9 A voluntary humanitarian admission
scheme for Syrian refugees in Turkey
| Committee's assessment |
Legally and politically important |
| Committee's decision | Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
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| Document details | Commission Recommendation of 11.01.2016 for a voluntary humanitarian admission scheme with Turkey
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| Legal base | Article 292 TFEU
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| Department | Home Office |
| Document Numbers | (37454), 15428/15, C(15) 9490
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Summary and Committee's conclusions
9.1 The International Organisation for Migration (IOM) and the
UN Refugee Agency (UNHCR) estimate that there are more than 2.5
million Syrian refugees in Turkey.[27]
The numbers are expected to increase as the conflict in Syria
intensifies. The pressures, although less intense, are also being
felt within the European Union. More than one million migrants,
many seeking international protection, entered the EU irregularly
in 2015, with most crossing the Aegean Sea from Turkey to Greece.[28]
There has been no respite in 2016, despite the winter conditions.
By early February, the EU had received nearly 80,000 new arrivals
(more than 70,000 in Greece) at a cost of more than 400 lives
since the beginning of the year.[29]
9.2 The Commission Recommendation, which is not legally
binding, invites Member States to participate in a voluntary humanitarian
admission scheme with Turkey. The scheme has a dual purpose: to
encourage a sustainable reduction in the number of irregular border
crossings from Turkey to the EU by offering "an orderly,
managed, safe and dignified" passage to the EU for up to
80,000 displaced Syrians in Turkey each year. Syrians entering
the EU under the humanitarian admission scheme would be entitled
to remain in their host Member State for at least one year. Although
Member States are under no obligation to participate in the scheme,
the Commission envisages that there should be an equitable distribution
which takes into account each Member State's capacity to receive
and integrate individuals in need of protection, as well as population
size, GDP, unemployment rate and past asylum efforts.
9.3 The Minister for Immigration (James Brokenshire)
notes that the Commission Recommendation is not politically or
legally binding on Member States and cannot impose mandatory quotas
for the admission of displaced Syrians. He adds that "there
is no competence in the EU Treaties for the EU to act on resettlement
and this should be left to Member States". He does not consider
that the resettlement measures proposed by the Commission "are
the answer to the migratory pressures in the region".
9.4 We are disappointed that the Minister's Explanatory
Memorandum does not deal more comprehensively with the political
and legal aspects of the Recommendation. Whilst we agree with
his analysis that Recommendations have no legally binding force,
he also acknowledges that there is an expectation that Member
States will participate in the humanitarian admission scheme with
Turkey on a voluntary basis. The Minister tells us that the Government
opposes "binding EU quotas" and that resettlement schemes
"are best decided at national level". We therefore infer
that the Government does not intend to take part in the scheme.
We ask the Minister to confirm whether this is the case and to
explain the Government's reasons more fully, given that the Recommendation
does not set binding quotas, appears to be consistent with the
Government's policy of resettling Syrians from the region (before
they reach EU shores), and is intended to contribute towards a
sustainable reduction in the number of irregular border crossings
from Turkey to Greece. We also ask the Minister to tell us:
· How
many EU Member States and Schengen associated countries are expected
to participate in the scheme;
· Whether
common processing centres have been established in Turkey and
standard operating procedures for processing candidates for humanitarian
admission agreed (on the latter, the Recommendation set a deadline
of 11 February); and
· Whether
the Government would support the proposed use of the Flexibility
Instrument to fund the humanitarian admission scheme and what
the financial implications would be for the UK.
9.5 We note the Government's view that "resettlement
measures, as proposed by the European Commission, are not the
answer to the migratory pressures in the region". The Government
also opposes EU measures for the relocation of individuals in
clear need of international protection who are already present
in the EU from frontline to other Member States. We ask the Minister
whether he sees any role for the EU in establishing safe and legal
routes to the EU, either through resettlement or humanitarian
admission schemes, and in implementing the principle of solidarity
and fair sharing of responsibility for those individuals in need
of protection who are already within the EU.[30]
We remind him that we await a response to our Sixteenth Report,
agreed on 6 January, which asked for further information on the
progress being made across the EU to meet the resettlement targets
agreed by Member States last July.[31]
9.6 Turning to the legal aspects of the Recommendation,
the Minister tells us that "there is no competence in the
Treaties for the EU to act on resettlement and this should be
left to Member States". He also says that the UK's Title
V (justice and home affairs) opt-in does not apply as the Recommendation
is not binding and "could not be said to be proposed 'pursuant
to Title V" as the Commission is not claiming competence
for the EU to act.
9.7 As regards competence, the Recommendation
is based on Article 292 of the Treaty on the Functioning of the
European Union (TFEU) which confers a general power on the Commission
to adopt recommendations. This power is subject to the principle
of conferral, meaning that the Commission may only adopt recommendations
in areas where the EU has competence to act under the EU Treaties.
This view is reinforced by Article 288 TFEU which states expressly
that the adoption of legal acts (including recommendations) by
the EU institutions shall be "to exercise the Union's competence".
We ask the Minister to explain, first, whether he makes any distinction
between humanitarian readmission and resettlement and, second,
why he considers that the EU lacks competence on either or both,
with particular reference to Article 78(2)(g) TFEU which provides
for the adoption of measures on "partnership and cooperation
with third countries for the purpose of managing inflows of people
applying for asylum or subsidiary protection".
9.8 The Minister will recall our consistent view
that the UK's Title V opt-in only applies to measures which cite
a Title V legal base. The Government's view that the UK's Title
V opt-in does not apply in this case sits uneasily with its broader
policy that "JHA content" rather than legal base is
the trigger for the application of the UK's Title V opt-in.
9.9 Finally, the Recommendation was only deposited
at the request of the Scrutiny Committees. It is imperative that
the Government brings documents of this nature — which are
clearly pertinent to the EU's handling of the migration and refugee
crisis — to the attention of the House swiftly, without
our prompting. In a similar spirit, we draw this chapter to the
attention of the Home Affairs Committee.
9.10 The Recommendation remains under scrutiny
pending the Minister's reply.
Full details of
the documents: Commission
Recommendation of 11.01.2016 for a voluntary humanitarian admission
scheme with Turkey: (37454), 15428/15, C(15) 9490.
Background
9.11 In June 2015 the Commission adopted a Recommendation
providing for the resettlement over a two-year period of 20,000
individuals currently outside the EU who are in clear need of
international protection. Its purpose was to address the "significant
imbalance" in the efforts made by Member States to provide
a safe haven at a time when the number of refugees, asylum seekers
and internally displaced people (for the first time since the
Second World War) exceeded 50 million.[32]
As Recommendations are not legally binding, they depend for their
implementation on the voluntary cooperation of Member States.
9.12 At a meeting of the European Council shortly
afterwards, EU leaders agreed that all Member States should take
part in resettlement "through multilateral and national schemes",
with their contribution reflecting their "specific situations".[33]
In July, all 28 EU Member States (plus Iceland, Norway, Switzerland
and Liechtenstein) collectively agreed to resettle a total of
22,504 individuals in need of international protection —
the commitment made by the UK was to resettle 2,200.[34]
The Prime Minister confirmed in September that the UK would offer
resettlement for "up to" 20,000 Syrian refugees from
camps bordering Syria "over the rest of this Parliament".[35]
9.13 The latest Commission Recommendation is intended
to supplement these pledges. It is presented as a "flanking
measure" to the commitments contained in the EU/Turkey Joint
Action Plan which was activated at a Summit of EU leaders and
Turkey's President Erdogan in November. The Action Plan seeks
to assist Turkey in managing "the massive influx of refugees
and preventing uncontrolled migratory flows from Turkey to the
EU".[36] The EU
has also established a €3 billion Refugee Facility to coordinate
the provision of support for Syrian refugees and their host communities
in Turkey — €1 billion will be financed from the EU
budget, the remaining €2 billion from Member State contributions
(€327.6 million from the UK).[37]
The Commission Recommendation
9.14 The Recommendation establishes a voluntary humanitarian
readmission scheme for individuals displaced by the conflict in
Syria who are in need of international protection. The objective
is to establish "orderly, managed, safe and dignified"
passage to the EU and to reduce the incentive for "dangerous
and irregular migration".[38]
Conscious of the risk that the introduction of a new scheme may
create a "pull factor", the Recommendation specifies
that it will only apply to those who registered with the Turkish
authorities before 29 November 2015.
9.15 Participation in the scheme is voluntary and
open to all EU Member States and countries associated with Schengen
(Iceland, Norway, Switzerland and Liechtenstein). Although the
Recommendation itself does not stipulate how many individuals
should be admitted or how long the scheme should last, the Commission's
accompanying Financial Statement sets an upper limit of 80,000
a year (reflecting UNHCR's capacity to process resettlement cases)
over a five-year period from 2016 to 2020. Whilst it will be for
each participating State to decide how many individuals to admit,
the Commission makes clear that the scheme is intended to create
"a system of solidarity and burden sharing" with Turkey
which should reflect each State's capacity to receive and integrate
refugees, population size, GDP, unemployment rate and past asylum
efforts.[39] Moreover,
the scheme should operate "flexibly" and take account
of the following factors:
· the
overall number of displaced Syrians staying in Turkey;
· evidence
of a sustainable reduction in irregular border crossings from
Turkey to the EU; and
· the
processing capacity of UNHCR.
9.16 Decisions adjusting the numbers to be admitted
should be based on regular monitoring reports produced by the
Commission and by a special Joint Committee (with representatives
from participating States, Turkey and the Commission) established
to monitor the overall implementation of the scheme. The scheme
can be suspended with immediate effect or the number of admissions
reduced if participating States collectively conclude that Turkey
has failed to ensure a sustainable reduction in irregular border
crossings.
9.17 The Recommendation sets out the main steps to
be followed in identifying candidates for humanitarian admission.
They include medical and security checks, a vulnerability assessment
and consideration of possible family links in States participating
in the scheme. It mandates the European Asylum Support Office
(EASO) to develop "standardised operating procedures"
in consultation with UNHCR, the IOM and participating States which
should be adopted no later than 11 February. Whilst the final
decision on admission rests, in each case, with each participating
State, the Recommendation envisages a pooling of effort to streamline
selection and admission procedures — this could involve
the use of common processing centres or mobile teams, with officials
working collaboratively on behalf of one or more participating
States. The admission procedure should be completed within six
months, making it faster and less resource intensive than conventional
resettlement schemes which take around 12 months.
9.18 Individuals qualifying for humanitarian admission
are entitled to remain in their host State for at least one year
and are granted "subsidiary protection" status. This
ensures protection against refoulement (return to a country
where they may be at risk of persecution or serious harm), access
to accommodation, employment, training, education, integration
programmes, "core" social welfare benefits and healthcare.[40]
To deter secondary movements, the Recommendation makes clear that
these rights can only be enjoyed in the host State (the State
providing humanitarian admission). Information on the rights and
obligations of those granted humanitarian admission, as well as
"pre-departure cultural-orientation support", will be
made available prior to admission.
9.19 The Recommendation suggests that, once the voluntary
humanitarian readmission scheme with Turkey is up and running,
the commitments made by EU leaders last July to resettle 22,504
individuals in need of international protection should focus on
Lebanon and Jordan.[41]
9.20 The Financial Statement accompanying the Recommendation
indicates that humanitarian readmission falls within the scope
of the EU Asylum, Migration and Integration Fund. It estimates
that €4.2 billion will be needed to fund the humanitarian
scheme if it operates at maximum capacity (80,000 individuals
a year over five years) and that €133 million will be needed
to set up and operate joint processing centres in Turkey. The
Commission anticipates that it will be necessary to mobilise the
Flexibility Instrument — established in 1999 to meet unforeseen
needs or new priorities under one or more expenditure headings
— in order to secure the necessary EU funding as the margin
for expenditure under the relevant budget heading has been exhausted.[42]
The Minister's Explanatory Memorandum of 1 February
2016
9.21 The Minister notes that Turkey is "a major
refugee hosting country" and that many displaced Syrians
"have seen their stay in Turkey become protracted due to
the ongoing conflict".[43]
Although the humanitarian admission scheme proposed by the Commission
is voluntary and cannot impose mandatory quotas, there is an expectation
that Member States will participate.
9.22 The Minister notes that the Recommendation "is
not politically or legally binding on Member States" and
that the Government has deposited it in Parliament "to assist
the Scrutiny Committees with their consideration of the Agenda
on Migration".[44]
Whilst acknowledging that asylum policy is transnational in nature
and that competence to act in this field is shared between the
EU and Member States, he adds:
"However, there is no competence in the
Treaties for the EU to act on resettlement and this should be
left to Member States."
9.23 The Minister explains that the UK's Title V
(justice and home affairs) opt-in does not apply as:
"The Commission Recommendation is not binding
on Member States and is not claiming competence for the EU to
act in this area so the Recommendation could not be said to be
proposed 'pursuant to Title V'."[45]
9.24 Turning to the substance of the Recommendation,
the Minister comments:
"The Government shares the Commission's
desire to assist the region which is playing host to an unprecedented
number of displaced individuals who have fled the Syria conflict,
as well as wider migratory pressures. We are committed to assisting
through an effective and sustainable response which includes resettlement.
The UK has one of the largest and longest running resettlement
programmes in the EU with 6,600 individuals resettled under Gateway
since 2004. We have resettled 1,000 Syrian refugees under the
Syrian Resettlement Scheme since September 2015 and are currently
on track to resettle a total [of] 20,000 Syrian refugees by 2020.
The Government clearly supports targeted resettlement as part
of a wider asylum management policy and is already playing a significant
part in resettlement efforts, including resettling the most vulnerable
from countries in the region, which includes Turkey. The Government
is of the view that resettlement schemes are best decided at national
level and is opposed to binding EU Quotas."[46]
9.25 He sets out the action taken by the UK to respond
to the humanitarian crisis in Syria:
"In addition to resettlement, the UK has
pledged over £1.1 billion in response to the humanitarian
crisis in Syria to date as part of a comprehensive response to
the crisis. We have allocated £561 million to support those
inside Syria and £559 million to support refugees in the
region — including in the Lebanon (£304 million), Jordan
(£193 million) and Turkey (£34 million).
"The UK is also contributing up to £275
million over the next two years as part of Europe-wide efforts
to help Turkey address the consequences of the Syria conflict.
This will fund schools, hospitals and housing to meet the needs
of the refugees. The UK does not believe that resettlement measures,
as proposed by the European Commission, are the answer to the
migratory pressures in the region.
"There is much in the wider EU agenda on
migration that the Government supports and the UK already plays
a leading role in delivering key elements of the Commission's
proposals, including the deployment of UK vessels in the Mediterranean,
support for a new mission to tackle people smugglers in North
Africa and Europol's 'JOT Mare' initiative on organised
immigration crime.
"We are providing practical support for
joint EU efforts in countries of origin and transit; for example
the 'Khartoum Process', which is focused on tackling people smuggling
and trafficking in the Horn of Africa, and via EU Regional Development
and Protection Programmes (RDPPs). The UK also has a strong record
of showing solidarity by supporting Member States under pressure
from migration flows, both bilaterally and under the co-ordination
of EU Agencies such as the European Asylum Support Office (EASO).
Over the last three years the UK has deployed Home Office officials
to every major EASO capacity building operation, in countries
such as Greece, Italy, Bulgaria and Cyprus. The UK has provided
£46 million of funding to the Europe-wide response to help
the most vulnerable, including children and infants, arriving
in Europe and fleeing the Syrian Conflict."[47]
9.26 The Minister says that the Recommendation entails
no direct costs for the UK and notes that the Commission intends
to make appropriate financial means available from 2016-20.
Previous Committee Reports
None, but Reports on an earlier Commission Recommendation
on a European resettlement scheme are relevant: Second Report
HC 342-ii (2015-16), chapter 6 (21 July 2015) and Sixteenth Report
HC 342-xv (2015-16), chapter 10 (6 January 2016).
27 See the IOM Regional Response to the Syria Crisis 2015
and UNHCR's Syria Regional Refugee Response. Back
28
See the IOM's Mediterranean Update showing the number of arrivals
in 2015. Back
29
See the IOM's Mediterranean Update containing data up to 8 February
2016. Back
30
Article 80 TFEU provides that EU policies on asylum and immigration
shall be governed by the principle of solidarity and fair sharing
of responsibility, including its financial implications, between
the Member States. Back
31
See our Second and Sixteenth Reports listed at the end of this
chapter. Back
32
See recitals (3) and (4) of the Commission Recommendation, reported
in our Second Report HC 342-ii (2015-16), chapter 6 (21 July 2015)
and our Sixteenth Report HC 342-xv (2015-16), chapter 10 (6 January
2016). Back
33
See European Council Conclusions 25/26 June 2015. Back
34
See the Conclusions on resettlement agreed by the representatives
of the Governments of the Member States meeting within the Council
on 20 July 2015. Back
35
Hansard, 7 September 2015. Back
36
See the Commission's fact sheet on the EU/Turkey Joint Action
Plan as well as our Sixth Report HC 342-vi (2015-16), chapter 1
(21 October 2015). Back
37
See the Commission's press release on the Refugee Facility for Turkey. Back
38
See recital (4) of the Recommendation. Back
39
See recital (3) and para 4 of the Recommendation. Back
40
The rights enjoyed by individuals entitled to subsidiary protection
status are set out in Directive 2011/95/EU - the so-called "Qualifications
Directive". Back
41
According to UNHCR data, Lebanon (population 4.5 million) hosts
approximately 1.5 million displaced Syrians - nearly one in three
of Lebanon's current population is displaced from Syria or a Palestinian
refugee. Lebanon's population has grown by more than 30% in less
than five years. Jordan (population nearly 7 million) hosts approximately
640,000 displaced Syrians. Back
42
For the 2014-20 funding period, funding is capped at a maximum
of €471 million a year. Back
43
See para 3 of the Minister's Explanatory Memorandum. Back
44
See para 11(i) of the Minister's Explanatory Memorandum. Back
45
See para 14 of the Minister's Explanatory Memorandum. Back
46
See para 15 of the Minister's Explanatory Memorandum. Back
47
See paras 16-19 of the Minister's Explanatory Memorandum. Back
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