The US has agreed to consider resettling refugees held in Australia’s offshore processing centres on Nauru and Manus Island, as well as those who have been transferred back to Australia for medical reasons.

The US has not ratified the Refugee Convention, but it has ratified the 1967 Protocol to the Convention, which requires it to apply the provisions of the Refugee Convention.

In September 2016, under the Obama administration, the US intended to resettle 110,000 refugees in Fiscal Year 2017, although this figure was significantly reduced under the Trump administration. The refugee intake for Fiscal Year 2018 is set at 45,000.

While no formal details are yet available, it is a bilateral arrangement between Australia and the US, agreed at the executive level.  It does not require parliamentary approval.  UNHCR is not a party to the arrangement.

Reports indicate that the US undertook to consider resettling up to 1200 refugees. Former US Deputy Secretary of State Heather Higginbottom has stated the US agreed to the arrangement in order to ‘relieve the suffering of these refugees’. A leaked transcript of a telephone call between Australian Prime Minister Malcolm Turnbull and US President Donald Trump in late January 2017 indicates that the US is ultimately not obliged to resettle ‘any’ of the refugees.

The US will determine the total number of refugees it is willing to resettle. The exact number may depend on eligible applicants clearing US authorities’ ‘extreme vetting’ procedures.

After processing was paused in mid-2017, the first 54 refugees were resettled in the US in September 2017. In late January 2018, a further 54 refugees departed Manus Island for the United States.

UNHCR will ‘endorse referrals made from Australia to the United States, on a one-off, good offices, humanitarian basis, in light of the acute humanitarian situation.’  UNHCR notes that such endorsement ‘does not alter Australia’s obligations under international law, including the right to seek asylum irrespective of the mode of arrival.’

The US will pay for the costs of resettlement, including flights and accommodation.

In 2016 UNHCR welcomed the announcement as a ‘much-needed, long-term solution for some refugees who have been held in Nauru and Papua New Guinea for over three years and who remain in a precarious situation.’  However, it expressed grave concern for people on Nauru and Manus Island who have not been found to be refugees, but who nevertheless remain vulnerable.

In July 2017 the UN High Commissioner for Refugees Filippo Grandi issued a statement criticising the Australian government’s refusal to honour an understanding that vulnerable refugees with close family ties would be allowed to resettle in Australia in exchange for the UNHCR’s assistance in the relocation of refugees under the US-Australia resettlement deal. The High Commissioner stated that UNHCR ‘has no other choice’ but to endorse the deal in order to avoid prolonging the uncertainty faced by refugees on Manus and Nauru. 

In 2016 Amnesty International described the announcement as ‘an extreme step in shirking responsibility by the Australian Government.’  While noting that the US will give resettled refugees a genuine chance at restarting their lives in a safe place, Amnesty argued that as one of the richest countries in the world, Australia should be ‘leading by example’ – especially given record levels of global displacement.

In 2016 the Human Rights Law Centre said that the arrangement showed that the Australian government had ‘finally conceded that the Manus and Nauru detention arrangements are unsustainable.’

In 2016 Save the Children welcomed the plan as ‘an opportunity to restore hope and provide a pathway towards a safe and prosperous future for refugees who have spent years languishing on Nauru and Manus Island.’  However, it noted that Australia should work towards ‘a more humane and effective immigration system’ and engage ‘as closely as possible with other countries in the Asia Pacific region to establish a functioning regional protection framework.’

A number of overseas commentators expressed bewilderment and concern that US resettlement places were being taken up by refugees who were Australia’s responsibility as a matter of international law.

The Australian Immigration Minister, Peter Dutton, has said that the centre on Nauru will continue ‘forever’ in its present form.  The centre on Manus Island was officially closed at the end of October 2017; while more than 600 refugees and asylum seekers sought to remain at the facility, claiming they feared for their safety should they move into the local community, the men were ultimately relocated to alternative accommodation facilities near Lorengau. The Australian government has maintained that genuine refugees will be resettled in the US or Papua New Guinea, but none will come to Australia.

As at 31 October 2017, there were 1062 recognised refugees on Nauru and 730 people on Manus Island who had received positive final determinations of their claims to protection.  Several hundred people were yet to receive final determination of their claims for protection. There are also several hundred refugees and asylum seekers from Manus and Nauru currently in Australia for medical treatment.

The first refugees departed Papua New Guinea and Nauru for the US in late September 2017, while a second group departed Papua New Guinea in January 2018. There is currently no definite information about when more refugees will depart for the US.

Nauru and Australia are reportedly in negotiations to create a 20-year visa in Nauru for such people.

This remains unclear.  UNHCR has expressed grave concern for these people.

At the US Leaders’ Summit on 20 September 2016, the Australian government committed to assist with the resettlement of Central American refugees currently in Costa Rica.  At the time, it was speculated that this was an impending refugee swap with Australia, but this was strongly denied by the Australian government.

The present resettlement arrangement has been described by the Prime Minister as a one-off arrangement.  If more boats arrive, people will continue to be sent to Nauru for processing.  

Offshore processing is not a sustainable long-term solution.  Australia needs to accept responsibility for refugees seeking its protection, especially those with family connections in Australia.  It needs to create alternative pathways to safety so that refugees can avoid making risky journeys, and help to build greater capacity for protection within the Asia-Pacific region.

The US President is authorised under the Immigration and Nationality Act to specify the number of refugees to be resettled in the US each fiscal year. Under sections 207(d)(1) and (e) of the Act, the President is required to provide Congress with details of the coming year’s program, including the allocation of places by region and an ‘unallocated reserve’ of places available ‘to be used for refugee admissions from any country’. 

The Bureau of Population, Refugees and Migration within the Department of State administers ‘Resettlement Support Centres’ in nine locations around the world. When a person is referred by UNHCR for resettlement in the US, their application is first assessed by one of these centres, which then arranges for eligible applicants to be subject to security screening by the Department of State and the Department of Homeland Security, and interviewed in person by the Department of Homeland Security’s US Citizenship and Immigration Services. The centres subsequently arrange for refugee resettlement agencies in the US to provide a ‘sponsorship assurance’ guaranteeing post-arrival assistance for individual refugees. The Department of State advises that the average time between referral and resettlement, ‘depending on an applicant’s location and other circumstances’, is 18 to 24 months.