On one side, German Chancellor Angela Merkel pushed for a united European solution to share the migration burden and set up a system to distribute migrants across the EU countries. Although often criticized by those who back her position she received support from several Western European countries. On the other side, an Eastern European block, led by the Hungarian Prime Minister Viktor Orbàn rejected the idea of welcoming refugees and proposed to defend the Schengen area by building up fences and walls across the external European border. Confrontation between the two sides persisted and resulted in a European political impasse that was marked by a growing number of migrants dying in the Mediterranean Sea while trying to reach Europe. Since no agreement could be reached on how to deal with the migrants already in European territory, efforts were pointed at addressing it though cooperation with countries of origin and transit.

Given the European political impasse and growing humanitarian crisis, the plan with Turkey was presented as the only feasible option to stem the uncontrolled flow of migrants through the Aegean Sea and the Balkans, thus ending the countless shipwrecks and dead in the seas. The declared aim of the deal was to reduce the incentives for migrants to seek irregular routes to the EU and implement a legal and orderly admission system instead. According to the plan, Turkey would readmit all the migrants illegally arriving in Greece from March 20. Under the “one to one” mechanism, the EU undertook to resettle one Syrian refugee for each one readmitted by Turkey with the total number of resettled refugees in Europe capped at 72,000. Europe also committed to pay up to 3 billion EUR to Turkey (in addition to 3 billion already agreed in the EU-Turkey deal of November 2015) in order to manage the refugees in its territory. It also agreed to lift the visa requirement for Turkish nationals by the end of June 2016 and opening five negotiation chapters in Turkey’s accession process. The deal came into force on April 4, when 202 people left the Greek islands of Lesbos and Chios and arrived at Dikili, in Western Turkey.

The many problems of a (non-)deal

On April 20, the Commission presented its first report on the EU-Turkey Statement, defining it as a “decisive action”, thanks to which “there has been a substantial decrease in the numbers leaving Turkey to Greece”[1]. Although the deal was seemingly fulfilling its mission, i.e. stemming the uncontrolled flow of migrants through the Aegean sea, on May 9, rumors on media started spreading about the EU working on an alternative plan. What happened to the solution that was presented as the most feasible one? Why is this house of chards wobbling?

Although presented as the one and only way to address the migration crisis, the EU-Turkey deal is full of holes. To begin with, the legal nature of the Statement is unclear: the EU’s procedure for negotiating and concluding treaties with third countries, which would need the European Parliament consent, has not been followed[2]. Therefore, the March 18 Statement is nothing more than a press release, which has no legal bearing under EU law; any of the participants could withdraw at any time, which makes the deal rather flimsy.

The EU-Turkey deal is also ambiguous from another legal point of view. Several international NGOs voiced their concern that the deal is a breach of several international laws, including the ban on collective expulsion in the EU charter and the European Court of Human Rights (ECHR), as well as EU asylum legislation. The deal triggered strong criticism from international human rights organizations and the Council of Europe issued a stinging indictment of it, which exceeds the limits of what is permissible under the international law. According to the principle of non-refoulement, asylum seekers can only be sent back to countries considered safe. Many observers, experts, and international human right organizations denied that Turkey could be considered a “safe third country”[3]. The “one to one” mechanism did not raise any legal issues as such, as resettlement is a common practice. However, in this specific situation it is also controversial for two reasons.  Firstly, the 72,000 cap for refugee resettlement is an inadequate number when we think about the more than one million migrants and refugees that have reached Europe in 2015 and the estimated 2.7 million Syrians in Turkey. Secondly, many EU countries especially in the Eastern European block, oppose the idea of welcoming migrants. If some member states will not pledge to take in migrants, it will be hard to resettle even the insufficient number estimated in the deal.

Moreover, the plan is a bureaucratic burden for Greece. It is not possible to send people back to Turkey automatically. EU rules oblige countries to review applications on a case-by-case basis in order to avoid collective deportations. For this reason, Greece needs to assess each asylum application and verify whether the applicant is coming from Turkey. This would be challenging for any European country, even more for Greece, which in 2011 the European Court of Human Rights denounced to have deficiencies in its country’s asylum system, including ill treatment at its reception facilities [4]. With support from the EU slow to materialize the camps in the Greeks island, used to process migrant arrived after the deal, have been turned into de-facto detention centers. Médecins Sans Frontières (MSF) and the UN refugee agency, UNHCR, suspended their activities and withdrew from the islands to voice their opposition with the plan.

Overall, the plan is hard to execute and, even if implemented, is not going to solve the migration crisis. It was not envisioned as a durable solution, but as a way to reduce the number of people crossing the Aegean; even if it did work, it would have to be replaced with a long lasting solution. It only addresses the Syrian migration, while paying no attention to the migration flux of other nationals. It also ignores the phenomenon of route shifting, which is common in case of closing routes. In fact, UNHCR data shows that arrivals in Italy began surging in the month of March, while at the same time decreasing in Greece. It is worth noting that the Central Mediterranean corridor, which connects North Africa to Italy and Malta, is known to be the deadliest among the Mediterranean’s route.

Despite the several reasons why this deal was a loosing game since day one, none of the previously mentioned undermined the deal. What really put it at risk is Turkey’s political instability. The growing struggle for power inside the ruling Justice and Development Party (AKP), and in particular between Turkish President Recep Tayyip Erdoğan and the Prime Minister Ahmet Davutoğlu, forced the latter to resign on May 5. He later confirmed that he would not stand for nomination at the extraordinary party convention on May 22.

This sudden transition poses several threats to the deal. Firstly, the European Union is loosing one of the biggest backers and the leading negotiator of the deal. In fact, the Commission sees the pro-European Davutoğlu as a key partner in ensuring that Turkey stands by its commitments. It would be hard enough for the next Prime Minister to gain the EU’s trust had Erdoğan not made things even harder. A few hours after ousting the former Prime Minister, he gave a speech in Istanbul stating that Turkey will not change its anti-terror law to fulfill European requirements. The terror law represents a stumbling block to the visa deal. On May 4, the European Commission had recommended that the EU grant visa-free travel to Turks in exchange for assurance that Ankara would meet all the criteria. There are in total 72 benchmarks of which Turkey has fulfilled 65. After Erdoğan’s refusal to comply with the European anti-terrorism legislation, the European Parliament stopped work on plans to lift visa requirements stating that they will start processing them only when all the 72 criteria have been met.

While the European Commission denied having any plan B, on May 8 the German newspaper Bild[5] reported that the EU is working on an alternative plan in case the one with Turkey should not survive. According to the source, the new arrangements envisage keeping asylum seekers on the Greek islands; additionally, the EU would cut off the planned €6 billion to Turkey and instead give the money to Greece.

What is next?

Europe is now facing an excruciating dilemma. Ankara has stated clearly that it would suspend the EU-Turkey deal unless visa requirements are lifted. If it does not happen before June, this would potentially lead to the collapse of the whole refugee deal. This would be a mayor step back for EU-Turkey relations, revitalized due to the cooperation on the migration issue. Moreover, European member states will be back to square one in the quest for a solution to the migration crisis. Europe has already ceded considerable ground and it would undermine its credibility if it backs down from the Parliament position on the visa liberalization. In any case, Europe is again in a political impasse. The deal was the EU’s boldest attempt to tackle the migration crisis. However, by putting all its eggs in the Turkish basket the EU took a high risk. Now that the deal is faltering and with the summer coming there is no time to look for other solutions, but turning Greek islands into open prisons for people trying to reach Europe. What is more, the EU-Turkey deal was criticized for allegedly being in breach of human rights law and refugee rights. By supporting this plan, it diminished the EU’s credibility as a human rights defender, to the point that there is an ongoing discussion on the EU’s lost values. And yet, the deal did not even provide a valuable solution.

Notes

[1] European Commission, Communication from the Commission to the European Parliament, the European Council and the Council; First Report on the progress made in the implementation of the EU-Turkey Statement, April 20, 2016

[2] Treaty on the Functioning of the European Union, Part Five – TitleIV, Article 218

[3] Several international NGOs reported on ill treatment in detention centers, illegal deportation and push-backs at the border. See: Amnesty International, Europe’s Gatekeeper, unlawful detention and deportation of refugees from Turkey, December 2015; Human Rights Watch, Turkey: Border Guards Kill and Injure Asylum Seekers, May 10, 2016; University of Oxford, Turkey as a Safe Third Coutry?, March 29, 2016

[4] European Court of Human Rights, Case of M.S.S. v. Belgium and Greece, January 21, 2011

[5] Bild, Was, wenn Erdogan den Fluchtlingsdeal platzen Lasst?, May 8, 2016