"A new quality of violation of the law"

Since the Turkish government called into question the refugee deal with the European Union at the end of February, dramatic scenes have been taking place in the Turkish-Greek border region. Thousands of refugees are stuck in no man's land in the hope of being accepted into Europe. But Greece has closed the border and is pushing back migrants by force. Catharina Ziebritzki, Research Fellow at the Max Planck Institute for Comparative Public Law and International Law, evaluates the EU's handling of refugees at the external border from a legal perspective.

Ms Ziebritzki, Greece has closed its border to refugees from Turkey and suspended the right of asylum for one month. Is that legally possible at all?

Catharina Ziebritzki: No, these measures are not compatible with European and international law. Both European asylum law and international refugee law oblige states to carry out individual procedures to determine whether a person has a need for protection. Such a need for protection exists if the person is either persecuted within the meaning of the Geneva Convention on Refugees or has subsidiary protection rights, for example if he or she comes from a civil war zone. The authorities must examine this in each individual case and, if necessary, guarantee protection.

What can the EU do if a Member State infringes Union law?

The European Commission could, for example, initiate infringement proceedings against Greece. This would be a procedure before the European Court of Justice. The question is if this would be of any benefits. In any case, it would not help the refugees directly.

What other options would there be?

The EU can take solidarity measures. The European Treaties oblige the Member States to apply the principle of solidarity, particularly in the area of asylum. One possibility would be a relocation decision of the Council, i.e. a resettlement programme of refugees to other EU member states.  Another possibility is financial support, as the Commission has also already announced. This money can be used to receive the refugees, but it can also be used to administer asylum procedures. Finally, the EU can provide administrative support, through the EASO or Frontex agencies.

How should Greece and the EU deal with the refugees on the Greek-Turkish border in the current situation?

From a basic rights perspective, "normal" domestic asylum procedures would be preferable to border procedures, which could probably only be carried out in camps. I believe that border procedures are fundamentally problematic from a basic rights point of view. This is also what the EU Basic Rights Agency says: if border procedures are carried out in isolated camps, this tends to lead to fundamental rights problems. If only because the camps are often overcrowded and the reception conditions in these EU hotspots are extremely poor. But of course a border procedure is still better than no asylum procedure at all.

Would normal domestic asylum procedures in Greece be better?

Exactly. However, we must also take into account what is provided for in the Dublin III Regulation. Member State is responsible for the asylum procedure. The first step is to determine which Member State is actually responsible for conducting the asylum procedure. So, regardless of whether "normal" asylum procedures or border procedures are carried out, Greece is not always responsible

So, regardless of whether "normal" asylum procedures or border procedures are carried  

Is it not the case that the procedure must be carried out where the asylum seeker first enters EU territory?

This is the most well-known rule in the Dublin III Regulation, but it is not the only one. If, for example, the asylum seeker has close family members in other EU countries, that country is obliged to take the asylum seeker in and conduct the procedure. In addition,  

Would that then be the "quota solution" now being discussed for children in the Greek camps?

Something like that. This is more of a symbolic act, in my view. We are talking about 1,000 to 1,500 children, who either need urgent treatment for a serious illness or are unaccompanied and younger than 14 years. Most of the children are supposed to be girls. According to the figures I know, there are not even 1,000 to 1,500 children in the camps on the Greek islands who meet these criteria. It is also unclear whether this quota should include those unaccompanied minors who already have relatives in the EU. These would have to be admitted anyway under the Dublin III Regulation. In any case, it is to be expected that the effect of this programme will be minimal.

Are the children who have relatives in Germany, for example, and therefore have a right to be transferred, currently being admitted to Germany?

Unfortunately, in many instances this is not the case. The rate of rejection of Greek requests for family reunification has been very high for years. Germany now rejects about 70 percent of these applications. Most of these rejections are not legal. This can be seen from the fact that the majority of court cases against these rejections are successful. It is therefore a major problem that not even the existing rules to ease Greece's burden are being applied in this situation. Especially not by Germany.

We now see pictures of Greek authorities using violence to prevent refugees from entering Greece. Is this legal?

No, refugees who are deported without an asylum procedure are not allowed under international refugee law, EU law and the European Convention on Human Rights. Greece cannot simply override the so-called refoulement ban. Apparently, asylum seekers who have crossed the border despite the measures are currently being detained. For example, in a ship off Lesbos, as we have read in the press these days.

How does Greece justify these postponements?

In the political debate, four main arguments are put forward to justify them. First, an "emergency mechanism" is provided for in the EU treaties. But this would require a decision by the Council; no member state can decide this alone. In addition, this mechanism could not override fundamental rights or the ban on refoulement. Secondly, Greece invokes national security and order. This argument also finds a basis in the Treaties, but it cannot justify the repatriation of refugees. Thirdly, it is argued that Turkey is using the refugees as a tool to enforce political demands. However, this too cannot justify the violation of the ban on refoulement. Even in this exceptional situation, the Member States are committed to the EU's established values, namely the rule of law and respect for human rights. Finally, reference is often made to the recent judgment of the European Court of Human Rights on the refoulement at the Spanish-Moroccan border. However, this judgment does not affect the ban on refoulement.

Does this mean that border management as it is now carried out by the EU is contrary to European and international law?

The current practice on the Greek-Turkish border is unlawful in my view, yes. States have the right to regulate access to their territory, but this right is limited by European law and international law. In other words, their sovereignty in this matter is limited.

I consider the situation on the Turkish-Greek border to be a new quality of violation of the law. It is true that asylum seekers have previously been turned away. But what is new about the current situation in Greece is that the right of asylum has actually been suspended. Moreover, the violation of the law is clearly committed by a Member State. In other cases, the legal violations are often first committed by third countries, for example by preventing departure.

So Greece is responsible?

I don’t think it’s that simple. In my view, the exact extent of the legal responsibility of the other Member States has not yet been conclusively clarified. The EU has a common external border and a common asylum system based on human rights, the rule of law and solidarity. This is laid down in the European Treaties, and you cannot simply suspend all this when things get difficult.

The interview was conducted by Benno Stieber.