Legal Pathways to Protection: Towards a Common and Comprehensive Approach?

By Luc Leboeuf, Head of Research Group in the Department of Law & Anthropology at the Max Planck Institute for Social Anthropology

The New Pact on Migration and Asylum  includes a full section calling for further international cooperation with third countries to address migrant and refugee movements to Europe. This section lays the emphasis on the development of “legal pathways to protection” in Europe, amongst other international cooperation priorities presented elsewhere in this blog series (Guild here as well as Moreno-Lax and Moraru forthcoming). The New Pact is accompanied by a Commission recommendation (hereafter “the accompanying recommendation”) that specifies EU actions to be taken in the years to come, from the development of resettlement programmes at EU level and the adoption of a Union-wide resettlement framework, to the promotion of community sponsorship programmes at the domestic level.

In both the New Pact and the accompanying recommendation, “legal pathways to protection” is used as an umbrella term. It refers to the resettlement of refugees under a global initiative run by the UNHCR (here, para. 9). It also refers to other humanitarian admission schemes developed at the domestic level, including protected entry procedures – e.g., humanitarian visas – and private/community sponsorship programmes – e.g., the “humanitarian corridors” set up by faith-based organisations in Italy (described by Bianchini here). Unlike legal pathways resulting from labour mobility schemes, which are aimed primarily at meeting EU labour market needs (to be discussed by Sarolea and Farçy as part of this blog series), the “legal pathways to protection” are being developed to guarantee access to safety for those fleeing persecution and other forms of serious human rights violations.

This blogpost highlights how the New Pact and the accompanying recommendation contribute to the development of a common and comprehensive approach to legal pathways to protection, beyond resettlement. It argues that there is “soft” harmonisation at play, and seeks to identify the main driving policy logics and tensions behind the harmonisation process, including how they are likely to impact forthcoming developments in the field.

1. Between Executive Discretion and Mounting Incentives

Policy discussions on legal pathways to protection for refugees are far from new and can be traced back to longstanding global debates on “burden sharing” and “responsibility sharing”, i.e., how to fairly allocate the responsibility to protect refugees among the international community. Recurring episodes of migrants drowning in the Mediterranean Sea led to mounting calls from civil society organisations to establish safe routes to protection for those fleeing persecution and other serious human rights violations. These calls would also be echoed at EU level, by the European Parliament and the Task Force Mediterranean, a group of experts appointed by the Commission and at the request of the Council to identify policy solutions for preventing the death of migrants en route to Europe.

EU involvement was once limited to providing financial support to domestic initiatives for resettlement.[1] But the 2015 refugee “crisis” triggered additional developments such as the European Agenda on Migration, which called for the development of a common approach to resettlement. Two EU resettlement programmes were established as a result. The first programme was to distribute 20,000 refugees among the member states based on a distribution key. Following its completion, it was quickly followed by the next programme, which sought the resettlement of 50,000 refugees. Its implementation by the member states is still ongoing.

The EU resettlement programmes are ad hoc and not intended for replication as such. Furthermore, the participation of the member states remains voluntary. In seeking to put forth a broad regulatory framework that would allow the systematisation of ad hoc initiatives, the Commission proposed the adoption of a regulation establishing a Union Resettlement Framework (URF). The aim of the resettlement framework is to guide the development and implementation of future EU programmes. It sets up an institutional procedure to establish annual resettlement plans and provides the operational procedure, as well as eligibility criteria, guiding the implementation of future EU resettlement programmes. It does not impose resettlement obligations on the member states.

Discussions on the adoption of the common resettlement framework are ongoing. But these developments should not obscure the fact that amidst heightened political and social divisions on how best to address migration and refugee movements to Europe, member states have been reluctant to accept any kind of legally binding commitments on the matter. Some member states are, in principle, opposed to any scheme that would require them to welcome additional refugees, as illustrated by their stark refusal to implement the legally binding decisions of the EU Council to relocate a number of asylum seekers from member states located at the EU’s external borders (CJEU, C-643/15 and C-647/15). Most remain cautious about ceding domestic control over developments in the field. They stress the discretionary prerogatives of their executives, as illustrated by the opposition to litigation attempts of asylum seekers who had sought to obtain humanitarian visas (CJEU, C-638/16 PPU and ECtHR, M.N. v. Belgium).

Executive discretion thus remains the dominant policy approach. But external incentives to develop legal pathways to protection in Europe have also intensified at the global level. The UN Global Compact on Refugee led to the establishment of the Global Refugee Forum to encourage the engagement of the international community in UNHCR-run resettlement programmes as a means of easing the pressure on host countries (pts. 17-19). During the first meeting of this annual Forum in late 2019, EU member states pledged to resettle 29,500 refugees for the period 2020-2021 (EU Commission, Press release of 18 December 2019).

Moreover, in its ruling in N.D. and N.T. v. Spain, the ECtHR referred to the Spanish procedure, which allows refugees to apply for legal access whilst in Morocco, to support its conclusion that the immediate expulsion measures adopted against a group of migrants at the Spanish-Moroccan border in Melilla did notamount to a collective expulsion. This could act as an indirect incentive for states to compensate for stricter border controls by offering refugees a possibility to obtain legal access to protection (N.D. and N.T. v. Spain at para. 212; on the somewhat confusing reference to legal pathways in the ruling, see Thym here; for critical analyses of the ruling, see also Hruschka here and Markard here; see also M.K. v. Poland at para. 203).

2. Beyond Resettlement

The main novelty of the New Pact is to expand the search for a common approach beyond resettlement to include legal pathways to protection more broadly, with a particular focus on community sponsorship programmes. The New Pact does not seek only to consolidate the developments that followed calls by the 2015 European Agenda on Migration for a common approach to resettlement. It also lends additional EU support for the development of domestic humanitarian admission programmes, setting out the new and additional objective of establishing a “European model of community sponsorship” (here, p. 23).

In the area of resettlement, the New Pact calls for a swift adoption of the Union Resettlement Framework Regulation and the formalisation of the resettlement pledges made by the member states during the Global Refugee Forum, which may also be read as an attempt to bring these developments within the scope of an EU-wide framework (here, p. 22). The accompanying recommendation reminds the member states of the EU tools at their disposal to support the implementation of their resettlement pledges: funding from the AMIF and the upcoming AMF (here, recital 17), operational support from the European Asylum Support Office (EASO) (recital 22 and point 6), and horizontal exchange of expertise and dialogue through the Resettlement and Humanitarian Admission Network (recital 19). Moreover, the New Pact calls on member states to make additional pledges from 2022 onwards “to confirm EU’s global lead on resettlement”, which seems like a call for establishing a common EU position ahead of the upcoming Global Refugee Forum (here, p. 22).

In relation to humanitarian admission programmes other than resettlement, the New Pact lays the emphasis on the promotion of horizontal dialogue among member states, namely, through the involvement of the EASO (recital 29; for a broader analysis of the role of EU agencies in deepening the harmonisation process under the New Pact, see Tsourdi here). The announced EU involvement remains limited to steering the Europeanisation [2] of domestic practices through a bottom-up approach that promotes horizontal dialogue among member states. But it can be seen as one of the first steps towards a more comprehensive EU approach to legal pathways that goes beyond resettlement and includes other humanitarian admission schemes.

The resulting institutional and legal design of EU involvement in legal pathways to protection may qualify as “soft” harmonisation: it rests on soft legal provisions enacted through Commission recommendations, which are accompanied with tools supporting their practical implementation, such as funding, operational support, and a forum promoting horizontal dialogue. There are no legally binding obligations, and reliance on “hard” legal provisions is limited to the setting up of the overall institutional and operational framework on resettlement.

The soft nature of the harmonisation process is meant to reconcile the development of a common approach with the member states’ opposition to legally binding commitments towards refugees physically located outside of their territories. Despite its soft nature, however, the EU harmonisation process is not inconsequential for actual member state practices, for any attempt at developing a common policy is also bound to shape the very content of that policy in multiple direct and indirect ways. This raises the question of determining the shape of future European involvement in the field. The next section addresses that question and seeks to identify the various policy objectives behind the development of a common approach to legal pathways to protection, as prescribed by the New Pact’s provisions.

3. Multiplying Policy Objectives in an Increasingly Complex Policy Environment

The New Pact establishes a direct connection between legal pathways to protection and the deepening of international cooperation with third countries to improve the management of migration movements to Europe (New Pact, p. 17). The common approach to legal pathways, therefore, envisions a close connection with the Global Approach to Migration and Mobility (GAMM), which remains the overarching policy framework for the EU’s external action on migration.

The GAMM is guided by the broad, and somewhat elusive, quest for a “comprehensive/global approach” to EU migration governance. Its implementation requires juggling acts involving multiple policy considerations, including fundamental rights and border control. The overall result is a complex policy field guided by objectives that are not inherently opposed to one another but generate tensions upon their implementation (see, among others, Crépeau here and the discussions that followed the adoption of the EU Migration Partnership Framework under the GAMM, summarised and analysed by Bauloz here).

These tensions have also affected the policy dynamics behind the harmonisation of legal pathways to protection. Previous EU efforts to develop a common approach on resettlement have led some observers to warn against developing a common approach centred around border control considerations, which ultimately undermine the primarily humanitarian nature of existing resettlement programmes (Bamberg, here; Carrera and Cortinovis, here; Tissier-Raffin, here). These concerns resurfaced following the resettlement of refugees from Turkey as part of the so-called “EU-Turkey deal”, which has often been criticised for having the overall effect of impairing refugees’ rights (Ziebritzki, here).

Moreover, the New Pact calls for the development and implementation of legal pathways to protection in ways that also improve integration outcomes for refugees. This justifies the new focus on community sponsorship programmes, which added value in supporting the integration of the beneficiaries is being praised and emphasised repeatedly (New Pact, p. 23 and accompanying recommendation, recitals 26-29 and para. 22). There are also specific recommendations for the member states, which are invited to take necessary measures to facilitate access to education and the labour market (paras 20 and 21), and to develop their labour mobility schemes in complementary ways, which may also benefit those in need of international protection (para. 21).

The emphasis of the New Pact on integration is aimed at supporting a more sophisticated and comprehensive policy that gives due consideration to refugees’ life prospects in Europe by involving stakeholders from the private sector and the civil society. But it is also likely to generate additional complexities in the implementation of legal pathways that will require delicate balancing acts: how to prevent the preferential treatment of some religious or ethnic groups, at the expenses of others with similar or higher protection needs? Should priority be given to the refugees with the best integration prospects on the EU labour market, or to the most traumatised ones? etc

Such complexities are likely to affect the selection of the refugees who will benefit from legal pathways. The New Pact remains silent on this issue.But earlier developments, including the Union Resettlement Framework proposal and AMIF provisions that set out the conditions under which member states can benefit from EU resettlement funds, show a paramount policy focus at EU level on the needs of “vulnerable” refugees for protection.

The focus on “vulnerable” refugees is in line with the UNHCR’s approach to resettlement (UNHCR Resettlement Handbook). It may have proven useful to guide the implementation of humanitarian aid programmes, in that it directs the attention to the most disadvantaged who need additional care. As a result, those in charge of implementing policies on the ground may benefit from the substantial leeway that allows to tailor humanitarian responses to realities on the ground. It remains to be seen, however, how such an approach could be transposed to a policy field that rests on increasingly complex policy dynamics that accrue from overlapping and sometimes partially competing objectives. The wide margin of appreciation left to the member states means that in the end, much will depend on the actual practices at domestic level.

Conclusion: “Implementation Uncertainties”

The New Pact seeks to develop a common approach to legal pathways to protection that goes beyond resettlement and includes other humanitarian admission schemes, in particular community sponsorship programmes. It does so at a time of great reluctance on the part of member states to make any legally binding commitments. The overall result is a sophisticated but complex policy framework, which relies on soft harmonisation tools to contribute to the development of comprehensive forms of EU migration governance.

The multiple policy objectives at play are likely to generate tensions during the implementation stage. In other areas of EU migration policy, such tensions are channelled through the legal system, including via judicial interpretation. But the strong opposition of member states to legally binding commitments has so far kept the courts at bay (Carlier and Crépeau, 2017). It is thus likely that these tensions will be resolved in the informal spheres that characterises the actions of the executive bodies, raising “implementation uncertainties”, to paraphrase the introductory post in this blog series on the “legislative uncertainty” resulting from the New Pact (Thym, here).

For researchers in law, this implies a need to develop a broader methodological and theoretical framework that goes beyond the study of legal norms in their positivist sense and to incorporate an analysis of the actual practices of the authorities in charge, including how they operationalise the relatively blurred notions – e.g., the requirement to address the specific protection needs of “vulnerable” migrants – that guide their actions on the ground.

 

[1] Nowadays, such financial support is guaranteed by the Asylum, Migration and Integration Fund (AMIF) that succeeded the ERF for the period 2014-2020 (Regulation EU 516/2014, article 17). The Asylum and Migration Fund (AMF), which will cover the period 2021-2027, will ensure continuous EU financial support for the involvement of member states in  resettlement (COM, 2018, 471).For more on the financial framework supporting the objectives of the New Pact, see Goldner Lang, forthcoming.

[2] “Europeanisation” is understood here as the horizontal convergence between the policies of EU member states, resulting from a bottom-up policy dialogue between the member states (on the horizontal understanding of “Europeanisation” see Guiraudon, 2010).

Further reading

Foblets and Leboeuf (eds.), Humanitarian Admission to Europe. The Law between Promises and Constraints (Baden-Baden/Oxford: Nomos/Hart) 2020;

Gatta, “Legal Avenues to Access International Protection in the European Union: Past Actions and Future Perspectives” (2018) Journal européen des droits de l’homme / European Journal of Human Rights 3, 163-20;

Welfens, Engler, Garnier, Endres de Oliveira and Kleist, “Active Refugee Admission Policies in Europe: Exploring an Emerging Research Field” (2019) Fluchtforschungs Blog.