With Assad gone, the EU wonders: Should Syrian refugees be sent back?

The fall of Bashar al-Assad has prompted complex questions about the future of the one million Syrians who fled the war and sought refuge in Europe.

The collapse of Bashar al-Assad’s brutal dictatorship has left the European Union with an enormous list of burning questions to answer: Who is the main interlocutor in the country? How can Brussels contribute to the transition of power? What happens with the punishing sanctions? Should EU funds flow again to support reconstruction?

And yet, no other question is more consequential for governments than the future of the over one million Syrians who have sought refuge across Europe.

In a cascade of announcements right after Assad’s fall, European countries began temporarily halting decisions on asylum applications from Syrian nationals that were still pending in the system. Germany, Italy, Sweden, Denmark, Finland and Belgium were among those hitting pause, citing the volatile circumstances on the ground.

In Austria, the caretaker minister of interior, Gerhard Karner, a hardliner on migration policy, announced the suspension of family reunification and the introduction of a new “programme of orderly repatriation and deportation” that would apply to around 40,000 Syrians who have been granted protection in the last five years.

“The focus will be on those who have become criminals, those who don’t want to adapt to the cultural values in Europe, in Austria, or those who don’t want to work and therefore only live on social benefits. They’re clearly the priority in this programme,” Karner said.

Vienna’s proposal earned a rebuke from Birgit Sippel, a socialist Member of the European Parliament with long experience in migration policy, who denounced it as premature.

“Deporting people back to Syria? I think it’s much too early to do that because we do not know what will happen next. Will the country live in peace or will different groups start fighting each other and making things even worse?” Sippel told Euronews in an interview.

“It’s a little bit funny to see that, on the one hand, member states are already talking about bringing people back to Syria and others are concerned things might get worse.”

But member states had already begun discussions on how to speed up voluntary returns of Syrian refugees before the extraordinary events of the weekend, although the topic had remained highly controversial.

Italian Prime Minister Giorgia Meloni had, earlier this year, pitched a careful rapprochement with Assad’s regime by reopening the Italian embassy in Damascus and urging the bloc to revise its strategy towards the war-battered country. Austria, Slovenia, Slovakia, Croatia, Greece, the Czech Republic and Cyprus backed Italy’s call in a joint letter released in July.

All these efforts, which were in very early stages, are now set to go into overdrive following the overthrow of Assad’s iron-fist rule. The debate will proceed, at one point, perhaps very soon, inevitably tackle the ultimate question: should the refugee status be revoked to send Syrians back?

Refugee interrupted

The vast majority of Syrians who fled the civil war and came to the EU seeking asylum were granted either refugee status or subsidiary protection and allowed to remain inside the bloc for an indefinite time. Due to the bloody nature of the conflict, Syrians were protected by the principle of non-refoulement, which forbids authorities from deporting migrants to nations where they could face persecution, torture or any other ill-treatment.

In practice, this meant that EU countries could, at most, assist those who willingly wanted to return. With Assad still clinging to power, few were convinced to do so: last year, only 38,300 of the 5.1 million Syrian refugees hosted by neighbouring countries chose to go back, according to the UN Refugee Agency (UNCHR).

The conditions inside Syria “were not yet conducive for the facilitation of large-scale voluntary returns in safety and dignity,” the UNCHR warned in its annual review. Concerns over security, livelihoods, basic services and housing were cited as reasons for the low rate of repatriations. About 90% of people in Syria live in poverty.

While many of these factors are not expected to improve any time soon due to the sheer devastation wreaked by the long war, the radical shift in the political situation is likely to prompt a reassessment of how dangerous Syrian is, which, in turn, will pave the way for reevaluating the protection granted to those who escaped the war.

The EU’s Qualification Directive, in place since 2011, lays out six criteria for what is known as “cessation” of refugee status, echoing (almost verbatim) the rules established by the 1951 Refugee Convention. The first four are largely voluntary and can already apply to those Syrians who freely go back and renounce their international protection.

The fifth and sixth criteria are more complex because they are triggered when the “circumstances” that justified the refugee status in the first place disappear. A similar cessation provision applies to subsidiary protection when the conditions “have ceased to exist or have changed to such a degree that protection is no longer required.”

Once the criteria are met, countries “shall revoke, end or refuse to renew” the refugee status or subsidiary protection granted to that person.

At first sight, the fall of Assad’s regime could be invoked by national authorities as a sufficient change of circumstance, since it was Assad’s ruthless repression that primarily caused the massive exodus of asylum seekers and prevented the repatriation.

However, the law offers one key caveat: “Member states shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded.”

This caveat can act as a “counter-argument” to appeal a revocation that a refugee might consider unfounded, says Steve Peers, a professor of EU law at Royal Holloway, University of London. Additionally, other Syrians who, during their stay, have acquired long-term residence permits or EU citizenship would be “in a more secure position.”

The next Syria

Demonstrating a durable change in circumstances that no longer poses a threat to refugees might prove difficult, if not impossible, in a wrecked country undergoing a transition of power amid opposing factions and sectarian identities.

Hayat Tahrir al-Sham (HTS), the rebel force that led the offensive that toppled Assad’s regime and is playing a major role in the transition, is considered a terrorist organisation by the UN and the EU due to its previous ties with al-Qaeda. While HTS has tried to gain legitimacy by embracing pluralism and appointing a provisional prime minister, it remains plagued by accusations of human rights abuses, including alleged executions for blasphemy and adultery carried out under a strict interpretation of Islamic law.

What sort of government could emerge next is anybody’s guess. The protection of minorities, the respect for human rights and the administration of justice will be among the elements to gauge the degree of safety in Syria – or lack thereof.

Michalis Hadjipantela, a centre-right MEP from Cyprus, a country that earlier this year was overwhelmed by a sudden influx of Syrian asylum seekers, worries the lack of a “stable government” could fuel a new migration wave and has asked the European Commission to provide “guidance” on how to deal with the “complicated issue” of asylum.

For the time being, the Commission, which is tasked with ensuring the correct implementation of EU law, has treaded carefully on the matter, urging governments to assess claims individually, rather than by drawing collective conclusions. On the possible revocation of refugee status, the executive has avoided any speculation.

“The situation is evolving, highly fluid, changing all the time. This requires very important monitoring of what’s happening on the field, together with the UNCHR, together with member states,” a Commission spokesperson said on Tuesday.

UNCHR has also warned about the deep uncertainty inside Syria and the potential emergence of “new, unforeseen risks” that could imperil returns.

“It may take refugees some time to assess the situation and get a clearer picture of what that new situation is on the ground,” a UNCHR spokesperson said.

Still, the raft of announcements made by EU countries (some were released less than 24 hours after Russia confirmed Assad had left) suggests a growing resolve by capitals to revise the status of Syrian refugees and accelerate repatriations, one way or another.

Centrist parties across the bloc have embraced a hardline stance on migration in a bid to contain the powerful rise of far-right forces. After all, many of these radical forces rose to prominence in the aftermath of the 2015 migration crisis, when the EU received 1.3 million asylum claims, most of which came from Syrian, Afghan and Iraqi nationals.

Since then, Syrians have consistently remained the largest group of asylum seekers.

The review of the EU’s Syria policy coincides with a broader rethink of the EU’s migration policy. Leaders from across the political spectrum have asked Brussels to explore “new ways” to outsource asylum procedures – for example, by setting up deportation camps in faraway counties, where rejected claimants would wait for a final answer.

The future of Syrian refugees could soon add a new chapter to this reinvention.

“At this time of turbulence and change, countries should avoid plunging Syrian refugees and people seeking asylum into situations of further uncertainty and precarity,” said Eve Geddie, the director of Amnesty International’s EU office.

“Instead, the safety and agency of people seeking asylum must be placed at the heart of decision-making and not sacrificed to the rabid, anti-refugee politics currently gripping Europe,” she added.