On 4 October 2024, the Courtroom of Justice delivered its judgment in Case C-134/23 Elliniko Symvoulio, regarding the Greek designation of Turkey as a ‘secure third nation’ for the needs of worldwide safety. The case reveals that the EU’s insufficient response to the so-called ‘refugee disaster’ continues to echo in authorized challenges throughout its courts. Central to the EU’s response in 2016 was the controversial EU-Turkey Assertion, which offered that Turkey would settle for the return of asylum seekers from Greek islands within the Aegean Sea. The method was facilitated by Greece designating Turkey as a ‘secure third nation’. The idea, as offered by Article 33(2)(c) of the Asylum Procedures Directive, permits Member States to declare the functions for worldwide safety inadmissible with out inspecting their deserves, based mostly on the idea that asylum seekers can search safety elsewhere.
Regardless of Turkey ceasing to just accept asylum seekers from Greece in 2020, Greece renewed its designation of Turkey as a ‘secure third nation’ in 2021. This designation was ultimately challenged earlier than the CJEU in C-134/23 Elliniko Symvoulio.Confronted with the truth of Turkey’s lack of cooperation, the Courtroom dominated that Member States can’t declare an asylum utility inadmissible on the idea of the ‘secure third nation’ idea, whether it is ‘established’ that the designated nation won’t enable asylum seekers to enter its territory. Whereas civil society has welcomed the choice, the Courtroom’s stance on secure third international locations stays ambivalent. The Courtroom actually upheld {that a} nation can nonetheless be designated as ‘secure’ even when, opposite to its authorized obligations, it has usually and indefinitely suspended the admission or readmission of asylum seekers.
This underwhelming victory offers the chance to mirror on the failings within the EU system of cures that sorely persist and that had already emerged within the case of the EU-Turkey Assertion. On this publish, I’ll analyze a few of them.
The EU-Turkey Assertion: informality barring justiciability
The EU-Turkey Assertion was signed in March 2016 and revealed as a press launch by the European Council. The Assertion consisted of a listing of commitments from the 2 events accompanied by a lip service to the respect of worldwide legislation. The settlement offered for the EU and its Member States to allocate €3 billion (later elevated to €6 billion) to the Facility for Refugees in Turkey. Furthermore, a one-to-one resettlement association was designed, based on which, for each Syrian nationwide returned to Turkey from the Greek islands, one other Syrian nationwide can be resettled from Turkey to the EU. EU Member States promised – as a return – to expedite the visa liberalization course of for Turkish residents and to revitalize the controversy on Turkey’s accession to the EU. Within the settlement, migrants had been thus diminished to a bargaining chip for the curiosity of the 2 events.
To this point, it’s somewhat unclear whether or not the Assertion is a world treaty concluded by the EU and Turkey inside the scope of the Vienna Conference on the Regulation on Treaties or a delicate legislation instrument concluded between the Member States and Turkey. Its undefined nature has barred the route for judicial evaluate. The Normal Courtroom has actually declined its competence in reviewing the Assertion asserting that ‘the EU-Turkey Assertion, as revealed by the use of Press Launch No 144/16, can’t be thought to be a measure adopted by the European Council, or, furthermore, by every other establishment, physique, workplace or company of the European Union, or as revealing the existence of such a measure that corresponds to the contested measure’. This place was upheld by the Courtroom of Justice on enchantment, stating that the settlement was an affair between the Heads of State or Authorities of the Member States of the EU with their Turkish counterpart. The CJEU’s place has been extremely contested: first, the Assertion refers to EU legislation points equivalent to visas (regulated by the Visa Code). Second, it clearly had authorized results on the factual and authorized place of migrants, as acknowledged by the ECtHR. Specifically, in J.R. and others v Greece, the ECtHR partly relied on the implementation of the EU-Turkey Assertion to conclude that the detention measure contested within the case had a authorized foundation in home legislation.
The Greek follow: asylum seekers in a limbo
The implementation of the Assertion and the ensuing risk to maneuver the commodified migrants throughout borders was facilitated by the designation of Turkey as a ‘secure third nation’ by Greece. Based on Article 38(1) of the Asylum Procedures Directive, a rustic may be thought-about a ‘secure third nation’, if Member States are glad that sure ensures are ensured for asylum seekers in that nation. The next situations have to be met:
(a) ‘life and liberty usually are not threatened on account of race, faith, nationality, membership of a selected social group or political opinion’;
(b) ‘there isn’t a threat of great hurt as outlined in’ the EU Qualification Directive;
(c) ‘the precept of non-refoulement in accordance with the [Refugee] Conference is revered’;
(d) ‘prohibition of removing, in violation of the best to freedom from torture and merciless, inhuman or degrading remedy as laid down in worldwide legislation, is revered’; and
(e) ‘the chance exists to request refugee standing and, if discovered to be a refugee, to obtain safety in accordance with the Geneva Conference’.
As broadly documented over time, these situations is probably not thought-about as fulfilled within the case of Turkey. As proof of that, the ECtHR has, for instance, discovered Turkey to be forcibly returning migrants to Syria regardless of vital dangers (Akkad v Turkey) and violating the migrants’ proper to life and the prohibition of torture, inhuman and degrading remedy (J.A. and A.A. v Turkey).
Regardless of such vital considerations, Greece retained Turkey as a secure third nation in its 2021 designation. The coverage selection crystallized a dire scenario: figures present that between 2021 and 2023 Greece has discovered over 10,000 asylum claims inadmissible, contemplating Turkey a ‘secure third nation’ for asylum seekers. In follow, Greek authorities first rejected these functions for worldwide safety after which, on the stage of implementing the selections, approached Turkey to establish whether or not the related applicant was actually permitted to enter Turkish territory. As Turkish authorities since 2020 have systematically failed to answer all requests, Greek authorities left candidates to attend earlier than concluding that readmission was not attainable. At this level, it was for the asylum seeker involved to submit a brand new utility for worldwide safety since, below Greek laws, the competent authorities usually are not required to renew ex officio the examination of the applying for worldwide safety. Furthermore, experiences present delays in registering the re-applications and different hurdles confronted by asylum seekers, as a result of authorities don’t imagine that the refusal of readmission was a brand new factor or discovering, as required by legislation for repeated functions for worldwide safety.
Difficult the ‘secure third nation’ idea earlier than nationwide courts: the background to C-134/23 Elliniko Symvoulio
A primary try to problem the designation of Turkey as a ‘secure third nation’ was made in February 2017, when the Greek Council of State, the Supreme Administrative Courtroom of Greece, determined in opposition to the appeals of two Syrians who had been claiming that Turkey was not a secure third nation for them to be returned to. On that event, the legal professionals representing the 2 candidates requested the Council of State to submit a preliminary reference to the CJEU relating to the definition of Turkey as a ‘secure third nation’. With a slim majority of 13/12, the Council dominated that there was no affordable doubt on the that means of ‘secure third nation’ below EU legislation and thus that there was no have to request a reference. This end result was unsurprising for a number of causes. First, Greece has one of many lowest charges of preliminary references to the CJEU amongst Member States, with its Supreme Courtroom having even confronted criticism from the ECtHR for inadequate reasoning in rejecting such referrals. Second, the inherently political nature of the EU-Turkey Assertion might have influenced the judiciary’s reluctance to escalate the matter. This reluctance to invoke the EU judiciary highlights a troubling actuality: the power to hunt readability or accountability via the EU authorized framework is way from assured, even when the contested nationwide follow is tightly linked to an settlement bearing the ‘EU’ label.
Notably, regardless of the essential place of Greece within the EU for migration within the final decade, Case C-134/23 Elliniko Symvoulio marks the primary time that the CJEU has been requested any questions on EU asylum legislation by a Greek courtroom. Since 2017, nonetheless, the scenario has dramatically modified. As talked about, no readmission has taken place since March 2020 from Turkey, thus leaving asylum seekers in a authorized limbo (experiences obtainable in Greek right here). Underneath these circumstances, the Greek Council of State lastly determined to refer the query to the CJEU on how the ‘secure third nation’ rule have to be interpreted if readmissions don’t happen. The referring nationwide courtroom put ahead two attainable interpretations. The primary was that nationwide legislation might not classify a 3rd nation as ‘secure’ for sure classes of candidates when that third nation has usually suspended the admission or readmission of these candidates to its territory and there’s no foreseeable prospect of change in that place. The second was that the impossibility of readmission to the third nation was to be thought-about within the enforcement of the person choice deemed inadmissible somewhat than from the second of the overall designation of a 3rd nation as ‘secure’.
The CJEU’s choice in C-134/23 Elliniko Symvoulio
Based on the Courtroom of Justice, Article 38 of the Asylum Procedures Directive doesn’t present that the validity of a 3rd nation’s designation as ‘secure’ is topic to the situation that the candidates for worldwide safety will truly be admitted or readmitted to the territory of that third nation (para 46). This interpretation overlooks the broader function of the ‘secure third nation’ idea, which is the environment friendly processing of asylum claims. This effectivity can hardly be achieved if there isn’t a sensible prospect of readmissions of asylum seekers going down inside an affordable time. Nonetheless, based on the Advocate Normal’s Opinion on the case (para 45) – whose reasoning was endorsed by the Courtroom – the definitive refusal of readmission of asylum seekers (versus mere uncertainty about whether or not it’d occur) doesn’t disqualify a rustic from being listed as a ‘secure third nation’ as a result of the Procedures Directive doesn’t explicitly require consideration of the readmission difficulty on the time of designation. In my opinion, this interpretation clashes additionally with a literal studying of Article 38 of the Procedures Directive. The Article stipulates that Member States might apply the ‘secure third nation’ idea, provided that their competent authorities are assured that candidates will likely be ‘handled’ in accordance with the rules which can be outlined in factors (a) to (e) of the identical provision. The glitch is, nonetheless, that, if the authorities of the allegedly ‘secure third nation’ don’t even take the difficulty to ‘deal with’ the candidates in any kind, then the evaluation whether or not such candidates are handled in accordance with the EU standards turns into utterly irrelevant.
Regardless of the Greek designation of Turkey as ‘secure’ being unaffected by the current judgment, the Courtroom crucially held that (para 54):
‘the place it’s established that the third nation designated as usually secure by a Member State doesn’t actually admit or readmit the candidates for worldwide safety involved, that Member State can’t reject their functions for worldwide safety as inadmissible on the idea of Article 33(2)(c) of Directive 2013/32’.
This stance, whereas to be welcomed for the safety accorded to asylum seekers, has already been included within the new Asylum Process Regulation (2024/1348), which was adopted earlier this yr. Recital 53 of its Preambles states that:
‘an utility shouldn’t be rejected as inadmissible on the idea of the ideas of first nation of asylum or secure third nation the place it’s already clear on the stage of the admissibility examination that the third nation involved won’t admit or readmit the applicant. Moreover, if the applicant is ultimately not admitted or readmitted to the third nation after the applying has been rejected as inadmissible, the applicant ought to once more have entry to the process for worldwide safety in accordance with this Regulation’.
In its judgment, the Courtroom additionally underlined that Member States might not unjustifiably postpone the examination of functions and should, inter alia, ‘make sure that that examination is performed on a person foundation, in accordance with Article 10(3)(a) of that directive and in compliance with the deadlines set out in Article 31 thereof’ (para 54). Regardless of the judgment’s main significance in its ensures for asylum seekers’ entry to asylum procedures, the judgment nonetheless is undermined by its failure to make clear the standards for figuring out a ‘secure third nation’ and the procedures for verifying these standards, each of that are important for safeguarding asylum seekers’ rights. Certainly, the Greek designation of Turkey as ‘secure’ was not examined by the CJEU (para 40). This is because of the truth that the referring nationwide courtroom had rejected the plea of the applicant, arguing that Turkey doesn’t adjust to the ‘secure third nation’ standards, and subsequently had not referred this matter to the CJEU. The Courtroom of Justice subsequently couldn’t interpret these rules. This key lacking level displays how the usage of the preliminary reference as a method to uphold rights continues to be closely affected by its authentic nature as a dialogue between courts.
Concluding remarks
The judgment marks a big step ahead in defending asylum seekers by prohibiting nationwide authorities from rejecting asylum functions as inadmissible when readmission to a 3rd secure nation shouldn’t be possible. Nonetheless, it additionally represents a missed alternative to make clear on how Member States should interpret the standards to designate third international locations as ‘secure’. That is notably related as Member States are more and more outsourcing their asylum tasks via controversial ‘secure nation’ agreements (see e.g. Italy-Albania, UK-Rwanda). Whether or not courts are the very best actors to evaluate the selections on the protection of third international locations is presently below debate, however it have to be acknowledged that the erosion of asylum rights is progressively occurring via preemptive limitations to entry asylum procedures in Member States.
Agostina Pirrello is a PhD Candidate in EU and Worldwide Regulation on the Regulation Division of Utrecht College, the place she works within the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE). Her analysis goals at investigating empirically how entry to justice may be enhanced within the mild of the rising supranational governance of migration. Previous to academia, Agostina labored on the European Union Company for Asylum in Malta and on the Italian Ministry of Inside.
