Madeline Garlick, Chief of the Protection Policy and Legal Advice Section in the Division of International Protection at UNHCR, and Nikolas Feith Tan, Senior Lecturer at Melbourne Law School, Australia, and Senior Protection Officer in the Regional Bureau for Europe at UNHCR

As externalisation is back on the policy agenda in a number of regions around the world, it is timely to examine the definition of the concept, noting that it is not a legal term of art and does not appear in any international treaty. Moreover, it is crucial to understand the international legal frameworks within which externalisation policies are situated. To this end, we set out state of international law with respect to the externalisation of asylum responsibilities. Finally, we set out possible alternative, lawful modalities for state cooperation in the area of asylum processing and refugee protection.

Introduction

Externalisation has returned to prominence in some political discussions on asylum in different regions of the world.  In the Pacific, asylum-seekers are being held in Australia’s offshore processing centre on Nauru, despite well-documented human rights violations which have occurred in such centres over recent years.[1] In different parts of the African continent, onward movements of refugees have caused concerns which have led some governments to consider or take restrictive measures in response. In Europe, the recently-abandoned UK-Rwanda arrangement envisaged the forcible transfer of asylum seekers arriving in the UK in small boats for both asylum processing and, ultimately, long-term stay in the central African country.[2] Denmark has adopted legislation to allow for the transfer of asylum seekers to a third country outside the EU.[3]

In the context of these proposals and measures, it is timely to examine the phenomenon of externalisation, noting its recurrent emergence in policy debates.  This contribution proceeds in four sections. First, we discuss definitions of the concept of externalisation in the literature, noting that it is not a legal term of art and does not appear in any international treaty. Second, we briefly set out the state of international refugee law with respect to cooperation between states on refugee protection. Third, we set out key legal principles governing arrangements for transferring asylum-seekers to other countries. Finally, we suggest alternative, lawful modalities for state cooperation in the area of asylum processing and refugee protection.

Conceptualising externalisation

The idea of externalising asylum processing and/or protection to another state is not new. ‘Destination’ states have been proposing and, in some cases, implementing such approaches since as early as 1986. The term ‘externalisation,’ as used in academic commentary and policy discussions, has developed into an umbrella concept encompassing measures affecting refugees undertaken, either unilaterally or multilaterally, either extraterritorially or with extraterritorial effects.[4] Despite its wide use, however, the term does not appear in any international treaty. As a result, “externalisation” is not a legal concept or term of art in international law, though it is used to refer to a wide range of policies and practices by academics, NGOs and, more recently, governments.

UNHCR has defined the term as “measures preventing asylum-seekers from entering safe territory and claiming international protection, or transfers of asylum-seekers and refugees to other countries without sufficient safeguards”.[5] UNHCR thus considers externalisation as policies and practices that are contrary to international law. Crisp defines externalisation as “measures taken by states in locations beyond their territorial borders to obstruct, deter or otherwise avert the arrival of refugees”.[6] The Refugee Law Initiative Declaration on Externalisation and Asylum, issued in 2022 by a group of leading international legal experts, defines externalisation in broader terms as ‘the process of shifting functions that are normally undertaken by a State within its own territory so that they take place, in part or in whole, outside its territory.’[7]

Externalisation measures often involve the transfer of people from one country to another, without adequate protection safeguards or standards of treatment. In the absence of access to well-functioning and resourced asylum systems, they can lead to indefinite ‘warehousing’ of asylum-seekers in isolated places, exposing them to serious harm and risks of direct or indirect refoulement. Their proponents often seek to justify them on the basis of de-humanizing rhetoric about asylum-seekers (‘bogus’, ‘illegal’, ‘opportunistic’, ‘queue-jumpers’ etc) without any objective evidence for such labels.

For the purposes of this analysis, we define externalisation as the post-arrival transfer of asylum seekers from the territory or jurisdiction of one State to the territory of another State for the purposes of assessing their asylum claims. Often, the procedure in the third country is intended to lead to asylum, for those who require it, in that country or elsewhere, thus entirely excluding refugees from access to the intended state of asylum.

International cooperation and the 1951 Convention

The preamble to the 1951 Convention acknowledges the need for international cooperation in respect to refugees in its paragraph 4 in the following terms:

the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature cannot therefore be achieved without international cooperation.

During the negotiations on the 1951 Convention, the UN Secretary General proposed inclusion of an article obliging states, to the fullest possible extent, to relieve the burden assumed by initial reception countries which have afforded asylum to refugees by agreeing to receive a certain number of refugees in their territory. This article was not included in the operative part of the 1951 Convention, since many states did not wish to be bound by an explicit duty to cooperate in asylum matters. Nevertheless, paragraph 4 of the preamble, quoted here, was included – calling on states to engage in international cooperation. Furthermore, according to the preamble, where States make arrangements with other countries, these arrangements must be consistent with the ‘widest possible exercise of the fundamental rights and freedoms’ of refugees. A 2011 UNHCR expert roundtable on international cooperation in this area underscored that cooperation should ‘enhance refugee protection and prospects for durable solutions’ and ‘must be in line with international refugee and human rights law’.[8]

In sum, the transfer of a person from one state to another for the purposes of asylum processing is not, in and of itself, a breach of international law; the Refugee Convention is silent on this particular question. But such arrangements can and have resulted in serious breaches of international human rights and refugee law. They very often involve a range of unacceptable failures to protect individual rights, risks and harms to the individuals affected, and damage to the refugee protection system and to international cooperation.

International legal standards governing externalisation of asylum responsibilities

Then, the legality of externalisation arrangements depends on the procedural and substantive safeguards in place – the transfer of international responsibility must be in accordance with international standards. There would seem to be an emerging international consensus on the content and nature of these safeguards, as developed by UNHCR and in scholarship such as the Michigan Guidelines on Protection Elsewhere and the Refugee Law Initiative Declaration on Externalisation and Asylum.[9]

First, the primary responsibility for identifying and assessing international protection needs and entitlements, rests with the State in which an asylum-seeker arrives and seeks that protection, or over whom the State otherwise has jurisdiction. States cannot avoid that responsibility through externalisation arrangements. When a person arrives at a State’s borders (or otherwise engages its jurisdiction) and seeks asylum, that State must ensure that the person has access to a fair and efficient procedure for assessing their international protection needs.

Where asylum procedures are externalised to a third state, a comprehensive pre-transfer procedure must be undertaken before transfer occurs.  There needs to be an opportunity for an individual to raise objections to, or rebut, any general presumption of ‘safety’ or access to international protection.  In some cases, the individual needs to have the right to access the destination state’s asylum system, for example due to family links there or the best interest of the child. While in principle, such assessments could take place extraterritorially (for example on board a vessel or aircraft), they would face multiple logistical and oversight-related challenges. As such, it is highly preferable that pre-transfer assessment procedures should be carried out within the transferring state’s territory.

Second, states retain their obligations under international refugee and human rights law vis-à-vis these asylum-seekers, including when they seek to externalise responsibilities for asylum procedures to a third country.  Refugee and human rights law obligations continue to apply wherever a state exercises effective control over persons or places outside its own territory. In addition, under the public international law rules of international responsibility, a state that provides aid and assistance which facilitates human rights violations by another State may, in certain circumstances, itself attract responsibility for the violations.[10]

Third, the same procedural guarantees and reception standards that apply to regular national asylum procedures in the principal responsible State also apply to extraterritorial procedures in a third State. This includes the requirement to conduct a fair and efficient asylum procedure consistent with relevant due process guarantees; prohibitions on arbitrary detention and protracted encampment; and other legal principles on the right to freedom of movement of asylum seekers.

Fourth, where externalisation extends to the provision of protection in the receiving state, protection against refoulement and standards of treatment commensurate with the 1951 Refugee Convention and international human rights law, as a minimum, must be in place. Being a State party to the 1951 Refugee Convention and/or its 1967 Protocol and basic human rights instruments without any limitations is a critical indicator, though assessment of domestic laws and actual practice are required, to ensure that international standards are implemented effectively, and do not exist merely on paper.

Fifth, the form of international agreements should be suitable for protecting transferees’ rights and take the form of a binding legal agreement rather than an exclusively political one. Such arrangements are best governed by a formal, legally binding and public agreement which sets out the responsibilities of each state involved, along with the rights and duties of the asylum-seekers or refugees affected. Moreover, it should be possible for affected asylum-seekers to challenge and enforce the agreement in court.

Sixth, regular monitoring of conditions in the receiving State is necessary to ensure the continuing obligations of the transferring State are fulfilled. These obligations are not likely to be met where transfers are to remote places where conditions or the legal or administrative regime in place make monitoring difficult in practice.

Finally, as a matter of international law, States may only externalise their asylum functions to another state where this is done in a way which is consistent with their own legal obligations for good faith reasons – for example in the context of mass influx or as part of a regional responsibility sharing arrangement.

From externalisation to lawful transfer arrangements?

Clearly, not all forms of international cooperation involving the allocation on of responsibilities for asylum between states are unlawful or undesirable.  What are some alternatives to unlawful externalisation arrangements that would meet the letter and spirit of the 1951 Convention, as add-ons to existing norms of territorial asylum?

First, pre-entry processing may be a lawful form of extraterritorial asylum processing. Pre-entry processing refers to the full or preliminary processing or screening of an asylum claim before the asylum-seeker’s arrival in a destination country.[11] Pre-entry processing tools may take a number of forms, including humanitarian visas, regional facilities for processing asylum claims directly, or profiling/triaging followed by access to complementary pathways or resettlement.[12] This form of extraterritorial asylum processing in a transit state or first country of asylum has the potential to create safe and controlled access to protection, relieve pressure on borders and share responsibility for refugees.[13]

Second, finding viable and effective alternatives to externalisation requires doing the basics better. This requires maintained access to territory and fair and fast asylum procedures for those who wish to apply for asylum. Well-functioning asylum systems are invaluable tools for managing movements effectively. Rather than denying access, national asylum systems need effectively to identify and grant status to those who need protection and reject and remove those who do not.

The cornerstones of such functioning asylum systems include fair and efficient asylum procedures to swiftly determine whether an asylum seeker is in need of international protection; and swift return to country of origin of those found not in need of international protection – following due process and in line with human rights standards. These two elements – operating well – can of themselves help restore public trust in and support for asylum systems as fit for purpose.

Third, the use of the safe third country or first country of asylum concepts may form part of lawful cooperative arrangements. The safe third country concept applies where a person can find, or could have found, international protection in a third State by accessing a fair and efficient asylum process. The first country of asylum concept applies where a person has already, in a previous State, found international protection that continues to be accessible and effective for that person.

Safe third country arrangements must ensure respect for all relevant safeguards and should be aimed at enhancing responsibility sharing and international cooperation, and not responsibility shifting. These include guarantees that the third state will (re)admit the person, grant the person access to a fair and efficient procedure for determination of refugee status and other international protection needs, and permit the person to remain while a determination is made. In applying the safe third country concept, a meaningful link or connection between the applicant and the third country is required that would make it reasonable and sustainable for a person to seek asylum in the third country.[14] Where an applicant has never previously been present in the receiving country or has no family or other links to the country, it is not reasonable or sustainable to apply the safe third country concept.

Conclusion

It is clear that none of these alternatives, in isolation, can meet the challenges presented by externalisation proposals and pressures on asylum systems globally. There are no quick fixes or silver bullets. These alternatives, if implemented in a comprehensive manner, have the potential to serve the interests of destination states in managing more effectively mixed movements, while providing access to protection, preventing loss of life on asylum seeking routes; combating people smuggling and supporting asylum systems in Global South states.

However, for these alternative arrangements to work, they must provide for rights and protection in accordance with the 1951 Convention and relevant human rights law obligations, not simply shift asylum responsibilities to states in the Global South, which already carry disproportionate responsibility for refugees.[15]

The views expressed in this article are those of the authors and do not necessarily reflect those of the United Nations or UNHCR.

Footnotes

[1] Madeline Gleeson and Natasha Yacoub, ‘Cruel, Costly and Ineffective: the Failure of Offshore Processing in Australia’ (Kaldor Centre Policy Brief No. 11, 2021); Madeline Gleeson and Natasha Yacoub, ‘Offshore processing’ in Australia, Externalising Asylum, available at https://externalizingasylum.info/offshore-processing-in-australia/ accessed 8 August 2024.

[2] UNHCR, UNHCR Analysis of the Legality and Appropriateness of the Transfer of Asylum-Seekers under the UK-Rwanda arrangement: an update (15 January 2024), available at https://www.unhcr.org/uk/media/unhcr-analysis-legality-and-appropriateness-transfer-asylum-seekers-under-uk-rwanda-1 accessed 8 August 2024.

[3] L 226 Forslag til lov om andring af udlandingeloven og hjemrejseloven (Indforelse af mulighed for overforsel af asylansogere til asylsagsbehandling og eventuel efterfolgende beskyttelse i tredjelande), Lovforslag som vedtaget, 3 June 2021; Nikolas Feith Tan, ‘Visions of the Realistic? Denmark’s Legal Basis for Extraterritorial Asylum’ (2022) 91 Nordic Journal of International Law 172.

[4] Nikolas Feith Tan, ‘Conceptualising externalisation: still fit for purpose?’ (2021) Forced Migration Review 8.

[5] UNHCR, UNHCR Note on the “Externalization” of International Protection, 28 May 2021.

[6] Jeff Crisp ‘Externalization and the erosion of refugee protection’ (University of Melbourne, 2019).

[7] Refugee Law Initiative Declaration on Externalisation and Asylum (2022) para 1. See also David Cantor and others, ‘Externalisation, access to territorial asylum, and international law’ (2022) 34 International Journal of Refugee Law 120.

[8] UNHCR, Expert Meeting on International Cooperation to Share Burdens and Responsibilities (2011).

[9] UNHCR, UNHCR Note on the “Externalization” of International Protection, 28 May 2021; James C Hathaway, ‘The Michigan Guidelines on Protection Elsewhere’ (2006) 28 Michigan Journal of International Law and Refugee Law Initiative Declaration on Externalisation and Asylum (2022).

[10] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries (Yearbook of the International Law Commission, Volume II, 2001) art 16.

[11] Madeline Garlick, ‘The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims’ (Migration Policy Institute, March 2015) available at <http://www.migrationpolicy.org/news/potential-and-pitfalls-extraterritorial-processing-asylum-claims> accessed 8 August 2024.

[12] Pauline Endres de Oliveira and Nikolas Feith Tan, ‘External Processing: A Tool to Expand Protection or Further Restrict Territorial Asylum?’ (Migration Policy Institute, 2023).

[13] Riona Moodley, ‘Rethinking “Regional Processing”: Could the Lessons Learned from the Comprehensive Plan of Action for Indochinese Refugees (CPA) Offer a Roadmap for International Cooperation in Response to ‘Regional’ Refugee Situations?’ (2022) UNSW Law Research Paper

[14] UNHCR, Legal considerations regarding access to protection and a connection between the refugee and the third country in the context of return or transfer to safe third countries (April 2018).

[15] UNHCR, Global Trends: Forced Displacement in 2023 (2024) 2.