The question of safe and regulated entry for protection seekers into a state of refuge is still one of the most pressing issues of the asylum system in Europe. While the debate on externalizing asylum is at a new high point, it fails to address a crucial question: how can protection remain accessible in a world of shifting borders? Instead, the debate on externalization focuses on deterrence or even replacing the individual protection system. Against this backdrop, this contribution revisits some of the findings of the thesis Safe Access to Asylum in Europe: Normative assessment of safe pathways to protection in the legal context of the European Union to recall the normative value of safe pathways to protection as additional protective tools to the current asylum system in the EU.
How can a person safely reach a state to seek protection? Addressing this litmus test of refugee law remains a key concern of refugee protection and requires an examination of numerous issues, including international responsibility, solidarity and human rights. Despite globalization, shifting borders and ongoing political discussions on externalization, asylum remains a territorial concept. A person who fears persecution is dependent on entry to another state in order to receive protection. The paradoxical interplay between granting territorial protection on the one hand, and preventing access to territory on the other can be framed as ‘asylum paradox’. The asylum paradox can be identified in international refugee and human rights law governing protection, foreseeing a ‘right to leave any country’ (as enshrined in Art. 12 ICCPR), a ‘right to seek asylum’ (as in Art. 14 UDHR and Art. 18 EU CFR), and protection statuses with individual rights and guarantees. At the same time, there is no ‘right to entry’ for the purpose of seeking protection in a specific state. The EU incorporated the territorial concept of asylum in its Common European Asylum System (CEAS): Asylum applications are to be made ‘on the territory – including at the border, in territorial waters or in transit zones – of the Member States’ (see Art. 3(1) EU Asylum Procedures Directive). Access to European territory is however limited using restrictive visa requirements, respective case law on the matter (see CJEU, C-638/16 PPU X and X, 7 March 2017, for a discussion see here; and ECtHR, Appl. No. 3599/18, M.N., 5 May 2020, for a discussion see here), as well as carrier sanctions and illegal ‘push-backs’ and ‘pullbacks’. The only point of anchor is the principle of non-refoulement, which can lead to an implicit entry right for people seeking protection, in case they reached the border of a state or jurisdiction is triggered otherwise. Still, even this principle is currently being challenged together with the concept of individual asylum, as for instance the communication of the European Commission of December 2024 “on countering hybrid threats from the weaponisation of migration and strengthening security at the EU’s external borders” shows.
As a result of this paradoxical construct, ‘asylum Darwinism’ prevails: protection is only granted to those who survive the life-threatening journey to the border. Protection seekers with no ability to undertake such a journey, for instance, protection seekers with disabilities, elderly people, women and children risk to be left behind. Against this backdrop, safe pathways to protection, such as visas granting access to a national asylum procedure, resettlement, humanitarian admission or sponsorship schemes, promise to bridge the protection gap. However, as discussed here in this blog, humanitarian admission schemes can never replace the individual protection system (i.e. territorial asylum law) and have their pitfalls and drawbacks of their own. A responsibility-based approach can help defining the potential of safe pathways in addressing gaps in asylum protection.
The asylum paradox as the result of an imbalance of responsibility principles
The asylum paradox can be framed as the result of an imbalance of three responsibility principles: the internal responsibility of states for everyone belonging to their ‘internal community’, that is everyone who is already within the territory of a state; the external responsibility of states for protection seekers not (yet) part of this community; and the inter-state responsibility at global level. This triad of responsibilities can be derived from the principles of sovereignty, human rights and solidarity, governing the legal order of access to territory and protection in the EU. This legal order has a predominant focus on the internal responsibility states have for their ‘internal community’. This focus on internal responsibility creates an imbalance in relation to the external responsibility and the inter-state responsibility. Safe pathways to protection must consider this imbalance to be effective on a normative level. To assess the normative impact of safe pathways, the ‘responsibility framework’ can serve as heuristic and analytical tool: the framework allows structuring the different elements of implementation of safe pathways according to the responsibility principles and foreseeing tensions and trade-offs. The responsibility framework also has a normative function: it allows to identify three key groups of indicators guiding the legal assessment: Indicators pointing to a primary focus on migration control, leading to (direct or indirect) deterrent effects and thereby exacerbating the asylum paradox; indicators promoting individual rights and agency in the extraterritorial context; and indicators providing alternatives to the current lack of responsibility allocation at international level.
The normative value of safe pathways to protection: an assessment in the light of responsibility principles
At first sight, safe pathways promise to strike a balance between the three responsibility principles: protection seekers are granted access to the territory, at the same time states can control entry and, ultimately, express solidarity with states of the global South, hosting most protection seekers worldwide. However, taking a closer look at safe pathways reveals fundamental normative differences among them, for instance between asylum visa as individual access routes and resettlement or ad hoc humanitarian admission schemes as quota-based pathways at state discretion. Legally implementing a permanent asylum visa scheme at EU level would have a significant normative effect on the asylum paradox. It would change the current lack of responsibility allocation at global level and open an access route providing individual rights and guarantees. In contrast, resettlement focuses on the right of states to grant protection, without providing for an enforceable legal claim. Resettlement is also instrumentalized to justify measures of deterrence. If the aim of migration control guides the definition of the scope of a pathway, adding to deterrent effects, the asylum paradox, with the imbalance of responsibility principles at its core, is exacerbated.
Overall, humanitarian admission and resettlement schemes bear the inherent tension of ‘humanitarianism’, adding to a framing of ‘good refugees’ vs. ‘bad asylum seekers’, deservingness requirements and the vulnerability debate. There is also a correlation of access and rights, as beneficiaries of humanitarian admission schemes may be granted a weaker status in receiving states than protection seekers who undergo a national asylum procedure, as the case of Germany shows. Further, the underlying normative assumptions of certain additional admission requirements are questionable: for instance, whether a person of a certain cultural or religious background has better prospects of integration or cultural acceptance is hypothetical. In case of discriminatory or otherwise problematic practices diminishing the protective scope of a pathway, admission requirements may undermine the principle of external responsibility. With a view to international responsibility-sharing, ad hoc admission schemes reflect an ‘emergency solidarity’ approach. This contrasts with permanent schemes aiming at doing justice to a comprehensive approach to the current lack of responsibility allocation. Despite these drawbacks, there is no denying that there is a need for ad-hoc humanitarian schemes in situations of acute crisis. Thus, while safe pathways can save lives, their normative value depends on the way they are outlined and implemented.
The potential of sponsorship schemes
Against this backdrop, sponsorship schemes, which make the admission of protection seekers dependent on a (mostly) financial commitment of civil society members as ‘sponsors’ in the receiving states, take up a particular role. Sponsorship schemes can empower civil society members to take an active part in expanding options of access to protection and enhance the agency of protection seekers. Thereby, they rely on a reciprocity between the sponsors and the state: While the commitment of civil society to humanitarian admission might lead to the implementation of safe pathways in the first place, the ‘safety net’ provided by states in case the sponsor fails to comply with the initial commitment might encourage members of civil society to participate in such schemes. However, there are two key issues in this regard: first, the scope of the ‘responsibility transfer’ and, second, the complementarity of sponsorship schemes, which often involve family members of protection-seekers abroad. The ‘responsibility transfer’ is the distinguishing and most controversial feature of sponsorship schemes. German sponsorship schemes for protection seekers from Syria, in place since 2013, are an example of how the involvement of private sponsors, who are relatives of protection seekers, may lead to situations of emotional pressure to provide a financial guarantee, causing problems for the sponsors, the protection-seekers, and the states. To avoid these negative effects, states must avoid overstraining financial capacities of sponsors by placing the responsibility transfer on a broad public basis, grant beneficiaries a protection status adjusted to their protection needs, and, most importantly, ensure complementarity of the schemes to other pathways, particularly to family reunification.
The protective dimension of externalization
Overall, there are six key issues, which can guide the assessment of current and future safe pathways to protection within the overall responsibility framework: (1) The issue of how to facilitate access to and safety during admission procedures (both de facto and legally); (2) the normative difference between permanent and ad hoc admission schemes; (3) the normative difference between schemes at state discretion and procedures based on individual claims and guarantees; (4) the distinction between access to territory and access to rights; (5), the relation of safe pathways to each other (complementarity), and (6), most importantly, the relation of safe pathways to individual territorial asylum (additionality). These considerations can help to structure the assessment of safe pathways and guide further research and policy recommendations on how to adapt the international protection system to the global challenges of our time. Thereby, the discussion on international cooperation and externalization needs to be tied to a human rights dimension, addressing the issue of how a person can safely reach protection without abolishing the individual asylum system. If state control moves beyond the territorial border, human rights must follow.