Potentially a ‘momentous’ deal, argues Solon Ardittis, but the EU-Turkey agreement on a refugee swap must pass some serious legal hurdles first.
Solon Ardittis is Director of Eurasylum, a European research and consulting organisation specialising in migration and asylum policy on behalf of national public authorities and EU institutions. He is also co-editor of “Migration Policy Practice”, a bimonthly journal published jointly with the International Organization for Migration (IOM).
“The days of irregular migration to Europe are over” said President Donald Tusk in the wake of the EU-Turkey Summit of 7 March. Despite growing criticism by UN and NGO groups, it is difficult not to acknowledge that the draft EU-Turkey agreement on Syrian refugees is indeed one of the most momentous decisions by EU leaders on the refugee crisis to date.
The main tenet of the agreement builds on the “one in, one out” system, whereby for every Syrian in an irregular situation readmitted by Turkey from the Greek islands, another Syrian will be resettled from Turkey to the EU. The underlying principle is that this scheme will prevent Syrians from resorting to ruthless smugglers to cross the Aegean Sea and that a legal and safe route for entering the EU will be established.
Leaving aside considerations relating to the cost of the new plan (possibly an extra €3bn to the €3bn already agreed in November 2015) and to other forms of compensation for Turkey (lifting the visa requirements for Turkish citizens by the end of June 2016 and speeding up the opening of new chapters in the accession negotiations), the draft agreement, which must still be finalised by the next summit on 17 March, raises at least three questions.
The first, which is also the one that has been singled out as the greatest cause of concern for the UN Refugee Agency and NGOs, relates to the type of legal treatment that ‘returnable’ Syrians arriving on Greece’s shores will receive. Will they still be registered and fingerprinted and when an asylum claim is lodged, will it be duly processed? For the plan to succeed on all fronts, including on the basis of international law, it will of course be key that the final agreement clarifies this point, especially since the collective expulsion of foreigners is prohibited under the European Convention of Human Rights and that Turkey maintains a geographical limitation that excludes from protection anyone not originally from a European country.
The second question is about the number of Syrians that the EU would end up resettling. There are currently some 34,000 refugees stranded in Greece and some 2,000 new migrants arrive every day (a number which is likely to rise come spring). Assuming that at least 90% of them would be returnable under the EU-Turkey agreement, and assuming also that the flow of arrivals would be halved once the agreement becomes effective, this would mean at least 324,000 Syrian refugees to be resettled from Turkey to the EU each year (from a stock of almost 3 million Syrian refugees currently based in Turkey). This figure must be compared with Europe’s commitment in 2015 to resettle 20,000 refugees over two years on a voluntary basis – a commitment which, by mid-January this year, had only resulted in fewer than 800 people being brought to Europe. It must also be compared with the EU plan to relocate refugees from Greece and Italy to other EU member states: as of 8 March 2016, only 6,930 places, out of the planned 160,000, had been made available.
If member states can still not demonstrate their ability to fulfill their obligations to relocate the agreed number of refugees from within their own borders, how auspicious can a much more ambitious plan to relocate over 300,000 refugees from outside the EU borders each year be? The point should also be made that the Syrian refugees to be resettled under the EU-Turkey agreement cannot become a trade-off against those who will spontaneously seek asylum in Europe from outside this resettlement quota.
The third question relates to the criteria on the basis of which Syrians eligible for resettlement to the EU will be selected, including in terms of security screening. While the draft agreement provides that Syrians who attempt to reach Europe illegally will be put on the bottom of the list for resettlement, it also suggests that the numbers to be resettled in each member state will be established on a voluntary basis. Therefore, can it be assumed that each member state would set its own criteria and would this not lead potentially to a discriminatory selection of Syrian refugees based for example on age, education, skills and other considerations? And judging from recent history, how will the EU be able to comply with its obligations to resettle such a high number of refugees when, at member state level, the scheme would only be operated on a voluntary basis?
These are some of the key questions raised by the draft EU-Turkey agreement in its current form. However, save for all the necessary clarifications and practical provisions to ensure conformity with EU and international law, and to address the possible contradiction between the compulsory nature of the resettlement plan at EU level, and its voluntary nature at member state level, the EU-Turkey agreement remains one of the most propitious initiatives to address the refugee crisis to date.