When refugees become migrants: State ‘cherry-picking’ for refugee protection

Oct 20, 2020 | General content | 0 comments

Blog post by Rachel Westerby, independent researcher and writer on migration, refugees and integration.*

Copyright @ United Nations 2009-19. All rights reserved.

Alongside voluntary repatriation and local integration, resettlement to a third country is one of three durable solutions that the UN Refugee Agency (UNHCR) is mandated to provide for refugees. Although Refugee Status Determination (RSD) by UNHCR is a prerequisite for resettlement, receiving third countries generally grant formal refugee status in-country, after refugees arrive. Resettlement therefore represents a key pathway to the protection that international law affords those determined to be refugees.

Obligations (for states) and rights (for refugees) are largely non-existent in the resettlement process. UNHCR identifies refugees for whom resettlement is the ‘most appropriate (durable) solution’, and submits their cases for consideration by third countries. States receiving resettled refugees do so voluntarily, and are free to select or reject any case submitted to them. Refugees can neither apply for resettlement nor appeal a third country’s decision to reject them.

To identify who is in need of resettlement, UNHCR uses submission categories related to protection risks and vulnerabilities. It urges their ‘correct and consistent application’, to ensure ‘all refugees in need of resettlement receive the appropriate attention’ and to ‘avoid frustration and aggression’ among refugees. It also explicitly rejects the notion of ‘integration potential’ (‘educational level or other factors considered to be enhancing the prospects for integration’) as a consideration in identifying those in need of resettlement and submitting their cases to potential receiving countries.

By contrast, third countries considering resettlement submissions from UNHCR are free to select or reject individual refugees using their own, bespoke criteria. It is important here to distinguish between: 

  • Programme-level criteria designed to address available resources in receiving countries (including for example receiving countries limiting the number of unaccompanied children or individuals with significant medical needs they receive), which can be considered a key aspect of sensible operational management; and
  • Arbitrary, individual and integration-related state selection criteria, which have no basis in international refugee law and as such have been termed ‘non-Convention criteria’.

Of the 24 states contributing chapters describing their resettlement programmes to the UNHCR Resettlement Handbook, ten note the use of non-Convention criteria to select refugees for resettlement, across four broad categories:

  • Integration potential (six states): general references to individual willingness and ability to integrate and to rejection based on ‘unmanageable’ settlement issues; explicit consideration of educational qualifications, work experience, language skills and being of young/working age.
  • Connection to the receiving country (two states): including family ties and ‘other ties…conducive to integration’. 
  • Cultural/religious considerations (two states): a requirement for refugees to accept that the law of the receiving country takes precedence ‘over religious or cultural practices’, and not to hold views ‘contrary to (the) values and attitudes’ of the receiving country.

It is clear that the use of non-Convention criteria in resettlement selection has a significant impact for operations ‘on the ground’, in the regions hosting refugee populations. Some states require UNHCR to submit more resettlement cases than will finally be selected, for example, a not inconsiderable call on resources given the in-depth individual casework required for each submission.  

How non-Convention criteria are applied during the resettlement selection process raises some uncomfortable questions concerning both third countries’ cultural assumptions about refugees, and how individual refugees experience the resettlement selection process.

Interviews in which Danish officials assess integration potential have been described as ‘reminiscent of (those) with public social workers aimed at determining employment readiness’, albeit without any resources devoted to preparing refugees for ‘the employment expectations of the state’. During selection interviews carried out by The Netherlands, refugee parents are presented with hypothetical future situations concerning the behaviour of their children in relation to issues such as marriage, relationships and sexuality. Parents are asked how they would react in these situations, and their answers form part of an assessment of their ability to integrate into Dutch society.

Given that the possibility of resettlement and all the rights and opportunities it entails are at stake, refugees are under immense pressure to culturally ‘second-guess’ interviewers in order to produce ‘correct’ responses. Failure to do so will prevent them and their dependents from being resettled, and prevent their access to the rights and protections conferred on them via a durable solution.

The experience of a staff member from an NGO in Cairo tasked with informing refugees about the resettlement process illustrates how non-Convention criteria undermine presentations of resettlement as a needs-driven process. He describes how, following a standard presentation on objective and fair resettlement procedures, he was then required to check if any individual refugees had existing links to New Zealand that might make their cases more attractive during the selection process. 

It should be highlighted that states are able to impose arbitrary non-Convention selection criteria because of the large numbers of refugees in need of resettlement and the small number of available places (1.2 million in need against 70,763 resettled in 2018). But states are also enabled and supported in their practice by the institutions governing global resettlement processes.

UNHCR challenged states’ use of ‘integration potential’ in resettlement selection as far back as 2000, requesting Canada ‘disentangle (its resettlement programme) as far as possible from immigration criteria’, and in 2006 reported to states on the operational difficulties caused by their ‘cherry-picking’ refugees for resettlement. But UNHCR’s Resettlement Handbook guides caseworkers to select a country of submission based on state selection criteria (by definition including non-Convention criteria), and on integration-related factors such as language ability and ‘cultural aspects’. UNHCR Resettlement Officers additionally describe widespread confusion about which criteria are in use by individual states, and where cases should be submitted to maximise their chances of being accepted.

While it is possible to sympathise with UNHCR’s accommodation of state practice to a considerable degree, given the need to ensure resettlement for at least some refugees in the context of so few available places, the same cannot be said of the legislative efforts of the European Union. 

Since 2018, the framing of resettlement in EU policy has shifted: from resettlement as a humanitarian tool, to resettlement as a ‘partnership activity’ used to create leverage with third countries in the context of migration management. The Union Resettlement Framework proposed in 2016, still the subject of negotiation amongst Member States, invites states to prioritise refugees with ‘social and cultural links’ to the receiving country, with a somewhat contradictory requirement not to exercise discrimination while doing so. Most concerning is the provision for refugees refused resettlement by an EU Member State to be excluded from any resettlement to the EU for five years, in effect removing access to international protection for recognised refugees already identified by UNHCR as having no other prospects for a durable solution. For refugees trying to find the ‘correct’ answers to parenting hypotheticals, the stakes have absolutely never been higher.

The role of non-Convention state selection criteria in inhibiting or preventing access to RSD in Europe can also be seen in the European Union’s ongoing efforts to achieve a fair distribution of asylum seekers across its Member States. 

The EU relocation scheme of 2015-18 aimed to distribute 160,000 asylum seekers from Italy and Greece to other Member States over a period of two years. The scheme’s legal base directed Italy and Greece to use integration-related criteria (language, family and other links, individual characteristics) to decide which Member State might be the best option for a specific relocated person. While receiving states were able to outline their ‘preferences’ as to the general profile of relocated person they would like to receive, the scheme made no provision for individual state selection for or refusal of relocation where these preferences were not met. 

The ways in which receiving states approached implementing the scheme, however, demonstrates how far non-Convention resettlement selection has been absorbed into state protection practice in the EU. 

As early as March 2016, the European Commission raised concerns about some states’ ‘long or constraining lists of preferences’, their use ‘as a means to exclude…rather than to allow for a better matching process for better integration’and the use of ‘non-respect of preferences as a ground for rejecting a relocation request, which is not allowed’. The Commission’s mounting frustration is tangible in its reporting into 2017, in which it identifies seven Member States that have ‘rejected relocation requests..on grounds other than those specified’ and recommends that ‘no Member State resorts to ‘cherry picking’, or arbitrarily deciding whether to accept a relocation request’. It finally boils over in April 2017, with the stern reminder to Member States that ‘ultimately, the Greek and Italian authorities are solely responsible for the final decision. It is neither up to the applicants nor to the Member State of relocation to choose’.

Despite these appeals, receiving states continued to make use of non-Convention and non-relocation (in the sense of the EU scheme) selection criteria, including:

  • Bulgaria (no Eritreans).
  • Czech Republic (only those with travel and identity documents).
  • Slovakia (only single women with children and those with travel documents).
  • Germany (no unaccompanied minors save those with ‘links to Germany’).

Additionally, several Member States arranged interview missions to Greece and Italy, a widespread resettlement selection practice that was never intended to be used in relocation. Interview missions to Greece were noted by the European Commission as one of ‘the main causes for delays…(leading) to the rejection of applicants that have already been notified of the relocation decision, some…very close to the actual transfer’, and caused Italy to stop submitting individuals for relocation to states intent on interviewing applicants in situ.

Ultimately, the 2015-18 scheme fell well short of its 160,000 target, with 37,595 asylum seekers relocated. As the scheme suffered from many well publicised challenges (not least the refusal of several receiving Member States to participate at all) and reasons for the rejection of cases were not made public, it is impossible to say to what degree the scheme’s poor performance can be attributed to state selection practices. What is clear is that the use of arbitrary non-Convention selection criteria prevented some asylum seekers from benefiting from the access to RSD that relocation would provide. Given that the scheme was structured to relocate those most likely to be recognised as refugees (eligible applicants were required to be of a nationality with a 75% or higher first instance recognition rate in the EU), this means that many likely refugees were denied, often through the use of arbitrary criteria, the rights and protections conferred on them by international law.

Selection based on non-Convention criteria continues to hamper relocation efforts in the EU. In early March 2020, the European Commission called on Member States to relocate 1600 unaccompanied asylum-seeking children from highly overcrowded ‘hotspot’ camps on the Greek islands. 

Just nine states pledged places at the outset of this programme: Germany was one of the first to do so, announcing its intention to relocate only girls aged 14 or under. For civil society actors working directly with unaccompanied children on the islands, this criteria bore no relation to actual needs on the ground, where they saw much more vulnerability amongst all children (both boys and girls) aged 15 and above, living rough in olive groves outside of the main camps. The European Commission, despite its role in financially supporting relocation activities, has declared itself powerless to prevent ‘cherry-picking’ of children deemed easier to integrate and/or judged as easier to ‘sell’ as vulnerable and in need of assistance to a sceptical general public.

For RSD, there are two important long-term consequences of the use of non-Convention selection criteria in refugee protection programmes. 

The first is the clear loss of faith amongst refugees themselves in the fair and equitable access to protection that their status as refugees is meant to afford them. This sense of injustice is clearly expressed in the Twitter posts of Iraqi refugees in Turkey (where resettlement efforts have for several years largely been directed at Syrian refugees) under the hashtag #IStandWithIraqiRefugees: ‘All the world highlighted the compact for migration, All the world processed the cases of illegal migrants, All the world is always busy to solve problems of illegal migrants, While Iraqi asylum seekers & refugees suffer from 3to6yrs of wait for resettlement. Be fair’.

Secondly, making access to protection contingent on ‘economic or cultural desirability’ both ‘collapses the distinction between economic migrant and refugee’, and ‘erodes the distinctiveness of the refugee category as a unique form of migration’. The effect of ‘convert(ing) the refugee resettlement track into a general immigration track’  is also being borne out in relation to asylum seekers’ access to RSD via EU relocation.[1]

This subversion of the protection objective of the international refugee regime and of EU protection pogrammes is a new instance of what has been termed `policy conversion’, in which ‘institutions are not so much amended or allowed to decay as they are redirected to new goals, functions, or purposes’.[2] While states are in this instance primarily responsible, the accommodation of arbitrary selection practices by both UNHCR and the European Union provides the enabling framework for their actions. Recommendations can therefore be addressed to all three parties.

For states:

  • Base selection on situation-specific needs assessments.  Both UNHCR and civil society actors working on the ground are the best sources of information on needs in specific situations, much more so than states’ received notions of vulnerability based on generalised characteristics such as age or gender. Actors in the field must be empowered to lead on determining eligibility criteria for protection programmes, and engage in dialogue with receiving states concerning the capacities and expertise of their individual programmes.
  • Use non-exclusionary and non-discriminatory selection criteria. Currently, access to protection is limited/prevented on the basis of criteria that characterise many refugee backgrounds, and work contrary to the stated objective of providing international protection.
  • Use integration-related criteria to positively enable better integration, for example by matching individuals in need of protection to the countries and local communities that best suit their needs, attributes and and aspirations.

For UNHCR:

  • Institute a right of information for refugees rejected for resettlement, so they are able to understand why their case was rejected in the context of the wider refugee situation and resettlement operation of which it formed a part.

For the European Union:

  • Make the provision of EU funding to states for resettlement and relocation conditional on their refraining from using non-Convention selection criteria.
  • Remove from future EU legislation on resettlement:
    • The provision for states to select resettled refugees based on ‘social and cultural links’; and
    • The exclusion of refugees from resettlement to the EU for a period of five years following their rejection for resettlement by one Member State.  

References: 

  • [1]Mourad, L., & Norman, K. P. (2020). Transforming refugees into migrants: institutional change and the politics of international protection. European Journal of International Relations, 26(3), pp.705-6.
  • [2]Mourad, L., & Norman, K. P.  ibid., pp.703

* Rachel is the author of publications on EU funds for migration, refugee resettlement and cities and integration for organisations including UNHCR, the European Council on Refugees & Exiles (ECRE) and the International Centre for Migration Policy Development (ICMPS), Rachel also provides consultancy supports to civil society organisations and networks working at European Union level. She can be contacted at www.linkedin.com/in/rachelwesterby

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.

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