The Legal Abyss of Discretion in Resettlement of Refugees: Cherrry-Picking and the Lack of Due Process in the EU

Abstract

The world is experiencing its largest refugee crisis since the Second World War, and more than ever before, the lack of an equitable burden-sharing mechanism makes itself felt: the world’s poorest states are hosting most of the refugees. The durable solution of resettlement of refugees is, in theory, the principal means to secure responsibility sharing within the framework of international refugee law. In practice, it is not capable of realizing this since only less than 1% of the world’s refugees can be resettled annually due to the small number of available resettlement places. However, initiatives are being developed to increase the number of states that offer resettlement places to refugees and hence the number of available resettlement places. Europe too, traditionally lagging far behind in terms of the number of resettlement places it offers, endeavours to contribute more places. It must nonetheless be noted that Europe’s increasing support for resettlement is paired with a policy of extra-territorialisation of asylum claims and minimization of ‘spontaneous’ refugee arrivals. If Europe indeed aims to replace the regular asylum system with controlled refugee resettlement, this would raise issues of access to asylum. Whilst the current Common European Asylum System contains a plethora of procedural and substantive rights for asylum seekers, resettlement – due to its essentially discretionary nature – appears to take place in a legal void, that is, appears to suffer from arbitrariness in the selection of refugees and a lack of procedural rights and legal remedies for the refugees involved in the resettlement process. The question is whether this is also the case with the EU resettlement proposals, and if so, whether this can be sustained from a legal point of view. More in particular, this article reviews these proposals along with the current practice of refugee selection by EU member states, and provides an analysis from a refugee rights perspective. It examines whether the EU initiatives affect the discretionary nature of resettlement, and specifically analyses whether the 1950 European Convention of Human Rights and Fundamental Freedoms, and the EU Charter of Fundamental Rights apply to the resettlement procedures of EU member states, and if so, what rights could be invoked by the refugees involved under those instruments.