Updated: Nov 3, 2022
As per a recent estimate by the UN Refugee Agency, approximately 3,62,000 refugees and migrants risked their lives in 2016 while crossing the Mediterranean sea with approx 1,73,450 people arriving in Greece. In the year 2017, 105,000 refugees and migrants entered Europe. This movement en masse takes a toll on human life since many either die or disappear during these movements. The abuse continues even after reaching the shores of safety, from where they are either subjected to abuse or are pushed back across the borders.
To solve this problem of refugees and migrants arriving in Greece in large numbers; the European Union (EU) decided to make a “safe-third country” agreement with Turkey in exchange for a sum of few billion Euros and even the promise of the accession of Turkey to EU. EU even hired a consultant firm McKinsey, in order to come up with an effective solution after gauging the ground situation comprehensively at Greece. However, many human rights groups have criticized this agreement stating that it violates the rights of the refugees and migrants and that Turkey is not a “safe place” for the migrants. Amidst Syrian tensions and political set-up, the Turkish president tore up the deal this year, accusing EU of not fulfilling its side of the obligations.
Article 14(1) of the Universal Declaration of Human Rights (UDHR), guarantees the right to seek and enjoy asylum in other countries. This right is further elaborated according to the regional human rights legislations. For instance, Article 18 of the European Union Charter of Fundamental Rights provides for “Right to Asylum”. The foremost convention on the refugee law is the 1951 Convention relating to the Status of Refugees along with its 1961 Optional Protocol relating to the Status of Refugees. In addition to defining the term “refugee”, it also defines the principle of “non-refoulment” and the rights of those granted the refugee status. While defining the term “refugee”, the Convention makes use of the phrase “well-founded fear of persecution”, which is precisely why people fleeing from Syria, Iraq and Afghanistan seek shelter in Europe. As far as the EU is concerned, its member states adhere to the Common European Asylum System as well as the Asylum Procedure Directive (APD) in order to make sure, that the refugees seeking shelter in any of the member states are guaranteed high standards of protection. Furthermore, the EU member states are also governed by the Dublin Regulation. It aims at the creation of a system that detects early problems in a national asylum or reception systems and addresses their root causes before they develop into a full-fledged crisis.
However, the Dublin Regulation has under-went constant revision with time and as of now, the Dublin III Regulation is the current directive in practice. Art.26 of the APD provides for the concept of “the first country of asylum” whereas the Dublin III Regulation contains the concept of the “safe third country” agreements which has been a constant recipient of criticism by various domestic and international courts.
The EU-Turkey deal is a safe third country agreement, wherein the “first country of asylum,” in this scenario, is Greece. Since Greece is being over-burdened with the continuous influx of asylum seekers and refugees, it is the responsibility of the EU to ease this burden from Greece. Article 27(1) of the APD lays down requirements for a country to be termed as a “safe third country”. However, as per the EU-Turkey deal; Turkey qualifies as a “safe third country” since it fulfills these requirements. The concept of the third safe country was done away with, subsequent to the accession of 12 member states in 2005 and also because of the then applicable Dublin II Regulation. During this regime, it was concluded that no country was considered “safe” beyond these borders hence the concept would not be applicable. However, still, if a member country decided to go for such an agreement, it should satisfy the pre-requisites for terming another country as “third-safe country”. However, as per research by the Amnesty International, it showed that Turkey cannot be termed as a “safe third country” because of its blatant violation of the principle of non-refoulment. In late 2015 and early 2016, Turkey sent the asylum-seekers and refugees back to Afghanistan, Syria and Iraq. Also, Turkey also does not provide effective protection to the refugees/asylum-seekers in accordance with the EU and International norms.
Even though there is no explicit definition of “effective protection”, it can be deduced from several international and regional obligations and principles that asylum-seekers must be able to exercise their fundamental rights including those mentioned in the Refugee Convention. However, Turkey does not guarantee the protection of such rights of the asylum-seekers. The beatings of the Syrian refugees at the Turkish border, arbitrary detention and denying access to legal aid and health-care; further corroborate this statement.
The intervention of McKinsey in this scenario, puts at risk a lot of human rights at stake since the driving notion behind the consultancy is to “maximize productivity”, i.e., fast-track processing of the asylum applications. The moment the “returnable status” of the migrants was determined, the police officials were asked to detain them. By formulating the terms of the EU-Turkey deal, the company’s involvement in the drafting of these terms put to risk the very right to seek refuge. The company, despite doing a thorough groundwork in the refugee camps and centers in Greece, formulated the terms based on a flawed premise that the individual protection needs of the migrants need not be evaluated. The company, by capitalizing upon this humanitarian crisis, indirectly sent out a message that human lives can be easily “commodified, outsourced and deflected”. Several Human Rights groups that studied the aftermath of the EU-Turkey deal stated the presence of a gap in access to information and legal assistance during this new border procedure. EU has abysmally failed to overcome its poor record of providing resettlement. The consultancy quite conveniently substituted the right to seek asylum with the duty of providing resettlement which seems to be more of an imposition on the migrants.
Furthermore, the ambiguity in the EU’s statements that do not even mention the involvement of the consultancy is a cause for concern. McKinsey held similar projects in Germany and China and it is quite evident that the firm is blatantly trying to capitalize upon the humanitarian crisis by devaluing and commodifying the lives of the refugees. The ambiguous involvement of the consultancy in these situations of crisis raises the stature of an authoritarian regime by compromising democratic principles in the international scenario.
Pursuant to this EU-Turkey deal, its legitimacy and the qualification of Turkey as a safe third country was challenged in the Greek courts wherein, the decision was in favour of the legality of this deal and also that Turkey was a safe space for returning the migrants/asylum-seekers. However, the dissenting opinion in the case explicitly stated the open violation of human rights of the refugees and the powerlessness of the Turkish judicial system. It further expressed its concerns over such violations, stating that the implementation of the protective legislation of the country is of foremost importance rather than having in-effective legislation in place. However, this ruling by the Greek courts conveniently ignored the 2015 case of Turkish atrocities and went ahead to categorize it as a safe space for the migrants. After careful scrutiny of this situation, it can be concluded that the “safe-third country” agreements are more likely to infringe the rights of the refugees by focusing more on the re-settlement procedures. Therefore, a thorough investigation should take place while determining the “safe-third country” for the asylum-seekers if at all such an agreement seems to be the only best available alternative. Since the refugee crisis is a ‘humanitarian crisis’, the countries should share the responsibility of providing asylum to the refugees/migrants, instead of coming up with “fortress” like policies that put the entire responsibility alone on a single nation.
As far as the present EU-Turkey deal is concerned, EU could have properly and adequately funded Turkey to relieve the stress on its asylum system and made sure that it is adequately equipped to fulfill its international obligations. Furthermore, resettlement procedures should be defined and elaborated and the possibility of including sponsorship from private entities should be explored. Consultant companies like that of McKinsey that capitalize on such situations of humanitarian crisis should not be hired since they more or less treat the asylum-seekers as a burden that needs to be discarded with rather than treating it as a humanitarian problem. Taking humanity out of such scenarios only exacerbates such situations of crisis. Furthermore, the role of such firms should be restricted when it comes to searching for solutions for quick and efficient processing of asylum applications. Transparency in the working and involvement of these companies should be prioritized while at the same time the lives of the migrants/asylum-seekers should not be compromised.