Abstract This article examines the ‘right to asylum’ guaranteed under Article 18 of the EU Charter of Fundamental Rights (EU Charter) and its corresponding legal implications for the processing of people seeking asylum under the EU’s new Resettlement and Humanitarian Admissions Regulation (Resettlement Regulation). While EU Member States are at liberty to decide whether to participate in programmes implemented under the Resettlement Regulation, once they do agree to participate, they are required—as a matter of EU law—to comply with it and other obligations attached to its implementation. This is an uncontroversial proposition. What stands out, however, is the Regulation’s purported attempt to limit its legally binding nature and key fundamental rights that attach to its implementation. The Regulation’s Preamble, for instance, states that ‘there is no right to request admission or to be admitted by a Member State’ and ‘no obligation on Member States to admit a person pursuant to this Regulation’. The implication appears to be that EU Member States (should) have unfettered discretion over the grant of international protection and that the Regulation does not create a subjective ‘right to asylum’ or admission to territory at the insistence of potential beneficiaries located outside the EU. This article problematises this position in light of the ‘right to asylum’ guaranteed under Article 18 and examines the legal parameters within which the Resettlement Regulation must be implemented by EU Member States. This article argues that rights arising under the EU Charter, specifically Article 18’s ‘right to asylum’ will apply to actions taken under the Regulation. Through an analysis of its scope and content, this article concludes that the ‘right to asylum’ under Article 18 EU Charter is not limited to the State’s ‘right to grant asylum’ (as it is under international law) and encompasses not only a substantive right for individuals to seek asylum in the EU, but also a right to be granted asylum where relevant criteria are met. Applied to the EU’s Resettlement Framework, this article examines the extent to which Article 18 might also impose procedural guarantees, including obligations to grant access to territory when such guarantees are denied.
Riona Moodley (Mon,) studied this question.