Why Gerald Knaus’ Proposal for an EU-Turkey Deal 2 Cannot Work
Gerald Knaus, the author of the ideas in the EU-Turkey Deal, is proposing a Deal 2. The Deal presumes Turkey is a Safe Third Country, which has proven untrue. So the returns mechanism does not work, which causes overcrowding on the islands, which provides more material basis for populist-nationalist agitation against refugees and propaganda against the EU, rather than reducing it. Refugees do not cause EU destabilization; poor leadership does.
Gerard Knaus, pictured in his own tweet: https://twitter.com/rumeliobserver/status/1223403891045404672
Intro — context and central thesis
Analysis of Deal 1
Analysis of Knaus’ proposal for Deal 2
How Turkey is not a STC
Policy Recommendations
Conclusion
EU political leaders have repeated endlessly that the refugee mass influx of 2015 onwards caused destabilization by the populist-nationalist movement, but the fact that it also caused the Refugees Welcome volunteers movement and mobilization of transnational European civil society networks persistently (despite EU political leadership mostly going the other way) shows that there were other intermediate factors in both movements, and it is not necessary or always the case that refugee mass influxes cause nationalistic destabilization of the EU.
EU political leaders since the 2015 have sided with nativist values and politics on refugees arriving irregularly, which effectively also legitimises and mainstreams populist-nationalist (and fascist) politics, which is counterproductive to their priority of stabilising the EU. It does not make sense as a strategy to back the movement which wants to destroy or leave the EU when you could back a movement that believes in and independently applies its values.
[picture, maybe of Austrian volunteers assisting refugees at train stations in 2015]
During the Mass Influx 2015–16, Knaus was listened to more than the European Parliament and more than all the human rights organisations in FIDH, who produced a pile of evidence reports about Turkey before the Deal, because he offered the EC and EuCo a plan that appears to assuage their fears about the populist-nationalist movement destabilising the European liberal and social democratic middle ground and possibly winning majorities.
Appetite for Knaus’ plan depends on the assumption that refugee mass influxes necessarily cause destabilisation of the European social democratic middle by populist-nationalists. This is simply a post hoc ergo propter hoc fallacy. Evidently it is not always the case, as in some areas it had the opposite effects. Whether refugee mass influxes cause political destabilisation depends on other intermediate factors; most importantly, political leadership.
I think the EC have significantly overestimated the prevalence and distribution of nativist and populist-nationalist opinions in Europe, because they have not sufficiently understood how Kremlin influence operations have used the issue of the “migrant crisis” to trigger, amplify and shape divisive nativist and nationalist discourse networks in order to destabilize the EU. The scale of impact of the Russian influence operations is impossible to directly measure and hard to estimate for a number of reasons, but the nearest relevant proxy measure by contrast is Pew polling in 2018 that found 77% of EU citizens support taking in refugees.
The temptation to breach the cordon sanitaire against nationalism and nativism may also come from a misunderstanding of the principle that ‘you win elections from the centre’; that works if the electoral strategy decision is for one time and there is no reflexivity. When a mainstream liberal politician takes a position on refugees arriving irregularly which adjusts to a perceived increase in nativist opinions, it updates the ‘centre’ position, and when they iterate the process it results in shifting the ‘centre’ step by step towards the far right. This can be seen from the huge difference between official and public responses to the border violence enforcing European nativist values and policies now in 2020 compared to 2015–16.
Knaus is concerned for the human rights of refugees. He calls for relocation from the islands to the mainland, and from the Greek mainland to other EU countries, and faster procedures. His plan, however, for reducing arrival rates while respecting refugees’ rights is fantastically unrealistic, and it would trap more refugees arriving on the islands after his ‘Day X’ in those dismal camps again. A key assumption of his plan is that the EU could return Syrian refugees to Turkey based on designating Turkey to be a Safe Third Country, but it only resulted in 23 Syrians returned to Turkey and 38,358 accepted in Greece by 7 May 2018, a return rate of 0.06% on that specific legal basis, and most of those probably were miscarriages of justice.
It turns out, reassuringly, that European legal institutions are more resilient against authoritarian post-truth designations, such as that the sky is yellow with pink polka dots or that Turkey is a Safe Third Country according to APD art.38, than our governments thought.
Knaus’ plans purport to offer both political stabilisation and compliance with human rights laws, but actually they achieved neither and made the problem of EU destabilisation worse.
Analysis of the EU-Turkey Deal
- Unconstitutionality
The EU-Turkey Deal is just a press statement. It had no constitutionally valid legislative process. When the European Council and the Commission came to defending it against parliamentary and judicial challenges, they said that it’s a press statement, not a legislative act, so it’s exempt from the constitutional legislative procedure in TFEU art.210, and it is not an act of the European Council as the European Council, just of all its members, in its plenary hall, published on its website, saying “the EU shall…” throughout, interpreted into a coherent form by the EC, but they claim it is just an act of the members of the European Council and Turkey jointly and severally, so they avoided judicial review and accountability for it too.
The European Parliament agreed a very well evidence-based set of policies before the Deal, but they were overridden, because the European Council broke the constitutional legislative process and quasi-legislated via press statement based on Gerard Knaus’ opinion instead.
- Unfactuality
The Deal is based on the general presumption that Turkey is a Safe Third Country and then the Admissibility procedure specific to the islands tests that in each individual case to catch the exceptions. Turkish and international human rights NGOs before the Deal published evidence showing that its central assumption that Turkey is a STC is not credible. (‘Admissibility’ is about which state is responsible for processing an application. ‘Eligibility’ or ‘substantive’ or ‘on the merits’ is about whether the applicant is qualified for asylum status.)
Under European and Greek laws, the STC concept can only be applied if specific criteria are met. Turkey has never generally fulfilled any of the criteria in APD2013 art.38 or its transposed Greek law 4375 Art.56. The EC and EuCo have never to my knowledge produced any evidence or reasoned argument to support the general presumption that Turkey is a STC.
The systemic effect of this policy-making process is to normalise the idea that authorities can arbitrarily will something to be “true” and “right” overriding reality and reason. Many of the officials carrying out the Deal understood clearly that it was based on a performative big lie. Such an authoritarian mode of policy-making will become a precedent unless it is stopped.
- Unlawfulness of punitive deterrence policies and particularly detention (or “geographical restriction”) justified by an Admissibility procedure based on a lie
It was predictable that adding the Admissibility procedure on the islands based on the assumption Turkey is a STC would not result in many returns, because the assumption is not true and legal systems work on facts, but it does function as a paper “legal” excuse for detaining people on the islands, in practice for many months or a few years, and provides a basis for talking about forced return, which are both deterrents to other refugees. Penalising persons likely in need of international protection for irregular entrance is illegal (Art.31 RC).
The legal maximum timescales for Border procedures set in the Deal and in Law 4375 have always been a farce. No-one gets their application processed in weeks, it is usually many months or a few years. Knaus admits that, despite having received adequate EU funding, the island camps are the worst official camps for refugees in the world and keep getting worse.
The conditions function to degrade people psychologically so that they are less able to represent themselves through the interviews and appeals, which has the policy ‘benefits’ of (i) increasing the probability of return due to miscarriages of justice in the Admissibility procedure, and (ii) effectively coercing people into signing for “voluntary” return or repatriation, which both function as deterrents to others. Most of the returns achieved under the Deal have been “voluntary”, most often after a rejection on Admissibility when people felt it was hopeless to appeal. The figure Knaus quotes for return of Syrians under the terms of the Deal includes these “voluntary” returns, which account for about 94%.
Provision of legal information and advice is minimal until after a first instance rejection on Admissibility. When even all this still didn’t work at getting inadmissibility decisions based on the Turkey = STC lie, they rigged the appeals committees. Twice. But they still only got 0.06% returns rate of Syrians to Turkey on that specific legal basis, because it’s just not true.
- Unlawful implementation of the Relocation Program
The Deal was supposed to cancel access to the Relocation scheme established by the Relocation Decision of 22 Sept 2015 for asylum applicants who entered Greece after the effective date of the Deal, 20 March 2016. Removing major benefits is equivalent to imposing a penalty, and it was meant as a deterrent. All the government-associated legal aid NGOs and UNHCR treated that as if it was legal, but a press statement cannot modify or override a law.
They also tacitly carried on allowing access to Relocation for a few groups considered especially vulnerable, particularly LGBTI refugees, including those who had arrived after the date of the Deal. I’m bi with a boyfriend, I have many LGBTI refugee friends and I understand directly from them what sort of extra vulnerabilities LGBTI asylum seekers often have, but many other refugees on the Greek islands are equivalently vulnerable.
Most, in my experience, have trauma syndromes, and more people show symptoms only when they eventually reach somewhere safe to relax and then the recurring flashback nightmares, generalized anxiety and catastrophising cognitive distortions increase.
Vulnerability due to trauma syndromes according to Greek law 4375 Art.60.f is grounds for exemption from the Border Admissibility procedures. Keeping people in extremely over-crowded camps with lack of security and privacy is re-traumatizing. Cancelling access to the Relocation Program and keeping people “geographically restricted” i.e. detained, in degrading conditions, is a penalty for irregular entrance as an asylum applicant, which is illegal. Discriminating against the most common category of especially vulnerable refugees — those with trauma syndromes, in access to Relocation, is unreasonable discrimination.
- Overriding the proper legal provisions that were designed for a Mass Influx of persons likely to be in need of international protection
The appropriate legal instrument for the situations in Greece and Italy is the Temporary Protection Directive (henceforth “TPD”). EU governments knowingly avoided using the words “Mass Influx”, except in a leaked confidential France-Germany policy discussion note in 2017, because that would have more widely raised the question why they did not apply the TPD. A ‘Mass Influx’ should be considered to exist when the rate of persons likely to be in need of international protection actually or imminently arriving exceeds the member state’s capacity to process individual applications according to the procedural rights recognised in EU law.
Activating the TPD would make proportional responsibility sharing legally obligatory for all EU member states. This would necessitate the EC and EuCo to confront, rather than appease, the rising populist-nationalism and fascism across Europe, and particularly such governments.
Appeasement of nationalists and fascists never works, because they only refer to facts and real problems instrumentally to use them in their propaganda, which establishes their ethical and epistemic norms, not in order to solve any real problems, but just to win power, to maintain only an ineffective shell of “democracy”, after having eviscerated it of its values.
Analysis of Knaus’ proposal for EU-Turkey Deal 2
Quotations from Knaus’ proposal in this section come from:
The Aegean Tragedy — Key facts and key steps
The full version of this paper is available in PDF format from www.esiweb.org
“reduce the number of people crossing to the Aegean islands, and increase the probability of return to Turkey of those who arrive (currently it is below 1 percent)”
The most effective way to do this would be to sweep away the objective facts-based and rational-legal approach to assessing asylum claims, even more than it has been so far. Authoritatively deeming Turkey to be a STC means effectively replacing the ideal of rechtsstaat — legitimacy based on human rights with произвол (proizvol) — arbitrary power.
European fascist proxies for Putin’s regime would love this, as it would probably fatally undermine the values-based cohesion of the EU. None of the EU’s values, its whole moral-philosophical basis and constitutional institutions, make any sense if you don’t believe in valuing the objectivity of what happened to the other person and what they need from us.
Or, the EC could rewrite APD Art.38 to remove the obstructing criteria so that the EuCo can designate Turkey to be a STC on different terms. That could work, but since the criteria in APD Art.38 are derived from fundamental human rights law, it would require more explicitly limiting “human rights” to apply only to native citizens — in practice it is already quite limited that way, but then their universality and objective natural and rational basis would be denied. That would alienate European civil society even more from EU governmental institutions.
[good place to add a picture and a pause]
How Turkey is not a Safe Third Country
Turkey does not generally meet any of the five criteria in APD2013 Art.38, but all five conditions must be met for a return under this section of the APD2013/L4375 to be legal.
The Turkish state persecutes some people, mostly for membership of a particular social group or a political opinion, it does not effectively protect some from persecution by non-state agents, and for some no reasonable internal relocation option is available. This fact is recognized in an increasing number of asylum decisions for Turkish nationals in Europe.
There is realistic risk of serious harm for some refugees and asylum seekers in Turkey. Persistent destitution is a form of serious harm. Destitution, severe exploitation and violence usually occur when persons in need of international protection are not permitted to register or access the asylum procedure so then they have no legal residence status and they have to work in the irregular economy and cannot benefit from labour laws or police protection. Asylum seekers and other migrants from countries of origin other than Syria and Iraq are more often more severely exploited in the irregular economy, and they usually cannot seek police protection from severe harm by non-state agents, particularly traffickers. In some cases, that amounts to torture for extortion by traffickers; this particularly affects Pakistanis.
Turkey has committed refoulement by forcibly returning Syrians and other persons likely to be in need of international protection across its borders without access to the asylum procedure probably thousands of times. Most Syrians who crossed Turkey to Greece were refouled several times at the border before they succeeded. Away from the border region, Syrians are most often refouled under the category of “voluntary” repatriation, by deception or coercion, which has increased since the CHP was elected to the Istanbul mayoral office. The Temporary Protection status that Turkey issues to Syrians is a collective grant, so it can be collectively withdrawn; Refugee Status is determined individually. The Turkish government has explicitly threatened to forcibly return Syrian refugees in Turkey to NW Syria. If the CHP or HDP win national government office, then Syrians would probably be refouled en masse.
It is nonsense for the EU to pay Turkey to commit systematic extraterritorial refoulement at the Syrian border on the EU’s behalf and at the same time claim that Turkey is a Safe Third Country, which depends on there being no risk of refoulement.
Very few asylum applicants I listened to in Greece had any connection to Turkey other than having passed through as fast as they could, re. the ‘reasonable connection’ in 38(2)a.
“guarantee another 6 billion Euros for the growing number of Syrian refugees in Turkey in the coming years. Discuss extending the EU-Turkey agreement to the land border.”
This would mean additional payments for extraterritorial refoulement services. The quid pro quo in the original Deal was: stop irregular migration flows into Europe and we will pay you €6bn. The money is not just for supporting reception and integration of refugees in Turkey, but for forcing Syrians to remain in NW Syria in great danger of widespread and systematic persecution to death by the Assad regime for their political opinions opposed to the regime.
Forcing people who are likely to be in need of international protection to remain where they are not safe legally is refoulement, just as forcing them to return to such a place without access to asylum procedures is. Hundreds of Syrians have been shot by Turkish border guards while attempting to run across the mountains at night. Non-refoulement is an extra-territorial obligation which extends as far as a state has “effective authority or control”.
“A coalition of EU asylum agencies to cooperate with the Greek Asylum Service to ensure that new claims on the islands are dealt with within weeks.”
This is fanciful. The maximum legal timeframes for stages of the procedures have never been complied with, and that’s a choice, not due to resources. Detaining people on the islands in degrading conditions of ‘bare life,’ denying them hope, for years, waiting for an Admissibility procedure that is based on a lie, is a part of the overall punitive deterrent regime. It will not be sped up as long as the authorities’ priority remains deterrence.
If the EC and Greek government wanted the registration and Admissibility procedures to take weeks, that would be achievable, simply by dropping the false assumption that Turkey is a Safe Third Country, so Admissibility would be simplified to Specially Vulnerable and Dublin Family Reunification cases. The main source of delays is when procedures are not implemented “individually, objectively and impartially” (QD3.10).
“EU law allows [Knaus proposes for it to be amended so] the following:
Greece abolishes the appeals panels. Appeals go directly to administrative courts (at first instance) as in Germany. An appeal does not automatically suspend return to Turkey. Appeals against returns to Turkey can be decided by ordinary (single) judges in administrative courts. Those rejected at the first instance level and returned to Turkey are waiting for the outcome of their appeal in Turkey, not on the islands.”
This means removing the suspensive effect of an appeal at second instance administrative level in the appeals committees and in the administrative court. The only recognisable purpose for this is to carry out miscarriages of justice, because the authorities have seen that most of the returns so far were “voluntary” after people gave up hope after a rejection, so probably even fewer people would appeal after being forcibly returned to Turkey.
Conclusion
A notable impression from reading Gerard Knaus’ proposal paper is that he does not need to argue the case for his values and assumptions or what the aims of EU policy should be, but he just presents statistics and techno-legally how to do it, assuming his audience already agrees.
That may be part rhetorical device, but I will assume the values and priorities of the EC are set, and I am in no position to convince anyone to change values now. My own beliefs are like Maritain’s. But I am arguing that the EU-Turkey Deal and Knaus’ proposal for a Deal 2 cannot achieve the aims desired by the EC, and they are more likely to be more counterproductive.
Knaus’ prescription does not work because the diagnosis of the causal mechanism of how refugees arriving on mass relates to the destabilisation of Europe by nativists and populist-nationalists is inaccurate. It ignores intermediate factors which make a critical difference.
Refugees do not by themselves cause EU destabilisation, but when EU political leaders mainstream nativist politics, that undermines public perception of the universality of EU values, their claim to objectivity in the very nature of personal relationships, and the legal system derived from those values, and it effectively legitimises populist-nationalist (and fascist) propaganda against the EU, which divides, undermines and destabilises the EU.
Referring to persons likely to be in need of international protection who have crossed a border irregularly, out of necessity and because no adequate regular routes to countries where refugees can be safe, free and live with hope are allowed, as “irregular migrants”, and responding with punitive deterrence policies, legitimises the values and ideologies of the nativists and populist-nationalists, and erodes the social unacceptability of fascist discourse.
To stabilize the European liberal and social democratic majority, we need to return to the roots of post-war Europe’s stability — shared belief in liberal humanist values, respect for the inherent dignity of human beings, not just of native citizens and those whom we voluntarily grant citizenship privileges to. If human dignity and rights are really inherent, they must be universal. Enacting respect for strangers in need of care and hospitality is the perfect way to reinforce the universality of human rights that we recognise, the legitimacy of the EU, and the humanist moral foundations of European community cohesion and adaptive stability.
Every crisis can also be an opportunity, if it is approached the right way. If EU political leaders were to consider refugees arriving to be an opportunity to reinforce European cohesion by politically enacting the EU’s values, it would restore trust between European civil society and EU governmental specialists and institutions, and the resulting politics would re-stabilise the EU. It would also engage refugees in Europe more in positively contributing to EU politics.
What can be gained anyway from preferring the values and policies demanded by those who wish to destroy the EU or to leave it? For five years, EU political leadership has sided with nativist politics and legitimised populist-nationalism, which is counterproductive to their aim.
Would not siding with European civil society in favour of refugees who are demanding more EU values applied in practice and more integration be a better bet for re-stabilising the EU?
