EU casts legal spell on Turkey pact

The European Commission on Wednesday (16 March) said the EU-Turkey agreement to return migrants from Greece to Turkey would be "in accordance with the international and EU legal framework".

The deal, which EU and Turkish leaders want to finalise at a summit on Friday, has been criticised by NGOs and the UN.

"Let me be crystal clear about this, there can be no 'blanket returns' and there can be no 'refoulement'," the commission vice-president Frans Timmermans i said at a press conference.

But commission assurances rely on Turkey amending its legislation to give equal treatment to migrants from different countries as well as on Greece being able to manage a high number of asylum applications.

Many arriving on the Greek islands are likely to end up in holding centres before being sent back to Turkey.

Fears are also mounting that Greek courts will not be prepared for the number of cases and appeals to meet the speedy returns that underpin the agreement.

Cost estimates from the European Commission say at least €20 million a month from the EU budget will be needed to support Greek authorities.

Meanwhile, EU officials describe Turkey's patchy application of the Refugee Convention as a legal formality. Turkey is signed up to the convention, but only European nationals benefit from its full coverage.

EU lawyers say Ankara will only need to demonstrate an "equivalent" to the convention in order for the draft pact to work. How that “equivalent" is applied in practice is not clear.

According to EU officials, it means Turkey needs to extend protection rights to all non-Syrians such as Afghans and Iraqis. Syrians in Turkey have a temporary status protection. Afghans and Iraqis do not.

That "equivalent" has to be met in order for Greece to start sending them back to Turkey and must be "substantive" and put into practice. But when asked about oversight, an EU official said it was not up to European lawyers to monitor compliance.

Instead, Greece and its courts will determine if Turkey passes the equivalency test.

With Greece under intense pressure, the chances of Athens not giving Turkey the green light, regardless of the facts, appears slim.

Meanwhile, the EU can say its deal follows EU and international law.

EU law

The EU stakes its claim on articles 35 and 38 of the asylum procedures directive and views both as key to breaking the smuggling route across the Aegean.

For anyone smuggled to a Greek island who is not a Syrian, article 38 will seal their fate.

Article 38 spells out the concept of a “safe third country” as one where an EU state can send back rejected migrants who are not nationals of that country. Turkey will be designated a safe-third country once it fulfils a long list of criteria outlined in the article.

According to a second EU official, if Turkey passes the criteria then it has met a test "equivalent" to the Refugee Convention.

Once Turkey is designated a safe third country, then Greece can start returning rejected non-Syrian migrants.

Article 35 is reserved for the smuggled Syrian. It describes the concept of “first country of asylum”.

It means the Syrian who arrives on a Greek island has to have some sort of pre-existing protection status in Turkey.

Greek authorities can then send them back to Turkey, given their pre-existing protection status under article 35. Once back in Turkey, they can try to re-enter the EU through a specialised one-for-one resettlement scheme.

How can people apply for asylum?

EU officials say people can simply apply for asylum at land borders with Greece and Bulgaria instead of taking boats to reach the Greek islands.

But the Evros river divides Greece and Turkey and landmines still dot areas along the border, especially near the south.

Greece also erected a barbed wire fence on a long stretch of the river that loops back into Turkey. The Turkey side is a military zone.

Bulgaria is not attractive either, with widespread reports of abuse by border guards against would-be asylum seekers.

It means people sent back to Turkey would have to find another solution or pin their hopes of being resettled to an EU state. Neither seems likely.

Last year over 800,000 arrived in Greece from Turkey. The EU says it will resettle roughly 72,000 once the EU-Turkey scheme is launched.

The draft plan is not retroactive and will not apply to 45,000 people already stuck in Greece.

Domestic law changes

Both Greece and Turkey will have to amend laws for the deal to work.

Greece will need legislation for the appeal process to work and for cases filed under articles 35 and 38 of the EU law.

Turkey, will have to ensure that returned Syrians from Greece retain their temporary protection. It will have to guarantee everyone else, like Afghans and Iraqis, have access to "effective asylum procedures".

It will also have to ensure they receive protection equivalent to the Refugee Convention.