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

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 is making 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 of securing responsibility sharing within the framework of international refugee law. In practice, this cannot be realized since fewer than 1 per cent 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 well behind in terms of the number of resettlement places it offers, is endeavouring to contribute more places. It must nonetheless be noted that Europe’s increasing support for resettlement is paired with a policy of extraterritorialization of asylum claims and minimization of ‘spontaneous’ refugee arrivals. If Europe indeed aims to replace the regular asylum system with controlled refugee resettlement, this will raise issues of access to asylum. While 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, it 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 European Union (EU) resettlement proposals and, if so, whether this can be sustained from a legal point of view. This article reviews these proposals, along with the current practice of refugee selection by EU Member States, and analyses them from a refugee rights perspective. It examines whether EU initiatives affect the discretionary nature of resettlement, and specifically analyses whether the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the European Union apply to the resettlement procedures of EU Member States and, if so, what rights could be invoked by the refugees involved under those instruments