POST 16 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM
by Caroline Leclercq, PhD candidate in European and Migration Law, Centre de droit européen, Universitè Libre de Bruxelles
Resettlement seems to be the main solution advanced in the New Pact on Migration and Asylum to fill the current gap of legal channels for asylum seekers. It is defined by the United Nations High Commissioner for refugees (UNHCR) as the selection and transfer of refugees from a first State of asylum where they are protected but in precarious or unsafe situation, to a third State that has agreed to accept them as refugees with permanent residence status. It involves a pre-selection by UNHCR, followed by a selection by the resettlement State. Resettlement aims to show international solidarity with countries that host the majority of the world’s refugees, and to ensure durable protection for the most vulnerable among them.
Indeed, very few refugees manage to reach European territory to apply for asylum. Low and middle income countries currently host 75% of the world’s refugees. The number of people needing resettlement is rising all the time. In 2024, UNHCR estimates this figure at 2.4 million. Since 2003, the EU Commission has increasingly prioritized resettlement as a means to enhance legal entry and managed transfer of individuals in need of international protection and to reduce the need for asylum seekers to resort to dangerous journeys to reach EU territory.
In 2015 two EU-wide resettlement programmes were established through a Commission recommendation. Those programmes were supported by significant financial resources allocated through the Asylum, Migration and Integration Fund (AMIF) and institutional support from the EASO (now the European Asylum Agency). 63.279 refugees were resettled to the EU between 2015 and 2019 (87% of the increased commitment). While these programmes established certain common principles for resettlement, they did not function based on a common admission procedure with appropriate guarantees for refugees. In 2016, the Commission introduced – as part of a New Pact on Migration and Asylum – a proposal for an EU resettlement framework under an EU regulation which was finally adopted on 14 May 2024 in order to address these shortcomings. This blog assesses the changes brought about by this new instrument regarding the harmonisation of the selection procedure and the guarantees provided to refugees during this process.
The aim of the new Resettlement and Humanitarian Admission regulation is to provide ‘a common approach to the legal and safe arrival in the EU of persons in need of international protection’ to ‘increase resettlement and humanitarian admission efforts and reduce divergences between national resettlement practices and procedures’ (preamble, recitals 8 and 13). The Regulation foresees a structured planning process. Based on proposal from the Commission, the Council will adopt a two-year Union Resettlement Plan. The plan will set out the total number of persons to be admitted, as well as the contribution of each Member State (quotas sovereignly determined by the national authorities of these Member States), a description of the specific groups of individuals targeted and geographical priorities (article 8).
However, the preamble to the Regulation states that ‘there is no subjective right to apply for admission or to be admitted by a Member State, nor any obligation on Member States to admit a person under this framework’ (recital 25). This could be explained by the fact that resettlement (contrary to the right of asylum or the principle of non-refoulement) is not a right enshrined in international law. Member States are therefore free to decide whether to take part in resettlement programmes. Rather than creating binding targets around resettlement, the regulation is limited to the establishment of common rules on admission and the type of status to be granted.
Wide margin of appreciation for Member States to the detriment of refugees’ rights
The admission procedure is defined in article 9 of the regulation. It implies a referral from the UNHCR that will preselect the most vulnerable refugees and submit their dossiers to the Member States (1). The latter will then proceed to the final selection by checking that eligibility criteria are met and that persons do not fall under one of the grounds for exclusion (2). The Regulation also establishes certain procedural obligations as part of the selection process (3).
1. Referral from the UNHCR: no direct application from refugees
According to the definition provided for in article 2, the first step of the resettlement process is the referral from the UNHCR. It consists of a pre-selection of the most vulnerable refugees. They cannot directly apply for resettlement. Dossiers are submitted either internally by UNHCR agents or externally by civil society actors. However, refugees can approach these liaison points.
In practice, at the pre-selection stage, the UNHCR checks that some conditions are met: firstly, the applicant must be officially recognised as a refugee either by the State of first asylum or by the UNHCR itself. The definition UNHCR employs covers refugees within the meaning of Article 1 A (2) of the 1951 Refugee Convention, but also people who meet the definition of subsidiary protection, as well as certain categories of stateless persons.
Secondly, the refugee must be considered to be particularly ‘vulnerable’. To identify those who are most in need, the UNHCR employs the following ‘resettlement submission categories’: legal and/or physical protection needs; survivors of torture and/or violence; medical needs; women and girls at risk; children and adolescents at risk; and lack of foreseeable alternative durable solutions (article 5 § 3 a). To preserve family unity, the UNHCR may also consider the resettlement of certain family members of persons admitted to the pre-selection process (article 5 § 4). In order to determine whether the above criteria are met, the UNHCR conducts interviews.
At the end of the pre-selection procedure, the UNHCR will submit the pre-selected dossiers to the Member States in accordance with the quotas and criteria established within the Union plan and therefore check if people fall within the scope of the Plan (article 9 § 7 a).
2. Eligibility: addition of national criteria
The Member States will then assess whether the third-country nationals or the stateless persons in relation to whom they conduct an admission procedure meet the eligibility criteria set out in the regulation and do not fall under the grounds for refusal. Member States make that assessment in particular on the basis of documentary evidence, including, where applicable, information from the UNHCR on whether the third-country nationals or the stateless persons qualify as refugees, or on the basis of a personal interview, or a combination of both. Member States are therefore not obliged to interview potential resettled refugees since the selection can be based only on UNHCR dossiers.
The Regulation adopts more or less the same criteria as those UNHCR employs while pre-selecting. Namely these are refugees and those who meet the definition of subsidiary protection (third country nationals or stateless persons), while additionally falling within at least one of the seven UNHCR categories of vulnerability mentioned above. Some family members of persons considered for resettlement – the spouse or unmarried partner if treated similarly to married couples under national law; minor unmarried children ; the parent or another adult responsible for an unmarried minor; and siblings – are also eligible for admission.
The Regulation authorises Member States to favour persons: 1) with family ties to persons legally residing in a Member State; 2) with demonstrated social links or other characteristics that can facilitate their integration in the Member State, including language skills or previous residence; and 3) with particular protection needs or vulnerabilities. Allowing Member States to use ‘integration potential’ as a selection criterion could lead to discrimination since it is a broad concept that can be based on considerations such as language, ethnic or social features, disabilities, religion, etc (protected criteria listed in article 21 of the EU Charter). Resettlement then also becomes an instrument of migration management aimed at controlling who enters the EU territory. In the Commission proposal, the potential for integration could be put forward at the stage of dossier submission by the UNHCR and could therefore act as a general filter. In the final version, preference might be given during the selection by the Member States in individual cases.
In terms of transparency, the regulation does not require Member States to set out their criteria in any official document.
The proposal also outlines both optional and mandatory grounds for refusing admission. The mandatory grounds combine those already present in the Qualification Directive with some risk assessment criteria from the Visa Code and Schengen Borders Code, particularly security considerations. If a person falls under one of these mandatory grounds, they are barred from participating in the resettlement process for a period of three years. In terms of optional refusal, individuals who have either declined to participate in a resettlement or humanitarian admission program, or withdrawn their consent, may also be excluded. The same applies to those refusing to engage in a pre-departure orientation program. Lastly, ‘persons for whom the Member State cannot provide adequate support due to their vulnerability’ may be denied admission (Article 6 § 2 d). This last reason appears paradoxical, as resettlement is intended to prioritize the most vulnerable.
3. Procedural aspects: almost no binding procedural obligation for Member States
Having identified a third-country national or stateless person who falls within the scope of the Union plan, Member States should record various information concerning the person they intend to admit. The Regulation also imposes a duty on Member States to inform third country national in the resettlement process of the objectives and different stages of the procedure, as well as of the consequences of withdrawing their consent to be admitted and of refusing to participate in a pre-departure orientation programme. In addition, it requires Member States to inform refugees in a language they understand of their rights under the GDPR.
Concerning deadlines, Member States should decide on the admission as soon as possible and in any event within seven months of the date of registration. They may extend that time-limit by up to three months in the event of complex issues of fact or law. In the case of an emergency admission (for persons with urgent legal or physical protection needs or with immediate medical needs), they should reach a conclusion as soon as possible and endeavour to do so within one month of the date of registration. However, there are no penalties for exceeding processing times. Furthermore, a Member State is authorised to discontinue an admission procedure where it has concluded that it is not able to comply with the time limits for reasons beyond its control.
Regarding the final decision, the regulation states that when a Member State refuses to admit a person on its territory, the third- country national or stateless person concerned should not be admitted. The reason for a negative decision should be communicated to the UNHCR, ‘unless there are overriding reasons of public interest for not doing so’. When a Member State rejects a file, it can be consulted by a second Member State when reviewing that file for the admission process. The current text does not impose any obligation to notify a decision to the third country nationals that are not selected, nor to give reasons for unfavourable decisions, and there is no right of appeal against such decisions. These gaps might be problematic in the light of fundamental procedural rights including good administration and the right to an effective remedy enshrined in Articles 41 and 47 respectively of the Charter of Fundamental Rights.
Where a Member State’s conclusion is positive, it ‘shall make every effort’ to ensure entry to its territory as soon as possible and in any event within 12 months of the date of the decision. In the case of an emergency admission, the Member States ‘shall ensure’ the swift transfer of the third-country national or the stateless person after the date of the positive conclusion. This includes issuing the appropriate visa so that the third country nationals selected can travel to the Member State concerned. Pre-departure orientation programmes are also provided to familiarise those selected with the ‘customs of the resettlement State’.
Upon arrival, Member States must take a decision to grant refugee status where the third-country national or the stateless person concerned qualifies as a refugee, or subsidiary protection status where the third-country national or the stateless person concerned is eligible for subsidiary protection. Such a decision has the same effect as a decision granting refugee status or subsidiary protection status, but only after the person concerned has entered the territory of a Member State. In practice, an asylum application will be lodged on arrival in the country of resettlement. However, this is largely a formality, as it will be automatically accepted by the national authorities. The decision on status is then notified to the refugee and may be challenged at the national level, for instance where subsidiary protection instead of refugee status is granted.
Concluding remarks
Despite the growing importance of resettlement as the only legal pathway for asylum seekers to access the EU territory, the European Union has not managed to establish binding targets for resettlement. The regulation does not contain an obligation to resettle refugees, and instead quotas are freely set by Member States, that may choose not to participate at all in resettlement activities.
While the regulation harmonises the selection procedure, it does not offer the necessary guarantees to third country nationals. The regulation permits the addition of criteria to vulnerability, such as integration potential. This detracts resettlement from its primary objective of protecting the most vulnerable. This is accentuated by the possibility given to Member States not to resettle “persons in respect of whom the Member State cannot provide the adequate support they need because of their vulnerability”. The Member States enjoy a great margin of appreciation during the selection procedure, which entails a risk of cherry picking. These risks are difficult to mitigate since the EU resettlement framework – despite its regulatory nature – contains almost no procedural obligations other than a duty of information. Deadlines are optional, and Member States are not obliged to hear refugees during the selection procedure, or to notify a reasoned decision to refugees that are not selected for resettlement. Furthermore, national programmes/criteria do not have to be made public (via official documents for instance). In the event of a positive decision, however, the guarantees attached to refugee or subsidiary protection status apply, but only once the refugee has entered the territory of the resettlement State.
Although these legal considerations are valid, the adoption of this regulation was shaped by the political context. As resettlement is not a right recognised under international law, States have the discretion to decide whether to participate in these programmes. This makes resettlement a political decision, potentially influenced by the legal constraints surrounding the process. Imposing additional procedural obligations on Member States carries the risk of discouraging their participation, which could ultimately reduce the number of refugees being resettled.
However, this reality does not justify the possibility of disregarding refugees’ fundamental rights during the selection procedure. When a Member State chooses to take part in resettlement, it should respect procedural rights. The preamble of the EU resettlement framework regulation expressly imposes the obligation to respect fundamental rights enshrined in the Charter. The text of the Regulation though leaves open questions in terms of potential violations, for example in what concerns the principle of non-discrimination, the right to good administration, and the right to an effective remedy.