News analysis

EU-Turkey migrant deal looks dead in the water

LONDON • Turkish government observers have arrived on neighbouring Greek islands to start supervising a deal with the European Union, under which migrants can be swiftly sent back to Turkey.

The move, unprecedented in more than a century of hostility between Greece and Turkey, is hailed by both nations as proof of their determination to halt the flow of more than a million "irregular migrants" since the start of last year. But the obstacles to the implementation of the deal remain great, and the odds are still high that the arrangement will collapse.

The treaty concluded between the EU's 28 member states and Turkey last week specifies that all migrants who cross the bloc's south-eastern borders from last Sunday and who have their applications for asylum rejected will be immediately returned to Turkey. In exchange, the EU has undertaken to resettle a Syrian citizen currently in refugee camps in Turkey for each migrant returned to Turkey. Yet all is easier said than done.

The initial concept that asylum applications from migrants could be assessed in batches and those who are refused asylum could be returned wholesale has been rejected by the EU authorities: "Let me be crystal-clear about this, there can be no 'blanket returns'," said Mr Frans Timmermans, the deputy president of the EU Commission, the union's executive body. So, when refugees do file an asylum application, each request has to be examined separately.

The process will impose a huge administrative burden on Greece, where the overwhelming majority of migrants now land. The Greeks have been promised help, but ultimately only Greek judges who speak the language and know the local legislation can make decisions; the idea of setting up "European courts" for this purpose remains nonsense, since no legal basis for their operation exists.

Greece's Deputy Interior Minister Yiannis Balafas, who is in charge of this matter, vows that "migrants will be swiftly processed". But the reality is that even if the 144,000 migrants who have already landed in Greece since the start of this year are excluded from the new procedure, Athens will need tens if not hundreds of newly created asylum courts to process the 3,000 migrants who continue to land daily.

And even if one makes the brave assumption that Greece, a country notorious in Europe for having one of the weakest administrative structures, suddenly surprises everyone by its efficiency, each asylum seeker whose application is rejected has a right of appeal to national courts, or to the two European courts which may intervene in this process: the European Court of Justice, which is part of the European Union, and the European Court of Human Rights, an older institution with a broader remit.

In theory, these supra-national courts only intervene if they are asked to rule on substantial questions of law or procedure. But they are virtually guaranteed to be dragged into appeals from Greek courts largely because the concept of what justifies an asylum application has been expanded. Some European countries, for instance, now accept that homosexuals may be entitled to asylum if they flee a country where homosexuality is illegal, which is the case throughout the Middle East.

European legal experts also warn that the Turkey-EU treaty was poorly drafted and is almost certain to be picked apart by the courts: "To be frank, anyone with a legal qualification who signed off [portions of the treaty] should hang their head in shame," Professor Steve Peers, an expert on EU law at the University of Essex in Britain, wrote on his influential blog.

The chances are, therefore, high that instead of swift deportations, many asylum seekers will be trapped into various appeal procedures for months if not years to come; they will have to be housed and segregated in various camps according to their legal status.

And then, there is the thorny matter of deportations. With nothing to lose, refugees are likely to resist their removal, so force will periodically have to be used. The EU is preparing for this, by hiring an additional 1,500 employees for Frontex, its combined border agency.

But here again, European law could intervene, for people can only be deported to countries which respect the same refugee standard as the EU, which is most certainly not the case with Turkey. The EU hopes that the Turks may change their laws accordingly. However, that will take years, and at least for the moment no Turkish official has indicated any desire to do so.

In short, therefore, a treaty aiming to simplify the handling of Europe's migrants has probably only succeeded in creating an even bigger legal uncertainty. Europe's governments will be well advised to prepare for what is probably the most predictable of all contingencies: the failure of the current deal before it's even fully implemented.

A version of this article appeared in the print edition of The Straits Times on March 24, 2016, with the headline 'News analysis EU-Turkey migrant deal looks dead in the water'. Print Edition | Subscribe