The Arab Spring and especially the Syrian civil war have challenged both the nationals and international contexts. In particular, since 2015 there has been an increase in irregular migration to European countries, generating a massive humanitarian crisis that has pushed the EU to find a solution.
Indeed, in 2015 the EU and Turkey have agreed to address the migration crisis in a spirit of burden-sharing with the Joint Action Plan, with which the European Union has provided financial aids to support Ankara in dealing with the Syrian migrants under temporary protection, as long as Turkey would have implemented policies aimed at facilitating their access to public services.
The burden-sharing strategy has been confirmed on March 18, 2016, with the peculiar EU-Turkey Statement, under which the EU has granted Ankara a total sum of 6 billion euros between 2016 and 2018.
Actually, in its first paragraph, the document declares that all new irregular migrants, who do not apply for asylum or whose applications are found to be unfounded or inadmissible and who have made the crossing from Turkey to the Greek islands from March 20, 2016, are brought back to Turkey in full compliance with the principle ofnon-refoulment, thus excluding any form of collective expulsion.
It also states that for every Syrian returned to Turkey from the Greek islands another Syrian will be resettled from Turkey to the EU and that the priority will be given to migrants who have not previously entered or tried to enter Europe illegally.
Despite the request for greater political determination by the parties involved, the various Reports drawn up by the European Commission on the implementation of the EU-Turkey Statement show outcomes deemed positive with a decrease in the illegal arrivals on the Greek islands.
However, the Statement has raised doubts and questions regarding its form and content, both ethically and legally.
The first critical aspect is exactly its legal nature because the Council uses statements only to set up political commitments or positions that are not legally binding, considering that they are not foreseen in the treaties. Therefore, it’s possible to argue that there is a formal defect given the presence of provisions in the EU-Turkey Statement that also commit the Union financially, suggesting that it is indeed an agreement.
At this point, it must be noted that art. 218 TFEU establishes that the Council, not the European Council, concludes an agreement with the approval of the European Parliament if cooperation procedures or significant financial burdens are conceived. This procedure is further specified in art. 79 TFEU, which requires the application of the ordinary legislative procedure for the development of a common immigration policy.
Also the Court of Justice of the European Union has expressed itself, establishing in Case T-192/16, NF v European Council, that it is a political commitment, not an agreement, between the Heads of State or Government of the EU and Turkey. But, considering its aims and the means employed, there is still room for arguments.
Concerning its content, the Statement decrees that the transfer from Greece to Turkey is based on the consideration of Turkey as a safe third country. However, the Directive 2013/32/EU establishes in art. 38 that a third country can be considered safe only if it complies with the principle of non-refoulement and if there is the possibility to obtain protection following the Geneva Convention, ratified by Turkey in 1951 to which applies a geographical restriction that provides the attribution of refugee status only to those coming from the European continent.
Another controversial aspect is certainly the 1:1 scheme, under which for an irregular Syrian transferred to Turkey from Greece another Syrian will be resettled in the Union from Turkey, employing a national and temporal selection, referring only to Syrian citizens – in contrast to art. 3 of the Geneva Convention on the Status of Refugees which provides for the application of its provisions without discrimination based on origin – and only applying to
arrivals from March 20, 2016.
As a result, the EU-Turkey Statement marks a responsibility-shifting, the externalization of migratory flows management. However, here is not blamed the choice of relying on a third country, because illegal migration is of global concern, but the lack of European unity in dealing with this situation and the conduct of the Turkish partner, repeatedly reported for human rights violations.
Regardless of geopolitical strategies and dynamics, the starting point to find an adequate answer to the question should be an effective and common European policy based on principles of solidarity and fair sharing of responsibility provided by art. 80 TFEU in the field of asylum and immigration, capable of involving or forcing all Member States, and then the search for partners that go along with those that should be the European values, such as rule of law and respect for human rights.