The Council of State, the Supreme Administrative Court of Greece, has on Friday decided against the appeals of two Syrians who claimed that Turkey is a not safe third country for them to be returned to.
According to the ‘EU-Turkey deal’, refugees arriving on the Greek islands from Turkey should be returned back on grounds that Turkey is a safe place for refugees who can get effective protection there. Up to this day, no refugee from Syria has been forcibly returned to Turkey on the basis of a decision that finds Turkey a ‘safe third country’.
The rulings of the Council of State have been announced in a critical moment when tensions on the Greek islands where hot-spots are situated are rising again. Also, the already very poor living conditions for the refugees have deteriorated further and arrivals from Turkey have started increasing. Thus the rulings are crucial for the future of the EU-Turkey deal since they are likely to re-invigorate its deterrence effect. The Council of State rulings could have detrimental impact because they are probably going to lead to a large number of fast track forcible returns of Syrian asylum seekers whose appeals have been rejected on the premise that Turkey is a ‘safe third country’.
The Court examined the cases of two Syrians whose asylum applications had been deemed inadmissible at first and second instance and who are at risk of being forcibly returned to Turkey. Initially, Council of State Fourth Chamber decided on 29th November 2016 to refer the cases to the Plenary, given the high significance of the issues raised. On 10th March 2017, the hearing of the cases before the Plenary took place.
On Friday the Council of State decided by a narrow majority of 13 to 12 votes, not to refer the case to the Court of Justice of the European Union (ECJ) in relation to the question of whether the ‘safe country’ concept could be applied for Turkey under European law. This happened despite the numerous asylum experts’ testimonies submitted before the Court supporting the need for clarification of the concept (‘safe third country’) by the ECJ in the interests of legal certainty. This narrow majority is indicative of the ambivalence surrounding the application of concept under European and international law.
The Court has also ignored important evidence accumulated during last year suggesting that the political crisis in Turkey has had a severe impact on the status of people in need of international protection. Most significantly, it has ignored the amendments introduced to Turkey’s Law on Foreigners and International Protection under the post-coup state of emergency that significantly increased the risk of refoulement. Many human rights organizations have repeatedly expressed grave concerns about the treatment of refugees and asylum seekers in Turkey and the violation of their rights (including those returned to Turkey under the EU-Turkey deal) as well as forcible expulsion of Syrians from Turkey.
The Appeals Committees who deemed the two applications as inadmissible and whose decisions were appealed before the Council of State have been the product of much criticized legislative amendments. In June 2016, the previous Asylum Committees were replaced in order to protect the viability of the EU-Turkey deal. The Appeal Committees have mainly based their inadmissibility decision and findings that Turkey is a safe third country on assurances provided by the Turkish government to the European Commission and on correspondence provided to Greek authorities by the European Commission and the UNHCR. However, the European Commission position cannot be considered objective and the UNHCR correspondence that was submitted in the court to support the pro-safe third country argument has been compromised. Updated information provided by UNHCR, which clarifies that, the organization is unable to secure unhindered access to those and monitor many of those returned to Turkey under the EU-Turkey deal has been ignored. A strong example that demonstrates the absurdity of the EU-Turkey deal is that one of the first cases considered as inadmissible, after the enactment of the EU-Turkey deal, has since a long time already received asylum in Germany, where the admissibility procedure does not apply.
The legal team of Refugee Support Aegean (RSA) represented one of the two Syrians in this case. RSA’s legally documented position remains that Turkey may not be considered a safe third country.