The Safe Third Country Concept in Asylum Law and its Application to the EU-Turkey Agreement
Jeff Walsh holds an LLB., as well as a M.Litt. in international refugee law from Trinity College Dublin. Jeff currently works as a Legal Officer for the ECRE, the European Council on Refugees and Exiles and has, in the past, interned at UNHCR Ireland and worked for the Irish Refugee Council. Most recently, he was the Judicial Assistant to the Hon Mr Justice Humphreys of the High Court of Ireland. In this letter he considers the recent Agreement between the EU leaders and the Turkish government aimed at stemming the flow of migrants into the EU and the potential impact this may have on the right to claim asylum in the EU.
A fully referenced version is available here.
The recent Agreement between the 28 Heads of EU Members States and the Turkish government concluded that in exchange for a more liberal visa program for Turkish nationals, increased funding for hosting Syrian refugees in Turkey and increased resettlement of Syrian refugees to Europe, Turkey will take back ‘all’ new migrants that arrive in Greece from Turkey after 20 March 2016.
The Agreement comes at a time when EU leaders face continuing political pressure regarding the acceptance of refugees in Europe and an increasingly fractured sense of European unity on this issue. It serves to create a buffer zone in Turkey that will reduce the numbers of migrants arriving into the EU, particularly the Greek islands. However, the deal raises one important question: can every ‘irregular migrant’ be returned to Turkey? The quick answer is no, it is not that simple.
Such a program of mass or collective expulsions is a ‘flagrant breach of EU and international law’. According to Steve Peers, the subsequent reference to non-refoulement in the first paragraph of the deal, creates a contradiction with the first sentence. It also brings, or should bring, the framework of the deal within the safe third country concept codified in the recent recast Asylum Procedures Directive. The safe third country concept is defined by EU law in Article 38 of the Recast Asylum Procedures Directive as being a country to which the applicant has a connection, a country ‘it would be reasonable for that person to go to’, as long as the following criteria are satisfied in a national procedure for assessing such a country’s ‘safety’:
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/EU [the Recast Asylum Qualification Directive];
the principle of non-refoulement in accordance with the 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 in accordance with the Geneva Convention.
The application of the safe third country concept means that an application for asylum can be deemed inadmissible. In such cases, the claim has not been substantively decided, but there was found to be a safe country where asylum could have been applied for. The concept is essentially a presumption meaning a Member State can shift the burden to the applicant to prove ‘counter-indications’. Couple this with the statement in Recital 44 of the Directive:
Member States should not be obliged to assess the substance of an application for international protection where the applicant, due to a sufficient connection to a third country as defined by national law, can reasonably be expected to seek protection in that third country, and there are grounds for considering that the applicant will be admitted or readmitted to that country. Member States should only proceed on that basis where that particular applicant would be safe in the third country concerned.
This calls into question the ability of the EU, within its own laws, to return ‘all new irregular migrants from Turkey to the Greek islands’. Indeed Elizabeth Collett, of the Migration Policy Institute, stated that ‘if governments execute the agreement in conformity with international and European legal frameworks, few arrivals are likely to be returned’. The Norwegian Refugee Council have cited a recent UNHCR report stating that as of 11 September 2016, only 502 migrants had been returned to Turkey from Greece. However, Collett warned that in the interest of expediency, corners in legal protections could be cut, thus raising issues regarding the Greek asylum procedures and the pressure they will be placed under if admissibility proceedings will have to be conducted for every new arrival from Turkey.
There needs to be a full examination of whether Turkey fulfils these safe third country criteria, for example, the treatment of those held in the Askale Removal Centre in Eastern Turkey needs to be assessed under the principle of non-refoulement. Furthermore, there has been evidence of refoulement and push-backs by Turkish authorities along the Syrian border.
While the Agreement can be seen as a measure aimed at restricting access to the EU for those travelling through Turkey to seek asylum, its implementation has been muted in terms of numbers actually returned to Turkey. It is, however, imperative that for those who do reach Greece, effective access to the asylum process, including an individualised assessment of the applicability of the safe third country concept is provided. A more thorough and robust assessment should be made of Turkey to ascertain whether it meets the legal criteria set out in Article 38 of the Asylum Procedures Directive. A rushed political assessment does not suffice in this regard.
Is mise le meas,