The EU-Turkey deal: a new form of human trafficking?

Written by: Sireen Haddad and Shatha Sabra, University of Haifa

We are both Palestinians, currently studying for an undergraduate degree in law at the University of Haifa. In February 2018, during the second year of our studies, we travelled to the Greek Island of Chios as a part of a clinical course on human rights. Located in the Aegean Sea, Chios is one of several islands, including Lesvos and others, which have been at the epicenter of the “global migration crisis.” The purpose of our trip was to provide translation and consultation to asylum seekers from the Middle East, while they confront the complicated process in which their refugee status is determined.

In Chios, we worked with a non-governmental organization from Germany, Refugee Law Clinics Abroad (RLCA). RLCA also sends volunteers to the island to provide asylum seekers with legal information and counselling. Together with the German attorneys and law students, we prepared members of one of the most vulnerable populations on the planet for crucial interviews with the Greek and European Union (EU) authorities. Such interviews may have fatal consequences for the lives of men, women, and children who have suffered unspeakable trauma. In many instances, these people come to Greece after having fled the protracted and atrocious civil war in Syria, which has since come to a partial lull. 

Our main role was to accompany RLCA lawyers in their meetings with asylum seekers. As Palestinian Arabs, we were able to provide crucial translation for Arabic-speaking refugees, who would otherwise not be able to understand the German lawyers’ English. We also gave the refugees information about their legal rights. During our stay, we dealt with many heart-breaking cases. 

This work led us to pursue research on the so-called “EU-Turkey Deal.” Under this 2016 agreement, the EU had reportedly provided Turkey with 3 Billion Euros (or 3.4 US dollars), in return for “hosting” Syrian asylum seekers and stemming their flow to Europe. We were interested in examining the legal basis for the processes asylum seekers confront in Chios. 

It was easy for us to identify with the refugees’ perspectives, due to our own Arab-Palestinian perspective. During the 1948 Palestine war (also known as Nakba Day, meaning “day of catastrophe”), Israeli forces uprooted large parts of Palestine’s Arab population by expelling them from their homes, destroying their towns and villagesin 1948 and then again inthe 1967 War (also called the “Six-Day War”), leading many Palestinians to become refugees. Many of whom settled in refugee camps and were divided between Syria, Lebanon, Jordan, The West Bank and the Gaza Strip. A series of laws then prevented Palestinian-Arab refugees the right to return to their homes or claim their properties. 

As a consequence of these historical developments, many Palestinian-Arab refugees, along with their descendants, remain refugees to this day. As we observed, some Syrian-Palestinians have recently fled yet again. Our research thus also became a way of investigating our own thoughts and feelings about the matter. We sought to expose the truth -to ourselves, to our own communities, to the world. Although the issue has been widely reported, we believe that even now few understand the gravity of the conditions that asylum seekers face. 

What is a “Sufficient Connection”? 

In 2013, the member states of the European Union signed the Asylum Procedures Directive, which was also to be adopted in member states’ national legislations by 2015. Through stipulating rules and requirements, the Directive creates a harmonized asylum procedure in all member states, aiming to ensure that decisions regarding providing international protection for applicants (migrants) are taken more fairly and efficiently, including safeguarding applicants’ rights. In order to implement the EU-Turkey deal, EU states such as Greece must examine, in each individual case, whether a connection exists between an “irregular migrant”(a migrant who enters a country without its legal permission)and a “safe third country” (a country that the migrant has previously entered following their flight from the country of origin). 

The “safe third country” is the first country entitled to offer the possibility of  protection, and such status was granted to Turkey under the EU-Turkey deal.  If the aforesaid connection exists, Greece may deport asylum seekers to Turkey. Article 38(2) of the Asylum Procedures Directive requires a “sufficient connection” between the former and the latter. It is notable, however, that this Directive does not establish a set of rules, or a clear definition of the concept of “Sufficient Connection.” The Directive leaves this, rather, for the discretion and regulation of individual EU Member States. According to the interpretation applied by EU Member States, the requirement of a “Sufficient Connection” is met merely by proving that a migrant has transited through Turkey after leaving their first country of origin, also known as the “country of danger.” 

The United Nations High Commissioner for Refugees (UNHCR) is considered responsible for governing the application of the “sufficient connection” concept, and interprets the concept more broadly. According to the AIDE MEMOIRE Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status by UNHCR, a migrant’s mere transit through Turkey (which is considered by the European Union a “safe third country” to Syrian refugees) is not enough. The assessment of the connection should confirm that a “meaningful connection” with the “third country” exists. Only with such a connection, does it become reasonable to “readmit” an asylum seeker from Greece to Turkey. 

The Greek Appeals Committees have the same approach as UNHCR. According tothe 9th Appeals Committee, Decision 15602/2017 and the 11th Appeals Committee Decision 14011/2017, there was insufficient connection between the applicant and Turkey. As stated in both of the decisions, “the geographical proximity of a country to the country of origin cannot in itself justify a sufficient connection, in the absence of conditions such as a reasonable period of stay of the existence of a supporting network”. According to this second approach, a sufficient connection is determined by balancing many factors. These include not only an applicant’smere transit through the country, but also their duration of stay in the respective country, proximity to their country of origin, and the existence of a support network that they have due to family ties or strong cultural ties in the respective third country.

The European Union Court interprets the concept of “sufficient connection” as broadly as possible, in order to apply it  to as many cases as possible. In practice, however, a “third country” like Turkey is not always safe for these people. Indeed, the “sufficient connection” test is at times applied arbitrarily and in a manner that harms migrants. During our meetings with the migrants on the island, some strongly expressed they would rather go back to their country of origin (which they had escaped in the first place) than being forcibly transferred to Turkey.

The legal framework of ‘country of origin’ and ‘sufficient connection’ puts Palestinian refugees in an especially unique predicament, one that arose while we were in a meeting with a Syrian-Palestinian refugee. Given the existing legal framework, there is no way to examine the real connections Syrian-Palestinian refugees have to places other than Syria. All the aspects such as cultural, linguistic, and historical, point to a strong connection with Palestine (rather than Turkey). But this argument cannot be examined legally, as there is no legal means to bring these refugees back to their roots. In other words, the system is premised on a fiction. It assumes that it is possible to determine the connections an asylum seeker has to countries other than the country he or she fled from.  But this is not possible for Palestinian refugees. What happened to the UNHCR and national courts who required a substantive interpretation of the “sufficient connection” standard?

Indirect Human Trafficking 

Rather than seeking to determinethe country with which anasylum seeker feels most connected, we believe that the current system is designed to fulfill another purpose: the exchange of people in return for money. This is exemplified by the EU-Turkey deal. 

One might even propose that the EU-Turkey deal amounts to an indirect form of human trafficking. The EU is paying Turkey €3 billion in exchange for granting status to asylum seekers that arrive in Greece, and preventing them from continuing their journey towards EU countries. The leading Member States of Europe, spearheaded by Angela Merkel, found in Turkey the ideal external solution to end the “migration crisis” in Europe. 

For Europe, it is the ideal solution that Turkey readmits the migrants; and admittedly, there have been positive legal and political developments that have emerged from the deal. The idea that refugees are not returned to where they will suffer persecution or ill-treatment, which lawyers call non-refoulement, is to some extent upheld. Both the EU Member States and Turkey are committed to this idea under the 1951 Geneva Convention. In order to achieve this deal, Turkey had to update and renew its national asylum law. In exchange, Europe committed to lifting the visa restriction on Turkish citizens who want to enter Europe, as well as paying Turkey the agreed-upon sum.  

What is the difference between this kind of deal, mainly based on paying a particular party in exchange for transferring people without their consent, and human trafficking?The fact that the transfer of migrants from Greece to Turkey does not take into consideration their personal choice, called our attention to the term “Human Trafficking” as defined in Art.3 of the United Nations Convention against Transnational Organized Crime. 

The EU-Turkey deal likely does not meet the definition of human trafficking under international law. We therefore propose a new term, indirect human trafficking, which would capture what is wrong here. Migrants are being transferred against their free willas ifthey were merchandise “sold” by the EU and “bought” by Turkey. The horrible and inhumane living conditions of the migration facilities are methods to force migrants to leave European countries. They are perhaps designed to prevent migrant participation in the EU labor market (among other things). In addition to the financial profit that is offered to Turkey as an outcome of the deal, all these facts indicate that “The EU-Turkey Deal” is a form of business.  

Deals Won’t Stop Migration 

Ultimately, Europeans and the international community should acknowledge that such a deal ends up diluting the rights of refugees, as protected by the 1951 Geneva Convention. While the Court of Justice of the European Union in Joined Cases C-208/17 P to C-210/17 P, declined to review the deal, the General Court did soon purely procedural grounds. It thus declared that “the action is dismissed on the ground of the Court’s lack of jurisdiction to hear and determine it.”

We nevertheless believe the framework cannot be considered fully legal. The bottom line is that such deals cannot stop the phenomenon of global migration. All they do is transfer migration to other locations, outside of the sphere of legal accountability.