Apologies for such a long delay in writing any update!
I’ve felt most unsettled and wondering what to do next for the past three weeks. HIAS has not yet hit the ground, CK Team is in an transition phase because we used to do mainly transportation and landing response but there has only been one landing in our area in the last three weeks. What’s needed now is much more politically complicated and much less physical, so it’s been slow to get going.
I’ve been attending all the Legal Aid Coordination and UNHCR Protection meetings, which have been very interesting, preparing information materials for HIAS and discussing what form the client information database should take, some bits of guerilla legal information provision at the fence in Moria and writing down bitlinks to legal information for refugees in Kara Tepe because they really don’t get any adequate legal information otherwise but I don’t yet have official permission to do so.
At last I have found something concrete to do in between the bits of HIAS preparation work until Pare arrives and HIAS Greece is established on the ground: from tomorrow on I’ll be volunteering most daytimes in MSF Mantamados camp contributing to activities for 170 unaccompanied minors (teenagers, 14-17). I’m hoping I’ll get a chance to do some science lessons (there are proper qualified and experienced teachers designing the activities and education programme), in response to whatever the teenagers want to learn about, but I would love to break out a drawing of the electrical formulae wheel and my older brother’s visual analogy (this is how he explained it to me when I was revising for physics gcse, and it made so much sense to me suddenly at last that I’ve remembered it ever since): a drawing of a waterfall and a dam to illustrate what the four electrical quantities mean. I drew these on the wall in the childrens’ tent in Moria before when I went to go and fix their lights and worked out they’d fried their lights by mistaking charge capacity for voltage, so fixed their lights and then left them with a physics lesson on the wall too. This will be until I have enough HIAS work to do to fill my days.
I’m also hoping to go to a conference this weekend in Mytilene called: “The European Refugee Crisis: Liberal Answers to Challenges on Sea” organised by the European Liberal Forum, and then going to Athens for another conference on Monday convened by the Greek Asylum Service “The Future of Asylum in Europe” https://drive.google.com/file/d/0B2Q3UFiMZDTpamw2bG4xTFRZWTg/view I didn’t expect to be going to conferences this time, but it seems like a good way to make contacts which may be useful for HIAS Greece work.
I recommend this JRS Europe policy and legal analysis of the EU-Turkey Statement – http://jrseurope.org/news_detail?TN=NEWS-20160503033549
Here’s a summary of the situation I wrote a few days ago:
Lack of legal information – only very basic information is presented, too briefly and infrequently, so in my experience no-one I’ve spoken to really had a clue about the legal context they’re in, and no-one is remotely adequately prepared with legal advice for their interviews.
Because first instance asylum decisions are treated as administrative decisions, there are no published verdicts, so no systematic monitoring is possible, so there could be very wide variations in quality of decision making between Examining Officers, we’ve heard of some really bad cases of misleading questioning leading to unbelievably unfair decisions, but we can’t possibly know how common those are or assess generally how realistic or fair the processes or decisions are. I believe asylum decisions are inherently a judicial matter, not an executive or administrative matter, and are only being legally treated as administrative decisions as a method of precluding any independent systematic monitoring or public transparency about how realistic and fair asylum decisions are.
Admissibility interviews before substantive interviews, as allowed by Article 33 of the APD2013, are being carried out here. Most people receiving rejection decisions in the first instance administrative decision are receiving decisions of inadmissibility, which means their claim is considered inadmissible in Greece since they could have had or did have sufficient protection in Turkey. This is usually based on presuming Turkey to be a Safe Third Country (alternatively, if someone had previously registered for Temporary Protection Status in Turkey then the authorities could apply First Country of Asylum as a basis for a decision of inadmissibility), as defined by Article 38 of the APD, which is completely implausible as Turkey does not remotely objectively meet any of the legal criteria in Article 38(1) of the APD2013 for that designation. I have heard that over 100 decisions of inadmissibility have been issued, mostly to Syrians, because Syrians can get Temporary Protection Status in Turkey, so it is marginally more plausible to claim Turkey could be a Safe Third Country for them, all have appealed, some so far have received positive decisions on appeal.
Two key requirements of the legal definition of a Safe Third Country are that there must be no risk of refoulement and that the returnees who have not had their substantive claims assessed in the second country must be guaranteed to have their substantive claims properly assessed in the third country. The EU is relying for evidence in support of the presumption of Safe Third Country status for Turkey on Turkish assurances on these two points in an unpublished letter sent on the 26th April, despite the facts Turkey has never yet actually done what it has promised specifically not to refoul anyone and to allow non-Syrians returned from Greece to have their substantive claims properly assessed and to receive Temporary Protection Status if their claims are found to be true and match the criteria for Temporary Protection Status, which should be equivalent to Refugee Status, and I have seen evidence in nine cases that Turkey has in fact continued doing the very opposite since it signed and sent that letter of assurances. Promises in an unpublished letter with no evidence of application in practice yet and a track record of doing the opposite in large numbers of cases cannot reasonably count as evidence to outweigh the evidence of actual refoulement in thousands of cases, the Turkish governor of Izmir having publicly stated that non-Syrians returned from Greece would be immediately deported to their countries of origin, that having been documented as what has actually happened by Turkish human rights organisations in hundreds of cases of Afghans refouled from Turkey, and continuing denial of access to substantive asylum claim assessment and refoulement even since (26/4) the Turkish government made assurances that it would do the opposite.
What is the constitutional legal status of the EU-Turkey Statement? The European Parliament has officially asked this question of the European Council, to explain what it thinks it has done. The EU-Turkey deal has only been published as a Press Statement, but it clearly has had legal effects, i.e. it is functioning as legislation, yet it has not gone through any constitutionally valid legislative process. If the European Council considers it not legally binding or not to have legal effects, then does Turkey know this? If it is intended to have legal effects, why did it not go through the Special Legislative Process required by Article 90 of the Treaty on the Functioning of the European Union, which requires at least the consent of the European Parliament before the European Council concludes an international treaty on matters including asylum and migration policy? Additionally, if it is functioning as an international treaty, why has it not been registered with the United Nations, as required by Article 103 of the UN Charter? If the letter of assurances by Turkey that was required to make the implementation of the return of non-Syrian asylum seekers to Turkey legal is functioning as a legally binding contract between States, i.e. an international treaty, is that a secret treaty, since it remains unpublished, which would contravene Article 103 of the UN Charter in another way, as well as it being unregistered with the UN. The EU-Turkey deal has in fact directed changes in domestic legislation in multiple EU countries now, so it is clearly functioning as a Council Decision, but has not gone through any of the constitutionally valid legislative processes, so if it is an international treaty, it could be invalid because of being contracted by a State party acting ultra vires, and it could also be invalid ab initio if it in practice violates a peremptory norm of international law, namely non-refoulement, and if it is presented as a Council Decision, it could be invalid because it has not gone through any form of legislative process involving the consent of the European Parliament, as required by the Treaty on the Functioning of the European Union.
I since found this- http://eulawanalysis.blogspot.gr/2016/04/is-eu-turkey-refugee-and-migration-deal.html?m=1 which raises the same questions but better. f