It’s been less than 11 weeks since the EU struck its controversial deal with Turkey to stem the flow of asylum seekers into Europe. The agreement was immediately under pressure on several fronts and now looks set to unravel completely, even before any mass returns come to pass.

Two weeks ago, a committee on the Greek island of Lesvos upheld the appeal of a Syrian asylum seeker whose initial claim had been rejected and who was facing deportation to Turkey. This week, nine more appeals by Syrians were upheld. Many more such decisions are soon to be delivered, according to Pro Asyl, the German NGO whose lawyers represented the Syrians. So far, just one appeal case by a Syrian has been rejected.

The appeal decisions are significant because they shatter the illusion that had given the accord its legal veneer – the principle that Turkey is “a safe third country”, one that even genuine asylum seekers can be returned to without running foul of international refugee law.

Claims backlog

On the basis of this bogus principle, around 200 migrants and refugees, mostly Syrians, have been told they can’t have their asylum claim considered in Greece – the claims are officially inadmissible – and they’ll be returned to Turkey. They have five days to lodge appeals with the Greek Asylum Service.

To date, just over 400 people have been returned to Turkey under the agreement (while during April and May another 5,000 migrants and refugees arrived in Greece from Turkey).

Tellingly, none of those returned were Syrians or other nationalities rejected on the basis of inadmissibility. Most were individuals who had not applied for asylum, or who withdrew their applications after deciding that even returning to Turkey was preferable to being detained in Greece.

According to the Greek Asylum Service, 7,000 of around 8,500 migrants on the Greek islands are still waiting for initial interviews. Greece can only detain people in closed detention centres for 28 days, but even after they’re released they can’t leave the islands. The atmosphere is increasingly tense.

“At these camps [on the islands], there’s not enough security; there are riots, hopelessness; there’s not enough to eat,” said Karl Kopp of Pro Asl. “People still have no clue what is happening and there aren’t enough lawyers available.”

Legally unsound

Dozens of “experts” from the European Asylum Support Office have been deployed to the islands to support overwhelmed Greek officials. According to a spokesperson with the office, EASO officials conduct interviews to assess the admissibility of applicants and then forward their opinions to the Greek Asylum Service, which is responsible for taking final decisions.

Kopp said that while EASO officials couldn’t take final decisions, they do still influence their outcome by repeating the mantra that Turkey is a safe third country.

But even before the ink was dry on the EU-Turkey agreement (it was finalised on 20 March), there was plenty of evidence that it wasn’t. In the past two months there have been numerous documented cases of Turkish guards shooting and killing Syrians attempting to cross the border. In addition, despite guarantees that those returned to Turkey would have access to asylum procedures there, returnees have instead been detained in remote camps with no access to lawyers.

Maria Stavropoulou, head of the Greek Asylum Service, told IRIN that more returns are scheduled in the coming days and weeks, but civil society groups like Pro Asyl and the Greek Council for Refugees have vowed to go through the courts to try to suspend removals. In the case of the one Syrian man whose appeal was rejected on Thursday, Kopp said his organisation has applied to the European Court of Human Rights in Strasbourg to prevent his deportation. If successful, the case could set another deal-breaking precedent.

Political fallout

While it may take months for European courts to expose legal flaws in the EU-Turkey agreement, the deal could die a much quicker death if Turkey decides to pull out.

In early May, Turkish President Recep Tayyip Erdoğan sacked his prime minister, Ahmet Davutoglu, who had helped negotiate the deal with the EU. In recent weeks, Erdoğan has repeatedly expressed his displeasure at the slow pace of a process to grant Turkish citizens visa-free access to Europe – a key incentive for Turkey’s cooperation on migration.

The target date for the visa waiver was 1 June, but “technical talks” have just begun and Ankara must still comply with a list of 72 requirements, including reforms of its anti-terror legislation, which allows it to prosecute academics and journalists. Erdoğan has already made it clear that he is not willing to make the necessary reforms. He has also complained that the EU is yet to hand over three billion euros to help support Syrians refugees: another component of the agreement.

In yet another potential blow to the deal, the German parliament on Thursday voted to recognise the 1915 massacre of 1.5 million Armenians by Turkish-Ottoman forces as genocide. Turkey responded by quickly recalling its ambassador.

German Chancellor Angela Merkel was a key architect of the deal with Turkey and is likely to be the biggest political loser if it fails and large-scale refugee movements to Europe resume this summer. In 2015, Germany received by far the largest share of asylum seekers who crossed the Aegean from Turkey.

For now, the prospect of detention in Greece, combined with the border closures in the Balkans that preceded the EU-Turkey deal, have been enough to deter all but the most desperate from attempting the Aegean route. But more than 10,000 migrants arrived by boat to Italy in the last week of May and Europe’s so-called refugee crisis is far from over. Policymakers are in urgent need of a Plan B.

IRIN