Tuesday 2 January 2024

The New EU Asylum Laws, part 3: the Resettlement Regulation

 




Professor Steve Peers, Royal Holloway University of London*

Photo credit: Voice of America, via Wikimedia Commons

*Sentences with an asterisk have been updated since the original post in light of later developments. Most recent update: March 21 2024. 

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications, the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. I’ll be looking at these agreements for new legislation on this blog in later blog posts (see the agreed texts here), unless the deal somehow unravels.* But for now this series looks at the planned new legal framework for asylum in the EU by looking at the first three texts that were made available: agreements on revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU.* These laws, agreed earlier between the European Parliament and the Council, but not yet formally adopted, are intended to be part of a ‘package’ of new or revised EU asylum laws, along with the recently agreed measures.

This is the third blog post in the series, on the planned new Regulation on resettlement of refugees. The first blog post in the series concerned the planned new qualification Regulation, and the second blog post concerned the revised reception conditions Directive. The fourth blog post concerns Eurodac, the EU asylum database.* There’s also an earlier analysis of the planned resettlement law on this blog, by Emiliya Bratanova van Harten.

As noted in the first post in this series, all of the measures in the asylum package could in principle be amended or blocked before they are adopted, except for the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021. I will update this blog post as necessary in light of developments. (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The Resettlement regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package will, if adopted, in effect be a third phase, although for some reason the EU avoids calling it that.

One important aspect in the way that asylum law applies in practice is the resettlement of refugees, or people who otherwise need protection, directly from where they have fled to into countries of refuge. This avoids any further unsafe journey for them (or payment of any more huge costs to smugglers), and also avoids the need to go through the asylum system in the country of refuge, since the UNHCR (the UN agency assisting with the application of refugee law) or another body has already assessed their need for protection before they were resettled.

For some countries, resettlement makes up a large proportion of the refugees who enter their territory; for the EU, geographically closer to conflicts than countries like Canada (pending a Trumpian civil war in its neighbour), inevitably there will be more people fleeing persecution or conflict across its borders.

While the EU has previously adopted non-binding ‘soft law’ on resettlement, and provided some funding for resettlement from its budget, there has not previously been EU legislation on the issue as such in either of the first two phases of the Common European Asylum System. Like the planned Screening Regulation, the issue is therefore being regulated for the first time in the 2024 batch of EU asylum law. So there is no previous version of the law to discuss, and no relevant CJEU case law on such previous legislation to refer to either.

The UK and Ireland opted out of the proposed resettlement Regulation, although the role of the UK is now moot post-Brexit. Denmark opted out it also.

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I will be discussing over the course of this series of blog posts. So whatever numbers are admitted under the resettlement regulation, they are likely to be only a small proportion of those who seek asylum in the EU. For those who are resettled, in EU law terms, they will avoid being covered by the rules on reception conditions or asylum procedures – as in principle they will move straight to being covered by the Qualification Regulation (although not in all cases, as we shall see). But it should not be forgotten that for everyone else applying for asylum, the effect of other EU asylum law will be rather more convoluted and controversial.

The legislative process leading to the agreed text of the resettlement Regulation started with the Commission proposal in 2016, as a response to the perceived refugee crisis. EU governments (the Council) and the European Parliament then adopted their negotiating positions, and jointly agreed a text in principle. Member States were reluctant to accept that text, but then agreed to it eventually in 2022. But this blog post will look only at the final text, leaving aside the politics of the negotiations.

Basic issues

It is not explicit whether the resettlement regulation aims to be the exclusive form of resettlement into the EU, or rather whether Member States could still run their own parallel resettlement programmes if they wished - although the 2024 Eurodac Regulation assumes that there will still be national resettlement schemes.* (The new Eurodac Regulation will apply to those admitted under either EU or national resettlement programmes)* It is also unclear if Member States could set higher standards than set out in the Regulation.

Unlike the other measures in the asylum package, which will apply two years after adoption (so in spring 2026),* the date of application of the resettlement Regulation is not yet set out in the latest text. I will update this blog post once an application date is agreed.

While Regulations are binding in principle, the drafters of the Regulation are at great pains to limit its binding effect in practice. It specifies that it ‘does not establish a right for third-country nationals or stateless persons to request admission or to be admitted to the territory of the Member States’ Equally, the Regulation ‘does not impose an obligation on Member States to admit a person’. Member States’ contributions to the EU’s Resettlement and Humanitarian Admission Plan set up by the Regulation are ‘on a voluntary basis’. The details of Member States’ participation, ‘including the type of admission and the regions or countries from which admission shall take place, and of their contribution to the total number of persons to be admitted under that Plan shall be voluntary’.

The Regulation will define ‘resettlement’ as ‘the admission, following a referral from’ UNHCR, of non-EU citizens who are eligible and not refused as defined by the Regulation, ‘from a third country to which they have been displaced, to the territory of the Member States, and who are granted international protection and have access to a durable solution in accordance with EU and national law’. The parallel concept of ‘humanitarian admission’ is defined as admission after being ‘requested by a Member State, a referral from the UNHCR, the European Union Agency for Asylum or another relevant international body’, of non-EU citizens ‘from a third country to which they have been forcibly displaced, to the territory of the Member States and who, at least, on the basis of an initial evaluation’ meet the eligibility and refusal grounds in the Regulation, and are granted ‘humanitarian status under national law that provides for rights and obligations equivalent to those of’ the Qualification Regulation. The resettlement Regulation also provides for 'emergency admission', ie ‘the admission through resettlement or humanitarian admission of persons with urgent legal or physical protection needs or with immediate medical needs’.

The framework for resettlement

The starting point is the EU Resettlement and Humanitarian Admission Framework, which provides for: the ‘legal and safe arrival’ of those with resettlement or humanitarian admission status, encouraging Member States to ‘scale up their efforts’ to this end; contributes to international resettlement and humanitarian admission initiatives ‘with a view’ to increasing the number of places available; and strengthening relations with non-EU countries where the people concerned have currently fled to.

Which countries or regions should people be admitted from? The Regulation says that this should be based on the UNHCR’s Projected Global Resettlement Needs, ‘the scope for improving the protection environment and increasing the protection space in third countries’, and the scale of non-EU countries to meeting the UNHCR’s defined needs.

To advise the Commission on the Regulation, a High Level Resettlement and Humanitarian Admission Committee will be set up, consisting of representatives of Member States, the Council, the Commission and the European Parliament. The UNHCR, the International Organisation for Migration and the EU Asylum Agency will be invited to attend, and civil society bodies may be invited too. After this Committee meets, the Commission will invite Member States to indicate how many people they can admit under this framework, including the type of admission and which countries people will be admitted from.

At EU level, taking account of the UNHCR’s needs and the Committee’s deliberations, the Council will adopt, on a Commission proposal, a series of two-year EU Resettlement and Humanitarian Admission Plans. The European Parliament will only be informed, but in practice it is likely to express its opinion informally too. Each of these Plans will define: the numbers of people to be admitted, indicating how much of this number is covered by resettlement (‘not less than approximately 60%’) alongside humanitarian admission and emergency admission; the breakdown of Member States’ participation and contributions (remember that Member State commitments will be voluntary); and the list of regions or non-EU countries that people will be resettled from or offered humanitarian protection from. Emergency admission will be offered regardless of any list of countries or regions.  The Plan ‘may, where necessary’ also include a breakdown of groups of people to be covered, and details of coordination on the ground between Member States. If ‘required by new circumstances, such as an unforeseen humanitarian crisis’, the Council can amend the Plan by the same process.

Who will be admitted?

People will be eligible for resettlement if, first of all, they meet the refugee or subsidiary protection definitions of EU law (with cross-references to the definition of grounds of persecution and subsidiary protection in the Qualification Regulation). Palestinians who are no longer protected by the relevant UN agency (using the wording of the Refugee Convention, but not cross-referring to the Qualification Regulation or the relevant case law on the EU qualification rules – see part 1 of this series) will also be eligible – which could be important depending on developments in Gaza (see the recent CJEU Advocate-General’s opinion on Gaza).*

Secondly, they must also be vulnerable, as further defined: ‘women and girls at risk’; ‘minors , including unaccompanied minors’; ‘survivors of violence or torture, including on the basis of gender or sexual orientation’; ‘persons with legal and/or physical protection needs, including as regards protection from refoulement’; ‘persons with medical needs, including where life-saving treatment is unavailable in the country to which they have been [forcibly] displaced’; ‘persons with disabilities’; or ‘persons who lack a foreseeable alternative durable solution, in particular those in [a] protracted refugee situation’.

For humanitarian admission, the first criterion also applies; and in addition, they must fall into ‘at least one of the categories’ listed in the definitions of vulnerable persons and family members of a legally resident non-EU citizen or an EU citizen. Family members are further defined as not only spouses and minor unmarried children, but also including extended family: parents, siblings, and those dependent on a parent or child due to ‘pregnancy, a new-born child, serious illness, severe disability or old age’, where ‘family ties existed in the country of origin, that the child, parent or other family member is able to take care of the dependent person, and that the persons concerned expressed their desire in writing’. In this context, ‘Member States shall take due account of the best interests of the child’; and where a married minor is ‘not accompanied by his or her spouse, the best interests of the minor may be seen to lie with his or her original family.’

The preamble states that the Regulation is ‘without prejudice’ to the EU law on family reunion of non-EU citizens (which includes special rules for family reunion for refugees), as well as EU free movement law, which has generous rules for family reunion of EU citizens who move to another Member State. Family reunion under the Regulation ‘therefore should focus on the family members who fall outside the scope of those Directives or relevant national law, or who could not be reunited with their families for other reasons’. The preamble goes on to say that when defining if family members are dependent, ‘it should be recognised that the extended relations may be the last line of defence for individuals who rely exclusively on the family for survival, psychological support, and emotional care.’

There are several grounds for mandatory exclusion: having the rights attached to nationals of the country of residence – the wording of Article 1.E of the Refugee Convention – adding ‘or equivalent rights and obligations’; where there are ‘reasonable grounds for considering’ that they have committed war crimes et al, in wording similar (but not fully identical) to Article 1.F of that Convention; a security risk exception vaguely similar (but broader than) Article 33(2) of that Convention; being the subject of an alert in the Schengen Information System or a national database for the purpose of refusing entry; those who have international protection or humanitarian admission already from a Member State; and a prior refusal of resettlement from a Member State on the security or database entry control grounds, within the last three years. Member States may refuse admission on grounds that: the person concerned refused or withdrew their consent to be admitted to another Member State under the Regulation within the last three years; they committed a less serious crime, as defined further; they refused to take a pre-departure orientation programme; or the Member State cannot support their vulnerability. But all of these grounds are subject to a non-discrimination rule.

Those covered by the Regulation will have to consent (including as regards which Member State would resettle them), and can withdraw consent. Failure to supply certain data or attend a personal interview can be treated as an implied withdrawal, unless the person concerned was not informed, complies later or can show that he or she was prevented from complying due to force majeure informed.

The admission process

In case of resettlement, Member States will ask the UNHCR to refer candidates to them. For humanitarian admission, Member States may ask the UNHCR, the EU asylum agency, or another international body to refer people. Member States will then assess if those people meet the criteria for admission, or fall foul of the criteria for refusal; they may give preference for those with family links, social links, and protection needs. After they are identified, these people will then be registered, and Member States must inform them about the process.

For resettlement, Member States must request UNHCR to assess the main criteria for admission; for humanitarian admission, they may request UNHCR to do so. Member States must then decide on admission within seven months; this can be extended for three months in complex cases. In emergency cases, Member States ‘shall endeavour to decide’ within one month. Member States must end the process if the candidate withdraws their consent; Member States may end the process if they have filled their commitments, or to give preference based on the criteria in the Regulation, or if they cannot comply with the time limits ‘for reasons beyond their control’. There are detailed rules on how long information referred to in the Regulation can be stored for.

It the candidate is rejected, the Member State shall not admit them. There is no provision for procedural rights if admission is refused, even to inform the candidate – although Member States are obliged in principle to inform the UNHCR.

If the candidate is accepted, the Member State must give them status in accordance with the Qualification Regulation, and may give them a national form of permanent residence in accordance with the EU’s long term residence Directive.  Oddly the resettlement Regulation fails to mention that the person with refugee status or subsidiary protection can eventually qualify for EU long-term residence as such under that Directive.

For humanitarian protection, the Member State must give them a national status with rights ‘equivalent’ to those under the Qualification Regulation, although this is ‘without prejudice to the right to apply for international protection’. Unlike those with international protection in a Member State, people with a national form of protection are outside the scope of the current EU long-term residence Directive – although the European Parliament (but not the Council or Commission) seeks to include them during current talks on amending that Directive (on which, see my blog post).

For a family member of a legal resident ‘who does not individually qualify for international protection or for a humanitarian status under national law’, Member States must issue a residence permit which ‘shall have the same effect as a decision to issue a residence permit’ for family members under  the Qualification Regulation, which will confer many of the rights under that Regulation anyway.

In any case, Member States must make ‘every effort to ensure entry’ within twelve months, or less for emergency cases. They ‘shall offer’ to make travel arrangements ‘where necessary’, and shall offer prior orientation programmes ‘when considered feasible’.

Comments

This Regulation might end up being ‘sold’ as an altruistic EU contribution to helping desperate people escape conflict or persecution without risking further unsafe journeys or paying vile smugglers. And that will be true – for a modest number of people. The EU will be leaving everyone else who seeks to flee to the EU to escape persecution and conflict to the mercy of those vile smugglers and unsafe journeys. Indeed, the asylum package as a whole could well mean that it is harder for that larger group of people to obtain refuge in the EU.

The altruistic motives of the Regulation are rather undercut by its voluntary nature for Member States, and the explicit inability of individuals to rely upon it. Like the pirate code, the resettlement Regulation is more what you’d call guidelines, than actual rules. But it is surely a racing certainty that at least one right wing populist party will falsely claim that it entails an obligation to admit millions, if not billions and trillions, of scary people.*

We should also be wary of anyone in the EU institutions or Member States perverting the role of resettlement within the broader context of refugee law to claim or imply, UK government-style, that resettlement (or legal entry generally) is the only legitimate route to seek or obtain asylum. In fact, the Refugee Convention explicitly provides that irregular entrants can qualify as refugees, specifying that in some circumstances States must refrain from punishing them for irregular entry. But the Convention does not, as some other people believe, provide that all refugees who enter illegally must be treated as legal entrants; rather, the Convention recognises the existence of irregular entrants and a distinction between them and legal entrants or residents in many respects, providing that many rights of refugees are only granted to those who are legally present. Yet the core non-refoulement right in the Convention – protection from being sent to an unsafe country – applies regardless of whether the refugee entered legally or not.

The final text of the Regulation focusses on the needs of individuals and the capacity and willingness of Member States, dropping the provisions from the original text that aimed also to link resettlement to the source countries’ submission to EU external migration policy: cooperation on readmitting people, controlling their border crossings, becoming a ‘safe third country’ or ‘first country of asylum’ for the EU to send asylum seekers back to, and development of their reception capacity. But a cynic may well imagine that these criteria could nevertheless end up playing a role in the application of the Regulation in practice.



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