The EU‐Turkey‐'deal': Legal Challenges and Pitfalls
| Published date | 01 April 2019 |
| Author | Roman Lehner |
| Date | 01 April 2019 |
| DOI | http://doi.org/10.1111/imig.12462 |
The EU-Turkey-’deal’: Legal Challenges and
Pitfalls
Dr. Roman Lehner*
ABSTRACT
The EU-Turkey “deal”, based on the Joint Action Plan (JAP) between the European Union
(EU) and Turkey, raises fundamental questions on the range of European asylum law as well
as on the scope of the safe third country concept, which has turned out to serve as a political
master key to “solve”the problems of the so-called “refugee crisis”in Europe. This article dis-
cusses the legal possibilities of the application of the concept as well as its limitations regard-
ing the human rights orientation of European and international law, focusing on the
evolvement and legal implementation of the “Merkel Plan”. The legal analysis also focusses
on recent ideas to make new “deals”with third states such as Libya. It concludes with a criti-
cal but differentiated(?) acclaim of the controversial externalizing policy approach.
INTRODUCTION
In 2015, more than one million people were seeking humanitarian protection in the EU. One main
trigger of this development has been the ongoing civil war in Syria as well as the expansion of the
so-called Islamic State in Syria and Iraq. Most asylum seekers in 2015 transitted Turkey where, in
February 2018, 3.5 million Syrian refugees were still registered (UNHCR, 2018). From the European
perspective, these figures lead to two basic questions: Is the “crisis”taking place in the EU or in Tur-
key? The answer to this question could lead to a criticism of the EU-Turkey “deal”and to the ideas
of externalizing European refugee politics in general. However, the second question is: When there
are millions of refugees in Turkey, obviously more or less safe, why should EU member states be
responsible for them? The 1951 refugee Convention of 28 July 1951 (Geneva Convention) does not
state an individual right to asylum but only the principle of non-refoulement. Art. 14 of the 1948 UN
Declaration of Human Rights, as is generally known, is not legally binding. Art. 16a Para. 1 of the
1949 German Basic Law stipulates such an individual right, which means a right to seek for asylum
in Germany, but, as will be shown in this article, this individual right has since the time of its cre-
ation been enormously restricted, especially regarding practical access to the German asylum system
after having crossed third states. Art. 18 of the Charter of Fundamental Rights of the EU stipulates a
right to asylum “with due respect”to the Geneva rules as well as to EU refugee law, which is laid
down in several regulations and directives. One of those, of course, is the The Asylum Procedures
Directive 2013/32/EU of 26 June 2013 (Official Journal L 180/60), which offers, in Arts. 35 and 38
et seq, different suggestions for dealing with asylum seekers crossing third states.
The EU-Turkey “deal”, based on the Joint Action Plan (JAP) between the EU and Turkey now
raises questions on the range of the Common European Asylum System (CEAS) for refugees consid-
ered safe in another country outside the CEAS. The Asylum Procedures Directive establishes a
* University of G€
ottingen
doi: 10.1111/imig.12462
©2018 The Author
International Migration ©2018 IOM
International Migration Vol. 57 (2) 2019
ISSN 0020-7985Published by John Wiley & Sons Ltd.
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