The EU and its leaders have been under increasing pressure to resolve the greatest and most divisive crisis in recent history. Constant images of migrants huddling in the cold of muddy makeshift camps, fighting over food thrown over fences and coming off flimsy boats in tears, shivering from shock, begs the question: how can this possibly be happening in contemporary Europe?

Recent regional elections in Germany have confirmed fears of rising populism in response to Angela Merkel’s open door policy with the far-right Alternative für Deutschland party making substantial gains. According to a recent poll in the Netherlands, Geert Wilder’s anti-Islam Partij Voor de Vrijheid could win an unprecedented 29% of the vote in the next parliamentary elections. Pressure has been mounting on European leaders to both address the deficiency in the humanitarian response to the migrant crisis and to stem the number of migrants entering the EU. It came as a great relief to European leaders – particularly those under the most domestic political pressure – that a deal was struck between the EU and Turkey on the 18th of March, with the unanimous support of the EU’s 28 member states. This is especially true for the German Chancellor who championed the deal which will see all new irregular migrants’ arriving in Greece exchanged for Syrian refugees in Turkey on a one for one basis.

Alleviating political pressure

Existing provisions in EU law allow for individuals to be returned if they do not apply, or qualify for asylum, or if they are determined to have arrived from a safe third country. This should encourage new arrivals to apply for asylum immediately upon arriving in Greece as not doing so would risk their return to Turkey, falling under the category of ‘irregular migrants’. On the 4th of April the first returnees had all failed to apply for asylum upon arriving on the island of Lesbos and were subsequently exchanged with Turkey for Syrian refugees. Fewer refugees are now expected to postpone applying for asylum in countries en route to preferred destination countries like Germany and Sweden. Germany has received over 476,000 asylum applications in 2015 and the lion’s share of the number of applications in the EU. In February of this year, 1470 asylum applications were filed in Greece, which accounted for only 2.5 % of arrivals there. It is hoped that the deal should see this percentage rise significantly. The European Commission has requested 4000 people to help the Greek authorities assess arrivals and process asylum applications, including judges to hear appeals on rejected asylum claims. With more arrivals applying for asylum in Greece, the number of asylum applications in Germany is expected to be reduced. This will ease the pressure on Merkel from the millions of Germans that oppose her position, including many members of her own party.

The official objective of the EU-Turkey deal is to dissuade migrants from making the perilous journey across the Aegean sea, in the hope of reducing the number of those dying trying to reach Europe. All migrants intercepted, trying to make the illegal crossing, are deemed ‘irregular’ and can theoretically be returned. With the image of Alan Kurdi lying dead on a beach in Turkey having gone viral, it became very clear that an impetus of action on the crisis was expected from the EU and its leaders. So the deal should help to satisfy both, xenophobic demands for fewer migrants as well as the loud call for humanitarian action. Nonetheless, aspects of the deal have caused serious concerns with NGOs, the UNHCR and condemnation from a multitude of politicians.


Questions of legality and effectiveness

From the outset, the fact that the EU had to negotiate with an increasingly autocratic Turkish government was troubling. At the beginning of March, Turkey’s largest opposition newspaper Zaman was taken over by the state and immediately adopted a pro-government stance. This was strongly criticised as a major blow for press freedom in Turkey. The timing seems sarcastic, in that Turkey gained ‘re-energised negotiations’ for its accession to the EU as part of the refugee deal. Press freedom is one of conditions assessed for EU accession. Also troubling is the increasing military crackdown on the Kurds in the East of Turkey with reports of civilian casualties from Amnesty International. The urgency to address the crisis and the necessity of cooperating with Turkey was clearly demonstrated in the making of the significant concessions to a country that is increasingly divergent from the principles of the EU.

Many allegations have been made that the deal is potentially illegal under international and EU law as both the 1951 Geneva Convention on Refugees and the European Charter of Fundamental rights both explicitly prohibit collective expulsions. Human Rights Watch has said that the deal “contradicts EU principles guaranteeing the right to seek asylum and against collective expulsions”. This is because, despite assurances from European Council President Donald Tusk that the implementation of the deal will conform with international and EU law, details are lacking on how the assessment of individuals will take place. This could result in the rapid processing of asylum claims leading to the infringement of the right to international protection for refugees. Moreover, even ‘irregular migrants’ who are intercepted trying to reach Greece illegally who qualify for international protection can be returned to Turkey. Arguably this qualifies as ‘collective expulsion’.

There are also concerns that expediency in processing asylum applications will be chosen over the rights guaranteed to refugees by law. Conversely, some specialists argue that very few refugees will actually be returned to Turkey if legal commitments under European law and the 1951 Refugee Convention are fully respected. This is because of deficiencies in protection system offered to refugees in Turkey which has a backlog of over 200.000 asylum applications as it copes with some 2.7 million refugees. This makes real access of protection for returnees difficult at best. If the intention of the deal is to deter migrants from illegally crossing from Turkey to Greece with the hope of addressing the humanitarian crisis in Greece, Europe’s leaders could be just as concerned about the deal’s success as they are about it holding. One of the most widely held criticisms of the deal is that if it succeeds in deterring migrants from crossing to Greece illegally from Turkey, desperate people will take even more desperate measures. Specifically, they will take the far more deadly central Mediterranean route from North Africa to islands such as Lampedusa. This could lead to even larger numbers of migrants drowning whilst trying to reach the shores of Europe and would simply shift the humanitarian crisis from one part of Europe to another.


Moving toward a solution

Despite the many criticisms of the deal – and if it only succeeds in temporarily relieving the EU and its leaders of political pressure – there are some foreseeable benefits that will come from it. First, in order for it to work, the exhausted Greek authorities must receive the necessary support from the EU to process asylum applications. Germany and Sweden have been the preferred destinations for migrants, not only because they have been the most generous in providing asylum, but also because they are some of the most efficient at processing asylum applications. Second, from the perspective of international law, a refugee does not have the right to choose where they seek asylum, but does have the right of access to protection. Disproportionate numbers of asylum applications between EU member states has driven disgruntlement in countries receiving the largest share of refugees. Migrants returned to Greece are exchanged for Syrian refugees to be ‘resettled in the EU’. This provides the opportunity for a more even distribution of refugees within the EU.  Finally, a leading cause of resistance to migrants coming to Europe has been the concern of allowing people to stay who are not in need of international protection and who are taking advantage of the crisis. It is reported that the first group of migrants returned to Turkey were mainly of Pakistani origin.  They were exchanged for Syrian refugees who have fled war that has claimed over 250,000 lives.