The EU has said it will assess Keir Starmer and Emmanuel Macron’s migrant return deal to see whether it is compatible “with the spirit and the letter of the law”.
While the UK has said it is confident the deal will be approved, a spokesperson for the European Commission said it wanted to know more about the “substance and form” of the agreement before expressing support.
The deal was struck on Thursday by the UK and France with the aim of stemming the flow of small boats across the channel through a one in, one out system.
About 50 migrants a week will be deported back to France in exchange for other migrants being allowed to claim asylum in the UK through a safe and legal route where they have not tried to cross on a small boat.
Under the Brexit deal, France is obliged to consult the commission over the bilateral deal because migration is a bloc-wide competency. It will have to be ratified by the commission and EU states, five of which – Italy, Spain, Malta, Cyprus and Greece – have criticised the deal.
Steve Peers, a professor of EU law at Royal Holloway, University of London, said the commission could not realistically unpick the deal.
“France is consulting, but even if it were that the commission thinks that this breaches EU law, then they can’t order France not to do it. France might say, ‘That’s interesting, we have a different view, we’re going to do it anyway’, and then it would be up to the commission to sue France,” he said.
He said there was an example of the commission suing a member state about 10 years ago when a number of countries signed bilateral aviation treaties with the US. Outside of that, the case law made it “hard to tell” what the commission could or would do.
Italy, Spain, Malta, Cyprus and Greece sent a joint letter to Brussels last month objecting to the deal at a time when the EU is trying to implement a hard-won piece of legislation taking a bloc-wide approach to asylum and migration.
One diplomat from one of the five signatory nations said they understood that France had “to give something to the UK to satisfy public opinion” at a time when the entire EU wants to keep the British government tied into to future defence and security in the face of continued Russian aggression.
But the diplomat said there was surprise at the content of the deal, which will start with the return of 50 people a week, one in 17 of the average weekly arrivals by small boats this year so far.
“It is difficult to see why the French over-stepped the EU treaties without delivering something more spectacular,” they said. “We do want to help the British government to be engaged with Europe and that is a priority, but I find it very difficult to see this agreement go smoothly because the French overstepped the mark.”
Other nations say the deal with the UK is just “smoke and mirrors” because France can return migrants to the country of arrival under the EU’s Dublin rules. More than 21,000 migrants have made the Channel crossing in rudimentary vessels this year.
Yvette Cooper, the home secretary, said on Friday she thought the commission would sign off on the pilot scheme.
But a spokesperson for the commission on Friday said it would “assess the concrete modalities of this cooperation”.
“We continue to work with France and the UK as well as other EU member states to support solutions that are compatible with the spirit and the letter of EU law,” he said. “What we have now is an announcement and a political agreement, in principle, to have a pilot agreement.
“Once we know more about the substance and the form of that, we can tell you more about it, but we will look at this together with UK and France we will be working with all parties involved.”
Many details of the scheme remain unclear, such as how many people will be returned, how those involved will be chosen and when it will start.
Talking to LBC radio on Friday, Cooper said she did not expect the rollout to be delayed by opposition from Europe, despite Mediterranean countries’ concern about the prospects of returned asylum seekers travelling back to southern Europe.
“We have been talking to the EU commissioners,” she said. “We’ve also been talking to other European interior ministers and governments throughout this process.
“The French interior minister and I have been speaking about this, to develop this, since October of last year, and the EU commissioners have been very supportive. So that is why we have designed this in a way to work, not just for the UK and France, but in order to fit with all their concerns as well.”
Asked whether she was confident it would be signed off by the EU, she said: “Because we’ve done that work all the way through, we do expect the EU commission to continue to be supportive.”
Neither Cooper nor Starmer, however, have denied that the pilot will originally apply to 50 people a week – about 6% of the average weekly total. Cooper said on Friday: “We’re actually not fixing the ultimate figures, either for the pilot or for any further phases.”
Chris Philp, the shadow home secretary, said: “The numbers will be tiny. We will be allowing 94% of illegal immigrants to remain in the UK, which is no deterrent whatsoever.”
