Community Sponsorship, the Pact and the Compact: Towards Protection Principles

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Nikolas Feith Tan
Researcher, Danish Institute for Human Rights and ASILE Researcher
September 2020

Introduction

Community sponsorship is a current darling of the international protection regime as a potential solution to the dismal global refugee situation. Following almost 40 years of operating essentially in isolation in Canada, Germany, Ireland, Italy, Spain and the United Kingdom have piloted or established community sponsorship models since 2015. At the first Global Refugee Forum held in December 2019, Brazil, Belgium, Malta and Portugal pledged to explore pilot community sponsorship models.

Beyond this quite remarkable recent uptake of community sponsorship, there is significant buzz around the concept at both UN and EU level. As explored below, community sponsorship has no settled definition, but inherent to the model is shared responsibility between civil society and the state for the admission and/or integration of refugees.

This contribution first seeks to define the ‘umbrella’ concept of community sponsorship, before outlining the role of community sponsorship in the UN Global Compact on Refugees (GCR) and the New Asylum and Migration Pact, respectively. Finally, I suggest that a number of principles to maintain the protective promise of the community sponsorship as a solution for refugees.

1. Defining community sponsorship

Community sponsorship has recently been described by UNHCR as “programmes where individuals or groups of individuals come together to provide financial, emotional and practical support toward reception and integration’ of refugees”. Indeed, community sponsorship has been ‘rather ill-defined’ and is best understood as an umbrella term encompassing several different modalities.

Three strains of community sponsorship are currently operating. First, community sponsorship has historically involved privately-led admission and integration of refugees via an autonomous complementary pathway. The original Canadian approach of private refugee sponsorship matches this model. Such programmes are firmly separated from state-run resettlement as an “initiative by private associations with recognized expertise in the field to provide for an alternative, legal, and safe pathway”.

In its original form in Canada, community sponsorship involved the ‘naming’ of individual refugees by sponsors and the creation of a pathway independent of other channels to admission. More recently, the Humanitarian Corridors model pioneered in Italy is a good example of community sponsorship as complementary pathway.

Second, more recently community sponsorship has emerged as a sponsored resettlement, focused solely on integration support for resettled refugees matched with civil society sponsors. Rather than creating a pathway to admission, community sponsorship involves integration assistance for resettled refugees. This model of community sponsorship uses existing UNHCR and state resettlement channels (including selection, referral, health checks etc.) to admit refugees. Civil society involvement is largely limited to the provision of support after arrival and focused on the successful integration of refugees. Moreover, community sponsorship as resettlement generally benefits UNHCR-referred refugees, rather than ‘named’ individuals, although practice varies between jurisdictions.[1]

Community sponsorship as a resettlement is reflected in community sponsorship schemes in Ireland and the United Kingdom squarely focused on the support of resettled refugees, beginning within the state resettlement quota with the intention of becoming additional over time. Similarly, the recent German Neustart im Team (NesT) programme is a clear example of community sponsorship as a resettlement tool.

Finally, the most recent – and surely broadest – conception of community sponsorship is as a ‘wrap-around’ tool for both resettlement and any given complementary pathway “capable of supporting refugees referred by UNHCR… as well as refugee students, workers and family members arriving through other pathways”. This definition does not focus on the pathway or legal status of refugees sponsored, but rather on civic engagement embracing refugees.

While open or even competing definitions of community sponsorship provide significant flexibility, it leaves the concept vague and even open to co-option.

2. Community sponsorship in the Compact

The adoption of the GCR as a global responsibility sharing effort comes against a backdrop of the “deterrence paradigm” in traditional asylum countries, in which a broad array of measures prevent asylum seekers accessing the territory or asylum procedures of destination states. Over the past thirty years, lack of legal access to asylum for refugees has emerged as “perhaps the single most prominent topic in refugee studies”, with some authors even predicting the end of the right to seek asylum in the Global North.

Community sponsorship is closely linked to one of the four GCR objectives focused on the expansion of third country solutions through “resettlement and complementary pathways”.[2] More broadly, community sponsorship is aligned to the GCR as an example of a whole-of-society approach to refugee protection.

Against this backdrop, the GCR’s focus on the expansion of third country solutions suggests that resettlement and complementary pathways should be the primary way to receive international protection in the Global North. Indeed, such controlled pathways are often the preferred modes of protection in destination countries, rather than spontaneous asylum. Thus, in 2016 the European Commission stated that “resettlement should be the preferred avenue to international protection in the territory of the Member States”.

3. Community sponsorship in the Pact on Migration and Asylum

As noted in the kick-off brief to this Forum, the Pact draws on the GCR in its Recommendation on legal pathways, C(2020) 6467, which refers to the recent Global Refugee Forum and UNHCR’s strategy to scale up resettlement and complementary pathways.

Community sponsorship plays a modest but potentially important role in the new Pact. As a part of legal migration efforts, the European Commission points out the commitment to support national community sponsorship schemes “through funding, capacity building and knowledge-sharing, in cooperation with civil society, with the aim of developing a European model of community sponsorship”.

The promise of technical assistance from the EU to member states is not new. Indeed, the Commission released a hefty report on the feasibility of community sponsorship in the EU in 2018 and a recent Asylum, Migration and Integration Fund (AMIF) Action Grant funded projects launching new or developing existing community sponsorship schemes. The European Asylum Support Office (EASO) has already been involved in a pilot project promoting community sponsorship in interested EU members states.

Nevertheless, the concept of a ‘European model’ of community sponsorship is novel, and supported by Commission Recommendation to the same effect. While implementation of community sponsorship remains firmly in the policy – and not legal – realm, the call for a European approach to sponsorship points to a sense of ownership and uptake that moves beyond Canada.[3]

4. Toward Protection Principles

The proliferation of new community sponsorship models since 2015 bring both risks and opportunities. On the one hand, the rapid growth of community sponsorship means policymakers may quickly be informed of the various models implemented in multiple jurisdictions. On the other hand, the inherent flexibility of the concept may leave it open to co-option where, for example, governments use community sponsorship to replace resettlement, or discriminate by protecting only particular religious groups. To mitigate these risks, priority needs to be given to the following six protective standards drawn from refugee and human rights law and lessons from recent practice:

First, respecting the right to seek asylum

The introduction and expansion of community sponsorship models should not be used by national governments to justify deterrence. In other words, community sponsorship should not be instrumentalised to distract from deterrence policies. While state resettlement has long been used strategically in this way, there is little evidence that the strategic use of resettlement has actually driven down spontaneous asylum. Given its community-driven nature, community sponsorship should be somewhat insulated from government interests in this regard.

Second, additionality

Additionality should remain at the forefront of discussions on community sponsorship, to avoid the effective outsourcing of government responsibilities. Of course, community sponsorship should not replace resettlement.

However, the question of additionality is becoming increasingly complex. While ideally community sponsorship schemes should be additional to existing resettlement programmes from the outset, pragmatic considerations may require that initial community sponsorship models take place within existing resettlement quotas. In such cases, a shift to additionality in the short to medium-term must remain a focus – an approach that may be termed ‘additionality in principle’.

Moreover, some government may seek to ‘reverse engineer’ additionality when negotiating the state quota in relation to community sponsorship. Finally, the establishment of community sponsorship schemes in states with no existing resettlement programme raises further complex questions of pragmatic or realistic approaches.

Third, non-discrimination and equal treatment

The principle of non-discrimination flowing from international human rights and refugee law should guide state practice on community sponsorship. As UNHCR notes, community sponsorship should be “non-discriminatory and not distinguish on the basis of nationality, race, gender, religious belief, class or political opinion”.

Learning from previous practice in Eastern Europe, future community sponsorship models should avoid discrimination in the selection of refugees for sponsorship. Moreover, principles of equal treatment require that sponsored refugees not be treated differentially from government-resettled refugees during integration, and vice versa. In particular, in the case of relationship breakdown, the principle of equal treatment requires that the state step in to protect the rights of a sponsored refugee. Encouragingly, the Pact and the above-mentioned Commission’s Recommendation on legal pathways calls for “transparent and non-discriminatory selection criteria” when designing community sponsorship schemes.

Member States and their partners should define for those in need of international protection. From the start of the programme, they should ensure that the respective roles and responsibilities of civil society and government are clearly defined in the pre-departure and post-arrival phase. Member States remain responsible for the security checks and admission procedures and need to guarantee that appropriate safeguards and safety nets are in place.

Fourth, protection-focused

Notwithstanding its flexibility community sponsorship should remain firmly focused on refugee protection. This means, for example, learning the lessons from Australia’s Community Support Programme, which is as much centred around labour market integration as refugee protection. Equally, the use of community sponsorship to facilitate family reunification should neither replace the state’s family reunification obligations, nor place unreasonable burdens on sponsors.

Fifth, clarity of legal status

Community sponsorship approaches must provide a clear legal status to sponsored refugees. In general, refugees admitted under a community sponsorship scheme should be entitled to the full set of rights afforded other refugees in the country, in line with the principle of non-discrimination and socio-economic rights set out in the 1951 UN Refugee Convention (Arts. 2-34). Community sponsorship as resettlement carries the additional status of providing a durable solution, thus often amounting to permanent residence more rapidly than community sponsorship as complementary pathway.

Sixth, transparency and accountability

Finally, community sponsorship approaches should be supported by a robust policy framework. In particular, any model involving a ‘naming’ element should include safeguards to ensure the integrity of the selection process and, at a minimum, a requirement that the named individual meet the definition of refugee contained in Article 1A(2) of the 1951 UN Refugee Convention. Ultimate responsibility for refugees must clearly remain with the state, not private actors, as reflected in the Commission’s Recommendation on legal pathways.

In the coming years, we are likely to see the emergence of new community sponsorship models that challenge the protective core of the concept. This contribution has started the work of setting out principles of general application to help ensure that the rise of an EU approach to community sponsorship – as outlined in the Pact on Migration and Asylum – does not dilute its promise of providing protection for refugees and people seeking international protection.

[1] New Zealand’s community sponsorship pilot, for example, accepted both civil society nominations and UNHCR referrals, though all sponsored refugees had to be recognised by UNHCR.

[2] GCR paras 7 and 95. Complementary pathways identified in the Compact are family reunification, private refugee sponsorship, humanitarian visas and labour and educational opportunities for refugees.

[3] Nikolas Feith Tan, Community sponsorship in Europe: taking stock, policy transfer and what the future might hold (forthcoming)