4.3. | The Syrians who arrived en masse were originally granted ‘visitor’ (misâfir) status, and then temporary protection, though without the right to submit a claim for refugee status. The aim of this provision is for them to stay in Turkey only while the war lasts in Syria, and subsequently return there when conditions improve. |
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4.3.

The Syrians who arrived en masse were originally granted ‘visitor’ (misâfir

| 4.3.1. | Nationals of other countries (non-Syrians) may apply for asylum on an individual basis and are then processed in a parallel procedure under the new Law on Foreigners and International Protection which entered into force in April 2014. Under this procedure, applicants are sent to both the Directorate-General of Migration Management (DGMM), which conducts the status determination procedure, and to UNHCR, which carries out a parallel status determination procedure and makes recommendations regarding relocation. Its decisions do not have legal force, however, but they are taken into account in the DGMM’s assessment. It is thus clear that Turkish legislation in this field provides for different standards of protection and procedural rules for Syrians and nationals of other third countries, thereby introducing disparities in both access to, and the terms of, protection. |
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4.3.1.

Nationals of other countries (non-Syrians) may apply for asylum on an individual basis and are then processed in a parallel procedure under the new Law on Foreigners and International Protection which entered into force in April 2014. Under this procedure, applicants are sent to both the Directorate-General of Migration Management (DGMM), which conducts the status determination procedure, and to UNHCR, which carries out a parallel status determination procedure and makes recommendations regarding relocation. Its decisions do not have legal force, however, but they are taken into account in the DGMM’s assessment. It is thus clear that Turkish legislation in this field provides for different standards of protection and procedural rules for Syrians and nationals of other third countries, thereby introducing disparities in both access to, and the terms of, protection.

| 4.4. | There are also serious obstacles, shortcomings and problems as regards access to work and basic services, such as health and welfare, education and, more generally, integration into society (23). Although Turkey recognised the right of Syrians to work as of January 2016, in practice very few of them have received work permits, with most of them consequently engaging in undeclared work (24). It should be added to the foregoing that beneficiaries of international protection are explicitly and categorically excluded from the possibility of long-term integration in Turkey (Article 25 of the Law on Foreigners and International Protection), and the free movement of refugees is restricted under Article 26 of the same law. Clearly, therefore, protection granted to people applying for international protection in Turkey falls below the legal guarantees and rights enjoyed by those recognised as refugees under the Geneva Convention, such as the right to move within the territory of the contracting State (Article 26 of the 1951 Convention), the right to naturalisation (Article 34 of the 1951 Convention) and the right to work (Articles 17, 18 and 19 of the 1951 Convention). |
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4.4.

There are also serious obstacles, shortcomings and problems as regards access to work and basic services, such as health and welfare, education and, more generally, integration into society (23

24

| 4.5. | Furthermore, questions arise as to the classification of Turkey as a ‘safe third country’ regarding respect for the principle of non-refoulement enshrined in Article 33(1) of the Geneva Convention, Article 3 of the European Convention on Human Rights (ECHR) and Article 3(2) of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (25). Aside from the fact that Turkey has a history of pushing back non-European asylum seekers, recent reports by international human rights organisations refer to instances of entry being denied and of collective push-backs into Syrian territory (26). Significantly, only one day after the agreement had been signed, Amnesty International reported yet another occurrence of mass repatriation of Afghan refugees to Kabul (27). Similarly, a resolution adopted by the Parliamentary Assembly of the Council of Europe on 20 April 2016 stated, amongst other things, that returns of both Syrians and nationals of other countries to Turkey are contrary to EU and international law (28). It is therefore evident that there are insufficient guarantees to ensure compliance with the principle of non-refoulement in practice (29). |
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4.5.

Furthermore, questions arise as to the classification of Turkey as a ‘safe third country’ regarding respect for the principle of non-refoulement enshrined in Article 33(1) of the Geneva Convention, Article 3 of the European Convention on Human Rights (ECHR) and Article 3(2) of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment (25

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Brussels, 14 February 2018.

The President of the European Economic and Social Committee

Georges DASSIS

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(1)  European Commission, Turkey 2016 Report, Brussels, 9.11.2016, SWD (2016) 366 final, pp. 77-78, available at: http://ec.europa.eu/enlargement/pdf/key_documents/2016/20161109_report_turkey.pdf

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(2)  EESC fact-finding missions on the situation of refugees as seen by civil society organisations, Mission Report on Turkey, 9-11 March 2016, p. 2, available at: http://www.eesc.europa.eu/resources/docs/eesc-fact-finding-missions-refugees_turkey_en.pdf

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(3)  See footnote 2.

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(4)  Amnesty International, Europe’s gatekeeper: unlawful detention and deportation of refugees from Turkey, p. 14, available at: https://www.amnesty.org/en/documents/document/?indexNumber=eur44%2f3022%2f2015&language=en

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(5)  See footnote 2.

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(6)  Article 2 TEU states that ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’.

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(7)  European Council, Foreign affairs and international relations, 18.3.2016, http://www.consilium.europa.eu/el/press/press-releases/2016/03/18-eu-turkey-statement/

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(8)  European Commission, Fact Sheet on the EU-Turkey Agreement, 19.3.2016, available at: http://europa.eu/rapid/press-release_MEMO-16-963_en.htm

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(9)  ‘On what legal basis will asylum seekers be returned from the Greek islands of Turkey? People who apply for asylum in Greece will have their applications treated on a case by case basis, in line with EU and international law requirements and the principle of non-refoulement. There will be individual interviews, individual assessments and rights of appeal. There will be no blanket and no automatic returns of asylum seekers. The EU asylum rules allow Member States in certain clearly defined circumstances to declare an application “inadmissible”, that is to say, to reject the application without examining the substance. There are two legal possibilities that could be envisaged for declaring asylum applications inadmissible in relation to Turkey: (1) first country of asylum (Article 35 of the Asylum Procedures Directive): where the person has been already recognised 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’.

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(10)  ‘In this context, the Commission underlines that the concept of safe third country as defined in the Asylum Procedures Directive requires that the possibility exists to receive protection in accordance with the Geneva Convention, but does not require that the safe third country has ratified that Convention without geographical reservation. Moreover, as regards the question whether there is a connection with the third country in question, and whether it is therefore reasonable for the applicant to go to that country, it can also be taken into account whether the applicant has transited through the safe third country in question, or whether the third country is geographically close to the country of origin of the applicant’. Communication from the Commission to the European Parliament and the Council on the State of Play of Implementation of the Priority Actions under the European Agenda on Migration, 10.2.2016, COM (2016) 85 final.

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(11)  Opinion of the European Economic and Social Committee, Establishing an EU list of safe countries of origin (OJ C 71, 24.2.2016, p. 82), points 2.4 and 2.11.

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(12)  The number of daily crossings from Turkey to the Greek islands has remained low since the Commission’s most recent report of an average of 75 arrivals a day. European Commission Brussels, 6.9.2017 COM(2017) 470 final Report from the Commission to the European Parliament, the European Council and the Council — Seventh Report on the Progress made in the implementation of the EU-Turkey Statement. Available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170906_seventh_report_on_the_progress_in_the_implementation_of_the_eu-turkey_statement_en.pdf

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(13)  According to the latest data, the overall number of relocations stands at 27 695 (19 244 from Greece and 8 451 from Italy), while a total of 8 834 Syrians have been resettled from Turkey to the EU under the EU-Turkey statement. With regard to financial support under the Facility for Refugees in Turkey, of the EUR 3 billion funding granted for the 2016-2017 period, contracts have already been signed for a value of more than EUR 1,66 billion and disbursements amount to EUR 838 million. The number of vulnerable refugees supported by the Emergency Social Safety Net has increased from 600 000 to 860 000 and is expected to rise to 1,3 million by the end of 2017. European Commission Brussels, 6.9.2017 COM(2017) 465 final Report from the Commission to the European Parliament, the European Council and the Council — Fifteenth report on relocation and resettlement. Available at: https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170906_fifteenth_report_on_relocation_and_resettlement_en.pdf

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(14)  It is argued that the safe country mechanism runs contrary to Article 31(1) of the Geneva Convention, since international law does not stipulate that the application must be submitted in the first country in which international protection might be granted. In this connection, see M. Symes and P. Jorro, Asylum Law and Practice, LexisNexis UK, 2003, p. 448; G. Goodwin-Gill and J. McAdam, The Refugee in International Law, Oxford University Press, 2007, p. 392. For the opposite point of view, see K. Hailbronner, The Concept of ‘Safe Country’ and Expeditious Asylum Procedures: A Western European Perspective, International Journal of Refugee Law, 1993, 5(1): pp. 31-65.

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(15)  According to the Hellenic Union for Human Rights, from the first days of application of the EU-Turkey agreement on refugees, ‘the EASO expert considered that Turkey was a safe third country with regard to the first applications for asylum that were examined [...]. This opinion, a standard text reproduced as grounds for all rejected applications, essentially denies claimants the necessary individual assessment and, worse still, places the burden of proving that Turkey is not a safe third country on the asylum seeker, completely counter to the spirit of the Directive. In these initial cases, the summary rejections are unjustified’. Hellenic Union for Human Rights, Comments — critical remarks on the provisions and implementation of Law 4375/2016, 21 April 2016, available at: http://www.hlhr.gr/?MDL=pages&SiteID=1215 On 10 May 2016, however, the first Greek decision was made in which Turkey was not considered to be a safe third country. More specifically, following an appeal by a Syrian in Lesbos who was initially not granted asylum and who should then have been returned to Turkey, the refugee appeals board determined that Turkey was not a safe third country, meaning that the asylum application had to be re-examined in greater detail and with more facts. The ‘precedent’ set by the first decision that Turkey cannot be considered a safe third country has been followed by a large number of refugee appeal boards.

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(16)  Regarding the principle of non-refoulement see, inter alia, E. Lauterpacht & D. Bethlehem, ‘The scope and content of the principle of non refoulement: Opinion’, in E. Feller, V. Tuerk & F. Nicholson (eds)., Refugee Protection in International Law, UNHCR’s Global Consultations on International Protection, Cambridge University Press, Cambridge 2003, pp. 87-177. See also the Advisory Opinion of the UN High Commissioner for Refugees on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol available at: http://www.unhcr.org/refworld/docid/45f17a1a4.html

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(17)  Note on international protection of 13 September 2001 (A/AC. 96/951, paragraph 16). See also UNHCR, The Principle of Non Refoulement as a Norm of Customary International Law, Response to the Questions Posed to UNHCR by the Federal Constitutional Court of the Federal Republic of Germany in cases 2 BvR 1938/93, 2 BvR 1953/93, 2 BvR 1954/93. Also UNHCR, Note on the Principle of Non Refoulement (EU Seminar on the Implementation of the 1995 EU Resolution on the Minimum Guarantees for Asylum Procedures), 1.11.1997. See in addition paragraph 4 of the Preamble of the Declaration of the States Parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, adopted at the Ministerial Meeting of 12-13 December 2001, HCR/MMSP/2001/09, and the decision of the Court of Appeal of New Zealand in the case of Zaoui v Attorney General (No 2) [2005] 1 NZLR 690, 20.9.2004, paragraphs 34 and 136.

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(18)  Conclusion No 6 (XXVIII) — 1977 on the principle of non-refoulement, paragraph (c), Conclusion No 79 (XLVIII) — 1996 on international protection, paragraph (j), Conclusion No 81 (XLVIII) — 1997 on international protection, paragraph (i).

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(19)  UNHCR, Global Consultations on International Protection/Third Track: Asylum Processes (Fair and Efficient Asylum Procedures), EC/GC/01/12, 13.5.2001, paragraphs 4, 8, 13 & 50 (c) and E. Leuterpacht and D. Bethlehem, footnote 16 above, paragraphs 87-99.

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(20)  For more details see: http://data.unhcr.org/syrianrefugees/regional.php

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(21)  See footnote 2.

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(22)  The text of the law is available in English at: http://www.goc.gov.tr/files/files/eng_minikanun_5_son.pdf

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(23)  See footnote 2.

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(24)  Meltem Ineli-Ciger, Implications of the New Turkish Law on Foreigners and International Protection and Regulation No 29153 on Temporary Protection for Syrians Seeking Protection in Turkey, Oxford Monitor of Forced Migration, 2014, 4(2): pp. 28-36.

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(25)  See footnote 2.

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(26)  See, inter alia, the communication by Human Rights Watch of 23 November 2015, available at: https://www.hrw.org/news/2015/11/23/turkey-syrians-pushed-back-border

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(27)  Amnesty International, Η ψευδαίσθηση της ‘ασφαλούς χώρας’ για την Τουρκία καταρρέει (‘The illusion of Turkey as a “safe country” collapses’), 23 March 2016, available in Greek only at: https://www.amnesty.gr/news/press/article/20243/i-pseydaisthisi-tis-asfaloys-horas-gia-tin-toyrkia-katarreei For further reference, see Ο. Ulusoy, Turkey as a Safe Third Country?, 29 March 2016, available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2016/03/turkey-safe-third E. Roman, Th. Baird, and T. Radcliffe, Why Turkey is Not a ‘Safe Country’, February 2016, Statewatch, http://www.statewatch.org/analyses/no-283-why-turkey-is-not-a-safe-country.pdf

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Statewatch,

(28)  Resolution 2109 (2016) Provisional version, The situation of refugees and migrants under the EU-Turkey Agreement of 18 March 2016, Author(s): Parliamentary Assembly of the Council of Europe, source — Assembly debate of 20 April 2016 (15th Sitting) (see Doc. 14028, report of the Committee on Migration, Refugees and Displaced Persons, rapporteur: Ms Tineke Strik). Text adopted by the Assembly on 20 April 2016 (15th Sitting).

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(29)  L. Reppeli (2015), ‘Turkey’s track record with the European Court of Human Rights’. Turkish Review, 1 January 2015 (Available online at: http://archive.is/XmdO5).

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