Since the unleashing of the civil war in 2011, millions of Syrians have been faced with the dilemma of staying in their home country, torn by a civil war and international intervention, or leaving for an uncertain destiny in foreign lands. Their efforts to settle in countries within close proximity to their homeland or trying to find safe routes to reach Europe opened up new discussions within the international community regarding their precarious status.
Many Syrians came to Turkey with the hope of traveling further west and northwest into the European Union. Thousands of them embarked upon the deadly journey between Turkey and Greece despite the risk of a heavy price: losing loved ones or their lives along the way. The tragedy of the refugees who lost their lives or their loved ones trying to cross the Aegean Sea led to an international outcry which forced the EU to address the issue. However, the response from the EU was not to secure the passage to the EU but rather to try and deter further attempts to cross over to Greece and to send the refugees back to Turkey. This plan, which was crystallized in the March 18, 2016 EU-Turkey Agreement, led to further discussions as to what role Turkey should play in the Syrian refugee crisis.
The Agreement was a product of the negotiation between the 28 European Union member states and Turkey. In a press release, the European Commission claimed that the motivation behind this agreement was to interrupt the smuggling business, but in reality the EU hoped to slow down the ‘irregular migration’ into Europe which by then had reached over 1.2 million people. According to the Agreement, Greece was to return all “irregular migrants” who arrived the Greek islands after the Agreement was signed back to Turkey. The Agreement also dictated that the EU would accept one Syrian refugee from Turkey for each refugee it accepts from Greece, capping the maximum number of refugees resettled in the EU at 72, 000.
In return, Turkey was to receive an initial funding of €3 billion managed by the Facility for Refugees in Turkey and, if needed, up to another €3 billion funding by the end of 2018. The Agreement also contained a promise to accelerate Turkey’s accession to the EU community, including the acceleration of visa-free travel of Turkish citizens into the EU, which was tentative upon Turkey’s satisfaction of previously-stipulated 72 benchmarks.
Upon its announcement, the Agreement received criticism from grassroots organizations, humanitarian aid groups, and legal experts as well as from Syrian refugees themselves whose lives are reduced to a number in an illegal and unjustified bargaining game. The legality and legitimacy of the Agreement, which was based on the premise that Turkey was determined as a ‘safe third country’ has been in question since it’s declaration.
A careful examination of the EU’s own laws shows that Turkey does not qualify as a ‘safe third country’ making it an unfit destination for the asylum seekers to be returned. Thus the Agreement between the European Union and Turkey is in violation of both international law and the EU Asylum Procedures Directive.
Article 38 (1) of the EU Asylum Procedures Directive (APD) delineates the criteria under which a country can be assessed as to whether or not it could be considered a ‘safe third country’ and thus whether it would be legal to return a person seeking asylum to that country. In this section, we will discuss each of these criteria individually.
1- APD Article 38 (1a) “life and liberty are not threatened on account of race, religion, nationality, membership in a particular social group or political opinion.”
Recent developments in Turkey have shown that many rights and liberties of its own citizens or of its foreign-born residents are not being protected in compliance with European Union requirements. Turkey’s anti-terrorism law, which has long been a point of contention with the European Union, especially demonstrates the dubious nature of these rights/liberties.
The extremely broad definition of terrorism as defined in Turkey’s Anti-Terrorism Law No. 3713 gives the state permission to classify a wide range of activities as seditious, and consequently provides the government with the legal basis to prosecute what it perceives to be a threat to its existence. This is in direct contravention to individual rights and liberties such as the rights to protest, to assembly, and to free speech. Even though the revision of the Anti-Terror Law is one of the 72 benchmarks required by the March 18th Agreement, Turkey so far has been unwilling to make any revisions to this law.
Under the state-of-emergency issued after the failed coup attempt on July 15, 2016, the government did not revise this law and, in fact, used it to arrest and detain thousands of its citizens, fire public workers from their jobs without trial and close down private media outlets, educational institutions including universities, student dormitories, associations, labor unions, and charitable foundations. Among these are also organizations which have been working with refugees in Turkey on issues such as women’s rights, children’s rights, and labor rights. It has been one of the most damaging acts to the civil society in the history of Turkey. Thus, the Turkish government has benefited from its anti-terrorism law and state-of-emergency by suppressing any political opposition.
2- APD Article 38 (1b) “there is no risk of serious harm as defined in Directive 2011/95/EU”
The Directive 2011/95/EU Article 15 defines serious harm as “(a) the death penalty or execution; or (b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or (c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict.” This is also related to APD Article 38(1d), “the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected.”
The armed conflict between Turkish security forces and Kurdish guerrillas in the southeastern region of the country has claimed many lives and destroyed livelihoods, villages and urban centers. The conflict intensified after the June 2015 elections with the collapse of peace negotiations between the Turkish government and Kurdish resistance forces. Caught in the midst of ongoing fights, 500,000 residents were the subjects of internal displacement, according to an Amnesty International Report. Continuing curfews, demolished houses, and bombings left residents no other option except to leave. The extensive and non-discriminative violent consequences of this conflict led Syrian refugees, living in these Kurdish areas after having fled the civil war in their country, to once again find themselves in harm’s way.
Another source of instability and insecurity has been the Turkish state’s active engagement in the Syrian civil war. Its military intervention into Northern Syria raises questions about Turkey’s intentions in the region. Turkey’s involvement in the Syrian Civil War and its proximity to the conflict caused concern over the safety of Syrian refugees.
In addition to Turkey’s political instability and growing illiberal atmosphere, which has affected refugees and Turkish citizens alike, there also have been many documented cases where refugees had been targets of discrimination and aggression because of their vulnerable status. Local citizens generally blame refugees for their general economic difficulties, including lack of jobs (especially unqualified and low-paying ones) and rise of home rental prices as well as their personal safety in areas where refugees congregate.
Many Turkish Twitter users showed their hostility through messages using hashtag “ÜlkemdeSuriyeliİstemiyorum” (“I don’t want Syrians in my country”).Violent incidents between Syrian refugees and Turkish citizens have been common in different parts of the country. Even though they are isolated events, it has led to an hostile perception and attitude towards the Syrians among a significant number of Turkish citizens.
3- APD Article 38 (1c) “the principle of non-refoulement in accordance with the Geneva Convention is respected”
The 1951 Geneva Convention highlights the principle of non-refoulement in Article 33. According to this principle, “no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom.” This protection may not be granted to refugees who were or are convicted of a serious crime or reasonably considered a danger to the community. Turkey signed the convention on July 25, 1951.
Although Turkey was one of the countries that opened its borders to Syrian refugees immediately after the civil war began in 2011, there have been incidents reported where Turkey failed to comply with the principle of non-refoulement. According to April 1, 2016 press release by Amnesty International, there have been reports of mass returns of Syrians to their own country despite their objections and their legal entitlement (non-refoulement).This violates the EU Asylum Procedures Directive and international law.
4- APD Article 38 (1e)“the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention.”
With its ‘open door policy’ created at the start of the Syrian civil unrest in March 2011, Turkey started admitting Syrian nationals. The expectation of the government was that the conflict would end quickly and those who crossed the border would return to their homeland. However, this expectation fell short. According to the government of Turkey, the number of registered Syrians in Turkey as of March 2018 is 3,540,648.
Instead of granting a refugee status, Turkey gave Syrians a de-facto ‘Temporary Protection Status’ (‘TPS’). Although Turkey signed the Geneva Convention of 1951, it did not ratify its 1967 Protocol that lifts the geographical restriction in granting refugee status to non-Europeans. This means that Turkey only accepts those who are fleeing member states of the Council of Europe (including the EU member states and post-Soviet Eastern European states) as refugees. All others seeking international protection, but being present within the borders of Turkey, would normally be processed by the UNHCR to be settled in a third country.
However, with the increasing numbers and longer stay of Syrians in Turkey since 2011, there emerged a need to find a solution to their status. Under ‘TPS’, a government-issued regulation dated October 2014, Syrians were granted access to some rights and services such as access to health, education, social assistance, language interpretation, labor market and legal services. Therefore, it complies with some of the rights extended to the refugees under the Geneva Convention. Yet, it does not grant them other rights such as social security and naturalization, or services such as financial assistance and housing.
Although ‘TPS’ offers rights similar to those qualifying for refugee status, one downside is that it is at the discretion of the government to arbitrarily and abruptly withdraw all these rights. The ‘TPS’ status granted to Syrian refugees is not backed by international law but by a domestic executive order, which allows the present and future legal status of Syrian refugees in Turkey to be undefined and discretionary. ‘TPS’ protection may be suspended at any time by a decree, especially now that the country is under a continual state-of-emergency. This has created great uncertainty and insecurity for Syrian refugees living in Turkey.
The identification documents that Syrians receive grant the right to stay in the country, but it is not the equivalent of a residence permit. The regulation reads “[it] shall not grant the right for transition to long term residence permit, its duration shall not be taken into consideration when calculating the total term of residence permit durations and shall not entitle its holder to apply for Turkish citizenship.”Although President Erdoğan made an offer of Turkish citizenship to all Syrian refugees in July 2016, he did not follow through by explaining how and when this new status would take effect or what preconditions Syrians would be required to meet in order to obtain their citizenship.
As we discussed in detail, Turkey is far from qualifying as a Safe Third Country which clearly makes the March 18th Agreement illegal. Both the European Union member-states and Turkey are responsible for the persisting uncertainty dominating the lives of Syrians by condemning them to a state without clear rights and legal procedures to safeguard them.
It has been more than two years since Turkey and the EU struck a deal that had condemned the refugees crossing the Aegean Sea into a limbo between the threat of returning to Turkey and being imprisoned in one of the camps on Greek islands with inhumane conditions waiting for a legal judgement on their status. So far, 1582 irregular refugees, including 279 Syrians, were returned to Turkey to an unsafe life. Even though there was a drop in the number of people attempting the journey, the EU’s claim that the agreement would deter human trafficking across the Aegean Sea seems to be unjustified. A recent account by the head of the EU’s border agency Frontex indicates an increase in smuggling activity.
EU’s persistence on externalization of the management of refugee crisis further victimizes already vulnerable people who were forced to abandon their homes due to a violent war. Both Turkey and the EU are responsible providing a safe passage for the refugees and legal and humane plans for the social and economic integration as well as resettlement of Syrian refugees.
Berfu Aygenc is a PhD candidate in the Department of Sociology at the NSSR.
Cagla Orpen is a PhD student in the Department of Politics with a specialization in History at the NSSR.