A shameful bureaucratic development in 2016

In May and June of 2016, the European Asylum Support Office (EASO) carried out a survey in Turkey for people from Syria and other third countries who were seeking international protection.

The need for the survey arose from the implementation of the EU-Turkey Statement, an agreement implemented on March 20 of that year. A major section of that accord provided for the return to Turkey of citizens of Syria and other third countries who had entered Greece from Turkey after that date.

One of EASO’s main responsibilities is to analyse information and inform EU member states regarding procedures in place for protecting asylum seekers and refugees from non-EU countries. The administrative procedures set out in the agreement would provide an indication as to what extent Turkey was indeed a safe third country for asylum-seekers.

When the first groups of returnees arrived back in Turkey in April and early May, 2016, strong allegations began coming from human rights organisations that Turkey was unfit for the purpose. Ever since then, the criteria for defining a “safe third country” and the question of whether Turkey actually fulfilled them have been a source of conflict between EU member states and experts defending the agreement on the one hand, and on the other, those who consider it to be legally unsound and the product of political expediencies.

Cover-up and expediencies

According to three reliable sources, EASO never formally completed drafting its report and the text was never published as an official document. Moreover, the decision to downgrade the report “was not discussed by the service’s management board”. In fact, the report’s existence was only once referred in the EUObserver of 15 June 2016 under the title “EU trying to bury report on Turkey migrants returns”.

The result of a leak of information that simply referred to the report’s existence, the EUObserver article drew no response from DG Home or EASO. It had expressed the view that the report could have dealt a major legal blow to the agreement and was “adding to the chorus of human rights defenders who say it is illegal”.

All sources also noted that the controversial report was downgraded when it was seen to provide insufficient support for the priorities of a group of EU member states and of the European Commission in seeing the agreement implemented. An official from an international agency have meanwhile referred to the report as “the one that never got out”.

Any release or widespread distribution of the report – and the risk of it being leaked in the early summer 2016 while the tug of war over the agreement was in process – could in fact have torpedoed the political process which, under pressure from several sides, had been initiated by the Commission and by EU member states with a major stake in the agreement, such as Germany and the Netherlands.

At that time, members of various organisations as well as legal experts were systematically attacking the agreement, while interventions by the Greek government and EU authorities aimed at legitimising and fully enacting it, interventions that were stretching the limits of the rule of law.

Never in Greek Parliament

Lawyer Giota Masouridou, a close observer of the process in her capacity as part of the team of lawyers that presented a case to Greece’s Supreme Administrative Court as to whether Turkey is indeed a safe third country said “The implementation of the Statement, although never debated in the Greek Parliament and despite the fact that it is not legally binding, was imposed via legislative amendments recommending fast track asylum procedures, particularly for the five islands (Lesbos, Samos, Chios, Leros and Kos) and changed the composition of second-instance committees, which until then had been claiming that Turkey was not a safe third country for Syrian refugees,” she said, adding:

“Furthermore, the participation of EU agencies in asylum procedures, such as interviews of applicants by EASO’s authorised representatives, was undertaken in contravention of EASO’s responsibilities. Since then, the Greek authorities have considered Turkey to be a safe third country for Syrians, based on unpublished letters from political officials and inaccurate information on the Turkish legal framework and practices of Turkish authorities.”

At the time while rulings by the second-instance asylum committees were still pending, their members were publicly alleging attempts at intervention by Greece’s Migration Policy Ministry. Eventually, an amendment altering the composition of the second-instance committees was tabled in Parliament by Migration Policy Minister on June 15, 2016.

Internal affairs

EASO initially refused to distribute the report as it stood in June 2016, as well as a revised edition in March, 2017. As indicated in a response, the text remained unfinalised, and had been edited several times during 2016, 2017 and 2018.

In response to an official request for access to documents relating to the report, according to the provisions of EU Regulation 1049/2001, EASO “states its concerns on the public request being made on a document drawn up by the agency, containing information for internal use as part of deliberations and preliminary consultations”.

At first, EASO judged that the report was governed by provisions exempting specific documents from release when this was seen as not serving the public interest. EASO’s main justification was that it had not requested consent to release the identities and other information contained in the report provided by interviewees in Turkey.

“In the light of the heavily politicised nature of the debate regarding the EU-Turkey statement, it was deemed by EASO that the publication of the documents would risk to undermine the integrity of the case by case examination of asylum applications on the Greek islands”, it claimed.

Protecting EASO’s interlocutors is certainly important. Nevertheless, it would not seem to have been a good time to fully conceal the content of the interviews since EASO decided not to release any report before July, 2016, where an attempted coup in Turkey had led to restricted guarantees of the rule of law.

Meanwhile, according to the minutes of a meeting of EASO’s analysis and documentation department representatives that had been conducting interviews with a non-governmental organisation in Turkey for the purposes of its survey, consent had been given to use excerpts from the interviews as well as interviewees’ data.

In response to a second request for access, EASO decided to release versions of the report in largely censored forms, redacting all sections of the text resulting from interviews in Turkey and perhaps other data not drawn from any public source.

One of the texts appears to be the document’s draft to the time it was downgraded, something confirmed by sources. This text, titled “Country Information Pack – The Asylum System in Turkey”, appears to have been amended for the last time on June 15, 2016, the same day the EUObserver article was published.

Censored extracts

EASO’s management board met on June 6 and 7, 2016; the agenda indicates a discussion of the EU-Turkey Statement. However, in every instance, sources state that the report was never discussed at this level.

EASO also released an amended version of the text, also redected, titled “Country Information factsheet JAP Product 3.1.g. – Content of Protection in Turkey” and produced in March 2017. It appears from the uncensored sections in the preliminary comments to both texts that:

“According to various sources, there is a lack of independent oversight in removal centres since the implementation of the EU-Turkey deal. Access by international organisations and local NGOs has been very limited, which in turn has undermined the capacity to monitor the situation of returnees from Greece since April 2016”.

The latter version of the text (March 2017) includes extensive reference to a letter from the UN High Commission for Refugees (UNHCR), leaked in December 2016 admitting the UN refugee agency was unable to monitor conditions for the majority of those returned under the agreement.

The existence of a document including such comments in 2016 and 2017, apparently contradicts repeated public statements by EU officials that Turkey was a safe third country.

Although the section of the agreement regarding returns was never effectively implemented, it remains today the main goal of the European Commission and of EU member states such as Germany, with regard to managing the flow of immigrants and refugees at the EU’s external borders.

Nevertheless, the agreement was seen as being extremely successful, as subsequent arrivals on the Greek islands were down by 97 percent. Still, restricting these populations on the Greek islands, also a part of the agreement, and under conditions that the Commission itself described in early March 2019 as “awful”, raised the human cost of the agreement.

Tens of thousands of people became trapped in unsuitable conditions, often affecting their mental health, with a lack of unrestricted access to basic health services and constant exposure to physical dangers.

The allegedly successful transfer to Turkey of responsibility for migration flows, in exchange for major financial gains, constituted a blueprint for the aggressive policy the EU has been pursuing since then as part of its foreign affairs.