Pragmatism versus Principle: The ‘Dutch Plan’ as the new EU migration response?

On 28th January 2016, Dutch Labour Party leader Samson, in an interview with a Dutch newspaper, outlined a proposal on how to solve Europe’s migrant and refugee crisis. The proposal is reportedly backed by the Dutch Prime Minister Rutte. The Government of the Netherlands – currently holding the European Union’s (EU) presidency and determined to book progress in the EUs dealing with the refugee crisis – is currently gathering support among like-minded EU member states, such as Germany, Sweden and Austria.

According to this plan, migrants and refugees who arrive in Greece would be returned to Turkey almost immediately (within a few days) by ferry. In exchange, EU member states each year would accept between 150,000 and 250,000 refugees who are residing in Turkey. The idea is to discourage refugees and migrants from taking the dangerous route by sea, and instead organize safe and legal migration in an orderly manner (by plane) for up to 250,000 refugees per year. These refugees would be redistributed among a core-group of like-minded European countries on a voluntary basis. Countries not participating would have to contribute financially. The current relocation scheme of 160,000 refugees residing in Greece and Italy seems to be failing though; only 272 refugees have been relocated to other European countries. However, Samson argues that if the total number will be brought down to 250,000, it means the number of refugees coming to each of the major destination countries in Europe will end up to be lower than the numbers they are currently receiving.

The plan is similar to proposals first made by the think tank European Stability Initiative (ESI) in September 2015, and in October 2015, German Chancellor Angela Merkel reportedly embraced a proposalvery similar to this plan.

The plan immediately elicited strong criticism from some commentators. Amnesty International, for example, in a press release, called these ideas “morally bankrupt” and “tantamount to bartering in human lives” and claimed it would represent “blatant violations of both European and international law.” The European Commission was also quick to denounce the plan in an initial response, saying that anyone requesting asylum on arrival in the EU would never be turned away and that the EU will not engage in so-called push-backs.

However, according Gerald Knaus, founding chairmen of ESI, human rights organizations are acting too legalistically. In an interview with the Dutch newspaper NRC on 13 February 2016, he warned that, if this plan fails, “no one in Europe will try to solve it anymore, borders will be closed and the UN Refugee Convention will be dead” and argued for a “combination of empathy and control”.

To start with the legal objections, the plan draws on the concept that Turkey is a safe third country for refugees, and that Greece can therefore legitimately return them to Turkey. Yet, observers have argued Turkey is currently not a safe third country and that the implementation of the plan would thus be illegal. Samson indeed argued that the plan depends on Turkey having the status of a safe third country for refugees and that, to reach that status, Turkey would have to adopt several laws and improve the situation for asylum seekers. According to ESI, it is not against international law to return refugees to Turkey, as EU legislation permits the return of asylum seekers to a third country if they can receive international protection in that country. Turkey retains a geographic limitation to its ratification of the 1951 UN Convention on the Status of Refugees (i.e. only recognizing refugees from Europe). However, Turkey does have a temporary protection regime for Syrian refugees and has a new asylum law since 2013, which UNHCR welcomed as “an important advancement for international protection.” However other groups coming to Europe from Turkey, such as Afghans (29%) and Iraqis (17%) can apply for registration and refugee status determination but their only available durable solution at present is resettlement.

Despite the protection regime for Syrian refugees, there are shortcomings with regard to the prospects tolocal integration. Syrians are granted temporary protection, but until recently could not apply for work permits. However, in what UNHCR called a major shift of policy, in January 2016 the Turkish Government published new regulations which will allow many of the 2.5 million registered Syrians refugees in the country to apply for work permits. Syrians with permits would have to be paid at least minimum wage, while currently many refugees work illegally and are often paid very low wages, which undermines the Turkish labour market. The regulations will apply both to refugees living in cities and to the 10 per cent housed in Turkish refugee camps. However, the effects of this new regulation are yet to be seen in practice.

Another major issue is access to education. According to Human Rights Watch, more than 400,000 Syrianrefugee children living in Turkey are not attending school. Major barriers are the language of instruction, social integration issues, economic hardship and lack of information about the Turkish policy (adopted in September 2014) that formally grants Syrian children access to public schools.

The EU 3 billion aid package for Turkey, announced at a summit in Brussels on November 29th 2015, could go some way in addressing these issues and improve the lives of refugees in Turkey. The European Commission announced that humanitarian aid, education, labour market integration, health care access, social inclusion and infrastructure projects will be the priority areas for action.

In the absence of other feasible policy options, the ‘Samson plan’ could at least be considered though. While sending back refugees to Turkey under the current circumstances is far from ideal, it could be argued that the current status quo is even worse.

First, despite the cold weather and dangerous sea conditions, migrants and refugees continue to arrive in Europe, with almost 83,000 arrivals and over 400 deaths in the first 40 days of 2016. Thousands who survive, face harsh conditions while crossing South-Eastern Europe in winter conditions. As argued by ESI, the present prospect of obtaining protection in Germany is encouraging refugees to take boats and risk their lives on the Aegean Sea. The present plan suggests replacing this situation with an orderly process that would enable refugees to reach Europe without risking their lives and to render the hazardous journey unnecessary. Those supporting this deterrent approach argue that refugees and migrants need to know there is nothing to gain from getting on flimsy boats in tough sea conditions or crossing South-Eastern Europe in winter, before they will stop putting the lives of themselves and their children at risk.

Second, amidst the current, uncontrolled and chaotic influx in Greece of thousands of refugees on a daily basis, there are reports of a disturbing crossover between organised gangs helping to smuggle refugees into the EU and human trafficking gangs exploiting them for sex and slavery. According to Europol at least 10,000 unaccompanied children have disappeared after arriving in Europe. Many are feared to have fallen into the hands of organised trafficking syndicates and there is evidence that some have been sexually exploited. This points to blurring distinctions between migrant smuggling and human trafficking and almost reminds of similar crossovers between the two in other regions in the world, such as Ethiopians in Yemen and Rohingya in Thailand and Malaysia.

Third, throughout the EU, far-right political parties and movements, are on the rise and fuelling anti-migrant and refugee rhetoric, likely as a direct result of the current situation and the way it is handled by European countries. Many of these parties are outspoken anti-Islam and anti-EU. Protests against refugees and migrants are becoming increasingly common in many European countries. In Germany, over 200 refugee homes have been burned or attacked. In the Netherlands, protests against proposed refugee centresturned violent. The European cooperation itself is under strong pressure, with more and more countries questioning free movement, introducing border controls and building fences, pleas for a mini-Schengen zone in North-Western Europe and threats to expel Greece from the Schengen zone.

Finally, the very future of the asylum system is at stake. It is increasingly being argued that the Refugee Convention should be revised, an argument also echoed by the Danish prime minister in January. Senior UNHCR officials quickly warned against this proposal, saying it risks the destruction of ‘a milestone of humanity’. Yet, some voices are even advocating doing away with refugee law and asylum altogether.

Although sending refugees back is far from an ideal solution, the alternative – the current status quo – might thus be even worse. The current status quo and the lack of real solutions actually threaten the asylum system and solidarity with refugees and continue to put the lives of thousands of migrants, including many children, at risk. Opening up the possibility of legal migration for up to 250,000 refugees residing in Turkey on an annual basis through regular channels (resettlement program) could change this situation. However, this will only work when the irregular route is closed.

At the short term, it might be the least worst option for now. As Germany’s president, Joachim Gauck, said recently: “A limitation strategy may even be both morally and politically necessary in order to preserve the state’s ability to function. If democrats refuse to talk about limits, they leave the field open to populists and xenophobes.” It is, however, essential that sufficient safeguards are put in place, improving the lives of refugees in Turkey, as well as ensuring access to safety for Syrians who are still inside the country and are fleeing the conflict.

Although the plan could still be far away from actual implementation, according to Migrant Report, news of the plan might already trigger more arrivals. There is a sensation among many refugees and migrants currently residing in Turkey that European states may shut the gates or at the very minimum change the rules of the game, which could be one of the reasons why an unprecedented number continue to cross the sea in the early months of 2016, despite the winter conditions. The expectation of future tightening of policies, leads to surges of ‘now or never migration’, with a relatively high number of deaths at sea in January and February 2016. If the EU backs the plan, one way to avoid more deaths at sea could be to implement the plan as soon as possible.

Note: This article originally appeared on the RMMS Horn of Africa website.