The EU-Turkey refugee deal: Is it legal? Shutterstock

Donald Tusk, the President of the European Council, must hone the legally dubious accord with Ankara before the summit on Thursday and Friday in Brussels.  The aim of the negotiations, begun on the 7th of March, is the development of a common migration system that complies fully with European and international asylum law.

What has the EU already agreed with Ankara?

• Ankara will accept the return of all new irregular migrants who have travelled from Turkey to the Greek islands.

• A 1:1 resettlement system: Under the current plans, all irregular migrants arriving in Greece from Turkey would be returned.  For every Syrian migrant sent back, the EU promises to resettle a Syrian migrant already in Turkey in one of its member states. Brussels will cover the costs of the returns.

• The EU will accelerate the visa liberalisation process, aiming to lift the visa requirements for Turkish citizens by the end of June 2016.

• The EU will accelerate the distribution of 3 billion euros aimed at helping refugees in Turkey by the end of March and will decide on additional funding. Angela Merkel has raised the possibility of sending another 3 billion to Ankara in 2018.

• The EU has committed to deciding on the proposed new chapters in the accession negotiations with Turkey “as soon as possible”.

Legal concerns

Non-governmental organisations and the United Nations have raised their voices against the potential deal.  These are their primary concerns:

• The mass deportation of asylum claimants implied by the deal. 

• Turkey does not fully comply with the 1951 Refugee Convention. Can it, then, be considered a “safe third country”?

• The deal does not provide a solution of non-Syrians seeking international protection, such as Eritreans and Afghans. 

Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, stated: "Among my concerns is the potential for collective and arbitrary expulsions which are illegal.”

Bill Frelick, director of Human Rights Watch’s refugee programme, underlines the deal’s failure to state “how individual needs for international protection would be fairly assessed during the rapid-fire mass expulsions.”

Human Rights Watch (HRW) highlights that, while Turkey has ratified the 1951 Refugee Convention, the implementation is limited as only Europeans can attain refugee status. It is the only country in the world to have implemented these “geographical limitations”.  HRW also states that Turkey does not provide effective protection for refugees and has repeatedly forced asylum seekers back to Syria.

The EU and international law

The 1951 Refugee Convention bans discrimination on the basis of “race, religion or country of origin” and that no refugee shall be expelled or returned to the borders of territories where his life or freedom would be threatened (Article 3 and 33).

Jean-Claude Juncker, the President of the European Commission, has claimed that the deal respects EU legislation because it allows members states to refuse to consider an asylum claim if a non-EU country is considered as a “safe third country” (Article 33).

However, it also states that to be considered a “safe third country”, a state must respect the principle of non-refoulement and migrants must have the right to request refugee status in accordance with the 1951 Refugee Convention, ergo, without geographic limits (Article 38). Greece considers Turkey a “safe third country” although that Ankara only allows Europeans to request refugee status.

Click here to read more about the 1951 Refugee Convention

How should the EU and Turkey ensure the legality of the deal?

The EU should prevent mass deportation by ensuring the application of a case-by-case method in order to give all migrants the opportunity to seek asylum.  Turkey, meanwhile, should alter its national laws in compliance with the 1951 Refugee Convention.