“The declared aim to return all refugees and migrants contrasts with the assurances about individual assessments," the High Commissioner said. "If the safeguards are to be considered real, then the individual assessments must allow for the possibility that the persons in question will not in fact be returned. Otherwise it could still qualify as a collective expulsion."
The EU-Turkey agreement calls for cases to be processed under the EU’s Asylum Procedures Directive, and goes on to state that “Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey.”
Zeid expressed concern that this language presents a real risk of overlooking human rights law obligations, which require States to examine arguments against return beyond those found in refugee law. Such needs could arise, for example, in the case of children; victims of violence, rape, trauma and torture; individuals with specific sexual orientation; persons with disabilities; and a range of others with legitimate individual protection needs.
The UN Human Rights Chief urged Greece to handle all individual cases with genuine attention to all protection grounds required under international human rights law, including at the appeals stage.
Zeid said he has particular concerns about returns being carried out on the basis of asylum claims in Greece being found 'inadmissible' because Turkey is a ‘safe third country’ or a ‘first country of asylum.’
“Even if Turkey does expand its refugee definition to include non-Europeans, or passes laws qualifying certain nationalities for ‘temporary protection,’ it may not be considered fully safe for all returns in the near future. Refugee and migrant protection systems are not simply words on paper, but require trained personnel, tailored policies, infrastructure and other concrete practical measures that take time to establish,” the High Commissioner said. “Disturbingly, there have also been recent reports of forcible returns amounting to refoulement from Turkey.”
The UN human rights chief backed the strong concerns expressed on Tuesday by other UN agencies, UNHCR and UNICEF, at the use of detention for all new arrivals in the Greek islands, including children and other vulnerable persons, adding that this appears to contravene a range of international and EU human rights laws and standards, including that immigration detention should be a measure of last resort, and the principle of “best interests of the child.” The UN Committee on the Rights of the Child has emphasized that children should never be detained on the basis of their migration status or that of their parents.
The High Commissioner expressed his concern that all returns must be carried out in full respect of the human rights and dignity of each individual being returned, including through ensuring that any consent for voluntary return is given free of any coercion and that those who are forcibly returned are protected against disproportionate use of force and other abuse of their rights and dignity.
Finally, the High Commissioner regretted that the envisaged so-called ‘one-for-one’ scheme for resettlement is to take place “within the framework of the existing commitments” to resettlement or relocation - without creating new commitments to legal pathways. He urged the EU to implement practical recommendations made by UN and other international organizations and experts concerning the creation of other regular channels for entry, including family reunification, other humanitarian pathways, and regulated labour migration in response to real labour market needs.
“This crisis is manageable if the EU acts on the basis of its own well-established and greatly respected laws and principles, and invests seriously in addressing root causes and supporting comprehensive solutions on the basis of international human rights treaties they have ratified,” Zeid said. “However, if the EU starts to circumvent international law, there could be a deeply problematic knock-on effect in other parts of the world.”
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