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Safe Access to Asylum in Europe / Part 3: Safe pathways to protection in the light of the responsibility framework
Safe Access to Asylum in Europe / Part 3: Safe pathways to protection in the light of the responsibility framework
Contents
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1–22
Titelei/Inhaltsverzeichnis
1–22
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23–52
Part 1: Introduction
23–52
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1 The asylum paradox
2 Aim and research questions
3 Scope of the book
3.1 Definitions and delimitations: ‘protection seekers’, ‘safe pathways to protection’ and the notion of ‘State’
3.1.1 Protection seekers
3.1.2 Safe pathways to protection
3.1.3 The notion of ‘State’
3.2 Legal sources
4 Structure and methodology
4.1 Normative reconstruction of the status quo: developing a responsibility framework
4.2 Structured analysis and normative assessment: safe pathways in the light of the responsibility framework
5 Legal context and state of research
5.1 No asylum without access: the absence of an ‘entry right’ to seek protection
5.1.1 The limited scope of the right to seek asylum and the principle of non-refoulement
5.1.2 The scope of non-refoulement in ‘asylum visa’ cases
5.2 No access to asylum: the legality of border and migration control with a view to access to protection
5.3 The relation of sovereignty and human rights in refugee law
5.4 Studies of safe pathways to protection
53–108
Part 2: The responsibility framework
53–108
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6 A principle-based normative concept
6.1 The notion of principles: from legal principles to principles in legal philosophy
6.2 The notion and structuring function of principles in this book
6.3 The normative function of responsibility principles
7 Internal responsibility
7.1 Point of departure: sovereignty as structural principle governing access to territory
7.1.1 From Westphalian sovereignty to State autonomy
7.1.2 Sovereignty and the concept of asylum
7.1.3 Sovereignty claims in migration and border control
7.2 Sovereignty as responsibility
7.3 The scope of the internal responsibility
7.4 Conclusion
8 External responsibility
8.1 Point of departure: human rights as structural principles governing access to protection
8.1.1 The universal scope of human rights and refugee law
8.1.2 Key human rights provisions governing access to protection in the EU
8.2 Human rights as basis of an external responsibility
8.3 The scope of the external responsibility in the territorial context
8.4 Conclusion
9 Inter-State responsibility
9.1 Point of departure: solidarity as structural principle of the international protection framework
9.1.1 The principle of solidarity at international level
9.1.2 The principle of solidarity in the legal context of the EU
9.2 The principle of inter-State responsibility
9.3 Acting upon a principle of inter-State responsibility: responsibility-sharing arrangements at international level
9.3.1 Three main approaches: ‘common responsibility’, ‘common but differentiated responsibility’ and ‘emergency solidarity’
9.3.2 Proposals for responsibility-sharing schemes: from the ‘Comprehensive Plan of Action’ to ‘Regional Disembarkation Platforms’
9.3.3 The New York Declaration for Refugees and Migrants and the UN Global Compacts of 2018
9.4 Conclusion
10 Conclusion Part 2: the responsibility framework as analytical assessment tool
10.1 The triad of responsibility principles underlying the asylum paradox
10.2 The three functions of the responsibility framework
10.2.1 The analytical function: unpacking safe pathways through the responsibility lens
10.2.1.1 Assessment standards following from the internal responsibility
10.2.1.2 Assessment standards following from the external responsibility
10.2.1.3 Assessment standards following from the inter-State responsibility
10.2.2 The heuristic function of the responsibility framework: revealing tensions and trade-offs
10.2.3 The normative function of the responsibility framework: key considerations for the assessment
10.2.3.1 Migration control and deterrence
10.2.3.2 Individual access and procedural safeguards
10.2.3.3 Common but differentiated responsibility
10.3 The strengths and limits of a responsibility-based approach
109–238
Part 3: Safe pathways to protection in the light of the responsibility framework
109–238
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11 The asylum visa
11.1 Definition: clarifying the term ‘asylum visa’
11.2 Background: the role of embassies in offering protection
11.2.1 Diplomatic asylum
11.2.2 Historic precedents of ‘protective passports’ in Europe
11.3 From then to now: the relevance of ‘humanitarian visas’ in the legal context of the EU
11.3.1 EU visa regulations with impact on protection seekers
11.3.2 The role of carrier sanctions on access to protection
11.3.3 National policies of granting ‘humanitarian visas’ in the EU
11.4 The decisions of the CJEU and the ECtHR in ‘asylum visa’ cases
11.4.1 A short note on extraterritorial jurisdiction
11.4.2 The CJEU case X and X and the ECtHR case M.N.
11.4.3 The relevance of the case N.D. and N.T.
11.4.4 Summarising the approach of this book: a dynamic interpretation of human rights in asylum visa cases
11.5 Access through an ‘asylum visa’ at EU level
11.5.1 ‘Who’: protection seekers
11.5.2 ‘How’: asylum visa procedures
11.5.3 ‘What’: the protection status granted through an asylum visa scheme
11.6 Analysis and assessment of the asylum visa in the light of the responsibility framework
11.6.1 External responsibility
11.6.1.1 Beneficiaries: ‘anyone anywhere’ under a severe human rights risk
11.6.1.2 Asylum visa procedures with individual rights and guarantees
11.6.1.3 Content of protection: access to national asylum procedures
11.6.2 Internal responsibility
11.6.2.1 Beneficiaries: no margin of discretion
11.6.2.2 Asylum visa procedures: migration control with limits
11.6.2.3 Content of protection: access to the national asylum procedure
11.6.3 Inter-State responsibility
11.6.3.1 Beneficiaries: no large-scale admission or consideration of State interests
11.6.3.2 Asylum visa procedures: paradigm change in responsibility allocation and issues of international cooperation
11.6.3.3 Content of protection: the relevance of a long-term perspective
11.7 Tensions and trade-offs raised by asylum visa schemes
11.7.1 Safe access to embassies and physical safety during the procedures
11.7.2 Legal access to the procedures and legal safeguards
11.7.3 The ‘floodgate’ argument
11.7.4 Limits of the asylum visa in terms of scope, numbers and predictability
11.7.5 Interim conclusion: the asylum visa as human rights tool
11.8 Conclusion: the asylum visa as paradigm shift
12 Resettlement
12.1 Defining resettlement
12.2 Background
12.2.1 Resettlement at international level
12.2.2 Resettlement in the EU
12.3 Access through resettlement
12.3.1 ‘Who’: ‘resettled refugees’
12.3.2 ‘How’: resettlement procedures
12.3.3 ‘What’: the protection status of ‘resettled refugees’
12.4 Analysis and assessment of resettlement in the light of the responsibility framework
12.4.1 External responsibility
12.4.1.1 Beneficiaries of resettlement: from vulnerability to IDPs
12.4.1.2 Resettlement procedures: from one ‘gatekeeper’ to another
12.4.1.3 Content of protection: no uniform resettlement status
12.4.2 Internal responsibility
12.4.2.1 Utilitarian admission criteria and links to migration control
12.4.2.2 Flexible procedures and discretionary status
12.4.3 Inter-State responsibility
12.4.3.1 Beneficiaries and procedures: from ‘cherry picking’ to limited quotas and political leverage
12.4.3.2 Content of protection: predictability
12.5 Tensions and trade-offs raised by resettlement
12.5.1 The discretionary nature of resettlement: from ‘filters’ to ‘gatekeepers’
12.5.2 Resettlement and territorial asylum
12.6 Conclusion: resettlement between solidarity and political leverage in migration control
13 Ad hoc humanitarian admission
13.1 Defining ad hoc humanitarian admission
13.2 Background
13.3 Access through ad hoc humanitarian admission
13.3.1 ‘Who’: beneficiaries of ad hoc humanitarian admission
13.3.2 ‘How’: ad hoc humanitarian admission procedures
13.3.3 ‘What’: the status granted through ad hoc humanitarian admission
13.4 Analysis and assessment of ad hoc humanitarian admission in the light of the responsibility framework
13.4.1 External responsibility
13.4.1.1 Beneficiaries: from the ‘one-to-one’ approach to ‘close-tie’ requirements
13.4.1.2 Ad hoc admission procedures: silence on procedural guarantees
13.4.1.3 Content of protection: access vs. rights
13.4.2 Internal responsibility: State discretion at peak
13.4.3 Inter-State responsibility: ad hoc admissions as acts of ‘emergency solidarity’
13.5 Tensions and trade-offs arising through ad hoc humanitarian admission
13.5.1 The ‘good’ refugee and the ‘bad’ asylum seeker
13.5.2 The controversial nature of the ‘close-tie’ requirement
13.5.3 Access vs. rights
13.6 Conclusion: ad hoc humanitarian admission as emergency solidarity and State discretion at peak
14 Sponsorship schemes
14.1 Defining sponsorship schemes
14.2 Background
14.2.1 International perspective: the Canadian private sponsorship scheme as a role model
14.2.2 Sponsorship schemes in the legal context of the EU
14.3 Access through sponsorship schemes
14.3.1 ‘Who’: beneficiaries of sponsorship schemes
14.3.2 ‘How’: sponsorship procedures
14.3.3 ‘What’: status upon arrival
14.4 Analysis of sponsorship schemes in the light of the responsibility framework
14.4.1 External responsibility
14.4.1.1 Beneficiaries: the ‘close tie’ requirement as a key consideration
14.4.1.2 Admission procedures: enhancing agency
14.4.1.3 Content of protection: issues of status and responsibility transfer
14.4.2 Internal responsibility
14.4.2.1 Beneficiaries: limited State discretion for more social acceptance
14.4.2.2 Admission procedures: civil society as an internal driving force
14.4.2.3 Content of protection: the leading role of sponsors in the post-arrival phase
14.4.3 Inter-State responsibility: the scope of ‘solidarity bonds’
14.5 Tensions and trade-offs raised by sponsorship schemes
14.5.1 Between ‘undue burdens’ and empowerment of civil society
14.5.2 The relevance of complementarity in sponsorship schemes
14.6 Conclusion: sharing responsibility – not burdens
15 Conclusion Part 3
15.1 Overall conclusion
15.2 Key issues setting the course in the assessment
15.2.1 Safe access to safe pathways
15.2.2 Permanent schemes vs. ad hoc schemes
15.2.3 State discretion vs. individual rights
15.2.4 Access vs. rights
15.2.5 Safe pathways and territorial asylum: the ‘fig leaf’ and the ‘queue jumpers’
15.2.6 Complementarity of safe pathways
239–254
Part 4: Outcomes and outlook
239–254
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16 Summary of findings
16.1 Point of departure: the asylum paradox and established definitions
16.2 Theoretical foundation: the responsibility triad as basis of a responsibility framework
16.3 Analysis and assessment of safe pathways to protection
16.3.1 The asylum visa
16.3.2 Resettlement
16.3.3 Ad hoc humanitarian admission
16.3.4 Sponsorship schemes
17 List of key findings
18 Outlook
18.1 The map: human rights must follow borders and adapt to new challenges
18.2 The vessel: safe pathways to protection
18.3 The terrain: digitalisation, technology and mobility
255–268
Bibliography
255–268
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Safe Access to Asylum in Europe , page 109 - 238
Part 3: Safe pathways to protection in the light of the responsibility framework
Autoren
Pauline Endres de Oliveira
DOI
doi.org/10.5771/9783748939269-109
ISBN print: 978-3-7560-0572-7
ISBN online: 978-3-7489-3926-9
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