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The EU-Turkey Deal: Analysis and Considerations

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1. Introduction

The EU-Turkey deal represents not only the culmination of recent and ever closer EU relations with Turkey, but also a substantive and symbolic shift in the EU’s international protection policies. The EU adopts a territorial notion of asylum and has used various devices (such as visa requirements, carrier sanctions, to name but a few) that create significant obstacles for forced migrants to access EU territory (and, consequently, access to asylum procedures). The audacity of the EU-Turkey deal is that it raises some of the most serious questions about its compatibility with international refugee law and human rights law, as well as European law. In the words of the PACE Report of the Council of Europe, it “at best strains and at worst exceeds the limits of what is possible under European and international law”. 2 The extraordinary nature of the deal cannot be overstated.

This policy discussion paper is designed to give an overview of the legal and policy implications of the deal at the present time. This paper is not designed to be an exhaustive statement or exploration of all issues – rather, its purpose is to highlight the key policy and legal challenges which the EU-Turkey Deal has created at this early stage from the perspective of forced migrants.

Firstly, this paper recalls the context giving rise to the deal and the parallel policy developments towards Greece and the eventual closure of the Balkans route, highlighting also the unusual characteristics of the deal. Secondly, it proceeds to identify some key legal considerations of most concern to forced migrants: notably, the compatibility of return to Turkey with EU and international law; the interaction of the current Dublin Regulation and maintenance of family unity principles during the implementation of the deal; and the transformation of the hotspots into detention facilities. Thirdly, it examines the ‘one-for-one’ resettlement scheme and questions the moral justification and legal responsibilities of the scheme in light of the differing nature of resettlement and relocation. Fourthly, the paper reflects on the impact of the deal on reinforcing nationality as a key determinant in accessing international protection. Fifthly, it urges vigilance in the making of a ‘safe zone’ in Syria to ensure that more than lip service is paid to the principle of nonrefoulement.

When looking at the cumulative challenges that the EU-Turkey deal amasses, it appears to be not only at high risk of failing the protection needs of the forcibly displaced but it also raises important questions about the rule of law and democratic accountability within the EU.