According to UN figures more than 886,000 refugees and migrants have arrived in Europe this year alone by sea. In a desperate bid to take control of the current turmoil caused by the problems in the Middle East, the EU last week struck a deal with Turkey to help stem the flow of refugees into Europe via the Greek islands. In return for funding in the sum of of £2.1 billion and the promise of visa-free travel to EU's Schengen zone by October 2016, Turkey has agreed to welcome the refugees and clamp down on its borders. EU leaders have also sought to encourage Turkey by promising new talks on its EU accession.
From a geopolitical perspective, Turkey's position is vital as it serves as a bridge connecting migrants fleeing conflict zone territories, namely Syria and Iraq, to Europe. In the face of the recent alleged connections between the terrorist attacks in Paris and Syrian refugees, EU leaders have become increasingly concerned about the need to identify genuine refugees and as a result, the European Council President, Donald Tusk, has recently called for the detention of all arriving refugees for a period of 18 months.
Detention is defined by the United Nations to signify confinement in prison, closed camp or other restricted area, such as a reception or a holding centre. According to Article 31 of the 1951 Convention Relating to the Status of Refugees, "illegal entry legitimises a state to detain an asylum seeker between the periods of forty-eight hours and eighteen months".
EU sources have suggested that the terms currently being offered to Turkey are dependent upon Turkey being able to successfully curb the flow of migration.
In the aftermath of the EU-Turkey deal on the migration crisis, Turkish authorities have already detained nearly 3,000 people, mainly nationals of Syria and Iraq, on their way to Europe via the Greek Island of Lesbos. According to reports from the Dogan news agency, some of those detained could also face deportation.
The use of detention has been widely criticised by the international community for a number of reasons. Firstly, it deprives genuine refugees of an opportunity to present their case or seek legal advice. This is particularly so in the case of Hungary, who according to Human Rights Watch, detains refugees in centres where they have to live in appalling conditions; and Australia where refugees are held in remote conditions far way from any access to legal representation. Secondly, detention can be very costly. According to Human Rights First, it was estimated in 2014 that the annual cost of running offshore detention centres housing 2,200 asylum seekers in Australia hit $1 billion AUD.
The detention of refugees as a security measure also contradicts terms enshrined in international law. UNHCR' clear position is that the detention of asylum seekers and refugees should be avoided if at all possible. An individual's right to liberty and to be free from arbitrary detention is of course enshrined in a number of international human rights instruments.
Article 31 of the Refugee Convention strengthens the position for refugees and asylum seekers further. Not only does it prevent a contracting state from punishing them on account of their illegal entry (assuming they present themselves to the relevant authorities without delay and show good cause) but it also prevents contracting states from imposing restrictions on them that are not necessary. Furthermore, any such instruction can only be imposed until their status is fully determined or they gain entry in another country.
EU leaders are split over the solution to the migration crisis. Tusk has consistently opposed Angela Merkel's plans to introduce a mandatory refugee-funding regime as a perilous open-door policy. Merkel insists that the survival of EU's free-travel area is dependent on a sustainable agreement between national governments on a joint programme for the sharing of refugees. Wide resistance to Merkel's foreign policy objectives in Europe has led her to press ahead for a fast-track deal in a secret mini-summit with seven other EU leaders to bring up to 500,000 Syrian refugees into the EU directly from Turkey.
The political divide between EU leaders may come at a price for Syrian and Iraqi refugees, as the outcome of negotiations could lead to prolonged detention resulting in refugees' human rights being endangered.
In the meantime, before the EU-Turkey deal is concluded, reports from Human Rights Watch have highlighted that the Turkish authorities have been making efforts to deny entry to Syrians at the border, despite a newly released UNHCR Guidance Note on International Protection concerning the deteriorating human rights situation in Syria. Tusk has implied that most of the refugees reaching Europe are irregular migrants who should be turned back. According to the International Organisation for Migration, nearly two-thirds (64%) of people crossing from Turkey into the EU via the Greek islands by October 2015 were Syrians. Official figures confirmed some 388,000 Syrians out of a total of 608,000-recorded migrants. A quarter of those were children.