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
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).
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.
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.
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).
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.