Syrians who crossed the Evros river in May 2018 | Photo: Reuters/A.Konstantinidis
Syrians who crossed the Evros river in May 2018 | Photo: Reuters/A.Konstantinidis

Syrian asylum seekers have been stuck in limbo in Greece because of the failure of the EU-Turkey agreement, according to a senior UK immigration and human rights lawyer. Taimour Lay says hardly any refugees have been sent back to Turkey, and the EU should scrap the deal.

The EU-Turkey deal was agreed in March 2016 between European states and the Turkish government. It was a response to the tens of thousands of migrants crossing the Aegean Sea and arriving on the Greek islands, or drowning in the attempt, in 2015. 

According to the deal, migrants who made the crossing to Greece would be sent rapidly back to Turkey, where Syrian nationals receive temporary protection status.

A key aspect of the agreement was a swap arrangement, whereby for every Syrian who was “inadmissible” (not allowed to seek asylum in the EU) and forced to go back to Turkey, one Syrian from Turkey would be allowed to come to Europe to apply for asylum.

Taimour Lay is a barrister at Garden Court Chambers in London who has represented refugees in the UK and Greece. In an immigration law blog, he recently pointed out that in two and a half years of the deal, there have been very few forced Syrian returns to Turkey. 

"The number of Syrians being sent back, having been found inadmissible, is almost negligible over the three-year-period," Lay told InfoMigrants.

Between March 2016 and March 2019, he says, a total of 1,836 migrants were returned from Greece to Turkey under the EU-Turkey Statement. A relatively small proportion were Syrians -- just 337 from the time the deal was signed to the end of 2018. Of the Syrian nationals sent back in this period, only 36 were forced returns; that is, having lost an appeal to have their asylum claim heard in Greece, they were forced to return to Turkey as a "safe third country".

What went wrong?

Since 2016, Syrians who arrive in the islands have been assessed by officials of the Greek Asylum Service (GAS). The GAS decides whether an applicant meets "vulnerability" criteria. "Vulnerable" individuals include unaccompanied children, sick and disabled people, pregnant women, victims of torture or rape and people who have been trafficked. Migrants who meet these criteria are transferred to mainland Greece, where their asylum claims are decided on merit. So far, the majority of Syrians arriving on the Greek islands have been found to be vulnerable.

This still leaves many Syrians who have failed the vulnerability test and are considered "inadmissible", which means that Greece is not responsible for granting or refusing their asylum claim, Turkey is.

The effect of this, Lay says, is that a large number of Syrian migrants have been left "stranded" in the Greek islands. They have no right to go to the mainland and are afraid to go back to Turkey.

People in a makeshift camp outside the refugee camp of Moria Lesbos island Greece Photo EPAPANAGIOTIS BALASKAS

The European Commission itself acknowledges that there have been far fewer returns than the deal intended: "The pace of returns to Turkey from the Greek islands via the Statement continues to be very slow, especially concerning Syrians."

So what went wrong?

In his legal blog, Lay says that after the attempted coup in Turkey in 2016, Turkish officers who had been sent to the Aegean islands under the EU-Turkey deal were recalled. 

He also says that both sides have less "appetite" for removals. "EU reluctance to waive strict criteria for visa liberalization [visa-free travel in Europe for Turkish citizens] has meant the full 'deal' was never likely to be implemented. [Turkish] President Erdogan’s interest in [EU] accession talks has likewise waned."

Lay also suggested to InfoMigrants that resentment in Greece over the help given to Turkey may have led to reduced enthusiasm among Greek authorities to carry out forced removals. "The capacity of the Greek authorities to conduct interviews in order to assess whether migrants are vulnerable has always been low. At the time of the deal, the EU sent additional asylum caseworkers, called EASO officers, to help Greece to get through all of the cases. But the Greeks say, ‘if Turkey gets 6 billion euros for the Refugees Facility and for camps in Turkey, then where’s our cash for sorting everything out and even effecting these forced removals?’"

The slow rate of returns also has a lot to do with a "pragmatic" approach taken by the Greek authorities, Lay says. "At the beginning the Greeks were being very strict, and saying ‘you’re not showing that you’re vulnerable,’ and then they became a bit more expansive and said ‘okay, you’re vulnerable’. Greece didn’t really have an interest in trapping people on the islands and forcibly returning them to Turkey, so one way around it has been to transfer people to the mainland."

Abandon the deal

The EU argues that, overall, the agreement has worked: "The Statement has consistently delivered tangible results," its latest assessment says. "Irregular arrivals are 97 percent lower than the period before the deal came into effect, while the number of lives lost at sea has decreased substantially."

The European Stability Initiative, a think tank, also attributes the dramatic decline in the number of arrivals post-March 2016 to the deal. But Lay thinks there are other likely reasons for the drop in arrivals, including changes in the dynamics of the Syrian civil war, among other things.

"The EU will always say that this (deal) is the thing that stopped the numbers, but I’m just not convinced of that," he says. "Are they saying if they scrapped it then suddenly we’d have 300,000 crossings again? No, because the reasons for crossings are complex, and they’re to do with what’s going on in the conflict, who’s got the money to get across, and what‘s happening with the smuggling networks in Turkey."

There isn't a single refugee I've met who was like, 'oh, well I didn't come by sea because of the EU-Turkey Statement'. I just don't see the reality of it as an actual disincentive.
-Taimour Lay, lawyer

The EU acknowledges that very few Syrians have been returned, yet the EU-Turkey Statement is still promoted as a success. Lay worries that it will be used by others as a blueprint.

"When (US President) Trump talks about using Mexico as a safe third country, it’s because some of his people have actually looked at what’s been going on and said, ‘you can cut a deal with a safe third country to keep people out.’ Similarly, the EU has looked at the EU-Turkey deal and said, ‘why don’t we do a similar thing in North Africa?’ If we allow the EU-Turkey Statement to be sold as a success, it’s kind of the thin end of a wedge."

UK immigration and human rights lawyer Taimour Lay  Photo Private

Whether the deal has "worked" or failed, there are many reasons for it to be scrapped, Lay argues.

First, the assumption that there would be large numbers of "inadmissible" Syrians was wrong: "If most Syrians have been found to be vulnerable, such that they don’t fall within the EU-Turkey Statement, I would say that the EU-Turkey Statement was always predicated on a falsehood, which was that loads of people would be non-vulnerable and therefore able to be sent back under the deal. The reality of the deal has been either you’re vulnerable, so it’s plainly wrong to remove, or you’re inadmissible, and they want to send you back, but those returns are just not practically happening."

Second, the deal is dysfunctional because Syrians and others are somehow resisting removal from Europe: "If you can resist removal for four or five years by going through the Greek appeals system even without a lawyer, that’s also the EU-Turkey Statement just not functioning, whether you’re against it or you’re for it."

Third, the crisis is over: "It was meant to be an emergency provision. And even just taking Europe at its word, if the numbers really have come down so much in terms of sea crossings, then it’s no longer the emergency that it was, and therefore the justification for island hotspots, island detention, and the 'inadmissibility provision', has passed."

"There are moral reasons to scrap it, there are legal reasons, there are pragmatic reasons and political reasons. Whichever one you choose, it’s not working."

Read Taimour Lay’s article on the Free Movement law blog


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