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Third Anniversary of EU-Turkey

Statement: A Legal Analysis,
HEİNRİCH-BÖLL-STİFTUNG
Derneği Yayını, 2019
Neva Ozturk, Cavidan Soykan

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Third Anniversary of EU-Turkey Statement: A Legal Analysis | ... http://tr.boell.org/en/2019/10/03/third-anniversary-eu-turkey-sta...

Third Anniversary of EU-Turkey

Statement: A Legal Analysis
3. October 2019 by Cavidan Soykan, Neva Övünç Öztürk

Image Credits

During the EU-Turkey Summit held on 29 November 2015, parties

agreed to support refugees fleeing civil war in Syria and their host
country Turkey, and to implement a Joint Action Plan, adopted on 15
October 2015, which sought cooperation to prevent irregular
migration flows to the European Union. (1) The underlying reason
compelling parties to tailor such a plan was, undoubtedly, “the long
summer of migration” that took place in 2015 commonly referred to as
the “migration crisis” by European countries. (2) Indeed, in its report
dated 10 February 2016 on the implementation of the EU-Turkey Joint
Action Plan, the European Commission noted that since the beginning
of 2015, a total of 880,000 people arrived from Turkey to Greece, and
that due to the “immense” scale of this movement, the Commission
had been working with Turkish authorities to reduce the scale of these

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arrivals.(3)

Given this background, a proposal was initially brought to the agenda

with a view to advance the applicability of the provisions of the EU-
Turkey Readmission Agreement, signed on 1 October 2014, regarding
the readmission of third-country nationals from 1 October 2017 to 1
June 2016. However, whilst the legal process for advancing the date of
effect of was still in the pipeline, on 18 March 2016, the parties
announced that the EU and Turkey had reached an agreement to end
irregular migration from Turkey to the EU.(4) The main features of this
agreement (also known as the ‘EU-Turkey Statement’ or ‘EU-Turkey
Deal’) included the following: the return of irregular migrants crossing
from Turkey to the Greek islands from 20 March 2016 to Turkey; the
establishment of a scheme in which for every Syrian being returned to
Turkey from the Greek islands, another Syrian would be resettled
from Turkey to the EU, taking into account the UN vulnerability
criteria (i.e. the “1:1 Scheme”); the prevention of new routes opening
for illegal migration from Turkey to the EU; once irregular crossings
between Turkey and the EU ended or at least had been substantially
reduced, the activation of a voluntary readmission scheme where the
EU member states would contribute on a voluntary basis, provided
that all benchmarks had been met, the acceleration of a visa
liberalisation process with a view of lifting the visa requirements for
Turkish citizens by the end of June 2016; the disbursement of 3 billion
euros allocated under the Facility for Refugees in Turkey to support
various projects, and an additional allocation of 3 billion euros
funding under the same facility.

The legal framework of the Statement with respect to returns was the
bilateral readmission protocol concluded between Turkey and Greece
in 2002. (5) However, the parties failed to finalise the legal process
aiming to advance the applicability of the provisions of the 2014 dated

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EU-Turkey Readmission Agreement on the readmission of third-

country nationals by 1 June 2016. This failure rendered the protocol
between Greece and Turkey to be the sole legal basis for the
implementation of the readmission provisions of the EU-Turkey
Statement. Although as per the Agreement, the provisions relating to
the third country nationals were envisioned to enter into force by 1
October 2017, in its 2018 Turkey Report, the European Commission
reported Turkey, citing the EU’s failure to take necessary steps towards
visa liberalisation, has not implemented the Agreement. (6) Yet, the
said report of the Commission also noted the implementation of the
Protocol between Turkey and Greece had also deteriorated. (7) Indeed,
Turkish Minister of Foreigner Affairs Mevlüt Çavuşoğlu, also stated
this Protocol, which constitutes the legal basis for the implementation
of readmissions based on the Statement, had been suspended. (8) On
22 July 2019, Çavuşoğlu, announced Turkey had suspended the
readmission agreement, due to the fact that the visa liberalisation
process for Turkish citizens had not been completed by the EU. (9) 
Although it is not clear whether Çavuşoğlu referred to the official
suspension of the Readmission Agreement of 2014 or to the suspension
of the Statement of 2016, this declaration is likely to be taken as a sign
demonstrating Turkey’s lack of intention to be bound by any
arrangement regarding readmissions of third country nationals from
the EU. On the other hand, it should be noted the readmissions based
on the EU-Turkey Statement had continued even after Çavuşoğlu’s first
announcement of the suspension of the Greece-Turkey Protocol as
attested by multiple sources including the European Commission’s
2018 report on Turkey, the “Migration Statistics,” published by the
Directorate General for Migration Management, and field studies. (10)
(11) Meanwhile, there are several moot points both on the number of
persons returned to Turkey and the number of persons readmitted by
the EU under the 1:1 Scheme. According to the statistics provided by

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the Directorate General for Migration Management, as of 25 July 2019,

a total of 22,729 Syrians have been resettled in various European
countries under the 1:1 Scheme. (12) However, according to the
statement delivered by the UN’s High Commissioner for Refugees
(UNHCR), which relied on Greek sources, the number of migrants
returned to Turkey as of 31 March 2019 was 1843. (13) Three-hundred
forty-one of these individuals were Syrian nationals. According to the
UNHCR, 45% of returnees did not express willingness to apply for
asylum or withdrew their asylum claims in Greece. According to
Turkish sources, the number of persons readmitted by Turkey was
1891, of which 357 are Syrian nationals. Yet, the Directorate General
for Migration Management has not hitherto published any
information on whether these persons had applied for international
protection or whether they had been registered under the temporary
protection regime. (14) Deportation Monitoring Aegean stated they
have witnessed the last deportation on 11 July 2019, which is “an
indication that the deportations have now been suspended in
practice.”(15)

Lingering controversies over the adoption of the EU-Turkey Statement

over the next three years have primarily focused on the following
concerns: the implementation of the Statement would hinder the
access to protection for persons seeking asylum; that it would result in
returns; and that given Turkey’s geographical limitation to the 1951
Convention Relating to the Status of Refugees and its practice, it could
not be considered a safe third country within the definition inscribed
in EU law. (16) As these concerns may constitute a breach of
international human rights law and/or EU law, this has also led several
scholars to call the legal validity of the statement into question. (17) As
a matter of fact, the EU-Turkey Statement, which did not possess the
key formal requirements of an international treaty and yet, content-
wise, created a contradictory impression, raised a number of questions

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with regards to its binding effect. In addition, the form and the content
of the EU-Turkey Statement has not only resulted in controversies
from an international law perspective, but also from an EU law
perspective. (18) When the EU-Turkey Statement was announced in a
press release on the webpage of the EU Summit, it was presented as
EU’s response to the increasing migratory flows. This fact could also be
clearly discerned from the content of the Statement. However, the
order of the General Court, delivered in early 2017, in the case of ‘NF,
NG and NM v. European Council’ portrayed an utterly different
picture. (19) The case originated in an application lodged by two
Pakistani nationals and one Afghan national who had made their way
from Turkey to Greece. Applicants alleged their return to Turkey based
on the EU-Turkey Statement would result in a risk of violating the non-
refoulement principle. The applicants argued the EU-Turkey Statement
was an international agreement, that it had been concluded between
the European Council, acting in the name of the EU, and Turkey, and
thus its validity must be reviewed by the Court of Justice (CJEU).
However, the General Court ruled the EU-Turkey Statement was
merely a political statement and cannot be considered as an act of any
organs of the EU since it was concluded on the basis of negotiations,
not between the EU and Turkey, but rather between the Heads of State
or Government of the EU member states and their Turkish
counterparts. The General Court has therefore dismissed the case on
the grounds that it lacked the jurisdiction to examine the merits of
applicants’ claims. This order was later subjected to an appeal. In its
decision, dated 12 September 2018, the CJEU held the appeal, lacking
clarity and specificity as required by the EU law, must be dismissed as
“inadmissible.” (20)

From 18 March 2016 onwards, it appears this three-year time period

encompasses a legal uncertainty. Yet, the practice of readmission, the
very core of the EU-Turkey Statement, is directly related to human

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rights law predicated upon the principle of legal certainty. Moreover,

while the EU referred to the migration flow consisting of 800,000
persons in 2015 as a “crisis” and its main response was concluding a
readmission deal with Turkey, when it came to assuming the legal
liability of this matter, the EU only further accentuated this
uncertainty by claiming “it wasn’t me.” (21) Three years on, however,
the most affected are still the migrants and asylum seekers. According
to a 14 March 2019 dated joint press statement of 25 civil society
organisations calling upon European leaders, the EU-Turkey Statement
led as many as 20,000 people to be stranded in unsafe, unhygienic and
inhumane conditions on the Greek islands. Although the number of
asylum applications lodged in European countries has significantly
dropped, the entire burden was left upon the weak and inadequate
asylum systems of Greece and Turkey. The number of asylum
applications in Lesvos has tripled over the last three years. (22) Finally,
international refugee rights advocates also point to poor reception and
housing conditions in Turkey and claim that these conditions might
trigger voluntary returns. (23)

1. European Commission, European Commission Factsheet, EU-Turkey

Joint Action Plan, http://europa.eu/rapid/press-release_MEMO-
15-5860_en.htm <http://europa.eu/rapid/press-release_MEMO-
15-5860_en.htm>  (Accessed: 17 March 2019).

2. Bordermonitoring.eu, https://bordermonitoring.eu/ungarn/2015/09
/of-hope-en/ <https://bordermonitoring.eu/ungarn/2015/09/of-hope-
en/>   (Accessed: 18 March 2019).

3. European Commission, Managing the Refugee Crisis EU-Turkey Joint

Action Plan Implementation Report, https://ec.europa.eu/home-affairs
/sites/homeaffairs/files/what-we-do/policies/european-agenda-
migration/background-information

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/docs/managing_the_refugee_crisis_-_eu-
turkey_join_action_plan_implementation_report_20160210_en.pdf
<https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-
do/policies/european-agenda-migration/background-information
/docs/managing_the_refugee_crisis_-_eu-
turkey_join_action_plan_implementation_report_20160210_en.pdf>  
(Accessed: 17 March 2019).

4. European Council, EU-Turkey statement, 18 March 2016 (Press

Release), https://www.consilium.europa.eu/en/press/press-releases
/2016/03/18/eu-turkey-statement/ <https://www.consilium.europa.eu
/en/press/press-releases/2016/03/18/eu-turkey-statement/>   (Accessed:
17 March 2019)

5. European Commission, EU-Turkey Statement Questions and

Answers, http://europa.eu/rapid/press-release_MEMO-16-963_en.htm
<http://europa.eu/rapid/press-release_MEMO-16-963_en.htm>
 (Accessed: 18 March 2019)

6. European Commission, Turkey 2018 Report, https://ec.europa.eu

/neighbourhood-enlargement/sites/near/files/20180417-turkey-
report.pdf <https://ec.europa.eu/neighbourhood-enlargement/sites
/near/files/20180417-turkey-report.pdf>  , s. 46. (Accessed: 17 March
2019).

7. Ibid.

8. TRT World, ‘Turkey suspends readmission deal with Greece-

Cavusoglu’, https://www.trtworld.com/turkey/turkey-suspends-
readmission-deal-with-greece-cavusoglu-18063
<https://www.trtworld.com/turkey/turkey-suspends-readmission-deal-
with-greece-cavusoglu-18063>  (Accessed: 18 March 2019)

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9. Euroctive, ‘Turkey suspends deal with the EU on migrant

readmission’, https://www.euractiv.com/section/global-europe
/news/turkey-suspends-deal-with-the-eu-on-migrant-readmission/
<https://www.euractiv.com/section/global-europe/news/turkey-
suspends-deal-with-the-eu-on-migrant-readmission/> ; Daily Sabah,
‘Readmission agreement with EU no longer functional, Ankara says’,
https://www.dailysabah.com/eu-affairs/2019/07/23/readmission-
agreement-with-eu-no-longer-functional-ankara-says
<https://www.dailysabah.com/eu-affairs/2019/07/23/readmission-
agreement-with-eu-no-longer-functional-ankara-says> ; Deutsche
Welle, ‘Çavuşoğlu: Geri Kabul Antlaşmasını Askıya Aldık’,
https://www.dw.com/tr/çavuşoğlu-geri-kabul-anlaşmasını-askıya-
aldık/a-49699277 <https://www.dw.com/tr/%C3%A7avu%C5%9Fo
%C4%9Flu-geri-kabul-anla%C5%9Fmas%C4%B1n%C4%B1-ask%C4
%B1ya-ald%C4%B1k/a-49699277> (Accessed: 02 August 2019).

10. Deportation Monitoring Aegean, https://dm-

aegean.bordermonitoring.eu/2019/03/09/7-march-lesvos-turkey/
<https://dm-aegean.bordermonitoring.eu/2019/03/09/7-march-lesvos-
turkey/>   (Accessed: 18 March 2019).

11. European Commission, Turkey 2018 Report, https://ec.europa.eu

/neighbourhood-enlargement/sites/near/files/20180417-turkey-
report.pdf <https://ec.europa.eu/neighbourhood-enlargement/sites
/near/files/20180417-turkey-report.pdf>  , s. 46; Göç İdaresi Genel
Müdürlüğü, Göç İstatistikleri (Geri Alım): http://www.goc.gov.tr/icerik6
/geri-alim_363_378_10093_icerik <http://www.goc.gov.tr/icerik6/geri-
alim_363_378_10093_icerik>   (Accessed: 18 March 2019).

12. Directorate General of Migration Management Turkey,

https://www.goc.gov.tr/gecici-koruma5638 <https://www.goc.gov.tr
/gecici-koruma5638> (Accessed: 02 August 2019).

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13. UNHCR, https://data2.unhcr.org/en/documents/download/68670 

<https://data2.unhcr.org/en/documents/download/68670 > (Accessed:
02 August 2019).

14. Directorate General of Migration Management Turkey,

https://www.goc.gov.tr/geri-alim  <https://www.goc.gov.tr/geri-alim >
(Accessed: 02 August 2019).

15. Deportation Monitoring Aegean, https://dm-

aegean.bordermonitoring.eu/2019/07/26/suspension-of-eu-turkey-deal-
and-mass-deportations-from-turkey/ <https://dm-
aegean.bordermonitoring.eu/2019/07/26/suspension-of-eu-turkey-deal-
and-mass-deportations-from-turkey/> (Accessed: 02 August 2019).

16. Steve Peers, The Final EU/Turkey Refugee Deal: A Legal

Assessment, http://eulawanalysis.blogspot.com/2016/03/the-final-
euturkey-refugee-deal-legal.html <http://eulawanalysis.blogspot.com
/2016/03/the-final-euturkey-refugee-deal-legal.html> ;  ECRE,
Debunking the Safe Third Country Myth, https://www.ecre.org/wp-
content/uploads/2017/11/Policy-Note-08.pdf  <https://www.ecre.org/wp-
content/uploads/2017/11/Policy-Note-08.pdf> (Accessed: 17 March
2019)

17. For instance see, Narin Idriz, The EU-Turkey Statement or the
‘Refugee Deal’: The Extra-Legal Deal of Extraordinary Times? in: Dina
Siegel and Veronika Nagy (eds.), The Migration Crisis?:
Criminalization, Security and Survival (Eleven Publishing); T.M.C.
Asser Institute for International & European Law, Research Paper
2017-06; Steve Peers, ‘The draft EU/Turkey deal on migration and
refugees: is it legal?’, http://eulawanalysis.blogspot.com/2016/03/the-
draft-euturkey-deal-on-migration.html
<http://eulawanalysis.blogspot.com/2016/03/the-draft-euturkey-deal-

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on-migration.html> ; Maarten den Heijer/Thomas Spijkerboer, Is the

EU-Turkey refugee and migration deal a treaty?,
http://eulawanalysis.blogspot.com/2016/04/is-eu-turkey-refugee-and-
migration-deal.html <http://eulawanalysis.blogspot.com/2016/04/is-eu-
turkey-refugee-and-migration-deal.html> (Accessed: 17 March 2019).

18. For further insights on the matter see, Narin Idriz, The EU-Turkey
deal in front of the Court of Justice of the EU: An unsolicited Amicus
Brief, 2017, https://papers.ssrn.com
/sol3/papers.cfm?abstract_id=3080838 <https://papers.ssrn.com
/sol3/papers.cfm?abstract_id=3080838> ; Sergio Carrera, Leonhard den
Hertog ve Marco Stephan, ‘It wasnt me!’ The Luxembourg Court
Orders on EU-Turkey Refugee Deal’, https://www.ceps.eu/system/files
/EU-Turkey%20Deal.pdf <https://www.ceps.eu/system/files/EU-
Turkey%20Deal.pdf>   (Accessed: 17 March 2019); Julie De Vrieze, The
Legal Nature of the EU-Turkey Statement, https://lib.ugent.be/fulltxt
/RUG01/002/479/424/RUG01-002479424_2018_0001_AC.pdf
<https://lib.ugent.be/fulltxt/RUG01/002/479
/424/RUG01-002479424_2018_0001_AC.pdf> (Accessed: 02 August 2019).

19. Cases T-192/16, NF v. European Council, Order of the General Court

of 28 February 2017, ECLI:EU:T:2017:128; T-193/16, NG v. European
Council, ECLI:EU:T:2017:129; ve T-257/16, NM v. European Council,
ECLI:EU:T:2017:130 (Accessed: 17 March 2019).

20. Joint Cases C‑208/17 P to C‑210/17 P, ECLI:EU:C:2018:705,

http://curia.europa.eu/juris/document/document.jsf?text=&
docid=205744&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&
part=1&cid=406469 <http://curia.europa.eu/juris/document
/document.jsf?text=&docid=205744&pageIndex=0&doclang=EN&
mode=req&dir=&occ=first&part=1&cid=406469>   (Accessed: 17 March
2019).

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21. Sergio Carrera, Leonhard den Hertog ve Marco Stephan, ‘It wasnt
me!’ The Luxembourg Court Orders on EU-Turkey Refugee Deal’,
https://www.ceps.eu/system/files/EU-Turkey%20Deal.pdf
<https://www.ceps.eu/system/files/EU-Turkey%20Deal.pdf> (Accessed:
16 March 2019).

22. Reliefweb, https://reliefweb.int/report/greece/eu-turkey-deal-

leading-short-sighted-and-dangerous-migration-policies-three-years
<https://reliefweb.int/report/greece/eu-turkey-deal-leading-short-
sighted-and-dangerous-migration-policies-three-years>   (Accessed: 18
March 2019)

23. Ecre, https://www.ecre.org/eu-turkey-deal-reception-conditions-

trigger-voluntary-returns/ <https://www.ecre.org/eu-turkey-deal-
reception-conditions-trigger-voluntary-returns/> (Accessed: 18 March
2019)

This article is licensed under Creative Commons License.

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