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What Impact of the EU/Turkey Readmission Agreement upon Detention of Irregular Migrants?

Emanuela Pistoia

The readmission and the transit procedures established in the EU-Turkey Readmission Agreement (RA), which is key for a more effective migration and border management for both parties, are likely to result in the detention of concerned migrants; likewise, they are likely to apply to individuals who are detained in the sending State in view of being repatriated. Yet the RA contains no provision on detention of irregular migrants in the process of being returned to their countries of origin after their transfer from the EU to Turkey or the other way around. The RA limits itself to establish a non-affection clause (art. 18), under which it is without prejudice to the European Convention of Human Rights (ECHR) whose art. 5 does not allow detention for asylum seekers and for aliens if not in the process of being expelled. The non-affection clause also covers the 1984 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The purpose of the present paper is to investigate issues arising from the application of the RA despite (and sometimes by reason of) the non-affection clause, which should hopefully be handled by the Joint Readmission Committee entrusted with monitoring such application (art. 19(1)). One issue is the possible application of the Strasbourg Court's theory on the par ricochet protection, i.e. the responsibility of the State which handed over an irregular migrant to another State should the latter act in breach of art. 5 ECHR, under certain conditions. Another issue is about the possible application in Turkey of standards of protection which prove lower than in the Returns Directive as interpreted by the EU Court of Justice, for example with regard to places of detention (Bero, Joined Cases C-473/13 and 514/13 and Thi Ly Pham, Case C-474/13).

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