New ESI paper – preview
Why Amnesty International is wrong
on the Merkel-Samsom Plan
29 January 2016
Also available in Turkish:
Uluslararası Af Örgütü Merkel-Samsom Planı Hakkında Neden Yanılıyor
On 28 January 2016, the leader of the Dutch Labour Party Diederik Samsom outlined a proposal for how to resolve the migration crisis – first in the Dutch newspaper de Volkskrant and then on the nightly television programme Nieuwsuur.
The central pillars of his proposals are the resettlement of hundreds of thousands of refugees per year from Turkey to the EU, in parallel to the return of all migrants from Greece to Turkey. It draws on the legal concept that Turkey is a safe country for refugees, and that Greece can therefore legitimately return them to Turkey to process their asylum requests. Samsom’s plan is similar to proposals first made by ESI in September 2015 and further developed since.
In response to Samson’s intervention, Amnesty International issued a harsh press release. It calls these ideas “morally bankrupt” and “tantamount to bartering in human lives.” It claims that they represent “blatant violations of both European and international law.” It calls on everybody not to “be fooled by the humanitarian sheen of this fundamentally flawed proposal.”
There is no question that the status quo is a humanitarian and human rights catastrophe. Thousands of refugees are boarding inflatable boats in a desperate attempt to reach Europe. Every week people die crossing the Aegean. Those who survive face a gruelling journey across South-Eastern Europe in winter conditions.
The refugee crisis is also a potential political disaster for Europe. Many in Europe have opened their arms to the refugees, and German Chancellor Angela Merkel has been rightly praised for her compassionate response. Yet across the EU, illiberal political forces are on the rise. They advocate doing away with refugee law and asylum altogether. The scramble for a solution is producing dangerous (and doomed) proposals, such as the erection of a new iron curtain in the Balkans north of Greece. The very future of the international asylum system is at stake. Unless mainstream European leaders find a way to combine compassion for refugees with effective control of the EU’s external borders, political support for compassion will soon evaporate.
The Samsom proposal represents a practical and humane solution. At present, the prospect of obtaining protection in Germany is encouraging refugees to take to boats and risk their lives on the Aegean. Samsom suggests replacing this humanitarian disaster with an orderly process that would enable refugees to reach Europe without risking their lives. The goal is to render the hazardous journey unnecessary. But for this to work, it needs to be accompanied by measures that close off the route through Greece.
Instead of attacking the Dutch/ESI proposal in such polemical terms, it would be far more constructive for AI to make an assessment of how this practical solution could be implemented consistently with international law. Instead, AI rejects the proposal from the outset, without analysing it or taking a closer look, based on a number of wrong assumptions and factual and legal errors:
- AI claims that readmission of refugees from Greece to Turkey would represent “illegal pushbacks”, arguing that “all asylum-seekers intercepted on the sea crossing to Greece” would be returned. This is wrong; and referring to “illegal pushbacks” is a wilful misrepresentation. Refugees would be returned in an orderly fashion, in safe ferries, from Greece, after a lawful procedure. Nobody would be “pushed back” or put into danger.
- It is not illegal to return refugees to Turkey. EU legislation permits the return of asylum seekers to a third country if they can receive international protection in that country. Turkey already has a temporary protection regime for Syrian refugees. It also has a new asylum law from 2013, which UNHCR welcomed as “an important advancement for international protection.” The term “illegal” is therefore highly misleading. There are still steps to be taken on the implementation of this law, but the necessary institutions are already in place. The EU needs to work quickly with Turkey to help it reach the status of a safe third country – an entirely feasible goal.
- AI claims that refugees would be denied “due process or access to asylum application procedures” in Greece. This is wrong. Under EU legislation, which has been implemented in Greece, refugees can submit an asylum claim in Greece. The authorities will assess it and determine if Turkey is a safe third country “for each individual case and applicant separately.” If they arrive at the conclusion that this is the case and that the claim is therefore inadmissible, they inform the applicant accordingly and provide him with a document for the authorities of the third country (Turkey) stating that they have not examined the application on merits.
Under Greek legislation, the rejected applicant can then lodge an administrative appeal against the inadmissibility decision within 15 days and has a right to remain in Greece until she is notified of the final decision. If the appeals body upholds the first-instance decision, the applicant can appeal to a court. However, the court appeal has no suspensive effect; the applicant is still obliged to leave.
All of this is lawful. Nothing in this procedure is “breaking the law and flouting international obligations.”
- AI is correct to claim that the proposal is “aimed at stopping the flows of desperate people across the Aegean Sea.” We have to replace this Darwinian system, which costs lives and enriches unscrupulous smugglers, with a safe and legal asylum scheme. Resettlement of hundreds of thousands of refugees from Turkey to the EU is such a scheme. For it to work, the illegal route via the Aegean has to be closed, and the most humane way in which this can be achieved is through readmission.
- AI criticises Turkey for transporting migrants detected on the way to Greece to the other end of the country. The key point here is that Turkey is implementing this under pressure from EU countries, who are desperate to stop the flow of refugees. If the Dutch proposal were put into effect, there would no longer be any need for this practice.
For anyone concerned about human rights and respect for international law, the appalling status quo should be the starting point. For countries like Germany to welcome refugees, but only after a horrendous journey across Europe, is morally untenable. Europe has unwittingly created a Darwinian system where desperate refugees have to risk their lives in order to improve their situation. We can and must do better. We need to put in place an orderly process in place of the current humanitarian catastrophe. This should be developed by governments, think-tanks and refugee and human rights NGOs, working urgently and in cooperation.
It is also profoundly unhelpful for AI to ignore the challenge of maintaining a political consensus in favour of helping the refugees. The values of compassion for refugees and respect for international law, which AI has for decades upheld so valiantly, are under threat in Europe. The failure of European governments to manage the situation is feeding the rise of Europe’s far right and public opposition to any support for refugees. A few bold leaders, such as Merkel and Samsom, are working to regain control of the situation. AI should be lending its support to constructive proposals, and not dismissing them out of hand.
Amnesty International press release
January 28, 2016
Dutch plan for EU refugee swap with Turkey is morally bankrupt
A new plan to tackle unprecedented refugee flows to Europe, mooted by the Dutch Presidency of the European Union today, is fundamentally flawed since it would hinge on illegally returning asylum seekers and refugees from Greece to Turkey, Amnesty International warned.
Plans to label Turkey a “safe third country” in order to ferry back tens of thousands of people from Greece without due process or access to asylum application procedures would blatantly violate both European and international law.
“No one should be fooled by the humanitarian sheen of this fundamentally flawed proposal. It is political expediency, plain and simple, aimed at stopping the flows of desperate people across the Aegean Sea,” said John Dalhuisen, Europe and Central Asia Director at Amnesty International.
“Any resettlement proposal that is conditional on effectively sealing off borders and illegally pushing back tens of thousands of people while denying them access to asylum procedures is morally bankrupt. The pan-European response to the global refugee crisis has long been in disarray, so solutions are needed, and fast. But there is no excuse for breaking the law and flouting international obligations in the process.”
Under international law, vulnerable people fleeing conflict and persecution must not be denied access to protection and have a right to have their asylum claims considered.
If the plan goes ahead, as soon as this spring, EU countries would begin considering Turkey a “safe third country,” a designation which would lead to them pushing back all asylum-seekers intercepted on the sea crossing to Greece. Amnesty International warned these would amount to illegal push-backs under international law.
In return for Turkey accepting those who are pushed back, a core group of EU countries would voluntarily resettle between 150,000 and 250,000 refugees currently hosted in Turkey.
There are serious concerns about the situation of refugees and asylum-seekers in Turkey. The country hosts an estimated 2.5 million Syrian refugees and 250,000 refugees and asylum-seekers from other countries including Afghanistan and Iraq. Asylum applications for non-Syrians are rarely processed in practice.
In addition, Amnesty International has documented how, since September 2015, in parallel with EU-Turkey migration talks, the Turkish authorities have unlawfully rounded up scores – possibly hundreds – of refugees and asylum-seekers. They have been herded onto buses and transported more than 1,000 kilometers to isolated detention centers where they have been held incommunicado. Some report being shackled for days on end, beaten and forcibly transported back to the countries they had fled.
“Turkey cannot possibly be considered a safe country for refugees. It is not even a safe country for many of its own citizens. In recent months refugees have been illegally returned to Iraq and Syria, while refugees from other countries face years in limbo before their applications will ever be heard,” said Dalhuisen.
“A large-scale resettlement scheme for refugees from Turkey to the EU is a good idea, but making it conditional on the swift return of those crossing the border irregularly is tantamount to bartering in human lives.
“In recent years, blocking one route to Europe has inevitably led to refugees taking another, often more dangerous, route to seek protection. Offering safe, legal routes to Europe is the only sustainable solution for the refugee situation.”
While the full plan has yet to be made public, the Dutch social-democrat leader Diederik Samsom revealed some details in an exclusive interview today with the national newspaper De Volkskrant. The Netherlands currently holds the EU presidency and is seeking backing for the proposal from other EU member states.
 Volkskrant, “Ik was in Izmir en zag: we hebben geen tijd meer” (“I was in Izmir and saw: we have no time anymore”), 28 January 2016.
 The programme can be viewed here: http://nos.nl/uitzending/12343-uitzending.html. The interview with Samsom starts at minute 9:20 and lasts until 25:00 (in Dutch). ESI’s Gerald Knaus explains the thinking behind the plan from minute 11:25 (in English).
 See ESI policy proposal: The Merkel Plan – Restoring control, retaining compassion – A proposal for the Syrian refugee crisis (4 October 2015) and ESI backgrounder: Turkey as a “Safe Third Country for Greece” (17 October 2015). More papers on this issue are available at www.esiweb.org/refugees.
 Amnesty International, Dutch plan for EU refugee swap with Turkey is morally bankrupt, 28 January 2016.
 UNHCR Briefing Notes, UNHCR welcomes Turkey’s new law on asylum, 12 April 2013.
 Greek Presidential Decree No. 113: Establishment of a single procedure for granting the status of refugee or of subsidiary protection beneficiary to aliens or to stateless individuals in conformity with Council Directive 2005/85/EC “on minimum standards on procedures in Member States for granting and withdrawing refugee status” (L 326/13.12.2005) and other provisions. Government Gazette of the Hellenic Republic, First Volume, Issue No: 146, 14 June 2013. Art.2, paragraph 2.
 Presidential Decree No. 113, Art.20, paragraph 2.
 Presidential Decree No. 113, Art. 25, paragraph 1, point (b).
 Presidential Decree No. 113, Art. 25, paragraph 2.
 Asylum Information Database AIDA, Country Report Greece, updated April 2015, p. 37.
 Amnesty International, Dutch plan for EU refugee swap with Turkey is morally bankrupt, 28 January 2016.