Acknowledging failure along with success

A year of returning inadmissible asylum seekers under the EU-Turkey Statement

“The Statement is producing tangible results, despite the challenging circumstances,” according to the European Commission’s Fifth Report on the Progress made in the implementation of the EU-Turkey Statement, published on 2 March 2017. The third and fourth reports, dated September and December 2016 respectively, first “chartered” and then “confirmed” the “trend of a steady delivery of results, albeit in the face of many challenges.” Initial March and April 2016 reports pinpointed the Statement as a “decisive” moment, and claimed that “the sharp decrease in the number of irregular migrants and asylum seekers crossing from Turkey into Greece is proof of the Statement’s effectiveness.”

The rhetoric of success is consistent and unmistakable. Satisfied that the implementation of the Statement is correlated, if not causally linked, with a reduction in arrivals by and fatalities at sea, the EU has heralded the Statement as its solution to the migration “crisis” in Europe.

Less vocal, however, has been the Commission’s recognition of the Statement’s failures, in particular the return of inadmissible asylum seekers. As of 2 March 2017, the number of people returned to Turkey “under the EU-Turkey Statement” is reported to be 916, well below target and disproportionate to the 3,622 people resettled to the EU from Turkey under what was envisaged as a 1:1 return-to-resettlement ratio. While the slow pace of returns is acknowledged as a challenge, the specific failure of the admissibility procedures – a key reason why returns have been so limited – has been inadequately addressed.

Returns “under” the EU-Turkey Statement

Returns carried out “under” or “in the framework of” the EU-Turkey Statement, as they are repeatedly referred to, should describe those returns that would not have otherwise occurred but for the Statement. Since returns were ongoing before and after the Statement under the Greece-Turkey bilateral readmission agreement, something, by definition, should be unique about returns “under” the Statement.

As announced in March 2016 and reiterated in each subsequent implementation report, “the Statement provides for the return of all new irregular migrants and asylum seekers, whose applications have been declared inadmissible or unfounded, crossing from Turkey to the Greek islands after 20 March.” An unfounded application is one that has been rejected on its merits; that is, because the applicant is not deemed to be in need of international protection. But this is not unique or new because of the Statement: under pre-existing EU and Greek rules and obligations, all asylum seekers were entitled to a first instance decision on the merits of their application, and liable to be returned if their claims were proven unfounded.

What is new because of the Statement is the possibility to return an asylum seeker to Turkey even before hearing the merits of their asylum claim, on the grounds that their application is “inadmissible.” An inadmissible application for asylum in Greece would, for example, be one made by an applicant who had arrived in Greece from a first country of asylum or a safe third country, such as Turkey. Whether or not Turkey is in fact a safe third country has been argued extensively. In practice, however, the question of admissibility, including whether or not Turkey can be deemed a safe third country, has been assessed on an individual basis, with very few cases been deemed inadmissible.

On the Greek Islands, admissibility procedures had, at least until January 2017, only been applied to Syrians, with asylum claims by other nationalities being assessed on their merits. Since January, other nationalities with asylum recognition rates above 25% have also been subjected to admissibility procedures, but it is not reported whether any have actually been returned due to a negative admissibility decision.

Similarly, it is not officially reported whether or not inadmissible Syrians have actually been returned, although rights groups claim none have been sent back to Turkey for this specific reason. Of the 916 people returned “under” the Statement, only 159 are Syrian. Logically, this means that, at most, 159 people could have been returned before having the merits of their applications heard, on the grounds that their applications were found to be inadmissible. Instead, most of the 916 people, including Syrians and non-Syrians, have returned because they:

  • received a negative asylum decision (first or second instance);
  • had withdrawn their asylum applications; or,
  • had not applied for asylum in the first place.

Looking more closely at the 159 Syrians who have returned to Turkey from Greece, only a fraction have actually have had their applications deemed inadmissible. Between 20 March 2016 and 19 February 2017, of the 8,378 first-instance, and 439 second-instance admissibility decisions by Greek Asylum Committees, only 24 had been upheld as inadmissible. As such, the highest possible number of returns of inadmissible asylum seekers is 24. However, even these returns have been prevented by ongoing judicial challenges that argue against the safety of Turkey as a third country, and the constitutionality of the Greek Independent Appeals Committees. Far from a success, this indicates a clear failure of the Statement to meet its specific aim of returning inadmissible asylum seekers.

Policy Implications

The difference between zero, 24 and 916 might seem trivial – ultimately, all figures are well below target. However, the policy implications of shrouding the Statement’s failure to return inadmissible asylum seekers behind misleading numbers and phrasing are significant in several ways:

  • Admissibility procedures divert resources from overstretched Greek and European asylum processing officials. They add another administrative layer of first and second instance decision making, despite the fact that most applications have been found admissible. Eliminating admissibility procedures would allow asylum processing officials to focus on the merits of asylum applications, improving the thoroughness of asylum determinations, reducing the overall administrative burden and easing the backlog of claims.
  • Admissibility procedures increase the duration of the asylum application process, during which asylum seekers face long waits on the islands marked by legal uncertainty, overcrowding, and inadequate food, shelter and sanitation. Improving the asylum determination process by removing admissibility procedures could expedite movement onto the mainland, reduce waiting times and decongest facilities, thereby alleviating the humanitarian situation.
  • The ineffectiveness of admissibility procedures on the Greek Islands should be recognised when considering application of the admissibility concept in wider EU asylum policies. According to European Council on Refugees and Exiles, mandatory inadmissibility grounds such as “safe third country” and “first country of asylum” are concepts that figure among the key objectives of the Commission’s proposal for the reform of asylum procedures in the EU. If these concepts have been proven ineffective in improving asylum procedures in Greece, their potential to be applied effectively EU-wide should be questioned, not covered up.

This is the second in MMP’s ongoing series of blogs on the theme ‘Numbers Matter’.

Please note an earlier version of this blog implied that some Syrians could have returned because their claims were deemed inadmissible. In fact, as of March, appeals were ongoing for the inadmissible Syrians liable to be returned, with decisions expected in April.