Ignoring the law and the cost of these risky experiments would set the new European Commission on a dangerous path.
Governments have long attempted to deny protection to people reaching their borders and shift the responsibility to other countries. Proposals to ‘offshore’ or ‘externalise’ the processing of asylum claims outside the European Union have long been criticised, condemned and discarded—for good reason.
This has not however prevented a recent resurfacing of these models. In mid-May, 15 member states wrote to the European Commission proposing changes to EU laws on asylum, to enable them to send people seeking protection to countries with which they have no connection but which would be responsible for any offer of asylum. These proposals came the very next day after the formal adoption of the Pact on Migration and Asylum, a complex package of EU reforms eight years in negotiation. Several countries, including Germany, have also been assessing the feasibility of these schemes at national level.
The newly re-elected commission president, Ursula von der Leyen, argued that these ‘innovative strategies’ would ‘certainly deserve’ the attention of the new commission. While the ideas were not explicitly reflected in her political guidelines for the new legislative cycle, such demands from member states will certainly recur.
Disastrous consequences
These controversial ideas are neither innovative nor strategic and a responsible commission should reject them outright. One need only look at the disastrous consequences of past attempts to externalise asylum procedures—their human cost as well as the ruinous impact on asylum systems.
Australia’s offshore-detention scheme in Nauru and Papua New Guinea most clearly demonstrates how these models have created prolonged confinement, deeply harming the mental and physical health of people seeking protection. Persistent human-rights abuses have followed, including conditions amounting to inhuman and degrading treatment, lack of access to legal aid, lack of identification of and support for specific needs, and family separation.
The UK-Rwanda scheme, which several European governments had looked to for inspiration, has been declared ‘dead and buried’ by the new British prime minister—although not before reportedly costing the UK government £700 million. This is an unjustifiable waste of public money which could be spent in ways that would truly aid people seeking asylum and the communities that welcome them. While it was thankfully never operationalised, it nevertheless placed thousands of people in limbo, under threat of removal, in arbitrary and prolonged detention, and at risk of exploitation in the UK.
At the same time, Italy is seeking to process certain asylum applications from detention centres in Albania. While much remains unknown, similar risks can be expected regarding the use of automatic detention, delayed disembarkation for people rescued or intercepted at sea and denial of access to fair asylum procedures with necessary procedural guarantees.
Dangerous signal
Proponents of these schemes often assert that human rights will be respected. Yet, as the extensive history of human-rights violations in partner countries such as Libya or Tunisia demonstrates, the EU and member states lack the tools or the powers to monitor effectively, still less enforce, human-rights standards outside EU territory.
The design, execution and maintenance of recent migration deals has seen Europe aligning itself with leaders who fail to respect human rights, undercutting checks and balances—at home and in partner countries—while abandoning local civil society and rights defenders who had counted on the EU’s backing. The evidence of violence, repression and instability resulting from these agreements is overwhelming. The EU’s failure to address these concerns or change strategy does not inspire trust in any future deals.
This approach to engagement with third countries should worry those who value Europe’s ‘strategic autonomy’ and its credibility in its external relations. The outsourcing of asylum processing sends a dangerous signal to the rest of the world about the EU’s lack of commitment to responsibility-sharing, international treaties and the global refugee-protection system. The irony is not lost on the low- and middle-income countries hosting 75 per cent of the world’s refugees and risks undermining their willingness to sustain this protection.
If the EU continues to put in question the core legal tenet of the international protection system—that people under a jurisdiction have a right to seek asylum in that jurisdiction and have that claim fairly and individually examined—the ripple effects globally could be devastating.
Deepening its dependence on third countries to manage migration and asylum will prove misguided and short-termist, leaving the EU vulnerable to blackmail from actors who have proven they are willing to put people in harm’s way and create pressure on Europe for their own political gains.
Just as these proposals are not new, the challenges are no secret. The commission itself found in 2018 that any offshore processing scheme would be ‘neither possible nor desirable’: it would require changes to EU law, pose a high risk of infringing the principle of non-refoulement and might be incompatible with EU values. It would be a mistake for the new commission to ignore this assessment.
Alternative approaches
Alternatives to this tried-and-failed approach exist and would greatly benefit from the attention and funds governments are so ready to waste on externalisation. In this next political cycle, the EU and member states should instead ensure proactive search-and-rescue operations in the Mediterranean, with a predictable disembarkation system in the EU to prevent deaths at sea and ensure survivors can gain prompt access to safety and support.
They should ensure accountability for human-rights violations wherever they occur, at sea or on land—whether through the actions or omissions of the EU and its member states or through its border agency Frontex or collaboration with partner countries’ coastguards. Existing partnerships with third countries on migration are in urgent need of human-rights impact assessments, monitoring and conditions, so that EU taxpayers can know what they are funding and hold their governments accountable for resulting violations.
To avoid depending on governments willing to use people seeking protection or a better life and put them in harm’s way for political gains, European states will need to invest in safe and dignified pathways on a scale that provides credible alternatives to dangerous journeys for a greater number of people. And, crucially, they must invest in asylum and reception systems that are well-prepared and equipped to respond to people arriving at EU borders.
At the very least, the recently agreed Pact on Migration and Asylum will require significant attention and investment by states. While human-rights organisations have been vocal about how these reforms may put people at risk and lower EU asylum standards, it is now up to governments to ensure they mitigate the worst consequences of the pact, ensure sufficient and balanced funding, and implement the reforms in a way that upholds human rights and refugee protection. Attempts by individual member states to shift the processing of asylum outside the EU are incompatible with the pact’s implementation and its goal of delivering a common and more coherent EU asylum system.
The externalisation of asylum is not only expensive, inhumane and unworkable: it also distracts and detracts from policies that could truly strengthen asylum systems in Europe, support people in need of safety and benefit receiving communities. As the new EU leadership takes office, it can and should offer Europe something better.
Olivia Sundberg Diez is the EU advocate on migration and asylum at Amnesty International. Previously, she worked for the International Rescue Committee and as a policy analyst at the European Policy Centre.