Chapter 4. European Union’s Irregular Migration
“Paradox”: The Case of EU-Turkey Readmission
Agreement
Yeliz Yazan1
Introduction
European open door migration policy which began in the process of economic
construction of Europe at the end of World War II was effectively ended during the
1973 Oil Crisis. The closure of the doors has triggered irregular migration 2 towards
Europe. Irregular migration has been accelerated by the end of cold War. It is
noteworthy that migration has been politicized and has become high political issue
in terms of national interests.
Irregular crossings into Europe have made European countries more
interdependent because of Schengen Agreement that removed internal borders. The
need for protection of internal borders has led EU members to take drastic measures
and harmonize their migration policies. The migration issue was under the heading
of Justice and Internal Affairs, which based on intergovernmental cooperation of
members and in which decisions are taken unanimously by states, at Maastricht
Treaty. Over time, migration has shown gradual improvement and gained a new
dimension at Amsterdam Treaty. Amsterdam Treaty is able to be assessed a turning
point for EU to combat irregular migration because the Treaty transferred migration
issue to the first pillar under the headings of Freedom, Security and Justice, which
is the community pillar and in which decisions are taken by qualified majority.
Although taking decisions by qualified majority on migration has been
suspended due to reluctance of member states, September 11 attacks and terrorist
attacks in Madrid in 2004 caused irregular migrants to be considered as highly
potential criminals. This has compelled member states to take common measures.
This is mainly because; crossing border of a state is becoming a direct threat to other
states as a result of removal of internal borders. Thus, rapid improvements period
for a common migration policy is observed after Amsterdam.
Tampere Summit, Seville Summit, Hague Summit and Stockholm Programme
which consist of five -year programs and determine Union’s route on irregular
migration have played a limited role in the construction of common migration
policy due to differences of each countries vital interests. However, consensus has
been reached in some matters such as asylum and border management. In these
summits, Union has forced member states to give similar responses to same threats
by reiterating calls and recommendations.
1
Yeliz Yazan is a Ph.D. candidate at Faculty of Economics of Istanbul University, Main Campus,
34452 Beyazıt/Fatih, Istanbul, E-mail: [email protected].
2
Irregular, undocumented, clandestine or illegal migrants are used interchangeably. Although EU
is the only international actor who insists on using notion of illegal, the notion of irregular will be used
in this paper.
Eroğlu, D. Cohen, J.H., Sirkeci, I.
31
(eds.) (2016). Turkish Migration 2016
Selected Papers. London: TPL.
Turkish Migration 2016 Selected Papers
The security-oriented policy of the Union in combating of irregular migration
has represented multi-dimensional views by constituting external and internal
mechanisms. The internal dimension of combating policy has been constituted by
the mechanisms of Dublin Convention and first asylum country which facilitate
division of responsibility among member states. Besides, EU has created fund
transfer system in order to limit pressure of irregular migration toward border
countries that are easily accessible and first target for irregular border crossing. The
external mechanism in fighting against irregular migration is the readmission
agreements involving not only own citizens of parties but also third-country
nationals. Thus, thanks to these mechanisms, the Union will both translate irregular
migrants within its borders to third countries through readmission agreements and
build up “European wall” against trans-frontier migration pressure through Dublin
Convention. The mechanisms constituted by EU have reinforced the discourse of
“Fortress Europe” and made it necessary to discuss human rights dimension of
migration policy.
This study aims to analyze the readmission agreements by interrogating some
questions. Are readmission agreements effective tools for combating irregular
migration? To what extent have these agreements protected rights of irregular
migrants, asylum seekers and refugees? How does EU put these agreements in the
practice? Whether rights of irregular migrants guaranteed both under the
international treaties and EU’s Fundamental Rights Charter have been exposed any
deficiency or not will be examined through readmission agreement between EU and
Turkey.
EU’s Readmission Agreements as a Tool of Constructing “Fortress
Europe”
Readmission agreement is defined in Glossary on Migration as “an international
agreement which addresses procedures, on a reciprocal basis, for one State to return
non-nationals in an irregular situation to their home State or a State through which
they have transited” (IOM, 2004).
The readmission agreements are not new phenomena in Europe. Its history dates
back to the 19th century. Nills Coleman considers the history of European
readmission agreements as three patterns: early period (19th Century), the period
from 1950 to 1960 and 1990s. Coleman also considers the period after World War
II as a turning point. States accepted only their own nationals until this period. After
the WWII, states have begun to accept third country nationals and stateless as well
(Coleman, 2009, p.16). Coleman has claimed EU’s readmission agreements in
1990s as “almost a true Renaissance” by comparing to early periods (Coleman,
2009, p.16). Although bilateral agreements of member states were not called
readmission until 1994, it should be pointed out that these agreements were
including readmission elements. Steven Peers refers to them as “mixed treaties”. It
is known that Amsterdam Treaty authorized EU to sign readmission agreements.
Before the authorization, EU was encouraging members to sign readmission
agreements with third countries (Coleman, 2009, p.16).
It is a common view that Schengen Agreement has accelerated the decision
authorizing EU to conclude the readmission agreements. According to this view,
32
readmission agreements signed by member states individually are not effective
because people can move freely and uncontrolled within internal borders. In fact,
when a person living in fear of deportation enters another country’s border, he/she
is not a subject of readmission anymore. Many believe that the authorization of EU
to sign readmission agreement will reduce disparities in range of migrants and
internal movements among member states. Moreover, member states have difficulty
in persuading origin countries to sign the agreement. In these cases, economic and
political powers of EU are predicted to be practical tool (Coleman, 2009, p.16-19).
According to Florian Trauner and Imke Kruse, EU’s efforts to sign readmission
agreement with the countries located in its external borders and even distant regions
aim to constitute concentric rings allowed the removal of irregular migrants from
the border. These efforts are generally interpreted as the transfer of responsibility to
non-European countries (Trauner& Kruse, 2008). Likewise, Trauner and Kruse,
Marion Panizzon has also cited readmission agreements as part of EU’s concentric
rings model. According to Panizzon, this model consists of two rings. While the
first ring is containing member states and Schengen countries, the second ring is
made up of candidate countries. Panizzon stresses the function of readmission
agreements, which the cause two rings to become closer (Panizzon, 2012, p.102103).
The Commission primarily began negotiations of readmission agreements with
Sri Lanka, Morocco, Russia and Pakistan in 2000; with Hong Kong and Macau in
2001 and with Turkey, Algeria, Albania and China in 2002. In order to conclude
the agreements rapidly, Council and Commission has decided to provide some
remarkable incentives such as visa facilitation, increasing migration quota,
development and migration assistance and trade concession. Annabelle Roig and
Thomas Huddleston refer to EU’s incentive policy as the package approach
(Roig&Huddleston, 2007, p. 375).
Although EU’s readmission agreements certify rights and responsibilities of
parties, which result from the international law, these agreements have been
discussed in context of human rights. This paper aims to examine readmission
agreement between EU and Turkey from the human rights dimension.
Readmission Agreement between EU and Turkey: Human Rights
“Paradoxes”
Detections of irregular border crossing increased rapidly at last five years. In
2015, EU confronted the greatest irregular migration influx since World War II. The
most important corridor of routes that provides irregular migrants accession to
Europe is the Eastern Mediterranean route where Turkey is located.
It can be seen from table 2 that the Eastern Mediterranean route is the route that
witnessed the most number of irregular migrants trying to enter Greece from The
Aegean Sea. Turkey is the most strategic country of this route.
Turkey is considered to be a matter of great importance as a transit country
because of the continuity of migration flux. Thus, readmission agreement between
EU and Turkey placed at the top of the agenda. EU and Turkey signed the agreement
after EU made a commitment to visa facilitation that will go toward visa
33
Turkish Migration 2016 Selected Papers
liberalization at the end of a long and gradual process (Içduygu, 2011). General
view about the agreement is the ignorance of human rights.
Table 1: Routes of irregular migration
Routes
Eastern
Mediterranean
Route
Western Balkan
Route
Central
Mediterranean
Route
Circular route from
Albania to Greece
Western
Mediterranean
Route
Eastern Borders
Route
Western African
Routes
Black Sea Route
Other
Total
2011
2012
2013
2014
2015
57 025
37
224
24 779
50 834
885 386
%
change
1 642
4 658
6 391
19 951
43 357
764 038
1 662
64 261
15
151
45 298
170 664
153 946
-9.8
5 269
5 502
8 728
8 841
0,5
1
8 448
6 397
6 838
7 272
7 164
-1
1 049
1 597
1 316
1 275
1 920
51
340
174
283
276
874
217
0
1
141 051
1
0
72437
148
4
107365
433
10
282 962
68
9
1822337
-84
-10
100.0
Source: FRONTEX, Risk Analysis for 2016
Table 2. Detections of irregular border crossing
Route
Eastern
Mediterranean
Sea
Syria
Afghanistan
Iraq
Other
Land
Syria
Afghanistan
Iraq
Other
2011
2012
2013
2014
2015
% Change
57 025
37 224
24 779
50 834
885 386
1 642
1 467
76
310
76
1 005
55 558
1 216
19 308
1 054
33 980
4 370
906
1 593
47
1 824
32 854
6 216
7 973
987
17 678
11 831
5 361
4 080
57
2 333
12 968
7 366
2 049
372
3 181
44 057
27 025
11 582
382
5 068
6 777
4 648
893
483
753
873 179
489 011
212 286
90 130
81 752
12 207
7 329
1 349
2 591
938
1 882
1 709
1 733
23 494
1 513
80
58
51
436
25
Source: FRONTEX, Risk Analysis for 2016
EU has fallen into a paradox in three points on readmission agreement with
Turkey. The first paradox is the human rights dimension of the agreement. No
34
founding treaties of EU have certified human rights from the process of EU’s
foundation to 1986 Single European Act. The main reason of EU’s passive attitude
toward human rights is described as a sense of belongings. Moreover, EU has
considered human rights as a part of its existence and claimed that its foundation
mentality contains human rights and freedoms. EU identifies itself with human
rights. The identification and ownership of these rights stem from its members that
have struggled to achieve human rights in the past (Akyeşilmen, 2012, p.80-100).
EU’s discourses manifest its view concerning human rights. According to these
discourses, “Europe as the continent of humane values, the Magna Carta, the Bill of
Rights, the French Revolution and the fall of the Berlin Wall; the continent of
liberty, solidarity and above all diversity, meaning respect for others’ languages,
cultures and traditions. The European Union’s one boundary is democracy and
human rights” (Leaken Declaration, 2001). Thus, EU did not need to legalize these
rights and freedoms.
In contrast, the readmission agreement between EU and Turkey is a technical
text that simply addresses the readmission procedure. Human rights references are
superficial and very limited in the agreement. Although article 18 states that “this
agreement shall be without prejudice to the rights, obligations and responsibilities
of the Union, its Member States and Turkey arising from international law including
from international conventions to which they are party” (COM (2012)239 final),
there is no direct reference to international conventions that guarantee fundamental
rights of irregular migrants such as education, health, work etc. In addition, these
conventions are listed under the head of non-affection clause. It corresponds to the
notion of “inconclusive right” which is guaranteed on the agreement without
procedure of its feasibility. Therefore, the articles under the heading of nonaffection clause are not perceived as the protection of human rights.
There is also no procedure in the agreement toward the question of how to treat
irregular migrants. Although Turkey is obliged to readmit persons who irregularly
entered the territory of member states after having stayed on or transited through
the territory of Turkey and holds a resident permit or a valid visa issued by Turkey
in accordance with the agreement, it is noticeable that the agreement does not
contain any living and treatment conditions (COM (2012) 239 final). This
agreement will confront irregular migrants with uncertainty. As seen, EU as an
international actor that internalizes human rights and feels belonging itself has had
a paradoxical attitude for irregular migrants in the agreement. Another point
concerning human rights is the irregular migrant’s perception of EU. EU perceives
irregular migrants as a potential criminal threat to the European security and a
phenomenon to be fought. Control and security priorities of EU have frustrated
fundamental rights agenda. It is known that almost all international organizations
terminologically use the notion of irregular or undocumented. However, EU is the
only international actor insisting on “illegal” notion. It can be said that EU’s security
oriented approach overshadows rights of migrants because the term of illegal
migrant brings crime to mind. The agreement puts forward to human rights paradox
of European irregular migration policies given the choice of the notion of ‘illegal’
which disregards the human dignity.
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Turkish Migration 2016 Selected Papers
Another one of the paradoxes of the agreement is the political and legal defects
of Turkey regarding refugees, asylum seekers and irregular migrants. It is
noteworthy interrogating the question of preparedness of Turkey for readmit. Does
Turkey have sufficient infrastructure providing rights stemming from international
law? It should put forward general country profile of Turkey to evaluate conditions
for readmitted persons. Thus, we can provide an outlook about what conditions the
third country nationals sent from EU to Turkey to expect.
Firstly, it should be pointed out removal centers that serve for accommodation,
health and catering to irregular migrants. According to Çiçekli and Demir, it can
be difficult to control and care for some persons who are mentally deranged,
depressed, maladaptive and aggressive (Çiçekli&Demir, 2013, p.161-164). EU has
stated the lack of trained personnel in Turkey’s removal centers.
Table 3: The Capacities of Removal Centers
Source: goc.gov.tr
36
Table 3 shows capacities of available and planned removal centers in Turkey.
These figures indicate a gap to meet the readmitted persons’ housing, health and
catering needs. Therefore, the violation of irregular migrants guaranteed by
international law is becoming inevitable. EU only focuses on the removal of
migrants from its borders by providing Turkey economic contributions.
EU’s attitude toward Turkey’s geographical restriction to 1951 U.N. Convention
can also be regarded as a paradox. This attitude can be interpreted as political rather
than a part of EU’s concerns for refugee rights. On the one hand, EU represents
itself as supporter of asylum seekers and refugees by exerting pressure on Turkey
to remove geographical restriction. On the other hand, EU strives to close European
doors to asylum seekers and refugees through both internal and external
mechanisms such as Dublin Convention, first asylum country and safe third
country. Thus, these mechanisms have gradually continued to construct “Fortress
Europe”.
The final paradox of the agreement is about Turkey’s human rights record and
being a safe country for irregular migrants. When Turkey’s Progress Reports are
taken into consideration, during the report period of year 2014, European Court of
Human Rights identified that Turkey violated rights guaranteed by Conventions in
92 cases. The number of applications to ECHR increased with 1997 new cases
(Turkey’s Progress Report, 2015). Indeed, it should be underlined that while
European Progress Reports have evaluated Turkey as insufficient in the field of
human rights, EU considers Turkey as a safe country for readmit persons when the
agreement is in question.
Despite all these paradoxes, the agreement provides political gains for both
parties. Gerald Knaus and Alexandra Stiglmayer have assessed the agreement as a
turning point and advocated that it was constructed on the basis of a win-win
strategy (Stiglmayer, p. 99-109; Knaus, 2014). It can be interpreted that EU secures
its borders while Turkey maximizes its benefit with a process that goes to visa
liberalization. However, one thing is clear that this is a political bargain disregarding
rights of irregular migrants and seeing them insignificant subjects.
Conclusion
To sum up, the readmission agreement between Turkey and EU is recognized to
have human rights defects given Turkey’s country profile that compose of
geographical limitation, capacity of removal centers and violation of human rights.
EU as an international actor that identifies itself with human rights and defines some
rules to join EU has attempted to transfer “burden” no matter what happens. What
the conditions are in Turkey is unimportant. “Reciprocity” of the agreement is a
nonfunctional expression that aims to imply sharing responsibility. As stated by
İçduygu, this agreement is a text that reciprocity draws a veil over “burden shifting”.
It is a political bargain ignoring human rights. In essence, EU’ “generous” human
rights discourse is inconsistent with its comprehensive actions like readmission
agreements.
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Turkish Migration 2016 Selected Papers
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