Externalisation and migration control measures infringe upon the rights of refugees and migrants. The deal between the United Kingdom and Rwanda sets a concerning precedent.
Externalisation, or externalised migration control measures, is not a new phenomenon. Although externalisation is not a legal term, it has been defined as the process of shifting functions that are normally undertaken by a state within its own territory, such as border controls, so they take place, in part or in whole, outside its territory. Visa regimes reach back to the 1920s, and carrier sanctions date back to the mid 1980s. Since the 1980s, the United States (US) has intercepted boats carrying migrants and refugees at sea as a measure to control irregular migration and access to asylum. The European Union (EU) has cooperated with countries “external” to the EU (third countries) in implementing its Common European Asylum System, since the early 2000s.
Most people will be familiar with visa regimes and carrier sanctions. We are all subject to visa requirements should we wish to travel to certain countries. All transportation companies and operators are subject to carrier sanctions, namely penalties imposed by states to the carrier for facilitating the illegal entry of people who do not have a valid travel document or right of entry. What most people will not be familiar with is how these migration control measures impact refugee rights.
Externalised border controls – while not in principle unlawful under international law as states have a right to control and regulate entry to their borders – do raise concerns for refugees as they can hinder access to territory for the purposes of seeking asylum. In recent years, countries have resorted to pushbacks as a measure of border management. Pushbacks, often known as “turn backs,” “hot returns,” or “drift backs,” – depending on the modus operandi – involve the interception and the forceful summarily return of migrants and refugees arriving at sea or land borders, without assessing their individual claims to international protection.
According to the United Nations Special Rapporteur on the Rights of Migrants, pushbacks have been systematically documented at the US-Mexico Border, in Australia, in most European migratory routes, including the Central and Eastern Mediterranean Sea, the Balkan Route, and in Africa. Pushbacks have resulted in loss of life and serious injury. The Mediterranean Sea, particularly the Central Mediterranean Route, has been described as the deadliest migration route in the world. More than 24,481 deaths and disappearances have been recorded on this route since 2014 by the Missing Migrant Project of the International Organisation for Migration (IOM). Throughout 2022, 1,147 migrants have been reported as missing or dead in the Central Mediterranean Sea, the sea route separating North African coastal states from EU borders.
In the Mediterranean Sea, one comes across a pattern of two tactics. In the Eastern Mediterranean Sea, the sea route between the Greek islands and the coastline of Turkey, pushbacks occur mostly within Greek territorial waters by the Greek Coast Guard and often with the participation of Frontex in joint operations according to an investigation opened by European Parliament’s LIBE Committee. Externalised border controls in the Central Mediterranean have been implemented differently. There we see the practice of pullbacks, namely pushbacks via a proxy state, that drag people back to its territory before they reach the territory of the destination state. This has been facilitated in the past five years by the EU increasing the border management capacity of Libya through financing, equipping, and sharing information with the Libyan Coast Guard. The practice of pushbacks by proxy further builds on informal bilateral agreements between Italy and Libya, and Malta and Libya. Similar agreements have been concluded by Spain and Morocco, whereby Morocco is responsible for stopping people cross into the Spanish enclaves of Ceuta and Melilla.
According to a recent academic study on the legality of externalised border controls, pushbacks that do now allow for access to adequate individual determination for asylum or international protection breach the prohibition of collective expulsion, a well established protection principle of international law. Pushbacks may also result in refoulement (expulsion to harm or risk of harm) and infringe upon the right to leave a country and the right to seek asylum. In addition, pushbacks at sea likely violate positive obligations of search and rescue and the duty to render assistance to people in distress at sea.
Offshoring the asylum system to third countries
States require a national asylum system that determines who is a refugee or in need of international protection. This is to give effect to their legal obligations under international law. Some states have sought to externalise functions of their asylum system by transferring asylum seekers to a third country for the purposes of processing asylum claims or providing asylum. Australia has been the pioneer of offshore processing, having concluded bilateral agreements with Nauru, Papua New Guinea, and Cambodia.
Despite the well-documented cruelty and exorbitant costs of operating offshore processing arrangements with third countries, Australia’s policy has had spill over effects in Europe. Denmark and the United Kingdom (UK) have both started working on concluding transfer agreements with countries in Africa. While Denmark’s proposal is still in the planning stages, the UK has already concluded an agreement with Rwanda.
The United Kingdom Rwanda Deal
Under a recent change in UK legislation, the new Nationality and Borders Bill has provided the legal basis for the transfer of asylum seekers who have arrived in the UK to a third country. This new power supports “the future object of enabling asylum claims to be processed outside the UK and in another country.” The UK then signed an agreement with Rwanda pursuant to which the former externalises its asylum system to the latter.
The memorandum of understanding (MoU) between the UK and Rwanda is explicitly non-binding, which is problematic as the legal rights of refugees and asylum-seekers involved in forcible transfers cannot rest on non–enforceable agreements between states. The MoU does not provide a pre-transfer procedure that would assess the legality of each transfer on an individual basis, by assessing the risk of direct and indirect refoulement. Under the MoU, the UK’s responsibility is limited to the safe arrival of the transferred asylum seekers to Rwanda, after which Rwanda becomes exclusively responsible for their safety, security, the processing of the asylum claims, and the provision of international protection.
The conclusion of the MoU followed extensive litigation before UK courts after several asylum seekers were issued with a notice of intention of removal to Rwanda by the Home Office. While the UK High Court dismissed the applicants’ bid to suspend the flight to Rwanda as an interim relief, the European Court of Human Rights (ECHR) intervened following an application for interim measures. The ECHR then ordered the UK government to halt the transfer of the applicants to Rwanda three weeks after the delivery of the final domestic decision in the ongoing judicial review proceedings. As judicial review of the MoU is still ongoing, further scrutiny has also been exercised on the part of the House of Lords in an inquiry that investigates the appropriateness of the MoU as a vehicle to implement such a policy and its compatibility with international law obligations. Irrespective of the form, any agreement that is likely to breach legal obligations owed to asylum seekers and refugees will likely be unlawful in international law.
While the future of the UK Rwanda deal remains uncertain for now, it has the potential to set a worrying precedent for other countries. The informal nature of the agreement concluded by the executive without prior parliamentary scrutiny, the intention to externalise the entire asylum system to a developing country with different capacities, levels of development, and different basic legal standards on asylum in exchange for financial aid are evidence of a worrying trend: A shift away from territorial asylum, towards increased externalisation and responsibility shifting as the default approach to refugee situations.
Dr Elizabeth Mavropoulou is Lecturer in International law at the University of Westminster (London). This op-ed draws on the Refugee Law Initiative (RLI) Declaration on Externalisation, launched at the RLI Annual Conference 29 June – 1 July 2022 where the author was co-convenor. Available to read and download HERE.
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