Death by a Thousand Derogations: The Geneva Refugee Convention and the EU

How a brief crisis at Europe’s borders created an opportunity to challenge a 70-year-old international law safeguarding the rights of refugees.

Her real name cannot be revealed and even the particulars of her story were nearly lost to the Greek justice system. Her lawyers asked that we identify her by a single initial, G. She came from Iran and had hoped to join her husband in Germany but ended up stranded in Turkey. In March last year, she left her rented apartment and boarded a bus, arranged by the Turkish authorities, that took her to the Greek border. Shortly afterwards, she would be sentenced to a four-year term in an Athens prison notorious for housing violent criminals and gangsters. Her backstory however, is not that of your typical public enemy. There is no record of robbery, extortion or murder. G. was sent to the infamous Korydallos prison purely because she had entered the European Union without the right documents.

Over the last ten years, well over a million people have taken the same step without suffering the same fate. In Greece, a gateway to the EU, those refugees and migrants that are stopped by the authorities tend to be funnelled into an overcrowded asylum system: to unsanitary camps, hostels, and purpose-built facilities. Their treatment is often described as inhumane by human rights bodies, yet it conforms with international refugee law in at least one respect: they can exercise the right to claim asylum in the EU while the Greek state fulfils a duty to house them, however inadequately. The state may not treat them well, but it stops short of labelling them criminals simply because they crossed the border without the right papers.

G. was stopped by the Greek authorities in March 2020, just after she crossed over from Turkey. She was taken to hospital and then to a local court, where she was prosecuted on a criminal charge of having illegally entered the country. The proceedings were apparently translated by an Afghan man who barely understood her. She was given conditional release last August, six months into her prison term, and her case was taken up by lawyers at the Greek Council of Refugees, GCR, an NGO. Under the conditions of her release, G. was required to present herself at a local police station twice a month and was banned from leaving the country. Chrysanthi Zaharof, a GCR lawyer who acted on her behalf, said the strict rules posed a judicial hurdle to her request to be reunited with her husband in Germany. “These terms tend to be imposed on people facing serious legal issues,” she said.

The decision to treat G. as a criminal was taken by a Greek state that had temporarily stopped registering new asylum seekers – a duty enshrined in international law, most notably the Geneva Convention relating to the rights of refugees, to which Greece is a signatory. The Convention, which was ratified 70 years ago on 28 July 1951, also broadly prohibits signatories from penalising refugees “on account of their illegal entry or presence”. Greece’s decision to suspend these obligations was taken at a time of extraordinary crisis, as it faced an orchestrated attempt by Turkey to drive thousands of refugees and migrants across the border.

This story traces the impact of that Greek decision on a European Union that was, at the time, itself deliberating a new approach to refugees and migrants. Internal documents and expert testimony gathered by the Balkan Investigative Reporting Network, BIRN, indicate that proposals for suspending asylum registration during crises were tabled – and contested – within the EU’s executive body, the European Commission. This story shows how the desperate measures taken in desperate times at the frontiers of the bloc can end up influencing its policy – by paving the way for derogations, or lawful exemptions, from international law.

“It is well known that [EU] member states feel unfairly constrained by asylum law – but just because you deal with non-EU citizens doesn’t mean that you can switch it on and off,” said Catherine Woollard, the director of the Brussels-based refugee rights group, the European Council on Refugees and Exiles, ECRE. She said the March 2020 border crisis had provided member states that had an interest in adapting the law with “an opportunity to test ideas and try to construct legal arguments where derogations are possible.”

‘Recipe for chaos’
The countries along the EU’s eastern border have been calling for the EU to allow them “flexibility” in dealing with the migrants and refugees that enter their territory, particularly during crisis situations. However, legal experts and human rights groups have argued that greater flexibility under the law will help legitimise violations at the borders. For instance, a delay or suspension of asylum registration procedures can make it even easier for border guards to carry out “pushbacks” – a widespread tactic at the EU’s frontiers that violates the Geneva Refugee Convention’s prohibition on refoulement, or the forcible return of refugees to countries they have just fled.

“Registration is important – it’s the first step on the road to recognition or return, depending on how the [asylum] decision goes,” said Guy S Goodwin-Gill, a professor at the Kaldor Centre for International Refugee Law at the University of New South Wales and a pioneering authority in the field. He said delays or suspensions to registration could leave refugees and migrants in “a doubtful halfway state” – a judicial no-man’s land where anything can happen to them. “What matters here is the ‘what next’ question,” he said. “What happens in the meantime to those who are not registered? Will they be abused? Will they have access to food and medicine? Will they be protected? Who knows.”

For much of last year, the calls for flexibility were channelled into behind-the-scenes lobbying over the New Pact on Migration and Asylum, a landmark European Commission proposal setting out the bloc’s future policy towards refugees and migrants. The crisis at the Greek border, coming six months before the pact’s eventual release in September, allowed the governments along the EU’s eastern borders to renew a long-standing demand at a critical moment.

Human rights officials interviewed by BIRN said the hardliners’ push for greater flexibility had been encouraged by the European Commission’s initial response to the border crisis, when EU officials had rallied to Greece’s side. As evidence emerged that Turkish authorities had been organising buses to the border, the EU accused Ankara of “weaponising” the flow of migrants and refugees. The head of the European Commission, Ursula von der Leyen, made an unscheduled visit to the region, where she declared Greece to be the “shield” of the European Union, and was pictured surveying the border from a helicopter. When the Greek government bolstered security along the frontier, its militarised approach was backed to the hilt by the EU leadership.

Elsewhere within the EU however, there was disquiet over the implications of Greece’s decision to suspend asylum registrations. In an internal document dated March 4 that has been seen by BIRN, the human rights office at the EU’s border agency, Frontex, said it was “deeply concerned” by a move that had no “legal basis” under EU refugee law or the Geneva Refugee Convention. In an interview with The Guardian newspaper a week later, one of the two EU Commissioners overseeing asylum policy, Ylva Johansson, did not comment on the legality of the suspension but emphasised that Greece has “to let people apply for asylum”.

Yet when the Pact was published last September, it seemed to accommodate many key demands for greater flexibility. The new proposals contained an entire instrument envisaging how member states may respond to crises and “force majeure” – a legal term for unforeseen events that prevent a party from honouring a contract. On the obligation to register asylum applications, the European Commission proposed that national governments should have the freedom in exceptional circumstances to “delay” this process by upto “four weeks” – an apparent echo of the Greek government’s decision to suspend asylum registrations for a month in March.

“There is a legal distinction between a suspension and a delay, in that a delay avoids the uncomfortable suggestion that states are not applying the law,” said Minos Mouzourakis, legal officer at Refugee Support Aegean, a Greek NGO. “In practical terms however, there is little meaningful difference. The decision to propose a delay in asylum registration was the Commission’s political solution to the demands for harder derogations from the law.”

Over the course of six months last year, a move that had been criticised within the EU as deeply problematic, if not downright unlawful, seems to have been incorporated – with light modifications – into the bloc’s official overhaul of asylum and migration policy. The process by which this happened unfolded behind closed doors, and according to senior Brussels officials who spoke to BIRN on condition of anonymity, it exposed rifts between the two Commissioners overseeing work on the new Pact. Yet the final distinction is a narrow, legalistic one: where the Greeks had carried out a “one-month suspension” of asylum registrations, the Pact envisaged a “four-week delay”.

The proposals are subject to further negotiations among EU institutions, a process that can take years, and some EU bodies have vowed to challenge the Pact on human rights grounds. Juan Lopez Aguilar, the president of the European Parliament’s civil rights watchdog committee, LIBE, and its rapporteur on border crisis regulation, criticised the “vagueness” of the crisis regulation provisions, arguing that they “could be manipulated by hardliners”. He said his committee’s first aim would be to clarify definitions such as “crisis” so that “all are bound by the same rules”.

The question of whether all EU member states are bound by the same rules lies at the heart of the dysfunction within the Common European Asylum System, the bloc’s current framework for dealing with refugees and migrants. According to Professor Guy S Goodwin-Gill of the University of New South Wales, the system is common only in name, as it encompasses wild variations in areas such as recognitions of refugee status. “The EU asylum system is a recipe for chaos,” he said, “and that is what you have now.” The bloc’s professed obligation to honour international refugee law constantly ran into opposition from arguments invoking national sovereignty, he told BIRN. As a result, member states often ended up “maintaining the promise of asylum, but so restricting it that it was unlikely people were going to get it.”

Carving out exceptions from international law through derogations was one way of doing this, Goodwin-Gill said, though governments typically tiptoed around the language. “They may not use the word, except, but they will say they will go about it in a slightly different way,” he said. “We’ll still do the right thing, we won’t send anyone back to persecution… but we’ll delay the process or we’ll send them offshore.”

The debate over the suspension of asylum registrations embodies the contradictions within EU asylum policy. In this case, Greece must be Europe’s shield against weaponised refugees and migrants while simultaneously honouring its obligation to protect them under the 1951 Geneva Convention. “Greece is doing what the EU is happy to have it doing, as long as the EU doesn’t have to be called to account itself,” Goodwin-Gill said. “And if the EU were to turn to Greece and say, stop that, Greece would turn back and say, yes, and take the 10,000 [refugees] as you ought to. And that’s what the rest of Europe doesn’t want.”

Away from the new faces on the streets of Greece and the squalor of its island camps, the refugee and migrant crisis is shaking the foundations of the international laws that have guided Europe for much of the last century. The Geneva Refugee Convention is a cornerstone of those laws. Ratified in the aftermath of World War Two, it is being undermined by the largest refugee crisis the world has seen since that conflict. While getting governments to recognise the rights of refugees had “always been a struggle”, Goodwin-Gill said he was particularly worried about the future of the 1951 Convention.

‘Radical proposals shot down’
At the height of the migrant and refugee crisis in 2015, more than a million people applied for asylum in the EU. Most had come via the Balkan route, passing through Turkey and Greece. Desperate to limit the flow, the EU struck a deal with Turkey. It offered Turkey billions of euros to help it better accommodate the millions of Syrian refugees living on its territory. Turkey meanwhile agreed to measures that were intended to deter migrants and refugees from leaving for Europe – including taking back refugees and migrants who did not qualify for asylum in Europe. The scheme was criticised by humanitarian agencies but was deemed a success by the EU as it prompted a steep drop in the number of new arrivals in Greece.

However, the deal often came under strain, its implementation becoming a hostage to the fraying relationship between Brussels and Ankara. In February 2020, Turkey declared that it would no longer prevent refugees from trying to reach Europe. By early March, thousands of refugees and migrants had gathered along the border with Greece demarcated by the Evros river. Greek security forces that had been accustomed to small groups trying to slip across the frontier were confronted with huge crowds attempting to force their way through. The crowd was mostly unarmed, but it included groups of men throwing rocks and wielding metal rods. To secure its borders, Greek forces deployed riot control measures, including water cannon and tear gas.

The decision to suspend asylum registration procedures was published on March 2, a day after Greece said that it had stopped some 10,000 people from entering via the land border with Turkey. Soon afterwards, local prosecutors began pursuing criminal cases against some of the people that were being apprehended near the border. The option of charging migrants and refugees with illegal entry had always been available to the state, but tended not to have been used – until March 2020.

“Prosecutors had almost always avoided pursuing cases on these grounds”, said Vassilis Kerasiotis, a legal expert on migration based in Athens. He said the decision to start applying a long-neglected law was linked to the government’s suspension of asylum registration: “it was a product of those days.”

Some of these migrants and refugees were tried in Orestiada, a Greek town close to the border with Turkey. Between 28 February and 14 March 2020, the local court sentenced some 103 people to jail on charges of illegally entering the country, according to figures compiled by the Committee for the Prevention of Torture, CPT, an arm of the European human rights watchdog, the Council of Europe. The total number of people sentenced on the same charge during that period is unclear, as there are no official data.

The lawyer who acted for G., Krysanthi Zaharof, identified more than a dozen similar cases last summer, including a group of young Afghans who had received four-year prison terms and fines of 10,000 euros each, as well as a 75-year-old woman, serving a prison term in Thiva for illegal entry. M., a Kurd from Turkey who successfully appealed against his four-year jail sentence with the help of another NGO, HumanRights360, said he had expected “the system would work differently” in Greece. “We were only informed of our right to asylum by other prisoners. We have less hope for the future now.”

Greece had argued that its unilateral decision to suspend asylum registrations was covered by a little-known clause in the EU’s Lisbon treaty that sets out the actions a member state may take during an emergency. In accordance with EU procedure, the Greek move was submitted for scrutiny to the Commission’s legal service, a body that advises on compliance with EU law. The legal service produced a preliminary report into the decision to suspend asylum registrations at an EU border on March 4 2020, two days after the Greek announcement. BIRN submitted a request to view the document under freedom of information laws but this was turned down.

In an e-mailed response to BIRN, a Commission official said that the advice of the legal service must remain confidential on “public interest” grounds, as it was “intimately linked” to aspects of the forthcoming New Pact on Migration and Asylum. While the Commission’s legal advice is still unknown, the justification for withholding it confirms that it was feeding into ongoing discussions about the future of asylum policy which would culminate in the new pact.

External experts have suggested that the Greek move was unlawful. According to Mariana Gkliati, a legal expert on asylum and migration at Leiden University, “international and European law do not provide for the temporary suspension of the right to asylum”. This view was backed by a report by a Dutch law firm last September. Commissioned by humanitarian charity Oxfam and the campaign group, WeMoveEurope, the report concluded that the Greek decision to invoke emergency provisions was “legally baseless” and its decision to suspend asylum registrations was accordingly “illegal and violated EU law”.

“EU law requires member states to uphold the right to asylum and does not provide a derogation on which a member state may suspend asylum applications,” the report said. The emergency provisions invoked by Greece, it argued, required the approval of the European Council, the body that sets the EU’s political direction, and could not be invoked unilaterally, as Greece had done.

Attempts to overhaul the EU’s migration, asylum and border control policy had been deadlocked since 2015 and there were few hopes last year of a breakthrough in the New Pact on Migration and Asylum. However, the Greek decision to suspend asylum registration seems to have given a boost to member states that were calling for a tougher border policy.

According to the ECRE’s director, Catherine Woollard, the pressure for a hard line was also coming from within the Commission. “Certain advisers of certain commissioners were pushing for tougher versions [of the pact] on these issues,” she said. “There was an awful draft circulating in March, floating extreme proposals from entrepreneurs in various cabinets.” Throughout the summer, she added, “radical proposals” that did not conform with EU law would be advanced, only to be “shot down” by the Commission’s legal service, the body whose opinion of the Greek suspension has been withheld.

‘Huge opening for pushbacks’
Documents seen by BIRN suggest there was a concerted effort last summer to accommodate the emergency suspension of international law into the forthcoming pact. An informal, internal Commission paper, dated April 22 2020 and seen by BIRN, includes proposals for a new law setting out “temporary and extraordinary measures” that may be required “in the face of extreme crisis”.

The proposal envisaged allowing member states to automatically trigger “actions to adapt access to the asylum procedure at the borders” – mirroring the events of March. The version of the document seen by BIRN is unsigned and was intended as a draft for Commissioners to consider as they debated the pact.

According to senior Brussels sources who spoke to BIRN on condition of anonymity, the proposals for a temporary suspension of access to asylum were initially backed by the cabinet of Margaritis Schinas, the Commissioner for Promoting the European Way of Life who, along with Ylva Johansson, was overseeing work on the new Pact. Schinas was nominated by the Greek government.

A Commission official told BIRN that the Schinas cabinet had initially pushed for extensive derogations, opening up a division with Johansson’s cabinet. However, the official said, the Schinas team would later back down and “go on the defensive”.

A senior policymaker for an international organisation in Brussels, also speaking on condition of anonymity, confirmed there had been internal divisions within the European Commission, saying these had opened up the “vivid possibility” of compromising “the current protection regime for asylum seekers”.

BIRN contacted Schinas’ cabinet to comment on the claims that they had initially supported the introduction of provisions suspending asylum. Natasha Bertaud, the deputy head of his cabinet and an expert on migration issues, did not directly respond to the claims, but pointed out that “the extension of registration deadlines in crisis and force majeure situations had been provided for” by the new pact. Moreover, Bertaud said, this text had been approved unanimously by the Commission’s political leadership.

The paper trail pushing for greater flexibility when dealing with refugees and migrants continues into the summer of 2020, as the EU neared the deadline for publishing the new pact. On June 4, a joint letter was delivered to the cabinets of Commissioners Johansson and Schinas. The letter was signed by the interior ministries of seven countries along the EU’s frontier who have pushed for a tougher stance on migrants and refugees: Hungary, Estonia, Czechia, Latvia, Poland, Slovakia and Slovenia. The ministers spelled out their expectations of the forthcoming pact, calling for flexibility when facing crises at the border. “The system has to be capable of reacting swiftly in severe crisis situations and provide member states with flexible tools that enable them to act in a proactive way,” the letter said.

On the same day, the commissioners were sent another joint letter, this one from Bulgaria, Cyprus and Greece. The document, signed by Cypriot and Bulgarian interior ministers and by Greece’s Alternate Minister for Migration, urged the Commission to incorporate “new, adequate legal definitions” to guide the EU’s response when its member states are dealing with extreme situations – named in the document with the legal term, “force majeure”. The full text of the letter, which was leaked to BIRN, explicitly said “a flexibility/derogation clause should be foreseen in the upcoming proposals”. Among the reasons cited was the “instrumentalisation by third parties of migration for political purposes” – alluding directly to Turkey’s “weaponisation” of refugees and migrants in March.

When the pact was eventually published in September 2020, it would prove that leveraging the March dynamic had not just been a hardliners’ fantasy. Experts argue that the events at the EU’s frontier with Turkey had directly fed into the discussions over the new pact. Rafael Shilhav, the Brussels-based EU policy advisor to Oxfam, said the language of the European Commission’s proposals echoed events at the EU’s border. “There are a lot of similarities between what happened in Greece last March and what is proposed in the crisis regulation in the pact,” he said.

Although the proposals stopped short of calling for a suspension of asylum, Shilhav said they had created room for weakening the protections enjoyed by refugees under international law. He said the proposals should be assessed for how they would impact people in need of protection. Under the new pact, he said, “a member state could suspend registrations without seeking the Commission’s approval”, as Greece had done in March. As a result, there may be no record of the refugees and migrants who entered the country to seek asylum. “No one knows where they are, or when they entered,” he said. “It’s a huge opening for member states to do pushbacks without anyone knowing about it.”

Shilhav said the references to Greece as the “shield” of Europe had effectively served as “encouragement” for a hard line at the border. Catherine Woollard, the director of the Brussel-based refugee rights group, the ECRE, echoed this view, saying the optics of the EU’s response to the border crisis had proved controversial. “The March visit and visuals, and the shield comments, angered people, even within the Commission,” she told BIRN. “At some point, there was a realisation that this went too far.”

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