The Eu, Turkey Together With The Refugee Crisis: What Could Maybe Become Wrong?

Steve Peers* together with Emanuela Roman, University of Palermo together with Vrije Universiteit Amsterdam**

*Emanuela Roman wrote the sections on ‘safe 3rd country’, ‘super-safe 3rd country’ together with ‘first solid ground of asylum’. Steve Peers wrote the balance of the primary text together with the annexes.

The key non-EU solid ground inwards the EU’s ongoing refugee crisis is Turkey: the host of over 2 1000000 Syrian refugees, together with a transit solid ground for many asylum-seekers. An increasing number of them have got been making the journeying from Turkey to the Greek islands, leading to a significant ascension in the number of would-be asylum-seekers inwards the European Union over the finally year. Tragically, many have got died making this crossing.

To address these issues, the European Union together with Turkey reached a here).

In return, the Turkish side agreed: to readmit non-Turkish nationals to its territory, from June 2016; to apply a previously-agreed plan on the status of Syrian refugees inwards Turkey; together with to forestall non-EU citizens from leaving.

There are also agreements inwards both sides’ mutual interest: to handgrip regular summits (at to the lowest degree twice a year); together with to ‘upgrade’ the EU/Turkey customs union, to include services together with investment, alongside negotiations to start earlier the destination of 2016.

Several elements of the bargain should go clarified further. It’s sometimes claimed that the bargain has ‘fast-tracked’ Turkish membership of the EU. This is clearly non the case. Turkey applied for European Union membership inwards 1987, together with negotiation talks opened eighteen years later, inwards 2005. In the xi years since, the European Union together with Turkey have got agreed exclusively 1 of the 35 ‘chapters’ of issues existence discussed inwards the negotiation. Before finally year’s deal, they had opened some other thirteen chapters; the bargain raised that number to 14. There is no engagement to opened upwards talks on the remaining xx chapters; the bargain is expressly without prejudice to European Union Member States’ seat on the planned ‘preparatory work’. Overall, the bargain agency that the enlargement negotiations volition at nowadays displace at the stair of a turtle, instead of a snail.

The prospect of Turkish accession to the European Union also faces a number of obstacles on the European Union side: objections yesteryear many Member States (including possible referendums), together with misgivings yesteryear the European Parliament (which must approve accession treaties). Nor would accession Pb straightaway to costless motility of Turkish citizens to the EU. Recent accession treaties have got provided for waiting periods of vii years earlier workers from the novel Member States tin displace to the older Member States, together with the UK, which has a veto over accession treaties, insists that hereafter enlargements must supply for fifty-fifty longer waiting periods.

As for the visa waiver, it should go noted that it volition apply to (short-term) visas to see the Schengen states. Therefore it volition non always apply to the UK together with Ireland; together with does non yet apply to Romania, Bulgaria, Republic of Croatia or Cyprus. It’s the EU’s usual practise to offering visa facilitation (fast-track number of visas, alongside reduced fees) together with and then a total visa waiver to neighbouring States which have got agreed a readmission treaty. As the text of the EU/Turkey bargain points out, that waiver is dependent inwards each illustration upon the 3rd State fulfilling a listing of weather condition laid out yesteryear the European Union (for the Commission’s most recent written report on Turkey coming together those conditions, see here).

It’s the readmission bargain – the quid pro quo for the visa waiver – that is fundamental to the number of the refugee crisis. The EU/Turkey readmission treaty has applied since Oct 2014. It applies to Turkish citizens directly away, but Turkey (like many other states signing upwards to readmission treaties) negotiated a delay earlier it applies to nationals of other countries. That’s a iii twelvemonth delay, so it was due to expire inwards Oct 2017. However, inwards low-cal of the perceived migration together with refugee crisis, the European Union was non willing to hold off that long until it called upon Turkey to select third-state citizens dorsum onto its territory.

Finally, the ‘Refugee Facility for Turkey’ aims to trim the ‘push’ factor which leads to departures from Turkey to the EU. According to the Decision establishing the fund – which Member States finally agreed to Convention on Refugees (the ‘Geneva Convention’) imposes no such obligation (on the international constabulary framework for ‘safe 3rd country’ rules, see give-and-take here). Even if it did, some of the countries concerned haven’t ratified that treaty. So Commonwealth of Australia has to verbalize those countries into accepting the people concerned. They won’t select unless Commonwealth of Australia pays most of the costs.

How does this compare alongside the EU? First of all, the numbers are hugely different: 18,000 people arrived illegally yesteryear ocean in Australia inwards 2012-13, whereas over a 1000000 potential asylum-seekers arrived inwards the European Union finally year. We’re comparison apples together with orchards here. There are only to a greater extent than people wanting to apply for protection inwards closer vicinity to the EU, as compared to Australia, together with the distance to move is shorter. Furthermore, at that spot are no ‘high seas’ betwixt Hellenic Republic together with Turkey, so interception raises unlike legal issues. Once would-be asylum-seekers attain Greek waters, European Union constabulary says they tin apply for asylum, together with Hellenic Republic is also jump yesteryear the European Convention on Human Rights (ECHR) as regards them.

That brings us to the side yesteryear side distinction. The Australian constitution has weak human rights protection, together with that country’s High Court has late ruled inwards favour of the offshore detention policy. In contrast, European Union countries are governed yesteryear the illustration constabulary of the European Court of Human Rights (ECtHR), which is opened upwards to private complaints together with tin give binding rulings, ofttimes critical of national policies inwards this area. While Commonwealth of Australia has signed upwards to the International Covenant on Civil together with Political Rights (ICCPR), together with allows individuals to brand complaints to the United Nations Committee which interprets that Covenant, the Committee’s rulings aren’t binding. When the Committee rules against Australian policy on asylum-seekers – which it ofttimes does – Australian politicians inwards effect throw the ruling on the barbecue.

So given the large numbers concerned together with the legal constraints, if the European Union wants non-EU countries to select dorsum non-citizens of those countries who have got made their way to the EU, it needs to offering a lot to them to convince them to do so. At kickoff sight, it may seem overly generous for the European Union to offering coin to Turkey, waive visa requirements together with accelerate the accession physical care for a little, inwards social club to secure Turkey’s cooperation as regards refugees together with migrants. But Turkey is nether no obligation at nowadays to select dorsum non-citizens or to restrict them from leaving. Even after it agrees to select returns of non-citizens to its territory, it could destination its obligations at whatsoever fourth dimension yesteryear denouncing the readmission understanding – if it is willing to select the re-imposition of visa requirements yesteryear the European Union as a consequence. The fiscal assistance, if spent as intended, volition also trim the 'push' factor for migration of Syrian refugees towards the EU.

Returning people to Turkey

Turkish citizens

Turkey is already obliged to select dorsum its ain citizens nether the readmission understanding alongside the EU. Turkish citizens inwards the European Union mightiness have got rights to remain nether the EU’s immigration together with asylum legislation, or nether the EU/Turkey association agreement. But they have got no full general correct of costless motility to the EU, together with at that spot is no prospect of it existence extended to them earlier (or indeed good after) European Union membership. So those Turkish citizens inwards the European Union without such a correct to stay, including failed asylum-seekers, must go returned.

It should go noted that the European Union Commission has proposed to listing Turkey as a ‘safe solid ground of origin’ for asylum purposes, pregnant that asylum claims yesteryear Turks would go fast-tracked (but non rejected automatically). This is a rather dubious proposition (for the reasons laid out here), together with it is non yet known whether it volition go accepted.

Non-Turkish citizens: Irregular migrants

Turkey is non obliged to select dorsum whatsoever non-Turkish citizens until it brings frontward the relevant obligations inwards the EU/Turkey computer programme – as it has agreed to do so. If someone has never applied for asylum, together with has no other Earth to stay, European Union Member States volition together with then go able to render them to Turkey, if the Member States tin testify that the individual was previously inwards Turkey. It should go sufficient to present that the individual concerned crossed from Turkey to a Greek island.

This is as the illustration for failed asylum-seekers, if the individual concerned has failed on the merits. In other words, if the non-Turkish citizen has non convinced the Member State’s authorities (or the courts on appeal) that he or she faced persecution or serious harm, that individual could go sent dorsum to Turkey 1 time that solid ground extends the compass of the readmission deal.

The to a greater extent than hard enquiry – which is the dependent land of the novel computer programme – is whether asylum-seekers who have got come upwards via Turkey tin go rejected together with returned to Turkey on the grounds that their applications are inadmissible. Let’s go clear what that means: those applications would non go rejected on the ground that the individual wasn’t a genuine refugee, but that he or she either (a) could have applied for protection inwards Turkey or (b) already had protection there. The quondam is the ‘safe 3rd country’ concept; the latter is the ‘first solid ground of asylum’ concept. There are detailed definitions of each concept inwards European Union law, inwards the Asylum Procedures Directive. We volition consider those definitions inwards turn.

Is Turkey a ‘safe 3rd country’?

On Th 28 Jan 2016, Diederik Samsom, leader of the Dutch Labour Party, announced inwards an interview alongside the paper De Volkskrant (followed yesteryear an Niewsuur) a Dutch proposal for a novel computer programme to radically trim the number of migrants together with asylum-seekers entering the European Union from Turkey. The proposal was straightaway baptised ‘the Samsom Plan’.

The computer programme would have got the back upwards of Dutch PM Mark Rutte together with would also have back upwards yesteryear a number of European Union Member States, amid which Germany, Republic of Austria together with Sweden. The thought is to offering Turkey the resettlement of 150,000 to 250,000 refugees per twelvemonth from Turkey to the European Union countries that voluntarily concur alongside the plan. This resettlement would presumably go on the ground of the Commission Recommendation on humanitarian admission from Turkey, referred to above. In telephone commutation for this, Turkey would have got to select the render of all migrants together with asylum-seekers who cross the Greek-Turkish edge irregularly. According to Mr Samson, these people would have got to go really chop-chop returned from Hellenic Republic to Turkey yesteryear ferry-boat, together with it would go Turkey’s responsibleness to bargain alongside their reception together with asylum application.

This novel computer programme is based on the supposition that Turkey tin go considered a ‘safe 3rd country’ – a non-EU solid ground where an asylum-seeker tin apply for asylum together with go granted access to asylum procedures together with reception weather condition inwards trace of piece of work alongside international together with European Union law.

The Samsom Plan, however, does non seem to come upwards from Mr Samsom’s mind. The European Stability Initiative (ESI), a cry upwards tank specialised inwards Southeast Europe, presented a really similar proposal inwards Oct 2015. The master plan, based on the fundamental thought of considering Turkey a rubber 3rd country, was called ‘Merkel Plan’, because initially FRG lone would have got the primary role inwards the resettlement scheme alongside Turkey. The master computer programme was together with then farther developed (becoming ‘Merkel Plan 2.0’) together with a ‘coalition of the willing’ (including the Netherlands) was gathered some Germany. From Oct 2015 to Jan 2016 the ESI Hirsi case, where the Grand Chamber found Italian authorities responsible for violating the ECHR, because they returned a grouping of Eritrean together with somali migrants intercepted on the high seas dorsum to Great Socialist People's Libyan Arab Jamahiriya without granting them the possibility to apply for asylum. The same dominion manifestly applies to asylum-seekers who go inwards the territorial waters or solid ground on the territory of a Member State.

In addition, according to Article 46 of the Procedures Directive, asylum-seekers have got the correct to refer to a national courtroom the determination to consider their application inadmissible pursuant to Article 33(2). They tin remain on the territory during their initial application, together with apply to a courtroom to remain during this appeal. The Grand Chamber of the ECtHR unanimously confirmed inwards Hirsi (and reiterated inwards next illustration constabulary – see for instance, Sharifi together with others v Italia together with Greece together with Khlaifia together with others v Italy) that render is exclusively possible after the asylum-seeker has been able to claim asylum earlier a national authority, together with to remain on the territory at to the lowest degree until the kickoff illustration determination on the application was made. However, it is fifty-fifty to a greater extent than doubtful that the accelerated physical care for proposed yesteryear Samsom would allow for asylum-seekers to challenge the determination to render them to Turkey inwards front end of a judicial authorization together with inwards the honor of all due procedural safeguards nether the Directive together with the ECHR.

However, too the procedural issues, the crucial enquiry hither is to a greater extent than substantive: tin Turkey go considered as a rubber 3rd country? Does Turkey comply alongside the requirements established yesteryear the Procedures Directive?

First, Turkey ratified the 1951 Geneva Convention together with its 1967 Protocol, but maintains a geographical limitation for non-European asylum-seekers, thus recognising refugees originating exclusively from Europe (i.e. from countries which are members of the Council of Europe). The geographical limitation provides the kickoff barrier to accessing asylum inwards the country. Moreover, Syrians correspond a particular case. They were at kickoff received as ‘guests’ together with and then dependent land to a temporary protection regime, formalised yesteryear a Regulation on Temporary Protection exclusively inwards Oct 2014 (for to a greater extent than details, see the updated AIDA Country Report on Turkey). The basic thought behind the temporary protection regime is to host Syrians until the conflict is over together with and then maybe allow them render to their solid ground of origin. As such, Syrians have got a correct to reside inwards the solid ground but are denied the prospect of a long-term legal integration. They have got access to limited rights compared to asylum-seekers inwards the ‘normal’ procedure, inwards particular as concerns access to didactics for children (on this point, see for instance, Human Rights Watch report) together with access to employment. Although in Jan 2016, the Turkish authorities adopted a decision aimed at ensuring that Syrians tin go inwards the labour market, the effects of this novel regulation are yet to go seen inwards practice. Most importantly, Syrians inwards Turkey do non have got access to refugee protection inwards its total sense, as enshrined inwards the Geneva Convention. For the reasons laid out inwards to a greater extent than item inwards the annex to this weblog post, it is arguable that the ‘safe 3rd country’ clause tin exclusively go interpreted as applying to countries which have got ratified together with fully apply the Geneva Convention.

Secondly, Turkey should honor the regulation of non-refoulement, a prohibition on returning a individual to a identify where he or she faces a run a endangerment of persecution, torture, or inhuman or degrading treatment. However, several reports suggest that Turkey has engaged inwards refoulement together with push-back practices throughout the years 1990s together with 2000s. In particular, inwards Nov together with Dec 2015, Abdolkhani together with Karimnia v Turkey and the recent SA v Turkey, sentence of xv Dec 2015). Furthermore, alongside reference to serious impairment due to indiscriminate violence inwards a province of affairs of conflict, the internal conflict betwixt Turkey together with the Kurdish rebels, which has escalated during the finally year, may pose threats to the lives of asylum-seekers together with refugees inwards the southeast of the country.

Therefore, it seems that Turkey does non fulfil many of the requirements for designation as a rubber 3rd solid ground nether the Procedures Directive. Even though the Samsom Plan does non cry this option, it seems at nowadays interesting to consider whether a similar policy could theoretically go implemented based on 2 unlike concepts entailed inwards the Procedures Directive, the concepts of ‘European rubber 3rd country’ together with ‘first solid ground of asylum’. The latter volition go examined to a greater extent than inwards detail.

Is Turkey a ‘super-safe’ 3rd country?

This wasn’t mentioned above, but the Asylum Procedures Directive also provides for a special category of ‘European rubber 3rd country’, which has been dubbed (sarcastically) the ‘super-safe’ 3rd solid ground concept. In this case, a Member State could have got ‘no, or no full’ consideration of an asylum application – as foreseen yesteryear the Samsom Plan. The legal requirements for a solid ground to go considered a ‘European rubber 3rd country’ are laid out inwards Article 39(2) of the Directive:

a)      the ratification together with total implementation of the Geneva Convention without whatsoever geographical limitation;

b)      the existence of an asylum physical care for prescribed yesteryear law; and

c)       the ratification together with total implementation of the ECHR.

Even though Turkey has inwards identify an asylum physical care for prescribed yesteryear constabulary (Law on Foreigners together with International Protection adopted inwards Apr 2013 is Turkey’s first-ever national legislation on asylum), is a political party to the ECHR (even though 1 of the parties alongside the highest number of condemnations yesteryear the ECtHR for violations of this treaty) together with has ratified the Geneva Convention, as mentioned above, it maintains a geographical limitation to the application of the Geneva Convention, excluding non-European asylum-seekers from the refugee status. For this ground Turkey could non fifty-fifty go considered a ‘European rubber 3rd country’.

Could Turkey go considered a ‘first solid ground of asylum’?

Could together with then the notion of ‘first solid ground of asylum’ apply to Turkey? Could asylum-seekers maybe go returned from Hellenic Republic to Turkey based on the fact that Turkey is their kickoff solid ground of asylum?

Article 33(2)(b) of the Procedures Directive foresees the possibility for a Member State to deem an asylum application inadmissible if it considers a non-EU solid ground to go a kickoff solid ground of asylum for a particular applicant. Article 35 establishes that a 3rd solid ground tin go a kickoff solid ground of asylum inwards 2 cases:

a)      if the applicant has been recognised as a refugee inwards that solid ground together with tin soundless avail himself or herself of that protection; or

b)      if the applicant otherwise enjoys sufficient protection inwards that country, including benefiting from the regulation of non-refoulement.

Article 35 farther specifies that inwards applying this concept Member States may select into concern human relationship the legal requirements provided for yesteryear Article 38(1) - i.e. those used to found whether a solid ground is a rubber 3rd country. It also states that asylum-seekers ‘shall go allowed’ to debate that the regulation cannot apply to their particular circumstances. Furthermore, they also have got the correct to appeal pursuant to Article 46 of the Procedures Directive (and remain on the territory during the application together with at to the lowest degree at the outset of the appeal), as discussed above.

For the reasons laid out inwards the annex to this weblog post, choice (a) arguably refers exclusively to obtaining status nether the Geneva Convention. Therefore Turkey cannot go considered a kickoff solid ground of asylum for a non-European asylum seeker, due to its geographical limitation on that Convention. On the other hand, choice (b) mightiness apply. In Turkey, indeed, non-European asylum seekers can, at to the lowest degree theoretically, have got access to an alternative shape of protection: the so-called ‘conditional refugee status’ (for applicants who would qualify as refugees nether the Geneva Convention but who come upwards from a non-European country) or the EU-inspired subsidiary protection. Moreover, as mentioned above, asylum seekers originating from Syrian Arab Republic have got access to a unlike shape of temporary protection.

These iii alternative forms of protection differ inwards damage of the flat of rights their holders do goodness from, which inwards all cases (and inwards particular inwards the illustration of Syrians benefiting from temporary protection) is lesser than the 1 recognised to ‘European refugees’ (for details on the content of these iii alternative forms of protection, see the AIDA Country Report on Turkey). The enquiry is: could these forms of protection go considered as ‘sufficient protection’? How tin a Member State found when protection is ‘sufficient’?

Article 35 provides 2 reference points, 1 existence strictly mandatory, the other 1 existence optional. The kickoff 1 is the honor of the non-refoulement principle. Turkey is formally jump to the regulation of non-refoulement, existence a political party to the ECHR together with having incorporated the regulation into Article iv of its Law on Foreigners together with International Protection as good as inwards Article half dozen of its Temporary Protection Regulation. However, as mentioned above, the solid ground has a historical tape of refoulement practices together with at that spot are allegations of a recent intensification of push-backs together with deportations of Syrians together with other asylum-seekers. Therefore, Turkey does non seem to go fully compliant alongside the regulation of non-refoulement inwards practice. But, inwards low-cal of the fact that each asylum application must go examined individually based on the specific circumstances of the case, Member States mightiness debate that the run a endangerment of non-refoulement could go assessed on a case-by-case ground inwards social club to found if that particular applicant enjoys sufficient protection inwards Turkey.

The 2d reference dot mentioned yesteryear Article 35 is Article 38(1). In deciding whether a 3rd solid ground tin go considered a kickoff solid ground of asylum, Member States may apply the same criteria they utilization for determining whether that solid ground could go a rubber 3rd country. As discussed above, Turkey does non seem to comply alongside most of the rubber 3rd solid ground legal requirements and, on this basis, it mightiness go argued that inwards full general it should non go considered a kickoff solid ground of asylum. However, because this is a ‘may’ clause, Member States have got no obligation to apply Article 38(1) requirements to Article 35 cases together with tin only ignore the possible link betwixt the 2 concepts.

Therefore, although the possible application of the concept of kickoff solid ground of asylum to Turkey seems inwards full general rather controversial, Member States mightiness apply it on an private basis, based on choice (b). However, if they determine to do so, Member States’ authorities would have got to behaviour a case-by-case assessment, taking into due consideration the particular circumstances of each private applicant inwards social club to determine whether he or she enjoys sufficient protection inwards Turkey together with does non run a endangerment existence refoulé(e). As discussed above, an private testify of all asylum claims (including the applicant’s correct to appeal against a negative decision) is incompatible alongside the extremely rapid physical care for together with systematic readmission machinery envisaged yesteryear the Samsom Plan.

A modify inwards European Union law?

The to a higher identify give-and-take is based on electrical current European Union legislation. It is, of course, possible inwards regulation for the European Union to improve that legislation via the usual process, or arguably via agency of an ‘emergency’ stair out on asylum pursuant to Article 78(3) TFEU. The previous utilization of Article 78(3), for a ‘relocation’ system, is existence challenged yesteryear Hungary together with Slovakia. (On the latter challenge, see give-and-take here; together with on the full general legal issues concerning that provision, see give-and-take here.) There mightiness go some specific procedural issues nearly the utilization of Article 78(3) to found the Samsom Plan, but the underlying number is substantive: could European Union constabulary go changed (by either means) to laid a ‘return ferries’ process?

The answer is clearly: No. All European Union asylum measures are dependent land to the full general rules inwards Article 78(1) TFEU: ‘compliance alongside the regulation of non-refoulement’, together with acting ‘in accordance alongside the Geneva Convention…and other relevant treaties’. Also, all European Union measures are dependent land to the European Union Charter of Fundamental Rights, which must go interpreted consistently alongside the ECHR (Article 52(3) of the Charter).

It must follow that at the really least, the ECHR illustration constabulary minimum standards discussed to a higher identify must apply. So no revised European Union constabulary tin supply for render of people coming from Turkey without some proper private consideration of their claim that Turkey would non go a rubber solid ground for them; together with at that spot must go a correct to appeal together with remain inwards the solid ground at to the lowest degree until the first-instance determination is made on this issue. To the extent that the Samsom Plan does non honor this irreducible gist of human rights protection, it would go illegal.

Conclusion

Although it is remarkable that Turkey adopted a novel comprehensive EU-inspired asylum legislation together with is a province political party to major human rights conventions, such as the European Convention on Human Rights, the Refugee Convention together with the Convention against Torture, the way it has so far implemented its international human rights obligations appears to go soundless faulty. In particular, the correct to asylum inwards Turkey cannot go considered as ‘fully established’, peculiarly because of the soundless largely dysfunctional asylum organisation together with the existing inequalities inwards access to protection together with content of protection, which at the introduce instant are affecting Syrian refugees inwards particular.

For these reasons, the Samsom Plan proposing the systematic render of all asylum seekers from Hellenic Republic to Turkey inwards telephone commutation for increased refugee resettlement inwards Europe, appears to go non exclusively really hard to implement (due to both legal together with practical obstacles), but also based on the doubtful presumption that Turkey may go (soon) considered a rubber 3rd solid ground for refugees together with asylum-seekers.

Furthermore, it is unfortunate that the European Union together with Turkey did non concur to fully apply the Geneva Convention for Turkey, together with that at that spot are no mechanisms of accountability inwards identify for the European Union institutions to written report either inwards full general upon Turkey’s compliance alongside international human rights standards or inwards particular to explicate just how the EU’s coin is existence spent.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: insidethegames.biz

**Emanuela Roman is a PhD candidate inwards Human Rights at the University of Palermo together with junior researcher at the Forum of International together with European Research on Immigration (FIERI). This article was written during the catamenia she is spending as a visiting researcher at the Vrije Universiteit Amsterdam, Faculty of Law, Migration Law Section. Emanuela would similar to give thank y'all all her colleagues at the VU Migration Law Section, inwards particular Theodore Baird, Evelien Brouwer, Thomas Spijkerboer together with Hemme Batijes for their precious comments together with advise. The sole responsibleness for the content of this article lies alongside the authors.

Annex I

Interpreting the ‘safe 3rd country’ clause inwards the Procedures Directive

As noted above, Article 38 of the Asylum Procedures Directive says that inwards a rubber 3rd solid ground it must go possible for the applicant ‘to asking refugee status together with … to have protection inwards accordance alongside the Geneva Convention’. In my view, this tin exclusively refer to States which have got ratified together with fully apply the Convention; thus it cannot apply to Turkey. I am grateful for a give-and-take alongside Daniel Thym on this number – although I should banker's complaint that he holds the reverse opinion.

First of all, this interpretation is supported yesteryear the legislative history of the text, which is laid out inwards item inwards Annex II. The master draft inwards 2002 made expressly clear that the clause could apply fifty-fifty if a State had non ratified the Convention. During negotiations that text was revised so that the terminal wording states that it must go possible to teach status ‘in accordance with’ the Convention. Attempts yesteryear several Member States to brand it clear that alternative types of protection too total Convention refugee status could also trigger the clause were non successful.

Secondly, the ordinary pregnant of the words ‘in accordance with’ inwards English linguistic communication is ‘in compliance with’, although the other linguistic communication versions are as valid. This is confirmed yesteryear the words ‘refugee status’: the total championship of the Geneva Convention is the ‘Convention on the Status of Refugees’. How tin 1 apply for ‘refugee status…in accordance alongside the Geneva Convention’ if the province concerned has non ratified, or does non fully apply, the ‘[Geneva] Convention on the Status of Refugees’? While the definitions clause refers to Member States as regards the definitions of ‘refugee’ together with ‘refugee status’, this logically cannot go intended to apply to Article 38, since that Article exclusively refers to applications made inwards non-EU states.

Thirdly, the a contrario dominion supports this interpretation. Where the drafters of the Directive wanted to refer to the possibility of applying for an alternative shape of protection, they did so expressly, as inwards Article 35(b) of the Directive. Admittedly Article 39, which refers to a greater extent than clearly to the geographical reservation of Turkey as a (failed) status for the ‘super-safe’ countries dominion to apply, points inwards the reverse direction. But to the extent that these 2 a contrario analyses only cancel each other out, the interpretation inwards trace of piece of work alongside the legislative history together with ordinary pregnant should apply.

Similarly ‘recognised as a refugee’ nether Article 35(a) of the Directive should go interpreted to refer to the Convention refugee status, inwards the absence of whatsoever indication that whatsoever alternative pregnant is intended. However, Article 35(b) does clearly supply for an alternative choice of designating a province as a ‘first solid ground of asylum’ due to the existence of other forms of protection.

Annex II: Legislative history of the ‘safe 3rd country’ clause

Commission proposal, 2002: explicitly provides inwards an Annex that a ‘safe 3rd country’ tin go a solid ground which has non ratified the Geneva Convention

Council physician 6929/03 – a banker's complaint indicates that the Council volition start piece of work looking at ‘safe’ solid ground concepts. This computer programme is presently dropped; the Council looks kickoff at Arts 1-22 instead.

Council physician 7214/03 – Annex unchanged at this point, no MS comments

Council docs 10064/03 together with 10456/03 – ditto

Council physician 10722/03 – modest amendment to annex to province that Cartagena announcement countries must have got a physical care for compliant alongside the principles of the Geneva Convention

Council physician 11108/03 – no change

Council physician 11575/03 – annex shortened a little

Council physician 12281/03 – annex shortened significantly

Council physician 12734/03 – annex is simplified, but soundless provides for rules (same as inwards previous text) on when a ‘safe 3rd country’ tin go a solid ground which has non ratified the Geneva Convention

Council physician 13369/03 – same text, but FRG at nowadays has a reservation linked to the ‘super-safe’ solid ground clause, together with Republic of Finland says the relevant clause could go deleted

Council physician 13901/03 – unchanged

Council physician 13902/03 – unchanged. The Presidency notes that delegations have got inflexible positions on these provisions.

Council physician 14020/03 – ditto

Council physician 14182/03 – number sent to the Council

Council physician 14330/03 – text unchanged

Council physician 14686/03 – text unchanged. But Espana suggests deleting the annex together with having a curt description of ‘safe 3rd country’ inwards the primary text, which is vague as to whether the province inwards enquiry must have got ratified the Convention

Council physician 14686/03 add together 1 – Presidency proposes to delete the annex together with have got a curt description of ‘safe 3rd country’ inwards the primary text, which exclusively mentions the Convention as regards non-refoulement

Council physician 15153/03 – clause at nowadays inwards the primary text, annex deleted. No modify re Convention issue. DE soundless has reservation linked to ‘super-safe’ clause

Council docs 15153/03 rev 1 together with 2 – amended to refer to ‘request recognition together with go granted protection yesteryear that solid ground or yesteryear the UNHCR as a refugee’. Espana wants to delete ‘as a refugee’. BE, NL together with FI desire to add together limited clause requiring ratification of the Convention and/or observation of the Convention. DE reservation is gone.

Council physician 15198/03 – unchanged

Council physician 15198/03 add together 1 – UK wants to delete the whole sub-para

Council physician 6871/04 – redraft adds clause divide from primary criteria for ‘safe 3rd country’: ‘…Member States shall have got regard to whether the 3rd solid ground has ratified the Geneva Convention…’ when assessing the application of those criteria. The clause inwards the primary criteria at nowadays reads ‘request together with go granted protection as a refugee inwards that country’. This deletes the reference to the UNHCR together with makes it clear that it must go the country which grants refugee status.

Council physician 6954/04 – unchanged, but UK joined yesteryear EL/ES/NL/AT desire to add together the words ‘or other forms of international protection’ to the criteria

Council physician 7183/04 - unchanged, NL no longer supporting the UK position

Council physician 7184/04 - unchanged

Council physician 7184/1/04 – unchanged. UK together with ES at nowadays desire to modify to ‘or some other shape of status which otherwise offers sufficient protection’ to the criteria. This is similar to terminal ‘first solid ground of asylum’ clause.

Council physician 7484/04 – due to deadlock, Presidency proposes dropping clause on ‘request together with go granted protection as a refugee’ to teach a deal.

Council physician 7729/04 – ditto

Council physician 8166/04 – redraft retains ‘request together with go granted protection as a refugee’ clause, drops requirement to select into concern human relationship whether 3rd State has ratified Convention

Council physician 8158/04 – same text together with reservation as inwards 7184/1/04

Council physician 8413/04 – text amended to read:  ‘the possibility exists to asking refugee status and, if found to go a refugee, to have protection inwards accordance alongside the Geneva Convention’. UK together with Castilian proposal rejected – link to Geneva Convention inwards fact made explicit instead

Council physician 8415/04 – as before, except the UK seeks to improve to read ‘in accordance alongside the principles of the Geneva Convention’. This is clearly rejected inwards the terminal version.

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