Emiliya Bratanova van Harten, PhD candidate, Lund University
Photo credit: Voice of America
Many may have been
surprised by the deal struck between the European Parliament and the Council of
the EU on key migration and asylum instruments on 15 December 2022. More
concretely, these are the Reception
Conditions Directive and the Resettlement
Framework Regulation (the Regulation, the Framework). While this
development is welcome in view of the six-year delay in the reform of the Common
European Asylum System, it also raises some important questions. This post
focuses on the EU Resettlement Framework, as an analysis of some aspects of the
Reception Conditions Directive is already available here.
In light of the
agreement reached on the EU Resettlement Framework, the main question pertains
to the place of legal pathways in the common European asylum space (understood
both as acquis and as a sui generis political union), characterized by a focus
on externalization.
In its policy
document entitled “Towards an operational strategy for more effective
returns” of 24 January 2023, for example, the EU Commission states that “[a]n
effective and common EU system for returns […] can promote safe legal pathways”.
Therefore, this post aims to analyze the new EU Resettlement Framework from the
perspective of its potential to improve the access to safety and rights of
people in need of international protection. Furthermore, it also questions the
role of third countries in the resettlement and humanitarian admission
processes, as foreseen in the Regulation. To start with, it first provides an
overview of the updated
Resettlement Framework Regulation, followed by a comparison with the original
proposal of 2016. It then asks the question of how the potential adoption
of the said Regulation could expand the scope of EU law, if at all, in a way
that beneficiaries of legal pathways could enjoy protection under the Charter of
Fundamental Rights of the EU (CFREU).
Main components of the new EU Resettlement Framework
Object
The Framework is an
instrument of a procedural nature. It sets up “a common procedure together with
common eligibility criteria and refusal grounds for admission”, “as well as
common principles regarding the status to be granted to admitted persons”
(Para. 11). Importantly, it creates neither a “subjective right to request
admission or to be admitted by a Member State”, nor a corresponding “obligation
on Member States to admit a person under this Framework” (Para. 19; Arts. 1(2)
and (2)a).
In addition to
resettlement and humanitarian admission, the Regulation foresees the
possibility for Member-States (MSs) to undertake emergency admission (Para.
15a; Art. 2). However, resettlement is recommended as the “primary type of
admission” and “shall constitute not less than approximately 60% of the total
number of the persons to be admitted”, whereas humanitarian and emergency
admissions should be of a complementary nature (Para. 20a; Art. 7(2)a).
Scope
The proposed regulation
establishes “a Union Resettlement and Humanitarian Admission Framework” which
aims to complement “other legal pathways”. It “should offer the most vulnerable
third-country nationals or stateless persons in need of international
protection access to a durable solution in accordance with EU and national law”
(Para. 1b). Therefore, in terms of its scope, the Framework does not address
all types of legal pathways, as outlined in the UN Global Compact on Refugees,
or GCR (Para. 95), but focuses specifically on resettlement and humanitarian
admission, with a focus on vulnerability.
Objectives
Through its efforts
to meet the global resettlement and humanitarian admission needs, the Framework
aims to: 1. strengthen the Union’s partnership with third countries; 2. show solidarity
with and help alleviate the pressure on those countries to which a large number
of persons in need of international protection has been displaced; 3. foster
those countries’ capacity to improve reception and international protection
conditions; and 4. reduce irregular and dangerous onward movements of
third-country nationals and stateless persons in need of international
protection (Para. 10).
There is a certain
degree of similarity between the objectives of the Framework and the objectives
of the GCR, of which resettlement and complementary pathways, categorized under
the generic term of legal pathways, are an integral part. These are: (i) ease
pressures on host countries; (ii) enhance refugee self-reliance; (iii) expand
access to third country solutions; and (iv) support conditions in countries of
origin for return in safety and dignity (Para. 7). While legal pathways
contribute to the first three, it is clear that the Framework has a stronger
focus on third countries (which are sources of migration flows), and does not
concern itself with the skills of the beneficiaries of legal pathways. On the
contrary, one of the aims of resettlement and humanitarian admission, as per
the Framework, is to deter irregular migration.
Procedure
The procedure shall
consist of five stages: referral (from UNHCR in the case of resettlement, but
optional in the case of humanitarian admission), identification, registration,
assessment, conclusion on admission and granting of international protection or
of humanitarian status under national law (in the case of humanitarian
admission only) (Para. 13). The latter point raises the question of
applicability of EU law if the protection status granted to the beneficiary of
humanitarian admission is regulated under national law, to which I shall return
later.
On a more concrete
level, on the basis of a proposal by the Commission, the latter shall confer on
the Council the implementing power to establish a two-year Union Resettlement
and Humanitarian Admission Plan which would:
-
set the total number of persons to
be admitted with a breakdown by type of admission (resettlement, humanitarian
and emergency admission);
-
state the contributions of each MS
in terms of total numbers to be admitted;
-
describe the specific group(s) of
beneficiaries of legal pathways, as well as the regions or third countries from
which admission would take place (Para. 21).
Importantly, the
participation of Member States in the Framework is voluntary and it is up to Member
States to define their priorities in terms of items 2 and 3 of the above Plan,
which the Commission should have incorporated in its initial proposal to the
Council (Para. 22; Art. 1(2)b). Ultimately, item 1 is drawn up on the basis of
the respective breakdowns in items 2 and 3, which leaves the Commission with
very limited negotiation powers.
The beneficiaries
of resettlement and humanitarian admission could be granted international
protection before or after arrival in the country of asylum, but the
integration-related provisions contained in the Qualification
Directive shall start applying upon their arrival to the country of asylum,
reconfirming the territorial application of the asylum acquis (Para. 25). At
the same time, MSs “should be able to make the participation in […] integration
measures compulsory”, but “only if those integration measures are easily
accessible, available and free of charge” (Para. 25a).
In order to be
eligible, a person in need of international protection should meet a number of
cumulative criteria (Art. 5). In order to be resettled, a candidate should
qualify as a refugee or as a subsidiary protection status holder as per the
Qualification Directive and fall within one of the vulnerability categories,
which overlap in substance with the UNHCR resettlement submission categories,
as per the UNHCR Resettlement
Handbook (p. 243). For the purpose of humanitarian admission, in addition
to the above requirements, the beneficiaries should be a family member to a
third-country national or stateless person legally residing in the EU or an EU
citizen (Art. 5(1)c). The definition of family members is broader than the one
contained in the Family
Reunification Directive, thus making humanitarian admission primarily a
legal pathway for extended family members.
Additionally, the
Regulation enlists grounds for refusing admission (Art. 6), which are a
combination of the exclusion grounds contained in the Qualification Directive
(Art. 12) and part of the risk assessment criteria enshrined in the Visa
Code (Art. 21(c)(d)) and in the Schengen
Borders Code (Art. 6(1)d and e). If a potential beneficiary of legal
pathways falls within one of the latter two, they shall be barred from
participating in resettlement and humanitarian admission programmes under the
Regulation for a period of 3 years. In addition, there is another list of
factors which may be a ground for admission refusal which includes, among
others, people who in the past 3 years have refused participation in
resettlement or humanitarian admission or have withdrawn their consent; who refuse
to participate in a pre-departure orientation programme (on the scope of the
programme, see Art. 10(7)c); or “persons in relation to whom Member State
cannot provide adequate support that the person needs on the basis of his or
her vulnerability” (Para. 6(2)bc).
At the same time,
as mentioned, the participating Member States do not have an obligation to
admit people in need of international protection falling within the categories
above, but instead “may give preference to third-country nationals or stateless
persons: 1. with family links with third-country nationals or stateless persons
or Union citizens legally residing in a Member State; 2. with demonstrated
social links or other characteristics that can facilitate integration in the
Member State conducting the admission procedure, including language skills or
previous residence; and 3. with particular protection needs or vulnerabilities”
(Art. 10(1)a). This discrepancy is telling of the place the potential
beneficiary occupies in the admission process: they need to fulfil many
eligibility criteria, but MSs may give preference to other criteria (which are integration-related),
and are not bound by a requirement to select persons with family links or even
with vulnerabilities.
Rights of individual beneficiaries of legal pathways
The beneficiaries
have many obligations and very few rights. The referral and matching procedure
exemplifies this point aptly. As mentioned, within resettlement, UNHCR makes
the referral to the Member State. However, the process of referral of
beneficiaries of humanitarian admission does not look as streamlined as in the
case of resettlement (Art. 10(1)a). In that case, Member States may request the
UNHCR, the European Union Asylum Agency or another relevant international body
to refer to them third-country nationals or stateless persons, but may
theoretically also identify them themselves. The match between a person in need
of international protection and the country X may be contingent on family links
and social links, including language skills and previous residence (Art.
10(1)c), but in the absence thereof, the matching process seems rather random.
People in need of international protection do not have a say in the selection
process and if they do not provide or withdraw their consent to be resettled to
a country X, they may forgo their possibility to find a third country solution
in the next 3 years. Furthermore, they need to fall within certain categories
of people in order to be eligible (to be in need of international protection,
to have a vulnerability and family links in the case of humanitarian
admission), but they may be selected on the basis of their integration
potential, instead. If they do not participate in a pre-departure orientation
programme, this may be a rejection ground in the following 3 years.
The above overview
manifests the unequal relationship between MSs and beneficiaries of
resettlement and humanitarian admission. While the participation of both
parties is voluntary, under the updated Regulation, the Member States are
allowed to relinquish most of their procedural obligations, e.g. exceeding the
processing deadlines is not sanctioned; the observance of substantive
provisions is discretionary, e.g. Member States shall provide pre-departure
orientation programmes whenever feasible; and the discontinuation of an
admission process on the basis of the lack of capacity to cater for the special
needs of vulnerable beneficiaries does not give rise to a corresponding
obligation of the Member State, which has chosen to participate in legal
pathways schemes, to increase its insufficient capacity.
The role of third countries in the admission processes
Finally, the
Regulation does not elaborate on the role of the third countries in resettlement
and humanitarian admission processes. In the section on Operational
cooperation, the Regulation clarifies that Member States “may decide to appoint
liaison officers in third countries” (Art. 12(1)). The broad discretion awarded
to Member States in this process is surprising given the recognition that third
countries are responsible for exit procedures (Art. 10(7)b). It seems that the
Framework foresees that the only cooperation with third countries shall be mediated
by the European Union Asylum Agency (EUAA) (Art. 12(2)). However, as per the EUAA
Regulation, “[t]he Agency may carry out such cooperation [with third countries]
within the framework of working arrangements concluded with those authorities
in accordance with Union law and policy”. (Art. 35(2)). It is in these
arrangements that the responsibilities and role of the third country shall be
clarified. However, it seems quite difficult, if not impossible, to see how the
EU Resettlement Framework could achieve its initially stated objective to strengthen
the Union’s partnership with third countries without the active engagement of
these third countries in the said processes. This is surprising, as legally
speaking the EU has the legal competence to engage third countries in
asylum matters by way of international agreements: an approach that would be
more perceptive of incorporating the interests of these third countries as
partners, and not only as recipients of EU measures.
The progress made: the initial proposal for an EU
Resettlement Framework
The initial
proposal for an EU Resettlement Framework was put forward in 2016 as part of
the proposal
to reform the Common European Asylum System. Even though it mentions
humanitarian admission a few times, by reference to previous practice such as
the Voluntary
Humanitarian Admission Scheme with Turkey of 2015, the focus of the
Framework is mostly on resettlement. Therefore, the new version had its scope
expanded as part of the negotiation processes leading up to the agreement of
2022.
In terms of its
structure, the proposal has a much more detailed preamble which does not only
elaborate on the context which led to its drafting, but also puts forward the
legal basis of the draft, lays out a justification of the choice of instrument
(regulation), provides links to the EU law principles of subsidiarity,
proportionality and fundamental rights, and explores budgetary matters. Since
one of the legal grounds of the Framework is “partnership and cooperation with
third countries” (Art. 78(2)g, TFEU),
alongside “common procedures” (Art. 78(2)d, TFEU),
the part on cooperation with third countries is much more detailed, e.g.
describing the interlinkages between resettlement and Partnership
Frameworks with third countries. Very concretely, the link between
cooperation with third countries and resettlement is summarized as follows: the
choice of the region or countries from which resettlement shall take place will
depend on the “third countries’ effective cooperation with the Union in the
area of migration and asylum”, where “such cooperation should be reflected in
terms of the third country's efforts to reduce the number of third-country
nationals or stateless persons irregularly crossing the Union's border from its
territory, their cooperation with the Union on readmission and return of
third-country nationals or stateless persons irregularly staying in the
territory of the Member States” (cf. Art. 4(c)(d)). The draft explicitly refers
to the delegated powers to the Commission under Art. 290, TFEU,
to adopt “non-legislative acts of general application to supplement or amend
certain non-essential elements of the legislative act”, determining the role of
third countries in the resettlement process.
While the
objectives of the initial and updated drafts are quite similar, there is an
important difference in the scope of the proposal of 2016. Resettlement is
defined as encompassing not only people in need of international protection who
have left their countries of origin, but also those displaced “within their
country of nationality” (Art. 2). The draft does not elaborate on this choice
of personal scope. In terms of eligibility, the Regulation also gives priority
to expanded vulnerability criteria (socio-economic vulnerability in addition to
UNHCR resettlement submission categories), in addition to family links.
The exclusion
grounds are also broader in scope compared to the updated version. Further to
the ones explained above, the initial draft Framework introduces a prima facie application
of some of the exclusion grounds, which is not further defined (Art. 6(2)).
Moreover, it specifies that “[p]ersons who have irregularly entered,
irregularly stayed in, or attempted to irregularly enter into the territory of
the Member States during the last five years prior to resettlement shall also
be excluded” (cf. Art. 6(1)f).
In the old version
one sees much more clearly the link between the introduction of legal pathways
and the efforts to reduce irregular migration through cooperation with third
countries, which has been diluted in the current updated version. Finally,
unlike the new version, the old proposal introduced two types of resettlement
procedures: an ordinary (whereby an assessment of the need for international
protection is done in the country of asylum or of origin) (Art. 10) and an
expedited one (whereby an initial assessment of the protection needs is done in
the country of asylum or of origin, but the main assessment is done in the
country of asylum) (Art. 11). The level of security checks is the same for the
two procedures. As regards the role of the beneficiary of resettlement in the
whole process, it is quite minimalistic, and devoid of rights – a similarity to
the updated Framework.
Analysis: fundamental rights protection of beneficiaries
of legal pathways?
The above overview
of the processes foreseen in the EU Resettlement Framework points to an unequal
relationship between MSs and beneficiaries of legal pathways in favour of the
former. At the same time the updated Framework explicitly refers to the CFREU:
“This Regulation
respects the fundamental rights and observes the principles recognised in
particular by the Charter of Fundamental Rights of the European Union and
should therefore be applied in a manner consistent with these rights and
principles, including as regards the rights of the child, the right to respect
for family life and the general principle of non-discrimination.” (Para. 33)
Therefore, this
section poses the question of the impact of the exercise of EU law in the area
of legal pathways on the protection of the fundamental rights of individual
beneficiaries, more concretely through an analysis of the applicability of the
CFREU. It asks, which other rights and principles of the CFREU could be
applicable in the context of legal pathways, in addition to those explicitly
referred to in the quote above?
Zieck and de Boer
have already
analyzed the position of the refugee in the process of resettlement as
totally devoid of human rights protection in the absence of an EU Resettlement
Framework in force. In 2018, the Court of Justice of the European Union held
that EU law, and the CFREU respectively, does not apply in situations where
applicants in need of international protection would apply for a visa with a
limited territorial validity as per Art. 25 of the Visa
Code, as long-stay visas are governed by national law only (X
and X v Belgium C-638/16 PPU, 7 March 2017, para 44). The EU
Resettlement Framework does not specify what type of visa should be issued to
beneficiaries of legal pathways. It limits itself to the “soft” obligation for
MSs to “offer, where necessary, to make travel arrangements […], and that offer
shall include, where necessary, the facilitation of exit procedures in the
third country forward” (Art. 10(7)b). However, it can be deduced that in the
case of a positive assessment of protection grounds prior to admission to the
country of asylum, beneficiaries shall be issued a residence permit as per Art.
24 of the Qualification
Directive. However, as mentioned, the content of international protection
does not have an extraterritorial application. Beneficiaries of humanitarian
admission who are issued a humanitarian status under national law would
theoretically enjoy less protection than the former category, as they are not
protected by EU law fundamental rights, ensuing from the application of the
Qualification Directive.
However, with the
adoption of the Framework, it is clear that EU law and the CFREU would apply in
the context of resettlement and humanitarian admission. It is relevant then to
ask the question of which provisions of the CFREU would apply in what parts of
the legal pathway process. Apart from the CFREU provisions referred to in the
Framework, namely, the rights of the child (Art. 24), the right to respect for
family life (Art. 7) and the general principle of non-discrimination (Art. 21),
and since the Framework is primarily of a procedural character, the application
of Art. 47 on the right to an effective remedy and to a fair trial and Art. 41
on the right to good administration seem to be of crucial importance. However,
as beneficiaries do not enjoy a right to a legal pathway, their right to an
effective remedy could apply to a procedure which the MSs is obliged to set up
and perform in a certain way and within a certain deadline.
The MSs have the
following obligations as per the Framework: they “shall assess whether those
third-country nationals or stateless persons fall within the scope of the Union
Resettlement and Humanitarian Admission Plan”, whether they are eligible and do
not fall in any of the refusal grounds (Art. 10(1)a and Art. 10(3)). They shall
also provide information in an accessible, clear and intelligible way in a
language the beneficiary understands (Art. 10(2)ba). Despite the set deadlines
for admission processing (7+3 months, Art. 10(4)), and for the emergency
procedure (1 month, Art. 10(-4a)), the Regulation allows for a discontinuation
of the admission procedure in cases where the Member State “is not able to
respect the time limits […] for reasons beyond their control” (Art. 10(4)a).
Finally the obligation set out in Art. 10(7)bc for Member States to “make every
effort to ensure entry to its territory as soon as possible and not later than
twelve months from the date of the conclusion” stage is not very stringent
either.
However, could
potential beneficiaries appeal a negative assessment of their case, when they neither
have a right to a legal pathway, nor have applied for it (but have merely
consented to it)? What they could do at most would be to challenge an
assessment outcome on the basis of a claim on procedural fault grounds (e.g. failure
on the part of the Member State to provide the necessary information in the
required way). Therefore, in light of settled
case-law of the CJEU, when a decision refusing admission is issued, compliance
with Art. 47 of the CFREU “requires the Member States to provide for an appeal
procedure against such decisions, the procedural rules of which are a matter
for the legal order of each Member State, in conformity with the principles of
equivalence and effectiveness, and that procedure must, at a certain stage,
guarantee a judicial appeal” (MA
judgment, para 46).
Additionally, the
principle of good administration enshrined in Art. 41 CFREU, includes “[t]he
right to be heard [which] guarantees every person the opportunity to make known
his views effectively during an administrative procedure and before the
adoption of any decision liable to affect his interests adversely”, as well as
a requirement for “the authorities to pay due attention to the observations
thus submitted by the person concerned” (MM
judgment, paras 87-88). Therefore, Member States are required to observe
this right “even where the applicable legislation does not expressly provide
for such a procedural requirement”, as in the case in point (MM
judgment, para 86).
Conclusion
The current
analysis of the updated draft of the EU Resettlement Framework shows that,
compared to its predecessor of 2016, the version of 2022 is a much more diluted
legal instrument in terms of the degree of establishing a “common approach to
safe and legal arrival in the Union for persons in need of international
protection” (EU Resettlement Framework, 2022, Para. 6). At the same time, it
envisions some lighter sanctions for beneficiaries of legal pathways who
infringe the established admission procedures, and diminishes the role of third
countries, thus making the link between legal pathways and the reduction of
irregular migration, with the collaboration of third countries, less
conspicuous and reproachable from a human rights law perspective, especially where
these third countries may have a poorer human rights record. It shows that Member
States, voluntarily participating in resettlement and humanitarian admission
programmes, have very few obligations towards the beneficiaries of legal
pathways. This raises the question of the benefit of adopting a “toothless”
regulation (almost entirely) devoid of a binding power. In the end, though,
bringing legal pathways within the ambit of EU law would likely have some
(albeit limited) benefit for the protection of the rights of people in need of
international protection, because now they will be able to draw on the
protection of fundamental rights and principles enshrined in the CFREU. Once
the EU Resettlement Framework Regulation becomes part of the EU asylum acquis, eventually,
it may have the potential to prove that there is beauty even in imperfection.
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