6. Juni 2016
The EU-Turkey Refugee Deal of 18 March 2016, released as a “statement” of the members of the European Council, is drawing criticism from all sides. Members of all political groups in the European Parliament have expressed their discontent with the flawed agreement for different reasons. The political right objects the agreed visa liberalisation for Turkey, as well as the promised allocation of a total of 6 Billion Euros to the oppressive Edogan regime and the opening of new chapters regarding Turkey’s accession to the EU. For the political left the Deal constitutes an immoral violation of European and International law, as it foresees the return of all refugees from the Greek islands back to Turkey under the “safe third country concept”, despite the fact that Turkey has never ratified the Geneva Refugee Convention and its protocols, lacks fundamental safeguards for refugees and by deporting people to Syria violates the principle of non-refoulement.
Still, the European Commission and the European Council are trying to promote the EU-Turkey Deal as a necessary step to reduce the migration flow to the EU and target the people smugglers’ business model. They stress that the Deal is designed to provide safe and legal entry for refugees as well as relief for Turkey by applying the 1:1 scheme, under which the EU is obliged to resettle, for every Syrian readmitted from Greek islands, another Syrian from Turkey to the Member States. According to the Commission, this 1:1 scheme “aims to quickly replace irregular flows of migrants travelling in dangerous conditions across the Aegean by an orderly and legal resettlement process”.
Safe passage for a few… but no new commitments
Taking a closer look on the 1:1 scheme and its implementation, it becomes clear that the Deal offers migrants no real alternative to putting their lives at risk, but instead aims at keeping the EU Member States’ obligation to accept persons in need of international protection as low as possible. In complete ignorance of the protection needs of all other nationalities, safe passage to the EU under this Deal will be offered to Syrian nationals only, and only conditional to the number of Syrians the EU can send back from the Greek Islands. As the number of new arrivals to Greece due to the current policy of deterrence has already decreased by a great extent, it is assumed that the number of returns from Greece to Turkey will soon be going down as well. As a result, the number of persons the EU will be obliged to resettle under the 1:1 scheme might in the end be quite insignificant.
Moreover, the EU Heads of State and Government agreed to resettle Syrians from Turkey to the Member States only „within the framework of the existing commitments“. These „existing commitments“ consist of 18.000 resettlement places left of 22.504 places pledged by the Member States on 20 July 2015, and another 54.000 so-called „non-allocated relocation places“ under the Council Decision (EU) 2015/1601 of 22 September 2016, establishing the emergency relocation mechanism for the benefit of Greece and Italy. Accordingly, the maximum number of persons the EU has so far agreed to resettle from Turkey is 72.000 – a number that is ridiculously low considering that Turkey, a country with a slightly smaller population than Germany, is already hosting over 3.1. Million registered refugees, and faces new arrivals every day.
Turning binding relocation places into admission places of any kind
In order to make the 54.000 „non-allocated relocation places“ available for the implementation of the EU-Turkey Deal, an amendment of the Council Decision (EU) 2015/1601 is necessary. In its current form this Council Decision obliges the Member States to relocate 120.000 applicants for international protection from Italy and Greece according to a fixed quota system. Of the 120.000 applicants to be relocated under this decision, 50.400 are supposed to be relocated from Greece, and 15.600 are to be relocated from Italy. The remaining 54.000 places were originally foreseen for the relocation of asylum seekers from Hungary, which rejected this offeropposing the introduction of a binding relocation scheme in general. Pursuant to Article 4(3) of the Council Decision, the Commission should make a proposal to allocate these places to another beneficiary Member State confronted with an emergency situation characterised by a sudden inflow of persons. Otherwise, these places would benefit Italy and Greece.
In the EU-Turkey Deal, however, it was decided that these 54.000 places are to be offset from the relocations scheme and used for resettlement from Turkey. Accordingly, the European Commission proposed an amendment to this Council Decision only a few days after the release of the EU-Turkey statement. This proposal not only provides for the conversion of the concerned 54.000 relocation places into places available for resettlement,but reaches even further as it aims to turn the 54.000 relocation places into any sort of admission places from Turkey. According to the new Commission proposal, any type of admission of Syrian nationals present in Turkey who are in clear need of protection, shall lead to a reduction of the obligation of the respective Member State to relocate asylum applicants from Greece and Italy. This shall explicitly include “humanitarian transfer, family reunification programmes, private sponsorship projects, scholarship programmes, labour mobility schemes, and other”.
In practice, this would mean that EU Member States could fulfil their „resettlement“ obligation by issuing work or student visa for well-educated Syrians, or by receiving Syrians they are already obliged to admit according to their national rules and legislation on family reunification, and still receive the 6.000 Euros foreseen for “relocation” cases under the Asylum Migration and Integration Fund (AMIF) for every person admitted. In contrast to their current obligation to relocate a certain quota of Syrians, Iraqis and Eritreans from Italy and Greece in addition to their obligation to issue family reunification visa to those having a right to join their anchor family member who was granted a refugee status in the EU, Member States after the amendment of the Council Decision will be able to fulfil their relocation obligations by processing cases of family reunification. This way, they can reduce the number of applicants they will have to accept, to a great extent. Particularly Germany could profit highly from this new approach, as the country still has to deal with a backlog of family reunification cases from 2015 that might well exceed the number of refugees it would be obliged to accept under the relocation scheme as it is currently in place.
No decision making power for the European Parliament
For the moment, this concept is just a proposal, but the Commission is pushing for an amendment of the Council Decision sooner rather than later. As with the original Council Decision (EU) 2015/1601, the Decision’s amendment will take place as an emergency procedure according to Article 78(3) of the Treaty on the Functioning of the European Union (TFEU). Article 78(3) TFEU allows, as an exemption from the usual joint decision-making power, a Council Decision without the consent of the European Parliament, which must only be consulted. Such an emergency procedure according to Article 78(3) TFEU is possible in the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries. Despite it being highly questionable whether these requirements are fulfilled, the Parliament, as the only institution of the European Union to have any democratic legitimacy, is again completely sidelined in the procedure.
Solidary ‘burding sharing’ and safe and legal entry remain empty promises
On a practical level, the intended amendment of the relocation Decision will not make a great difference. After all, in EU politics, it is not what has been agreed on that counts, but what the EU Member States are willing to implement. The Council Decisions on relocation might have been a success on the policy level, but a great failure in practice, as the number of relocated persons – despite the binding character of the decision – remains shamefully low. The last months have shown that the Member States are not just unwilling to make any new commitments when it comes to the admission of refugees, but are not even ready to comply with their previously agreed obligations. Instead, they are pushing for the externalisation of European border control and let other countries deal with the largest refugee crisis since the Second World War.
Under these conditions, expectations regarding the participation of EU Member States in the Voluntary Humanitarian Admission Scheme, which is supposed to be activated once irregular crossings to the EU have been reduced substantially and sustainably, should be kept at a very low level. And one can comprehend the Commission’s justification for its amendment proposal, arguing that the Members States’ lacking willingness to meet their humanitarian obligations in this regard can only be encountered by creating the greatest possible incentive for them to consider the admission of refugees to their territory. However, the symbolic effect of this proposal should not be underestimated. At a time when 44.000 refugees and migrants are stranded on the Greek mainland waiting to be relocated to other EU Member States, the Commission is proposing to turn binding relocation places, which had been the result of a difficult negotiation process in September 2015 and the first step towards a solidary burden sharing mechanism, into voluntary admission places of any kind. In doing so, it buries all hopes for the promotion of the relocation process – and offers the Council a ‘cheat package’ on a silver platter.