By NIKOLAJ NIELSEN
Once again, the EU’s migrant deal with Turkey hangs in the balance, but this time from a high court in Athens.
The legal stakes in Greece underpin a sharp rise in antagonistic rhetoric between Ankara and EU capitals. Caught in the middle are the thousands of migrants stuck in misery on the Greek islands.
Agreed on 18 March one year ago, the deal risks unravelling if the Greek court’s conservative judges decide Turkey is not a safe third country.
Lawyers representing two Syrian asylum seekers have until Friday (17 March) to send them written evidence.
Both Syrians had applied for asylum in Greece. Both applications failed. Neither want to go back to Turkey.
It would be the first forced return of Syrians since the EU-Turkey agreement. The case is now being heard by the Grand Chamber with a decision expected sometime before mid-April.
Should the judges decide Turkey is not safe, Syrians hosted in the country may take their chances in Europe.
But a Turkey designated safe would pave the way for massive returns from Greece back to the country.
The European Commission has declined to comment on the implication of the verdict, but it is clearly the outcome both the EU and its national leaders want.
Syrians arriving in Greece to claim asylum are currently shuffled through a so-called admissibility procedure.
It means Greek caseworkers only look to see if Turkey is safe and can process their claims if returned.
The procedure has attracted a barrage of criticism from leading NGOs who say it deflects the responsibility of Europe to Turkey, which is already hosting some three million Syrians.
The EU commission has insisted that the plan is legally sound, citing the EU’s asylum procedures directive.
Article 33 in the directive says that “a country can refuse to consider a claim if a non-EU country is considered as a safe third country”.
Article 38 lists a set of criteria for Turkey to be deemed safe. This includes a ban on push-backs. People should also be able to receive normal refugee status.
But one of the Syrians in the Greek case claims Turkish police had shot at him and a group of people crossing the border from Syria. Human Rights Watch has documented similar cases.
A joint report by the International Rescue Committee (IRC), the Norwegian Refugee Council (NRC), and Oxfam on Friday says new arrivals on the Greek island of Chios are also being kept in cages with barbed wire.
Another recent report by Save the Children has documented an increase of incidents of self-harm by children as young as nine on the islands.
The EU says it aims to maintain the agreement with Turkey, however.
“We remain committed to the EU-Turkey statement, as we have said many times in the past,” the EU commission’s chief spokesperson told reporters in Brussels.
The deal made between the two has been described as a non-binding “press release” by the legal services at the European Parliament.
The General Court at European Court of Justice in Luxembourg also recently declared it had no jurisdiction over the statement because it was never adopted by any of the EU institutions.
Secret deal making in Brussels’ office
Many of the issues under the current statement points back to how it was rushed through in backroom negotiations in Brussels.
When the deal was first agreed one year ago, it received widespread praise among EU leaders. An EU summit with Turkey on 7 March 2015 had paved the way for a statement.
The fine-tuning behind the proposal had already been made in secret between German, Dutch and Turkish leaders.
Around a week before the 18 March agreement, Merkel found herself in the office of Turkey’s EU ambassador in Brussels.
She was set to meet Turkey’s then prime minister Ahmet Davutoglu, but she had been kept waiting. Dutch prime minister Mark Reutte was also present in the room.
Turkey’s ambassador to the EU at the time, Selim Yenel, told EUobserver in unpublished statements from an interview, that he had picked up his prime minister from the airport.
“The Germans were on time, we came a little late,” he said.
All were in Brussels for a meeting with EU heads of state the following day to discuss Turkey and migration.
But on his flight from Ankara, Davutoglu had drafted a new text that would later shape the basis of the EU-Turkey statement.
The move had caught Merkel and others, including Yenel, off guard.
Davutoglu handed Merkel the draft and spent the next six hours in intense talks, well into the early morning.
At the summit the following day, EU leaders were left dumbfounded.
“That’s when hell started and that’s why it was a surprise the next day for everybody because nobody was expecting us to accept such a plan,” said Yenel.
“It was her [Merkel] idea definitely yes but we surprised her as well by accepting it,” he said.