The concept of “safe third country”: the (counter) example of Turkey

Collaboration with countries of origin and transit of immigrants has been included significantly in the EU’s responses to the “refugee crisis”. The EU–Turkey Statement, established by EU and Turkish heads of States in March 2016, is at the centre of this approach. The statement permits the expulsion to Turkey of all irregular migrants entering Greece after 20 March 2016, including unsuccessful asylum seekers. The foundation on which the relocation of asylum seekers from Greece to Turkey is based on is the concept of “safe third country”.

In 2018 the UNHCR has summed up its view on this issue. It has put forth two key matters to be taken into consideration when conduction returns to “safe third countries”: a) the importance of a link between the unsuccessful asylum seeker and the third country; and b) the access to a guaranteed level of protection in the third country. According to UNHCR, this protection must be guaranteed by international law and national laws.

Article 38 of the recast Asylum Procedures Directive enumerates five criteria for a country to be considered “safe”, comprising the option to apply for refugee status and to obtain protection “in accordance with the Geneva Convention”. The Directive also calls for the assessment to be considering the presence of a connection to the third country.

The LIBE Committee of the European Parliament (EP) adopted a report on the Asylum Procedures Regulation in April 2018. This report states that a high degree of protection should exist in a third country to be considered “safe”. Accordingly, for the “safe third country” concept to be applied, the asylum seeker must obtain protection in the third country according to the 1951 Refugee Convention that must be ratified and applied without geographical limitation by the third country or enjoy a comparable level of protection granted by the third country. Furthermore, the EP report underlines that a “sufficient connection” between the asylum seeker and a third country necessitates a prior residence or stay in that country.

The EU-Turkey statement is grounded on the idea that Turkey is a “safe third country” notwithstanding the fact that Turkey keeps a geographical limitation to the Refugee Convention. In this case, how can an Afghan or Syrian asylum seeker, for example, request refugee status and receive protection in accordance with the Geneva Convention if Turkey applies the Geneva Convention only to European asylum seekers?

Moreover according to the UNHCR, the term “safe third country” applies to countries that are not “creating refugees” or where refugees can benefit from asylum rights without any peril. In this case it is difficult to argue that Turkey is a safe third country as the growing political volatility and well-known rule of law and human rights abuses in the country. The European Court of Human Rights (ECtHR) illustrates this argument. The ECtHR has recorded multiple judgments against Turkey for breaches of the prohibition on torture, inhuman and degrading treatment and punishment including towards refugees.

Since the conclusion of the EU-Turkey “deal”, the number of migrants arriving to Greece has dropped by 77% between 2016 and 2017 and again dropped by 25% between 2017 and September 2018. While the EU-Turkey statement surely helped decreasing the number of migrants reaching Europe, we should be concerned about migrants and asylum seekers’ access to rights. Hopefully, the common list of safe third countries to be adopted as part of the Proposal for a new Asylum Procedure Regulation will take these concerns into account rather than using this notion to further externalise the reception of asylum seekers.

Author: Dr. Fanny Tittel-Mosser