A strong EU resettlement program is more important than ever

The COVID-19 outbreak exacerbates the unresolved issue of a growing resettlement gap. Already before the pandemic, the offers of reception countries did not cover the global resettlement needs. One major reason were significant cuts of the US annual admission ceiling. A strong EU resettlement program compliant with international protection obligations may close, at least narrow, the resettlement gap and prevent a worldwide race to the bottom.

 

As a response to the COVID-19 outbreak, governments have adopted various measures to protect public health, including border closures, de facto entry bans for asylum seekers and suspension of resettlement operations. Travel restrictions and safety concerns put the programs of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) on hold. Countries of (first) refuge also reacted by hampering refugees’ access to their territory, for instance, Argentina, Brazil, Chile and Colombia have closed their borders. The European Commission is alarmed that the impact of COVID-19 on these countries of (first) refuge will render resettlement needs even more pressing. Against this background, the Commission Communication of 16 April 2020 called for continued “solidarity with persons in need of international protection and third countries hosting large numbers of refugees”.

Already before the COVID-19 outbreak, lacking commitment of potential receiving countries resulted in an increase of the so-called resettlement gap. In 2019, globally around 1.4 million refugees were estimated to be in urgent need of resettlement but only 63.696 were resettled through the UNHCR. Shrinking contributions from the US have constituted one major factor worsening the gap. The US resettlement cuts require other countries to counteract in order to prevent a global race to the bottom. In this light, research on active refugee admission to Europe, including resettlement, has become more important than ever.

This post reveals that EU Member States have untapped capacities to substitute the missing US contributions. It further claims that the EU shall step in with a new European approach on resettlement based on solidarity and coherence with international protection obligations.

 

The US Refugee Admissions Program and current policy developments

The US and its allies achieved first resettlement efforts in the aftermath of World War II. Resettlement played a central role in US foreign policy “drawn from the lesson that mass displacement can provoke even greater crisis“. In 1980, the Refugee Act entered into force. Until today, it has framed a permanent resettlement program based on the exclusive competence of the federal government. In the first year after enactment – at the height of the Vietnamese exodus – overseas admissions of refugees peaked with a number of more than 200.000. Over the next 35 years, admission numbers varied between 40.000 and 130.000. As a reaction to 9/11, US resettlement abruptly stopped but eventually recovered. For 2017, President Obama, in consultation with the Congress, even set an exceptionally high admission ceiling of 110.000. Subsequently, President Trump took office and initiated the 27 January 2017 Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States (‘Muslim ban’). This Executive Order barred nationals from seven Muslim-majority countries, namely Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, and suspended all refugee admissions pending a 120-day period of review of security procedures. As a result, the initially high 2017 admissions ceiling was reduced to 50.000. The following number of 22.491 arrivals in 2018 was the lowest since the beginning of the US program while Canada was catching up. In 2019, the number of arrivals slightly increased to 30.000.

It cannot be denied that US resettlement has faced serious difficulties. This is also reflected in the opposition of individual American States to admit resettlement refugees. In 2015, thirty-one US governors issued statements opposing the resettlement of Syrian refugees in their states. They argued that suspects believed to be involved in the Paris terrorist attacks entered Europe with the wave of Syrian refugees. In response, with its Presidential Executive Order of 26 September 2019, the Trump administration was the first one to introduce a relaxation of the exclusive competence of the federal government by granting states and local governments “veto power” over refugee resettlement. Notably, the vast majority of US governors sidestepped the opportunity to stop accepting refugees and affirmed their continued support to refugee resettlement. Nevertheless, the declining commitment of the federal government to admit resettlement refugees has forced resettlement agencies to shut down offices, which has weakened their network.

The all-time low 2020 admission ceiling of only 18.000 indicates a further decrease of actual admissions to the US. The US’ resettlement reluctance is aggravated by additional restrictions in the course of the COVID-19 pandemic. On 18 March 2018, the US temporarily suspended refugee admissions. Lately, on 22 April 2020, President Trump issued a Proclamation Suspending Entry of Immigrants Who Present Risk to the US Labor Market During the Economic Recovery Following the COVID-19 Outbreak, which will remain in force for 60 days. This Proclamation may, however, have little impact on resettlement refugees because individuals seeking asylum or refugee status in the US are excluded (Section 3 lit c). Moreover, the Proclamation has not altered the status adjustment of refugees in the US. As before, refugees who have been one year physically present in the US can apply for a green card to obtain lawful permanent residence status.

In conclusion, the US resettlement program faces fundamental challenges, namely significant cuts in admissions and a torn network of resettlement agencies. This is exacerbated by unforeseen burdens arising from the current health and economic crisis triggered by the COVID-19 pandemic. While individual states have confirmed their continued commitment to resettlement, it remains to be seen whether the upcoming elections in November 2020 entail a policy shift on the federal level.

 

EUs untapped potential to become a major player in global resettlement

The UNHCR aspires to fill the resettlement gap by expanding the number of reception countries. In 2011, only eleven EU Member States contributed to only 6.6% of the global total number of resettlement places, while the US, Australia and Canada provided over 90%. Against this background, Piper, Power and Thom argued in a UNHCR research paper that “Member States of the European Union are the major sticking point when it comes to achieving a significant increase in resettlement capacity“.

For the period of 2013 to May 2015, EU Member States offered to resettle 38.000 refugees from Syria within their own territory. Notably, these pledges mainly included the German Humanitarian Admission Programs (HAPs). 78% of resettlement places for Syrian refugees were pledged by Germany, followed by Sweden with 7%, while the rest of the EU Member States only pledged 14% in total. Eventually, 20.000 Syrian refugees arrived in Germany under the HAPs between 2013 and 2015.

On 25 June 2015, the European Council agreed “that all Member States will participate including through multilateral and national schemes in the resettling of 20.000 displaced persons in clear need of international protection, reflecting the specific situations of Member States“. Still, in 2016, the EU’s contribution to global resettlement remained small with 10%.

With its Recommendation of 7 October 2017, the Commission adopted a new ad hoc scheme for at least 50.000 refugees. By March 2018, 19 EU Member States pledged 40.000 places. Until the official expiration of the program in October 2019, 39.000 refugees were actually resettled. Ultimately, the ad hoc program was prolonged due to the still missing agreement on a permanent EU framework before the European Parliament elections in May 2019.

 

A Union Resettlement Framework

The past joint resettlement efforts took place in the form of non-binding Commission communications, recommendations and European Council conclusions. Even though leaders convey that migration and asylum issues need a European approach, “actual policy and practice continue to be national in every way“. Until today, a common resettlement policy among EU Member States is missing. Traditional resettlement countries, like Sweden, Finland, the Netherlands and Ireland, have regularly resettled on a program basis – even before incorporating resettlement in their national asylum legislation. Other EU Member States like Italy and Luxembourg have joined on an ad hoc basis only. Germany pursued an ad hoc approach and finally incorporated resettlement into its national legislation. In some other EU Member States, like Austria and Luxembourg, a clear and express reference to resettlement in national migration and/or asylum law cannot be found.

The voluntary nature of and heterogeneous national responses to resettlement involve that some EU Member States contribute relatively little (or not at all) compared to other EU Member States. Making use of untapped resources requires a more effective enforcement of the principle of solidarity and responsibility-sharing as stipulated in Article 80 of the Treaty of the Functioning of the European Union (TFEU). Even though arguably Article 80 TFEU includes concrete obligations to act, EU Member States have discretion as to the means to be adopted. Strikingly, such obligations clash with the voluntary nature of EU resettlement programs.

The current challenge consists of defining a Union Resettlement Framework based on the principles of solidarity and responsibility-sharing and on adherence to international protection standards. In 2016, the Commission launched a Proposal for a permanent Union Resettlement Framework Regulation with a unified procedure for resettlement across the EU. Consensus has not been achieved yet. Although a partial provision agreement was reached on 13 June 2018 between the Parliament and the Council, the Council finally did not endorse the agreement. The proposed Regulation preserves the voluntary nature of resettlement commitments by EU Member States. Since the mandatory quota mechanism for intra-EU relocation to support Italy and Greece in 2015 (politically) failed, agreement on a mandatory system has proven even more difficult. Moreover, the Proposal for a Union Resettlement Framework Regulation has been criticized for contradictions with international refugee law. Just to name one example: The Proposal states that persons who have irregularly stayed in or attempted to irregularly enter into the territory of an EU Member State “shall be excluded” (Article 6 para 1 lit d). This provision raises concerns about discrimination among refugees. It may also be problematic in the light of Article 31 Refugee Convention, which prohibits contracting states to “impose penalties, on account of their illegal entry or presence, on refugees […] provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”.

 

Plans of the current Commission, challenges and expectations

If the EU became a role model by adhering to international protection standards and by increasingly admitting refugees from overburdened countries of (first) refuge, it could persuade these countries to open their borders and keep their borders open for refugees. Thereby, the EU would counteract protracted refugee situations, where refugees spend years living in camps without prospective of long-term integration in the country of (first) refuge.

The commitments that states are willing to make represent a key message to the international community. Denying commitment and violating international obligations is perceived negatively; for instance, the African Union stated dissatisfaction with EU’s external migration policy. In the context of EU’s proposal to establish regional disembarkation platforms in North Africa, it complained “that it [EU] would breach international law by establishing ‘de facto detention centres’ on African soil, trampling over the rights of those being held“. Moreover, EU’s and EU Member States’ officials and agents have been accused of Crimes Against Humanity “committed as part of a premeditated policy to stem migration flows from Africa via the Central Mediterranean route, from 2014 to date“. To overcome current criticism, future EU resettlement policy shall be designed to impact the lives of hundreds of thousands of people for good.

When Ursula von der Leyen, President of the current Commission, talks about a Union that strives for more, she stresses the need for a new way of burden-sharing and for a fresh start. Such a fresh start entails a New Pact on Migration and Asylum with a stronger commitment to resettlement.

As regards the near future, EU Member States have collectively pledged more than 30.000 resettlement places for 2020 at the first Global Refugee Forum in Geneva. This has raised prospects of a significant increase compared to the 2016 figures, when the number of resettlement refugees admitted to the EU did not even reach 15.000. Nevertheless, the COVID-19 outbreak poses unforeseen challenges to implement the 2020 target. The spread of the virus also urges the relocation of refugees from overcrowded Greek reception centers. By 15 April 2020, Luxembourg was the first EU Member State voluntarily relocating unaccompanied minors as part of a March 2020 action plan organized by the Commission and Greek authorities. So far, only ten EU Member States are part of this initiative, which exemplifies that the EU-27 are not acting as one. This traces back to their missing consensus on concrete actions, numbers and types of refugees to take. The political reality is that the Visegrád states, as well as others, such as Austria and Sweden, invoked national security concerns to refuse refugee admissions. This issue was expressly addressed by Advocate General (AG) Sharpston in the context of infringement proceedings regarding relocation obligations. The European Court of Justice (ECJ) finally clarified in its recent judgement of 2 April 2020 that Poland, Hungary and the Czech Republic violated EU law by invoking national security concerns. These EU Member States unsuccessfully relied on Article 72 TFEU as the legal basis for derogating from their relocation obligations in toto, ie without case-by-case assessment. The following central tenet can be derived from AG Sharpston’s Opinion and the subsequent ECJ judgement: While general refusal to contribute runs counter the principle of solidarity, individualized assessment genuinely confers a wide margin of discretion in the hands of administrations to refuse the relocation of a third-country national. Still, the ECJ left contemporary issues that are not only related to relocation, but also to resettlement, open. Questions to be tackled include whether and to what extent EU Member States may be allowed to resort to Article 72 TFEU in order to derogate from Union law in the context of combatting the spread of COVID-19 to the detriment of resettlement commitment or “the disheartening situation of asylum seekers at the Greece-Turkish border“.

In the short and medium-term, one main challenge consists of developing safety measures and finding political compromises to ensure continued resettlement commitment during and after the COVID-19 pandemic. Resettlement will become more complex but not impossible and certainly indispensable. EU Member States will have to focus more on dossier selection and/or remote interviews as well as intensive health checks before and upon arrival. The implementation of safety measures will demand increased information sharing and cooperation between all actors involved. In doing so, transparent procedures and accountability mechanisms to prevent misconduct constitute key success factors.

In the long run, EU Member States need to overcome the political deadlock on mandatory quota, be it for relocation or resettlement. Already in 2016, the Visegrád group proposed flexible solidarity as an alternative to mandatory quota. Flexible solidarity would enable EU Member States to make contributions based on their experience and potential. It entails that EU Member States can volunteer on the how of burden-sharing. A promising way forward may require the members of the club to listen to each other and to accept the respective prevailing democratic opinions. If not willing to admit resettlement refugees, what can an EU Member State offer in the alternative? Eventually, what must hold true for any kind of flexible solidarity is that EU Member States cannot volunteer on complying with their human rights obligations.

 

This article is part of the blog series Active Refugee Admission Policies (ARAP).

 

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