Blog post written by Dr Jinan Bastaki, Assistant Professor of International Law at the United Arab Emirates University and a RLI Research Affiliate. This post forms part of a series of blog posts analysing the potential and shortcomings of the Global Compact on Refugees.
In response to the large movement of refugees and migrants, in 2016, the UN General Assembly unanimously adopted the New York Declaration for Refugees and Migrants (New York Declaration) which, among other things, included provisions on third-country solutions. In its paragraphs 77-79, the State parties expressed their intention “to expand the number and range of legal pathways available for refugees to be admitted to or resettled in third countries,” in addition to expanding humanitarian admissions programmes, opportunities for labor movability, scholarships for students, and other third-country solutions that do not necessarily fall under permanent resettlement.
The New York Declaration envisioned the development of a Comprehensive Refugee Response Framework (CRRF), including the commitment to develop and adopt a global compact for refugees, which can provide the basis for predictable and equitable responsibility-sharing between States. The Global Compact for Refugees (GCR) is a non-binding agreement with four broad objectives, one of which is expanding access to third country solutions. The GCR reiterates the need for “complementary pathways for admission to third countries, which may provide additional opportunities” (paragraph 85). Some examples include: humanitarian visas, humanitarian corridors and other humanitarian admission programmes; educational opportunities for refugees (including women and girls) through grant of scholarships and student visas, including through partnerships between governments and academic institutions; and labour mobility opportunities for refugees, including through the identification of refugees with skills that are needed in third countries (Paragraph 95).
Thus, the third-party options can be divided into two: resettlement in third-states, and admission to third-states under other programmes. The UNHCR defines resettlement as:
the transfer of refugees from an asylum country to another State that has agreed to admit them and ultimately grant them permanent settlement.
Third-country resettlement is considered one of the three traditional durable solutions for refugees and, in general, is quite limited (less than 1% of refugees were resettled in 2017, for example). It general, it has involved the voluntary opting in of states into a resettlement scheme by the UNHCR. Under the GCR, the UNHCR has undertaken to devise a three-year strategy (2019 – 2021) “to increase the pool of resettlement places, including countries not already participating in global resettlement efforts.” Having this defined timeline can help to ensure accountability on the part of the UNHCR and member states.
The second option above cannot be considered a ‘durable’ solution, rather it is a temporary measure to provides admission to third-countries under alternative schemes such as study or labor; there does not appear to be an obligation or expectation that States grant them permanent residency. However, it expands third-country options and makes it easier for third-states to accept admission of asylum-seekers, particularly those with strict residency rules and a reliance on foreign labor. Moreover, it provides protection in the immediate for those most needing of it, and relief for the asylum states whose capacities are overstretched.
Expanding Pool of States Willing to Admit Asylum Seekers
As a result of the New York Declaration, some States that have not traditionally opted in to resettlement schemes nor are party to binding instruments related to refugees have agreed to grant certain refugees legal stay within their territories. Such examples include the United Arab Emirates, which pledged to welcome 15,000 Syrian refugees over five years under such a scheme as a result of the New York Declaration. In this way, as non-binding instruments, the New York Declaration, the CRRF, and the GCR can truly help to expand third-party options and help spread some of the responsibility for refugees, particularly, as is well known, almost 85 percent of the world’s refugees are hosted in developing nations, and currently, 80 per cent of Syrian refugees are in just two countries (Turkey – around 60 per cent – and Lebanon).
The potential in these third-state alternatives should not be underestimated. Traditional host countries in the Middle East, such as Lebanon and Jordan (currently hosting almost 950,000 and 670,000 Syrian refugees respectively), have strict rules concerning foreign labor, particularly due to massive refugee flows over the previous decades, local unemployment, and overstretched resources, which has led to an uneasy relationship with refugees. In most cases, refugees are heavily reliant on aid from the UNHCR and have very few avenues for self-reliance. These provisions can better be applied to other countries in the region, who are more suited to provide employment and higher education opportunities, like the Gulf States. States such as Saudi Arabia have previously stated that they have accepted up to 2.5 million Syrians since the start of the war, but there is no way to ascertain these figures. The GCR can help to regularize some of these measures to more accurately assess the numbers of people being admitted and aided. Moreover, alternatives to permanent resettlement that nevertheless facilitate access to third-states and opportunities in them can help to encourage those states reluctant to permanently resettle to enable legal stay within their territories.
Avoiding Pitfalls
The nature of the complementary measures to resettlement is that they are temporary. Students eventually complete their degrees, and a person could potentially lose his or her job. In the event that there is some resolution in the home countries of the asylum seekers, there is a risk of forced returns when the conditions may not be safe. For example, in the 1990s, Germany was the only European State that enforced forced returns for Bosnian refugees, who were largely protected under temporary protection regimes in Europe. This was despite the fact that the UNHCR did not consider that the situation was such that returns were completely safe. This was partially because Germany ended up having the largest Bosnian refugee population in Europe (approximately 320,000). Other European States eventually granted many Bosnian asylum seekers permanent residency and even naturalized those who had regular employment.
What we can learn here is that States that end up shouldering most of the responsibility for refugees may seek to end the temporary sojourn of refugees when they see fit, which stresses the need for equitable responsibility-sharing. Indeed, part of the reason why temporary protection regimes were encouraged by the UNHCR in 1990s was to encourage other States to take on more responsibility for refugees, but some States were still left with a considerably larger percentage of refugees than others. Moreover, while access to third-states under alternative regimes to resettlement provides much needed and immediate relief for asylum-seekers, it is difficult to assess whether this could protect their interests in the long-term. This is particularly true in states with stringent naturalization laws, as the chances for permanent residency or the acquisition of citizenship are low.
Actual resettlement, as one of the stated aims of the GCR, appears to be more difficult because it is challenging to bind states to that responsibility. For example, the United States under the Trump administration drastically reduced the annual cap for refugee admission to 45,000. However, it hoped that with States voluntarily adopting the GCR, this will open up more avenues for refugee resettlement and complementary third-state solutions.
Assessing Success
Finally, in order to ensure that the world community is able to achieve these objectives, there should be a monitoring mechanism. In this regard, the GCR states that indicators “will be developed for each objective ahead of the first Global Refugee Forum in 2019” (paragraph 102). This is necessary in order to monitor and evaluate the success of these measures, and possibly encourage states to periodically recommit to expanding such solutions.
To conclude, there are no easy answers. The stated objective of resettlement and complementary pathways to third-states may not be perfect, but the immediate benefits – helping 10 refugees is better than helping none, providing one asylum-seeker with temporary stay is better than locking them out – cannot be underestimated either.
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