On 4 October 2024, the Court of Justice delivered its judgment in Case C-134/23 Elliniko Symvoulio, concerning the Greek designation of Turkey as a ‘safe third country’ for the purposes of international protection. The case shows that the EU’s inadequate response to the so-called ‘refugee crisis’ continues to echo in legal challenges across its courts. Central to the EU’s response in 2016 was the controversial EU-Turkey Statement, which provided that Turkey would accept the return of asylum seekers from Greek islands in the Aegean Sea. The process was facilitated by Greece designating Turkey as a ‘safe third country’. The concept, as provided by Article 33(2)(c) of the Asylum Procedures Directive, allows Member States to declare the applications for international protection inadmissible without examining their merits, based on the assumption that asylum seekers can seek protection elsewhere.
Despite Turkey ceasing to accept asylum seekers from Greece in 2020, Greece renewed its designation of Turkey as a ‘safe third country’ in 2021. This designation was eventually challenged before the CJEU in C-134/23 Elliniko Symvoulio.Confronted with the reality of Turkey’s lack of cooperation, the Court ruled that Member States cannot declare an asylum application inadmissible on the basis of the ‘safe third country’ concept, if it is ‘established’ that the designated country will not allow asylum seekers to enter its territory. While civil society has welcomed the decision, the Court’s stance on safe third countries remains ambivalent. The Court in fact upheld that a country can still be designated as ‘safe’ even if, contrary to its legal obligations, it has generally and indefinitely suspended the admission or readmission of asylum seekers.
This underwhelming victory provides the opportunity to reflect on the flaws in the EU system of remedies that sorely persist and that had already emerged in the case of the EU-Turkey Statement. In this post, I will analyze some of them.
The EU-Turkey Statement: informality barring justiciability
The EU-Turkey Statement was signed in March 2016 and published as a press release by the European Council. The Statement consisted of a list of commitments from the two parties accompanied by a lip service to the respect of international law. The agreement provided for the EU and its Member States to allocate €3 billion (later increased to €6 billion) to the Facility for Refugees in Turkey. Moreover, a one-to-one resettlement arrangement was designed, according to which, for every Syrian national returned to Turkey from the Greek islands, another Syrian national would be resettled from Turkey to the EU. EU Member States promised – as a return – to expedite the visa liberalization process for Turkish citizens and to revitalize the debate on Turkey’s accession to the EU. In the agreement, migrants were thus reduced to a bargaining chip for the interest of the two parties.
To date, it is rather unclear whether the Statement is an international treaty concluded by the EU and Turkey within the scope of the Vienna Convention on the Law on Treaties or a soft law instrument concluded between the Member States and Turkey. Its undefined nature has barred the route for judicial review. The General Court has in fact declined its competence in reviewing the Statement asserting that ‘the EU-Turkey Statement, as published by means of Press Release No 144/16, cannot be regarded as a measure adopted by the European Council, or, moreover, by any other institution, body, office or agency of the European Union, or as revealing the existence of such a measure that corresponds to the contested measure’. This position was upheld by the Court of Justice on appeal, stating that the agreement was an affair between the Heads of State or Government of the Member States of the EU with their Turkish counterpart. The CJEU’s position has been highly contested: first, the Statement refers to EU law issues such as visas (regulated by the Visa Code). Second, it clearly had legal effects on the factual and legal position of migrants, as recognized by the ECtHR. In particular, in J.R. and others v Greece, the ECtHR partly relied on the implementation of the EU-Turkey Statement to conclude that the detention measure contested in the case had a legal basis in domestic law.
The Greek practice: asylum seekers in a limbo
The implementation of the Statement and the consequent possibility to move the commodified migrants across borders was facilitated by the designation of Turkey as a ‘safe third country’ by Greece. According to Article 38(1) of the Asylum Procedures Directive, a country can be considered a ‘safe third country’, if Member States are satisfied that certain guarantees are ensured for asylum seekers in that country. The following conditions must be met:
(a) ‘life and liberty are not threatened on account of race, religion, nationality, membership of a particular social group or political opinion’;
(b) ‘there is no risk of serious harm as defined in’ the EU Qualification Directive;
(c) ‘the principle of non-refoulement in accordance with the [Refugee] Convention is respected’;
(d) ‘prohibition of removal, in violation of the right to freedom from torture and cruel, inhuman or degrading treatment as laid down in international law, is respected’; and
(e) ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.
As widely documented over the years, these conditions may not be considered as fulfilled in the case of Turkey. As proof of that, the ECtHR has, for example, found Turkey to be forcibly returning migrants to Syria despite significant risks (Akkad v Turkey) and violating the migrants’ right to life and the prohibition of torture, inhuman and degrading treatment (J.A. and A.A. v Turkey).
Despite such critical concerns, Greece retained Turkey as a safe third country in its 2021 designation. The policy choice crystallized a dire situation: figures show that between 2021 and 2023 Greece has found over 10,000 asylum claims inadmissible, considering Turkey a ‘safe third country’ for asylum seekers. In practice, Greek authorities first rejected these applications for international protection and then, at the stage of enforcing the decisions, approached Turkey to ascertain whether the relevant applicant was in fact permitted to enter Turkish territory. As Turkish authorities since 2020 have systematically failed to respond to all requests, Greek authorities left applicants to wait before concluding that readmission was not possible. At this point, it was for the asylum seeker concerned to submit a new application for international protection since, under Greek legislation, the competent authorities are not required to resume ex officio the examination of the application for international protection. Moreover, reports show delays in registering the re-applications and other hurdles faced by asylum seekers, because authorities do not believe that the refusal of readmission was a new element or finding, as required by law for repeated applications for international protection.
Challenging the ‘safe third country’ concept before national courts: the background to C-134/23 Elliniko Symvoulio
A first attempt to challenge the designation of Turkey as a ‘safe third country’ was made in February 2017, when the Greek Council of State, the Supreme Administrative Court of Greece, decided against the appeals of two Syrians who were claiming that Turkey was not a safe third country for them to be returned to. On that occasion, the lawyers representing the two applicants asked the Council of State to submit a preliminary reference to the CJEU regarding the definition of Turkey as a ‘safe third country’. With a slim majority of 13/12, the Council ruled that there was no reasonable doubt on the meaning of ‘safe third country’ under EU law and thus that there was no need to request a reference. This outcome was unsurprising for several reasons. First, Greece has one of the lowest rates of preliminary references to the CJEU among Member States, with its Supreme Court having even faced criticism from the ECtHR for insufficient reasoning in rejecting such referrals. Second, the inherently political nature of the EU-Turkey Statement may have influenced the judiciary’s reluctance to escalate the matter. This reluctance to invoke the EU judiciary highlights a troubling reality: the ability to seek clarity or accountability through the EU legal framework is far from guaranteed, even when the contested national practice is tightly linked to an agreement bearing the ‘EU’ label.
Notably, despite the crucial position of Greece in the EU for migration in the last decade, Case C-134/23 Elliniko Symvoulio marks the first time that the CJEU has been asked any questions about EU asylum law by a Greek court. Since 2017, however, the situation has dramatically changed. As mentioned, no readmission has taken place since March 2020 from Turkey, thus leaving asylum seekers in a legal limbo (reports available in Greek here). Under these circumstances, the Greek Council of State finally decided to refer the question to the CJEU on how the ‘safe third country’ rule must be interpreted if readmissions do not take place. The referring national court put forward two possible interpretations. The first was that national law may not classify a third country as ‘safe’ for certain categories of applicants when that third country has generally suspended the admission or readmission of those applicants to its territory and there is no foreseeable prospect of change in that position. The second was that the impossibility of readmission to the third country was to be considered in the enforcement of the individual decision deemed inadmissible rather than from the moment of the general designation of a third country as ‘safe’.
The CJEU’s decision in C-134/23 Elliniko Symvoulio
According to the Court of Justice, Article 38 of the Asylum Procedures Directive does not provide that the validity of a third country’s designation as ‘safe’ is subject to the condition that the applicants for international protection will actually be admitted or readmitted to the territory of that third country (para 46). This interpretation overlooks the broader purpose of the ‘safe third country’ concept, which is the efficient processing of asylum claims. This efficiency can hardly be achieved if there is no realistic prospect of readmissions of asylum seekers taking place within a reasonable time. However, according to the Advocate General’s Opinion on the case (para 45) – whose reasoning was endorsed by the Court – the definitive refusal of readmission of asylum seekers (as opposed to mere uncertainty about whether it might happen) does not disqualify a country from being listed as a ‘safe third country’ because the Procedures Directive does not explicitly require consideration of the readmission issue at the time of designation. In my view, this interpretation clashes also with a literal reading of Article 38 of the Procedures Directive. The Article stipulates that Member States may apply the ‘safe third country’ concept, only if their competent authorities are confident that applicants will be ‘treated’ in accordance with the principles that are outlined in points (a) to (e) of the same provision. The glitch is, however, that, if the authorities of the allegedly ‘safe third country’ do not even take the trouble to ‘treat’ the applicants in any form, then the assessment whether such applicants are treated in accordance with the EU criteria becomes completely irrelevant.
Despite the Greek designation of Turkey as ‘safe’ being unaffected by the present judgment, the Court crucially held that (para 54):
‘where it is established that the third country designated as generally safe by a Member State does not in fact admit or readmit the applicants for international protection concerned, that Member State cannot reject their applications for international protection as inadmissible on the basis of Article 33(2)(c) of Directive 2013/32’.
This stance, while to be welcomed for the protection accorded to asylum seekers, has already been incorporated in the new Asylum Procedure Regulation (2024/1348), which was adopted earlier this year. Recital 53 of its Preambles states that:
‘an application should not be rejected as inadmissible on the basis of the concepts of first country of asylum or safe third country where it is already clear at the stage of the admissibility examination that the third country concerned will not admit or readmit the applicant. Furthermore, if the applicant is eventually not admitted or readmitted to the third country after the application has been rejected as inadmissible, the applicant should again have access to the procedure for international protection in accordance with this Regulation’.
In its judgment, the Court also underlined that Member States may not unjustifiably postpone the examination of applications and must, inter alia, ‘ensure that that examination is conducted on an individual basis, in accordance with Article 10(3)(a) of that directive and in compliance with the time limits set out in Article 31 thereof’ (para 54). Despite the judgment’s major importance in its guarantees for asylum seekers’ access to asylum procedures, the judgment nevertheless is undermined by its failure to clarify the criteria for determining a ‘safe third country’ and the procedures for verifying these criteria, both of which are essential for protecting asylum seekers’ rights. Indeed, the Greek designation of Turkey as ‘safe’ was not examined by the CJEU (para 40). This is due to the fact that the referring national court had rejected the plea of the applicant, arguing that Turkey does not comply with the ‘safe third country’ criteria, and therefore had not referred this matter to the CJEU. The Court of Justice therefore could not interpret those principles. This key missing point reflects how the use of the preliminary reference as a way to uphold rights is still heavily affected by its original nature as a dialogue between courts.
Concluding remarks
The judgment marks a significant step forward in protecting asylum seekers by prohibiting national authorities from rejecting asylum applications as inadmissible when readmission to a third safe country is not feasible. However, it also represents a missed opportunity to clarify on how Member States must interpret the criteria to designate third countries as ‘safe’. This is particularly relevant as Member States are increasingly outsourcing their asylum responsibilities through controversial ‘safe country’ agreements (see e.g. Italy-Albania, UK-Rwanda). Whether courts are the best actors to review the decisions on the safety of third countries is currently under debate, but it must be acknowledged that the erosion of asylum rights is progressively occurring through preemptive barriers to access asylum procedures in Member States.
Agostina Pirrello is a PhD Candidate in EU and International Law at the Law Department of Utrecht University, where she works in the Utrecht Centre for Regulation and Enforcement in Europe (RENFORCE). Her research aims at investigating empirically how access to justice can be enhanced in the light of the emerging supranational governance of migration. Prior to academia, Agostina worked at the European Union Agency for Asylum in Malta and at the Italian Ministry of Interior.