LL.M. in Public International Law
● Under EU law, third-country nationals or stateless persons that arrive at the territory of a Member State have the right to international protection, regardless of having crossed the border in an irregular manner.
● According to EU legislation, ‘international protection’ is the term used to describe the refugee protection and subsidiary protection regimes.
● Article 2(e) of the Qualification Directive (2011/95/EU) provides that “refugee status means the recognition by a Member State of a third-country national or a stateless person as a refugee”.
● Article 2(d) of the Qualification Directive defines ‘refugee’ as “a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it”. This definition is modeled on the definition provided in Article 1A(2) of the 1951 Convention Relating to the Status of Refugees (Geneva Refugee Convention). A main difference between these definitions is that the definition provided in the Qualification Directive refers to third-country nationals, excluding thus citizens of the EU Member States from the Directive.
● It follows that a person is a refugee as soon as he or she fulfills the criteria laid down in the refugee definition and this necessarily occurs before he or she is recognized as a refugee by a Member State. Recognition of a person as a refugee does not make that person a refugee, but formally declares him or her to be one.
● The well-founded fear of being persecuted must be linked to one of the grounds contained in the refugee definition (race, religion, nationality, political opinion or membership of a particular social group). This begs the question whether persons fleeing armed conflict can meet the requirements of the refugee definition and consequently whether they can be granted refugee status. Since mid-2013 the majority of persons entering the territory of EU Member States come from countries experiencing armed conflict. It can be argued that in situations of armed conflict where particular groups of persons are targeted due to racial, religious, ethnic, political, or social reasons, these acts can amount to persecutory acts within the meaning of the refugee definition.
● Article 2(f) of the Qualification Directive determines a ‘person eligible for subsidiary protection’ as “a third- country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm as defined in Article 15 [..] and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country”. In other words, the subsidiary protection regime provides protection against expulsion to persons that do not meet the requirements of the refugee definition but are in a refugee-like situation, e.g., persons fleeing armed conflict who cannot be considered as refugees within the meaning of the refugee definition.
● Under EU and international law, Member States are not allowed to transfer recognized refugees as well as those who have not had their status determined to their country of origin or any other country where their life and freedom would be threatened or they would risk being sent to such a threat. According to Article 33(2) of the Geneva Refugee Convention as well as Article 21 of the Qualification Directive, exceptions to the principle of non-refoulement are permitted only in the circumstances explicitly provided in these Articles. However, these provisions do not affect a Member State’s obligations under international human rights law which do not allow for any exceptions when the removal of a person (including persons that have been granted international protection and those seeking international protection and whose claims are pending a final decision) would result in exposing him or her to serious human rights violations, such as arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment.
● There are three circumstances where a person can be readmitted to Turkey: a) when a person does not ask for international protection; b) when a person’s claim for international protection has been rejected as being unfounded; and c) when a person’s claim for international protection has been found inadmissible.
● There are two possibilities for an application to be declared inadmissible in relation to Turkey: a) Turkey can be considered as the first country of asylum for the applicant when he or she has been already recognized as a refugee in Turkey or otherwise enjoys sufficient protection there including benefiting from the principle of non-refoulement; and b) Turkey can be qualified as a safe third country for the applicant when he or she has not already received international protection there but Turkey can provide a number of safeguards for the applicant, including the possibility to request and receive protection in accordance with the Geneva Refugee Convention and protection from refoulement as stipulated in international human rights law.
● First, Turkey applies the Geneva Convention only in relation to refugees from Europe, i.e., only citizens of one of the 47 Member States of the Council of Europe are granted refugee status. To those coming from other countries, Turkey provides ‘conditional refugee status’. Conditional refugees are allowed to stay in Turkey temporarily until they are resettled to a third country, while access to the labour market is not granted automatically. The status offered to conditional refugees is less beneficial than the refugee status. Secondly, although Turkey’s domestic legislation guarantees the prohibition of refoulement, it is arguable whether Turkey indeed respects the principle of non-refoulement. It must be noted that examining whether Turkey qualifies as the first country of asylum or a safe third country must be made on a case-by-case basis and in relation to the applicant in question. Designating Turkey as the first country of asylum or a safe third country without substantial individual assessment amounts to a blanket readmission in violation of EU and international law.
Some final remarks:
The EU-Turkey agreement for the readmission of refugees and migrants from Greece to Turkey has already come into effect but Greece still needs to strengthen its operational capacity, e.g., the reception conditions and the system assessing claims for international protection. Overall, although the agreement provides a number of safeguards in accordance with EU and international law, it seems questionable whether these safeguards will be established and implemented.