Various Foundations of this Vitality: An Instrument with a Trilogical Function, Necessary for Asylum and Recognised as Such

7 Resettlement is the only UNHCR mechanism that is recognised as having three simultaneous functions. Indeed, it is primarily considered as a tool to provide international protection (UNHCR, 2011: 3). It aims to offer legal and/or physical protection to refugees in need who face specific situations, such as a security threat in the country of asylum or a threat of refoulement to the country of origin. Secondly, resettlement is a durable solution (UNHCR, ibid.). It can provide a lasting solution for six categories of refugees, including survivors of torture, children at risk, and people in protracted situations or with special medical needs. A “strategic use” of resettlement can pave the way for the implementation of other durable solutions, such as voluntary repatriation and local integration (UNHCR, 2003: 2). Finally, resettlement is a means of expressing international solidarity and sharing responsibility (UNHCR, 2011: 3). It allows states that bear less of the refugee burden to come to the aid of states that are most affected. This function is essential, as currently 86 per cent of refugees are hosted by states in the Global South, principally Turkey (3.7 million), Colombia (1.7 million), Pakistan (1.4 million) and Uganda (1.4 million). [10]

8 Resettlement is also a necessary mechanism because of the saturation of the international asylum system. According to some authors, the 1951 Geneva Convention relating to the Status of Refugees — the cornerstone of the international asylum system — has operational deficiencies (Hathaway, 2018: 591). It is only applicable once “refugees” have reached a third territory. Yet, this condition of application is a feat that is increasingly difficult to achieve in the 21^st century, given the variety of legal and administrative techniques that obstruct or restrict access to host territories. [11] Resettlement, in contrast, leads third states to reach out (for example, by sending selection agents) to people in need of international protection who have not or cannot reach their territories. This mechanism facilitates “legal and safe access to third territories for people in need of protection without them having to cross increasingly hermetic borders illegally and by risking their lives, with the help of smugglers’ networks, and does not imply the abandonment of sovereign border control policies to which states are strongly committed” (Tissier-Raffin, 2017: 3).

9 Finally, states and the UNHCR constantly emphasise the importance and even the vitality of resettlement. This is reflected, for example, in the 2004 Multilateral Framework of Understandings on Resettlement and the multiple Conclusions of the Executive Committee of the High Commissioner’s Programme (EXCOM). [12] Moreover, meetings in which resettlement is given special attention have increased, following the example of the Annual Tripartite Consultations (ATCR), established in 1995, between representatives of “resettlement states”, [13] NGOs involved in refugee resettlement, international organisations, and UNHCR. [14] Given the above dynamics, it is easier to understand how resettlement has been supported despite COVID-19.

Concrete Manifestations of this Vitality: Continued Selection of Cases and Institution of Flexible Processing Modalities

10 In a joint statement, dated 18 June 2020, on the lifting of the suspension on resettlement travel, UNHCR underlined that: “Throughout this period [of suspension of departures], UNHCR, IOM and partners continued to process and counsel refugees and resettled scores of emergency and urgent cases.” [15] This indicates that three key stages of the resettlement process were continued: file review, counselling and resettlement departures, even though a suspension was in place. However, the statement provides little factual detail on the activities carried out. The Projected Global Resettlement Needs Report, published in December 2021, indicates that UNHCR operations reconfigured their case processing modalities (UNHCR, 2021: 12). Prior to this report, the IOM revealed that by the end of April 2020, emergency resettlement of 102 refugees to Germany, the US, Canada, Luxembourg and Australia had been carried out. [16] Just a few months later, UNHCR reported that 39,534 applications had been submitted to twenty-five resettlement states (UNHCR, ibid.), and once lockdown measures were lifted 1,027 refugees “traumatized by the devastating Beirut Port explosion... departed from Lebanon to nine resettlement countries”. [17]

11 The UNHCR statement goes on to emphasise: “numerous resettlement countries established or expanded their capacities to apply flexible processing modalities, to adapt and ensure the continuity of their resettlement programs in unpredictable circumstances.” This points to the efforts made by the resettlement states themselves. In April 2020, the EU Commission called on member states to adapt their resettlement procedures by using new working methods, with a focus on accepting resettlement applications on a dossier-basis with video interviews, supported by remote simultaneous interpretation. States were also encouraged to facilitate the arrival of individuals who had already been selected for resettlement, while respecting health measures. [18] Thus, most European resettlement states — with the exception of Finland, Lithuania, the Netherlands, Norway and Spain — increased the number of cases selected based on a simple analysis of the dossiers. [19] This allowed the resettlement process to be continued without the need to organise selection missions or in-person interviews of resettlement applicants. [20] In addition, all used digital methods (e.g. video-conferencing) to conduct interviews and pre-departure orientation for the integration of future resettled refugees. In total, European states — led by Sweden, Germany and France — resettled 8,314 refugees, representing 36 per cent of global resettlement in 2020 (Forum réfugiés, 2021: 46). Meanwhile, Canada, which is even further away in spatial terms from resettlement locations, adopted exemptions from the travel ban for those in the resettlement process, under certain conditions, including approval of the resettlement application by 18 March 2020. [21] Canada thus resettled 3,502 refugees in 2020 (Forum réfugiés, ibid.). It is important to note that these records were achieved thanks to the resumption of departures announced in June 2020, with the end of the first wave of COVID-19.

12 These efforts have undoubtedly been beneficial. However, another observation emerges from the management of resettlement in the pandemic context. Indeed, this instrument has shown features of high volatility.

Sources of Volatility: Structural and Circumstantial Deficiencies in Resettlement

14 On the one hand, the volatility of resettlement results from the fact that this instrument is not structured, at international level, by a clear and binding legal framework, even though it is intended to be an operational tool. The Resettlement Handbook is certainly a source of reference, including on occasion for asylum judges (see for example CNDA [22] No. 19014405, No. 19014406, No. 19014407 and No. 19014408, December 2021), but it represents, as it stands, a mere working tool for UNHCR staff. This has two major consequences. First, states do not consider themselves obliged to resettle refugees. They do so on a purely voluntary basis. In practice, UNHCR advocates for and submits the resettlement cases it has identified, but the final decision rests with states (Suhrke and Garnier, 2018: 245). Secondly, the lack of a clear legal framework for resettlement leads to a high degree of heterogeneity in state practices. On the one hand, there is heterogeneity in terms of selection programmes. Indeed, in addition to permanent programmes aimed at offering resettlement places on an annual basis, there are ad hoc programmes designed to respond to a specific crisis situation and programmes that are independent of UNHCR submissions. On the other hand, there is a heterogeneity in the selection criteria. In theory, the Resettlement Handbook recommends seven selection criteria based on vulnerability, in addition to status as a refugee or stateless person. These are: legal and/or physical protection needs, survivors of violence and/or torture, medical needs, women and girls at risk, family reunification, children at risk, persons for whom resettlement is the only option (UNHCR, 2011: 271). In practice, however, while some states follow these conditions, others adopt different criteria. One example is the “integration potential” criterion. Used for example in Canada (Suhrke and Garnier, 2018: 245) and in five European states (European Migration Network, 2016: 26), this criterion postulates that the person applying for resettlement has the intellectual, physical or economic capacity to integrate in the resettlement state. Since it is highly subjective, it contributes significantly to the volatility of resettlement.

15 Moreover, the volatility of resettlement stems from the fact that it depends heavily on the prevailing political, economic and social environment in which the COVID-19 health crisis that we are considering here takes place. This means that the process is relentlessly subject to circumstantial vicissitudes. Between 1946 and 1980, resettlement was the “solution” promoted in practice (Chimni, 2005: 55). This period saw mass resettlements, including of Hungarian (1956), Indo-Pakistani, Chilean and Indochinese refugees (1975). After the Cold War, state interest in resettlement was relatively limited. There was a shift from a “collective” selection system to an “individual” selection system based on vulnerability. In other words, a new system was established whereby people in need of resettlement were selected on a case-by-case basis according to specific vulnerability criteria set out in the Resettlement Handbook (see above). Since then, however, there have been instances of mass resettlement, when the international environment is favourable, as was the case in 2016 regarding Syrian refugees. The resettlement mechanism is thus subject to the diktat of the context in which it operates, and has already experienced phases of withdrawal, cessation, or suspension, for security or health reasons. This was the case, for example, following the attacks of 11 September 2001, and during the HIV-AIDS pandemic and the Ebola epidemic (Garnier et al., 2020). Unsurprisingly, this persistent volatility led to a similar impact of COVID-19 on resettlement.

Consequences of Volatility: General Suspension of Resettlement and Need for Continued Efforts to Strengthen its Implementation Framework

16 On the face of it, the pandemic created significant obstacles to the resettlement process. Indeed, due to the health crisis, the selection missions, practised by most resettlement states, could not be carried out. Thus, by November 2020, the UNHCR considered that “[2020] risks lowest resettlement levels in recent history”. [23] This was indeed the case. Several states did not resettle any refugees during 2020. These include Bulgaria, the Czech Republic, Estonia, Croatia, Cyprus, Latvia, Malta, Austria, Slovenia and Slovakia (Forum réfugiés, 2021: 92). More globally, out of a target of 70,000, only 22,800 refugees had been resettled by the end of 2020. This is a bitter turnaround, as in 2015, 2016, 2017, 2018 and 2019 UNHCR had resettled 107,100, 189,300, 102,800, 92,400 and 107,800 refugees respectively (Forum réfugiés, ibid.). At the time of the above announcement (November 2020), UNHCR indicated that resettlement was pending for 280 refugees who had been evacuated from Libya to emergency facilities. [24] This shows the extent to which COVID-19 has exacerbated the stress and anxiety of resettlement scheme beneficiaries, whose cases ordinarily take a relatively long time to be processed.

17 Fundamentally, the pandemic prompted resettlement actors to act on a viscerally minimalist basis. The suspension of departures was the most pernicious consequence of resettlement volatility. Admittedly, this measure was ultimately unavoidable. UNHCR and its partners (including IOM) were faced with closed borders without exception for asylum as a fait accompli. However, observation of the resettlement activities carried out during the suspension of travel, which were supposed to “save” the mechanism itself, shows that they were little more than minimalist in their approach. Resettlement activities, as carried out in the context of the crisis, were the minimum that could be done. While the selection of refugees for resettlement was important, resettlement as a mechanism loses its raison d’être if it does not result in access to a territory. The stage of the resettlement process that was suspended, i.e. the departures, is, in our view, the essence of resettlement, if not its concrete commencement. Yet the pandemic was an opportunity to demonstrate the unique benefits of this mechanism. At a time when the health crisis led to increased control at the borders of states, resettlement could have been an opportunity to guarantee asylum in this period of crisis. This mechanism could have been continued (without the need for suspension), by subjecting applicants to tests or even quarantine, for example. Given that it involves selection which takes place in foreign states and highly organised transfers, the resettlement scheme is in line with the increased “screening” at the borders required by the pandemic. This opportunity was not taken.

18 Another consequence of the pandemic on resettlement is that it emphasises the need to continue efforts to structure this mechanism. In the short term, it is essential to generalise the innovative selection procedures introduced during the pandemic. These could be used in the event of similar crises. In this innovation drive, artificial intelligence inevitably has an essential role to play. For example, it could be used to develop software that, on the basis of collected data, would assist in proposing resettlement places according to the needs of refugees and resettlement states. In addition, UNHCR could propose a Guide or Handbook supported by the UN General Assembly or even its Executive Committee (EXCOM) on the management of resettlement in crisis situations. In the medium term, even though political contexts may not be conducive to it, it is time to establish a binding international legal instrument on resettlement (Gibson, 2019). Such an instrument should exclude discriminatory and purely “subjective” criteria, such as “integration capacity”, and emphasise vulnerability. It should also guarantee the right to seek asylum spontaneously, so as to make resettlement an efficient complement — not a deviant substitute — to the international asylum system.

19 COVID-19 served as a test case. It provided an opportunity to assess resettlement, which has been undergoing (re)energisation especially since the 2001 global consultations. At first glance, it appeared that the mechanism had proved resilient due to its vitality, in view of the attitude of the actors involved. The latter ensured that some of its important activities continued. At the same time, however, this tool demonstrated its fragility, suffering from both structural and circumstantial problems. These problems are indicative of the limited commitments to it by states, despite the existence of a context in which it could have shown its full potential. In essence, states remain reluctant to deploy the resettlement mechanism effectively. Yet we cannot lose sight of the fact that 1.4 million people are waiting impatiently for this lifeline (UNHCR, 2021: 13). Let us hope that the lessons learnt from this crisis can be used to drive its reconstruction.