Why resettlement cannot replace asylum

The relationship between resettlement and asylum warrants attention because the way that some states position resettlement and asylum can negatively influence public attitudes toward asylum seekers.

While it is vital to scale up resettlement of refugees, resettlement will not replace the need for refugees to seek and obtain asylum in the foreseeable future.  Proponents of resettlement should resist attempts by some governments to portray resettlement as an actually available alternative to seeking asylum, or to represent refugees who arrive as asylum seekers as less deserving of protection than resettled refugees.

Here at Resettlement Plus, we do not focus on asylum.  Nevertheless, the relationship between resettlement and asylum warrants attention because the way that some states position resettlement and asylum can negatively influence public attitudes toward asylum seekers.

From a legal perspective, a critical difference between asylum-seekers and resettled refugees is that the former make a claim rooted in international law, whereas the latter do not.  Asylum seekers assert a legal right to non-refoulement (non-expulsion to the country of nationality/former habitual residence) from states that are party to the Refugee Convention.  Many argue that customary international law also prohibits states who are not party to Refugee Convention from expelling refugees.

But refugees in need of resettlement cannot claim a legal right to resettlement, and no state has a duty to resettle them.  Even when states agree amongst themselves (as many EU states did in 2016) to resettle refugees, or to promote resettlement through the Global Compact for Refugees, they resist any legal obligation to actually resettle, and often fail to fulfil their political commitments.  Resettlement is treated as a matter of state benevolence, not obligation. Non-refoulement, however, is a legal duty.  From this vantage point, asylum is a call to justice; resettlement is a humanitarian response. 

One might infer from this that political leaders and the public regard asylum seekers as enjoying a stronger claim to admission than refugees seeking resettlement.  Yet, public discourse in the global north suggests otherwise.  Refugees abroad who could hypothetically be resettled are often described in sympathetic terms.  These are the ‘real’ refugees and they are always elsewhere, suffering quietly and passively, abjectly awaiting selection for resettlement by wealthy states of the global north.  But if any of those people clamber onto the back of a truck, or board a plane with false documents, or climb into a leaky dinghy on choppy seas – in other words, once they become asylum seekers – they are peremptorily treated as suspicious, bogus, mere ‘economic migrants,’ or too resourceful to be genuine refugees. In some cases, the very agency that enables asylum-seekers to embark on a quest for protection has the paradoxical effect of discrediting them as refugees and casting them as undeserving of refugee protection. 

I believe that this preference for refugees over there compared to asylum-seekers who make it over here has less to do with the qualities or attributes of the people in question, than with embedded ideas about state sovereignty.  A conventional (if disputed) version of sovereignty indexes sovereignty to the state’s unilateral power to exclude.  This equation of sovereignty with border control is presented as timeless, uncontested and foundational, although it is none of these.  From this perspective, asylum seekers pose a threat to sovereignty.

The fetishization of sovereignty-as-border-control neglects the fact that states also exercise sovereignty by choosing to enter into agreements, treaties, and conventions that constrain future action.  And so, a state that ratifies the United Nations Convention Relating to the Status of Refugees voluntarily binds itself to the obligation not to refoule (return) refugees who arrive at its border in order to seek refugee protection.

Nevertheless, across the Global North, asylum seekers are portrayed as imposing themselves on a receiving state that did not choose them and does not want them.  Their arrival thus [allegedly] diminishes the sovereign prerogative to exclude.  We know that this depiction is disingenuous: by signing the Refugee Convention, States Party also assent to a provision fully anticipating that refugees may arrive spontaneously and may have resorted to irregular means of entry. These premises are written into the text of the Refugee Convention.  In any event, the state retains authority to decide whether an individual asylum seeker meets the refugee definition and thereby warrants protection from refoulement (return).  It is also true that the duty is owed to all who meet the refugee definition.

Properly understood, asylum seekers do not undermine state sovereignty. They ask states to do no more – but no less – than fulfill the legal obligations that those states voluntarily assumed by signing the Refugee Convention.

In contrast to asylum, states that resettle refugees are free to decide whether, whom, and from where to resettle. States determine numbers, criteria for admission, and the content, quantum and duration of integration assistance.  Resettlement thus portrays the face of sovereignty in its most flattering light: states still assert control over selection and admission, but exercise their sovereign discretion to advance humanitarian goals. It is worth observing here that the US and Canada are noted for their strong record of post WWII refugee resettlement, yet did not undertake the legal obligations contained in the Refugee Convention until 1968 and 1969 respectively. Resettled refugees and asylum seekers thus occupy different places in the political imaginary of wealthy states. Resettlement does not disturb the view that states ought to possess unfettered discretion to admit foreigners; asylum does. Resettlement aligns with the sovereign prerogative; asylum limits it.  On this account, states don’t choose resettled refugees because they are more desirable than asylum seekers.  States find resettled refugees more desirable because they get to choose them.  

The Global Compact for Refugees exhorts states to resettle more refugees as a mechanism of responsibility sharing. More resettlement of more refugees by more states would be unequivocally good, and it is a matter of moral and practical urgency.  But I want to inject a cautionary note about how states can leverage resettlement – or even the hypothetical possibility of resettlement – as a rationale for human rights violations and exclusion of asylum seekers.  For example, Australia pits resettled refugees against asylum seekers by setting a combined quota of refugees whom Australia will accept.  For every asylum seeker who is granted asylum, Australia deducts a resettlement space.  This takes place against a backdrop of relentless vilification of asylum seekers that encourages the public to blame ‘undeserving’ asylum seekers for reducing resettlement spaces for ‘deserving’ refugees.  Australia also creates two different categories of asylum seekers: those who arrive by air with a visa (who are able to make an asylum claim) and those who try to reach Australia by boat (who cannot make an asylum claim under Australian law, and who are called ‘unauthorised maritime arrivals’). The EU-Turkey agreement proposed to ‘swap’ asylum seekers who reached Greece for refugees resettled from Turkey.  Not only did this arrangement deny asylum seekers a fair opportunity to access refugee protection, resettlement from Turkey hardly materialized.  Similarly, a cooperative arrangement by European states to resettle a stipulated numbers of refugees from Mediterranean ‘hot spots’ collapsed before it began.  

Why raise these concerns on a platform dedicated to resettlement and non-asylum pathways to refugee protection?  It is certainly not an argument against resettlement! Instead, it is a reminder that states cannot replace their legal duty under the Refugee Convention with discretionary and unenforceable practices of resettlement. Resettlement is not a substitute for the right to refugee protection under the Refugee Convention.  The claim that enlarging resettlement opportunities would diminish the need for refugees to seek asylum has never been tested because states have never collectively committed to robust refugee resettlement.  Global resettlement numbers are miniscule, but the lottery-like chance of a refugee being resettled creates a hypothetical queue that real asylum seekers can be accused of jumping.  Absent transformative augmentation of global resettlement numbers, resettlement will not be a meaningful or available solution for even 1% of the world’s refugees. And so, a subset of desperate people will continue to seek asylum on their own initiative, often at great peril to their safety and their lives. As scholars and practitioners in the field of resettlement, we must be alert to the instrumentalization of resettlement by states who seeking to justify further erosion of the asylum regime. 

The views expressed are those of the author/s, and are not attributable to the host organisations of the Resettlement.Plus website.

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