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Inside Europe’s refugee deal with Turkey – is it legal and can it work?

Refugees rescued off the coast of Greece. EPA/Kay Nietfeld

The proposed refugee exchange programme between the EU and Turkey is the most visible example of an evolving European policy of “humane return”. Containment (keeping refugees in the Middle East) hasn’t worked, nor have deflection (razor wire on the Hungarian and Macedonian borders), temporary protection or permanent resettlement. This is the latest arrow pulled from the quiver of failed solutions.

Humane return is essentially the process of quickly removing asylum seekers en masse from your own territory while appearing to conform to general legal principles.

As was made clear by Filippo Grandi, the UN high commissioner for refugees, humane return is not the same thing as full refugee protection under the 1951 Refugee Convention.

Under the convention, asylum seekers are guaranteed the right to be individually assessed, to have a chance to appeal a rejection and, crucially, the assurance that they will be removed to a country that will guarantee their human rights.

All of these have been jettisoned by the “one out, one in” deal done with Turkey. As part of the arrangement, Turkey will be paid to house thousands of refugees in camps. And in a new twist, for every illegal entrant returned to Turkey, an existing asylum seeker waiting in one of the camps will be admitted to the EU.

Is it legal?

The EU is turning away from the UN Convention when it does this. To cover its legal tracks, it is falling back on compliance with the “acquis” (the accumulated body of EU law and court decisions).

The EU charter of fundamental rights gives preference to voluntary return, but does not require it, while the return directive allows cooperation with non-EU countries to secure readmission agreements. That means the non-EU country agrees to take on the care of people deported from the EU member state.

Deals of this kind have been negotiated so far with Russia, Pakistan, Sri Lanka, Ukraine, the Republic of Moldova, the Chinese Special Administrative Regions of Hong Kong and Macao, Georgia, Cape Verde, Algeria, Armenia, Ukraine, and the Western Balkan countries. Some states on this list are not likely to inspire complete confidence in the mind of a frightened returnee.

Ahmet Davutoglu and Donald Tusk shake on it. EPA/Olivier Hoslet

Such is the determination of EU leaders to throttle illegal entry that they have ignored alarming developments in Turkey when proposing this deal. They have looked the other away while the Turkish government attacks its media, suppresses intellectual dissent and bombards Kurdish fighters inside Syria. Turkey has to be placated and is therefore deemed a safe country.

Earlier announcements by Sweden and Finland speak to a similar disregard of the niceties of the 1951 convention. Late in January, the Swedish Ministry of the Interior announced that up to 80,000 rejected asylum-seekers would be returned to their countries of origin on charter flights.

This paralleled an even clumsier arithmetical formula announced by Finland, namely that “in principle” two-thirds of asylum seekers would be deported (20,000 of the 32,000 asylum claimants in 2015), as though the quality of their claims could be predicted in advance.

Though the numbers were small, Syrian asylum seekers in arctic Norway were transferred to Russia – whose government, last time we looked, was involved in bombing parts of Syria.

Will it solve the problem?

There are many practical difficulties in finding and expelling failed asylum seekers and illegal migrants, not to mention the likely legal and political challenges to these radical policies. The history of deportation sweeps in many countries does not lead us to suppose that the authorities will be totally successful. A revolving door is more likely than a one-way exit.

It is often as if Robert Merton’s law of unanticipated consequences was formulated with the express purpose of describing migration policies, so consistent are their failures.

In just about every case where readmission agreements have been negotiated, the governments taking people have demanded subsidies. They take money for reintegration schemes, including housing, education and welfare provisions. These payments could have gone directly to the migrants and their families but instead they go to governments, with all the dangers of diversion that implies.

It does not take much imagination to see that the price of reintegration will be pushed up or that “humane return” will create a perverse incentive to encourage more emigration to garner more subsidies. In Turkey’s case, the price is measured both in financial and political terms.

Turkish prime minister, Ahmet Davutoğlu, has already demanded €6bn to help the EU out – double the €3 billion already allocated to support Syrian refugees in Turkey. His government also insists on fast-tracking accession talks on joining the EU. If that happens we can look forward to returnees from the EU simply reappearing, a few years down the line, back into the EU.

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