Complementary Pathways in Murky Legal Waters: A Lost Cause or a Light in the End of the Tunnel?

Abstract

In the absence of effective legal means of entry in the EU, asylum seekers arrive spontaneously, a process that involves substantial dangers.1 Countries of protection, on the other hand, engage in deterrence and containment practices, whose compliance with international law can be debated.2 Still, there are serious challenges in qualifying these practices as being in breach of international law obligations.3 At the same time, another reaction that countries of protection have is organizing access to their territory via resettlement and other legal pathways. These other pathways are viewed as complementary to resettlement, which has justified the name ‘complementary pathways.’ They can be framed as ‘legal pathways’ since the person gains access to territory in compliance with the destination country’s legislation, in contrast to spontaneous arrivals. In this sense, the process that leads to entry is regulated. Complementary pathways merit special attention for at least two reasons. First, the concept has been introduced in the New York Declaration of 20164 and further in the UN Global Compact on Refugees of 2018.5 Both are authoritative soft-law instruments which can be seen to exert normative power by virtue of their political programmatic nature. UNHCR, being the main international actor involved in resettlement, keeps advocating for the expansion