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: 18 June 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’ve looked at this new legislation in a series on this blog, which is based on a forthcoming article.* These laws form part of a ‘package’ of new or revised EU asylum laws, which was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

This is the third blog post in the series, on the new Regulation on resettlement of refugees.* Part 1 concerned the new qualification Regulation; Part 2 concerns the revised reception conditions Directive; Part 4 concerns Eurodac, the EU asylum database; Part 5 concerns the Screening Regulation; Part 6 concerns the revised Dublin rules; Part 7 concerns the asylum procedures Regulation; and Part 8 concerns the crisis Regulation, plus general comments.* There’s also an earlier analysis of the planned resettlement law on this blog, by Emiliya Bratanova van Harten.

The 2024 package joins the Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (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 is in effect 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 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 resettlement Regulation when proposed, although the role of the UK is now moot post-Brexit. Denmark opted out of it also.*

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I discuss 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 2024 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

The preamble to the resettlement regulation makes clear that it is not the exclusive form of resettlement into the EU; so Member States could still run their own parallel resettlement programmes if they wished.* (The revised Eurodac Regulation will apply to those admitted under either EU or national resettlement programmes)* 

Unlike the other measures in the asylum package, which will apply about two years after adoption (on 12 June or 1 July 2026), the resettlement Regulation applies twenty days after its publication in the EU Official Journal - so from June 11 2024.* 

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 defines ‘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.

The new EU Resettlement Framework: the Ugly Duckling of the EU asylum acquis?

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.

The new EU law on refugees takes shape: More Harmonisation but Less Protection?

Professor Steve Peers

At the heart of the contested issue of asylum in the EU – including the current perceived ‘refugee/migrant crisis’ – is the definition of who is a ‘refugee’, or is at least entitled instead to a form of ‘subsidiary protection’ for those fleeing threats of ‘serious harm’. Refugees and people with subsidiary protection receive more legal protection and status than many other non-EU citizens, in particular irregular migrants.

Unsurprisingly then, the proposed revision of the EU legislation on this issue forms part of the broader overhaul of all EU asylum laws proposed in 2016, as a response to the perceived crisis. Recently the EU governments agreed their position on the proposal, which must now be negotiated with the European Parliament (its negotiating position is set out here).

Most of the other 2016 proposals are still under negotiation (I’ll discuss them as part of an update of recent EU immigration and asylum developments, coming soon). But since the ‘qualification’ rules are a cornerstone of EU asylum law, the latest development calls for a more in-depth analysis. In particular, will the new law meet the Commission’s objectives for dealing with the ‘crisis’: more harmonisation, an overall reduction in protection standards, and deterrents for ‘secondary’ movements between Member States?

The proposal aims to implement the UN Refugee Convention (which the EU refers to as the ‘Geneva Convention’) in more detail, as regards both the definition of ‘refugee’ and the rights which refugees receive. It also defines ‘subsidiary protection’ and sets out the rights which subsidiary protection beneficiaries are entitled to.

It will replace the existing EU law on the subject. As part of the ‘first phase’ of the Common European Asylum System (CEAS), an initial Qualification Directive was adopted in 2004. A ‘second phase’ Qualification Directive replaced it in 2011. (I analysed the negotiation of the latter Directive here; there’s also a lengthy analysis of it by Madeline Garlick and Violeta Moreno Lax in EU Immigration and Asylum Law: Text and Commentary). The UK and Ireland opted in to (and are still bound by) the first phase Directive, but not the second phase Directive or the 2016 proposal; Denmark is not bound by any of them. After Brexit, UK citizens will be able to apply for asylum in the EU.

Basic legal framework

To give effect to the objective of further harmonisation, the 2016 proposal will replace the 2011 Directive with a Regulation, with the consequence that EU law on this subject will be directly applicable, rather than applying through the medium of national legislation giving effect to a Directive. To the same end, the Regulation will also eliminate Member States’ power in the current law to set more favourable standards as long as they are compatible with the Directive – although this power has already been curtailed by the ECJ’s judgments in B and D and M’Bodj (the latter ruling is discussed here). The new Regulation will reflect that case law, by noting that Member States are free to retain or establish a separate status of humanitarian protection, as long as there is no confusion with the (EU harmonised) notions of refugee or subsidiary protection status.

This shift toward harmonisation is also manifested by a removal of most options under the Directive, with the effect of lowering standards overall, since most of the options are possibilities for Member States to offer less protection than under the standard rules. On the other hand, the Commission’s desire to have the new law play a role in immediate ‘crisis management’ would be thwarted by Member States, who want the law to apply in two years’ time – rather than the six months desired by the Commission. (Note that the EP wants it to apply even more quickly than the Commission, though).

Turning to the details of the proposal, there are four main elements to the law: common rules (applying to both refugee and subsidiary protection status); the definition of ‘refugee’; the definition of subsidiary protection; and the content of status (ie the benefits people with status receive).

Common rules

Family members of refugees and people with subsidiary protection will be given extra rights in the new law (see below), and they will be defined slightly more broadly. A ‘family member’ will now include relationships formed outside the country of refuge, not just those formed inside the country or origin. This means, for instance, that the spouse of a Syrian refugee who married him while in Turkey or Lebanon, and the children of that couple born in such countries, would now be defined as ‘family members’.

The rules on assessment of asylum applications will be extended to include refugees resettled directly from non-EU countries, assuming that a separate proposal on resettlement is agreed. It will now be mandatory, not optional, for the main burden of proof to rest upon the applicant to show why the claim for refugee or subsidiary protection status is justified; and a new clause in the preamble will reflect the ECJ’s 2014 case law (discussed here) which limits the intrusiveness of Member States’ questioning of the credibility of LGBTI asylum-seekers.  

Next, the new law will harmonise the use of an exception to the rules – and lower the standards of protection. While the Regulation will retain the notion of an application for refugee or subsidiary protection status ‘sur place’ – meaning the asylum seeker left the allegedly unsafe country of origin before it became unsafe – the exception to this rule will become mandatory. At present, this exception gives Member States an option to ‘normally’ refuse refugee status to an asylum seeker who has made a repeat application for asylum and created her own risk of persecution due to her activities after leaving the country of origin. The Commission proposal would extend this to subsidiary protection applications, and Member States want to go further – extending the (now mandatory) exception to initial applications as well, subject to a new threshold (the asylum-seeker’s activities were for the ‘sole or main purpose’ of making a claim for protection). For its part, the EP would keep the exception optional and limited to repeat applications, while also adding a safeguard for those asylum-seekers who (for example) ‘come out’ after arriving in the EU, having been previously afraid to express their sexuality.

Similarly, the option to refuse claims because the asylum seeker had an ‘internal flight alternative’ – ie he could have fled to a safe part of the country of origin, like a supposed ‘safe zone’ in Syria – would become mandatory. (The possibility of rejecting a claim because an asylum seeker would arguably have been safe in a different country is the subject of other proposals). The proposal makes this subject to safeguards: more elaborate explanation of the substance of the idea; applying the main rules on qualification first; shifting the burden of proof to the authorities; and not requiring the asylum seeker to show that he exhausted all possibilities to move within the country of origin. However, the Member States’ position would drop the latter two safeguards. For its part, the EP would keep this clause optional, drop the ‘sequencing’ rule, but add further safeguards.

Definition of ‘refugee’

The EU is bound by the Treaties to follow the UN Refugee Convention, so the proposed law retains the basic idea from that Convention that a ‘refugee’ is someone persecuted because of their race, religion, political opinion, nationality or particular social group, elaborating upon each of these concepts. The Commission proposal would clarify in the preamble that LGBT people can form part of a ‘particular social group’ (confirming ECJ case law), while the main text would confirm case law that asylum seekers can’t be expected to hide (for instance) their sexuality or religion in their countries of origin. The proposal would also tighten the definition of ‘particular social group’ in that asylum-seekers would have to show in all Member States that they both perceived themselves as part of a distinct group and were perceived as different by the rest of society. This would quash the discretion that Member States now have to set higher standards, so that only one of those elements is necessary to prove refugee status. Member States agree with this latter change, but the EP is resisting it.

As for exclusion from refugee status, where the current Directive elaborates a little on the relevant provisions of the Refugee Convention, the new Regulation would enshrine the basic elements of ECJ case law on the special status of some Palestinians (Bolbol and El Kott), and on the exclusion of persons strongly linked to terrorism (B and D; the preamble Member States’ version also takes account of the recent ECJ judgment in Lounani on the exclusion of foreign fighters, discussed here).

In contrast, the proposals on withdrawal of refugee status would tighten the existing law, making withdrawal mandatory in more cases and clarifying the link with similar provisions in the rest of the law (on that point, see the ECJ’s T judgment, discussed here). There would be a grace period to apply for another legal status and a mandatory review of status at least the first time a refugee’s residence permit came up for renewal. However, Member States reject the latter ideas (and the EP also rejects the review clause).

Definition of subsidiary protection

The core definition of subsidiary protection (a threat of serious harm deriving from the death penalty, torture or similar treatment, or facing a specified threat from armed conflict) would not be affected by the 2016 proposal – although the preamble would entrench the relevant ECJ case law (Elgafaji and Diakité). However, the rules on exclusion from and withdrawal of subsidiary protection status would be amended to (for the most part) match the parallel changes related to refugee status; and the Council and EP take a comparable view of these proposals. On one distinct point – withdrawing subsidiary protection status due to less serious crimes – the Member States reject the Commission’s proposal to make this ground mandatory, preferring to leave it optional for Member States.

Content of status

The 2016 proposal would make a number of interesting changes in this area. First of all, the Commission’s ambitious attempt to overturn the ECJ judgment in T, and make all benefits for refugees and persons with subsidiary protection contingent upon getting a residence permit, has been rejected by Member States and the EP.

Secondly, an amendment in the opposite direction: the family members of refugees or persons with subsidiary protection who don’t qualify themselves for international protection would be entitled to a residence permit. This would replace an ambiguous reference in the current law to preserving ‘family unity’. However, there are already special rules concerning the admission of family members of refugees set out in the EU’s family reunion Directive. So do two new sets of rules conflict? No, because a clause in the preamble to the agreed Qualification Regulation says that the family reunion Directive applies in the event of overlap (ie if the family member is ‘within the scope’ of the Directive).

Usually, the two laws will not overlap, for several reasons. A) the family reunion Directive does not apply to family reunion with sponsors with subsidiary protection, at least if that protection was granted on the basis of national or international law (sponsors with subsidiary protection on the basis of EU law are not expressly excluded, however). B) that Directive in principle only applies to family members who are outside the territory, whereas the Regulation conversely will only apply to family members who are present on the territory. However, Member States have an option to apply the Directive where family members are already present; only in that case would there be an overlap, decided in favour of the Directive where the family members are within the scope of it.

Thirdly, the Commission aimed for more harmonisation of the rules on renewal of residence permits, although the Member States prefer to leave themselves with more flexibility. It will be expressly mandatory to use the EU’s standard residence permit format for refugees and others covered by the Regulation though.

Fourthly, there will also be more harmonisation of the rules related to travel documents, which are issued by Member States to beneficiaries of international protection in place of passports, given that it would probably be unsafe for them to contact officials from their country of origin. They will be valid for at least one year and will be expressly subject to the EU’s passport security rules.

Fifthly, the provisions on movement within the territory and benefits would be redrafted, to take account of the ECJ case law in Alo and Osso (discussed here), which permits a link between limiting movements and the grant of benefits in some cases.

Sixthly, the rules on access to employment are strengthened by an obligation to ensure equal treatment as regards work-related matters, including taking account of experience in an occupation obtained outside the country of refuge.

Finally, there are further changes designed to entrench control over beneficiaries of international protection: Member States may make integration measures compulsory, and any unauthorised movement between Member States can be punished by ‘resetting the clock’ on acquisition of long-term residence status under the relevant EU law. Both Member States and the EP aim to soften these proposals by ensuring that integration courses are accessible and by allowing Member States to make exceptions from the changes to the long-term residence rule.

Assessment

What impact will the agreed proposal (still subject to further negotiation) have on the perceived ‘refugee crisis’? Will it meet the objectives of deterring protection-related migration as well as secondary movements, while harmonising national law further?

Certainly there are significant steps towards harmonisation: the use of a Regulation; the removal of the right to set more favourable standards; the disappearance of many options; and the integration of relevant ECJ case law into the legislative text (making it more visible for national authorities, courts, and legal advisers). However, the European Parliament is still battling to keep some key rules optional, rather than mandatory.

This goes to the second point: will the new Regulation reduce standards as much as the Commission had hoped? Here, the result is a mixed bag: some of the changes in the definition of refugee will have that effect – unless the European Parliament successfully resists them. However, the idea of mandatory reviews of status has been dropped.

As for sanctioning secondary movements, the reset of the clock as regards obtaining long-term residence status might have some impact, although the main thrust of the planned sanctions against secondary movement are found in separate proposals for amendment of other asylum laws.

The deferral (at least by Member States) of the impact of the new law for two years means that the new law would (if this delay is accepted) have no immediate impact on the current perceived crisis. However, the changes it would make to the definition of refugee status may lead to fewer refugees being recognised – although again this is subject to the success or failure of the EP’s attempts to resist such changes. In any event, since many of the plans to deter both the initial and secondary movement of people arguably needing international protection appear in other 2016 proposals (on reception conditions, the Dublin system and procedural rules), the overall assessment of whether the EU is moving in a dramatically more restrictive direction as regards asylum law depends more upon what happens with those proposals over the months to come.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Pinterest

*Disclaimer: I was an independent adviser for a consultancy advising the European Commission on the implementation of and possible amendment of the current Directive.

The final EU/Turkey refugee deal: a legal assessment

Steve Peers

The EU and Turkey have now reached an agreement on refugee issues, which has aroused considerable legal and political controversy. To examine the arguments about the deal, I present here the main text with my legal assessment of each point annotated. This builds upon my comments (together with Emanuela Roman) first of all in general on the relevant points last month, and then secondly on the leaked draft text of the final deal earlier this week (I have reused here some of the latter analysis where relevant). The agreement should be read alongside the EU summit conclusions, as well as the Commission communication on the deal. It incorporates the March 7 EU/Turkey statement which addressed the same issues in less detail.

The text of the deal is underlined below. The sections in bold have been added during negotiations, and the sections in strike-out have been removed. I have already discussed the legal status of the deal in the prior post earlier this week: it’s a statement that is not subject to approval or legal challenge as such; but its implementation in the form of specific laws or their application to individual asylum-seekers can be challenged.

1.       All new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey. This will take place in full compliance with EU and international law, thus excluding any kind of collective expulsion. All migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement. It will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order, Migrants arriving in the Greek islands will be duly registered and any application for asylum will be processed indvidually by the Greek authorities in accordance with the Asylum Procedures Directive 2013/32/EU, in cooperation with UNHCR. Migrants not applying for asylum or whose application has been found unfounded or inadmissible in accordance with the said directive will be returned to Turkey, Turkey and Greece, assisted by EU institutions and agencies, will take the necessary steps and agree any necessary bilateral arrangements, including the presence of Turkish officials on Greek islands and Greek officials in Turkey as from 20 March 2016, to ensure liaison and thereby facilitate the smooth functioning of these arrangements. The costs of the return operations of irregular migrants will be covered by the EU. Migrants having been returned to Turkey will be protected in accordance with the international standards concerning the treatment of refugees and respecting the principle of non-refoulement.

The newly added first sentence is a flagrant breach of EU and international law – but the rest of the paragraph then completely contradicts it. To be frank, anyone with a legal qualification who signed off on this first sentence should hang their head in shame. Returning ‘all’ persons who cross from Turkey to the Greek islands would contradict the ban on collective expulsion in the EU Charter and the ECHR, as well as EU asylum legislation. However, it does appear from the rest of the paragraph – including the newly added reference to non-refoulement (not sending people back to unsafe countries) – that this is not really the intention.

As for the rest of point 1, the first question is how ‘temporary’ this arrangement will be. Secondly, point 1 makes clear that the EU’s asylum procedure directive will apply to those who reach the Greek islands, as legally required. Note that the text does not refer to Greek waters: but the Directive explicitly applies to them too. It does not apply to international or Turkish waters. It is not clear what is planned as regards those intercepted before they reach the Greek islands.

As for ‘migrants not applying for asylum’ the crucial question is whether they will be given an effective opportunity to apply for asylum, as the Directive (and ECHR case law) requires. If an irregular migrant does not apply for asylum then in principle there is no legal obstacle to returning them to Turkey, subject to the conditions set out in the EU’s Returns Directive. Note that the Greek authorities will have to consider the applications, which is a significant administrative burden; this implicitly reiterates the closure of the route via the Western Balkans. The EU’s decisions on relocation of asylum-seekers from Greece and Italy (discussed here) will implicitly continue to apply, but they only commit to relocating a minority of those who arrive in Greece, and they are barely being applied in practice.  

If an application is ‘unfounded’ that means it has been rejected on the merits. If it is ‘inadmissible’ that means it has not been rejected on the merits, but on the grounds that Turkey is either a ‘first country of asylum’ or ‘safe third country’ (there are other grounds for inadmissibility, but they wouldn’t be relevant). The Commission paper briefly suggests that Turkey could be a ‘first country of asylum’ (for more analysis on that, see the prior blog post). Most of the debate is on whether Turkey is a ‘safe third country’.

Is it? The commitments on treatment in Turkey have been moved from this statement to the separate summit conclusions. Treatment in Turkey will need to match EU rules in the procedures Directive, which define a ‘safe third country’ as a country where: the people concerned do not have their life or liberty threatened on ground of ‘race, religion, nationality, membership of a particular social group or political opinion’ (this test is taken from the Geneva Convention on refugee status); there is ‘no risk of serious harm’ in the sense of the EU definition of subsidiary protection (death penalty, torture et al, civilian risk in wartime); the people concerned won’t be sent to another country which is unsafe (the non-refoulement rule, referring specifically to the Geneva Convention, plus the ban on removal to face torture et al as laid down by ECHR case law); and ‘the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention’.

As set out in the previous blog post, the last point is questionable because Turkey does not apply the Geneva Convention to non-Europeans, and the best interpretation of this requirement is that it must do so in order for the clause to apply. However, this interpretation is not universally shared: the Commission, the Council, Greece and some academics take the view that it is sufficient that Turkey applies equivalent standards in practice. (Note that the Commission only selectively quotes the Directive to make this argument). Even if this latter interpretation is correct, whether Turkey does apply equivalent standards in practice might itself be open to question.

Furthermore, again as discussed in the previous post, many NGOs argue that refugees are not always safe from mistreatment in Turkey itself, although no one argues that all of them are mistreated there.  Equally Turkey allegedly returns some people (but clearly not all of them) to unsafe countries, and the deal explicitly plans for a ‘safe zone’ in Syria.  Such a zone is conceivable in theory, but whether it would indeed be safe would have to be judged when and if it happens; and it may become less (or more) safe in light of events. To address these issues the procedures Directive says that the asylum-seeker must be able to argue that ‘the third country is not safe in his or her particular circumstances’. Everything will then turn on the assessment of an argument along these lines.

A critical here is whether the case can be fast-tracked. The procedures Directive contains lists of cases where the administrative procedure can be fast-tracked, and where the appeal against a negative decision to a court doesn’t automatically entitle an asylum-seeker to stay. Note that those lists don’t refer to fast-tracking ‘safe third country’ cases, although in practice it may be quicker to decide a case without examining the merits. It is possibly arguable that the lists aren’t exhaustive. If Greece wants to take this view, the interpretation of these clauses will be crucial. If the cases can’t be fast-tracked, it will obviously take longer to return people to Turkey in practice. Member States can set up special ‘border procedures’, but there is no reference to fast-tracking applications in this context. Furthermore, Member States can’t apply fast-track or border procedures to ‘vulnerable’ applicants, as broadly defined, and can’t apply border procedures to unaccompanied minors.

Odd as it might seem, the general state of human rights in Turkey (for example, as regards freedom of expression) is not directly legally relevant to returning refugees or other migrants there. The question is whether Turkey is unsafe, as defined in EU asylum law, for refugees and migrants. However, the general state of human rights in Turkey is relevant for a different reason: the Commission has separately proposed that Turkey be designated a ‘safe country of origin’, so that any refugee claims by Turkish citizens can be more easily rejected. I argued last September that this proposal was untenable in light of the human rights record of Turkey. In light of developments since, I’ll update my assessment: the suggestion is now utterly preposterous. But this proposal is not part of the deal.

2.    For every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria. A mechanism will be established, with the assistance of the Commission, EU agencies and other Member States, as well as the UNHCR, to ensure that this principle will be implemented as from the same day the returns start. On resettlement based on 1-for-l principle: a) Priority will be given to migrants Syrians who have not previously entered or tried to enter the EU irregularly, On the EU side, resettlement under this mechanism will take place, in the first instance, by honouring the commitments taken by Member States in the conclusions of Representatives of the Governments of Member States meeting within the Council on 22/7/2015, of which 18.000 places for resettlement remain. Any further need for resettlement will be carried out through a similar voluntary arrangement up to a limit of an additional 54.000 persons. The Members of the European Council welcome the Commission's intention to propose an amendment to the within the limits and in accordance with the distribution set out in [relocation decision of 22/9/2015 to allow for any resettlement commitment undertaken in the framework of this arrangement to be offset from non-allocated places under the decision. - non-allocated places]. Should these arrangements not meet the objective of ending the irregular migration and the number of returns come close to the numbers provided for above, this mechanism will be reviewed. Should the number of returns exceed the numbers provided for above, this mechanism will be discontinued. the number of returns exceed the numbers provided for by these commitments, this agreement will be subject to review.

The idea of a ‘1-for-1’ swap of irregular migrants for resettled Syrians has been controversial, but does not raise legal issues as such. Resettlement of people who need protection from the countries they have fled to is common in practice, but is not a binding legal obligation under international or EU law. The legality of return of people to Turkey has to be judged separately (as discussed above) from the question of whatever trade-offs might be made in return for this. However, I certainly share the view of those who find a de facto ‘trade in human misery’ morally dubious. The ethos of resettlement is humanitarian; to demand a pay-off for one’s humanitarian actions contradicts their ethical foundations.

The final text makes clear that resettlement will focus on the most vulnerable people. Note that if all resettlement from now on takes place from Turkey, then no-one will be resettled by the EU from Lebanon and Jordan, which also host large numbers of Syrian refugees. On the ‘low priority’ cases, it is open to Member States to prioritise resettlement on whatever criteria they like. Obviously the intention here is to deter people from attempting unsafe journeys via smugglers; whether that would work depends on the numbers who might be resettled.

Overall, the EU has not increased the numbers of people that Member States are willing to accept: the first 18,000 are the remainder of the 23,000 people that the EU committed to resettle from non-EU countries last year, and the next 54,000 are the remainder of those who were going to be relocated from Hungary, before that state rejected the idea last September. However, unlike the mandatory quotas under the EU’s relocation decision, these numbers will be voluntary. The final deal makes clear that the maximum member of people who will be returned on this basis is 72,000: this part of the deal ends once the number of returned irregular migrants hits that number, or if the levels of irregular migration stop. In the latter case, the EU will move to a voluntary humanitarian admission scheme, discussed below. In the former case, it is not clear what will happen.

3)   Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from up out of Turkey and into to the EU, and will cooperate with neighbouring states as well as the EU to this effect.

This refers to Bulgarian concerns that people might try to cross the Black Sea as a new entry route. Of course, if people do make to Bulgarian territory or waters, the EU asylum laws would apply, as they do for Greece.

4)   Once the irregular crossings between Turkey and the EU have come to an end are ending, or at least have been substantially and sustainably reduced, the Voluntary Humanitarian Admission Scheme will be activated. EU Member States will contribute on a voluntary basis to this scheme.

This scheme is set out in a Commission Recommendation from December, as discussed in detail here. Note that the text was amended to make clear that irregular crossings would not have to stop entirely; that was an obvious fantasy.

5) The fulfilment of the visa liberalisation roadmap will be accelerated vis-à-vis all participating Member States with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016, provided that all benchmarks have been met. To this end Turkey will take the necessary steps to fulfil the remaining requirements to allow the Commission to make, following the required assessment of compliance with the benchmarks, an appropriate proposal by the end of April on the basis of which the European Parliament and the Council can make a final decision.

This commitment is transposed from the March 7 statement. The waiver of short-term visas only applies to the Schengen States, and applies for stays of three months. Under the EU/Turkey readmission agreement, Turkey will have to take back anyone who overstays. It will still be necessary for Turkey to meet the relevant criteria, and for the EU Council (by qualified majority vote) and the European Parliament to approve this change in EU law.

6)   The EU, in close cooperation with and Turkey, will further speed up the disbursement of the initially allocated 3 billion euros under the Facility for Refugees in Turkey and ensure funding of additional further projects for persons under temporary protection identified with swift input from Turkey before the end of March. A first list of concrete projects for refugees, notably in the field of health, education, infrastructure, food and other living costs, that can be swiftly financed from the Facility, will be jointly identified within a week. Once these resources are about to be used to the full, and provided the above commitments are met, Furthermore, the EU will mobilise decide on additional funding for the Facility of an additional 3 billion euro up to the end of 2018. [X] billion for the period [Y] for the Turkey Refugee Facility.

The amount and timing of additional money from the EU and its Member States was agreed during negotiations. Details of the timing of disbursements and the nature of the spending projects have also been added. Note that this money is not, as is widely assumed, simply handed over to Turkey: legally speaking it can only be spent on projects that assist the Syrian refugee population. The Commission paper sets out further details of how the money will be spent, starting with a contract to provide food aid to over 700,000 Syrians.

7) The EU and Turkey welcomed the ongoing  work on the upgrading of the Customs Union.

This refers to an intention to extend the existing customs union to cover services and investment issues.

8) The EU and Turkey reconfirmed their commitment to re-energise the accession process as set out in their joint statement of 29 November 2015. They welcomed the opening of Chapter 17 on 14 December 2015 and decided, as a next step, to open Chapter 33 during the Netherlands presidency. They welcomed that the Commission will put forward a proposal to this effect in April. Preparatory work for the opening of other Chapters will continue at an accelerated pace without prejudice to Member States' positions in accordance with the existing rules.

Ultimately the EU and Turkey agreed to open only one new chapter out of 35 which need to be agreed in order for Turkey to join the EU. Only one chapter has been closed so far in a decade of negotiation. There is no commitment to open or close any further chapters. Even if an accession deal is ever negotiated, there are many legal and political obstacles in the way of it being approved, as all Member States’ parliaments would have to agree.

9) The EU and its Member States will work with Turkey in any joint endeavour to improve humanitarian conditions inside Syria, in particular in certain areas near the Turkish border which would allow for the local population and refugees to live in areas which will be more safe.

This refers to an intention (as noted above) to create a ‘safe zone’ within Syria. Whether this is viable or not remains to be seen. If there is any dispute about its safety, then returning Syrians to Turkey would be problematic if Turkey intends to send them further on to the alleged safe zone.

Conclusions

Overall the final deal tries to address the two main legal concerns about the March 7 ‘deal’. It makes clear that the EU asylum laws will apply to those who reach Greece (subject to the caveat about what happens to those intercepted in Greek waters), and that Turkey will have to meet the relevant standards when taking people back. The intention to ‘make the deal legal’ is clearly undermined by the extraordinary statement that ‘all’ irregular migrants will be returned. The key legal question will be how these commitments are implemented in practice.

The main legal route to challenging what happens should be by asylum-seekers through the Greek courts. Those courts could refer questions to the CJEU about EU asylum law (the CJEU could fast-track its replies). Alternatively if the asylum-seekers have gone through the entire Greek court system, or cannot effectively access the Greek system they could complain to the European Court of Human Rights (which is separate from the EU), and claim that there is a breach of the European Convention of Human Rights. In practice, however, it may be that access to lawyers and courts is more theoretical than real.

It is unfortunate, to say the least, that the EU did not try to ensure beyond doubt that the deal was legal, by putting in place some sort of effective monitoring of Turkish commitments as regards the treatment of refugees and migrants, in particular asking Turkey to fully apply the Geneva Convention to all refugees as a condition of the deal. After all, the EU will now be meeting a significant proportion of the costs of housing refugees in that country. It is even more disturbing that some Member States want to arrange for expedited returns to Libya. Surely before too long, the CJEU will asked to interpret the definition of ‘safe third country’ in EU asylum law. That finding will be crucial in determining whether it really is legal to return people to Serbia, Turkey, Libya and possibly other countries besides.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: www.parapolitika.gr