Sunny Omwenyeke (Bremen Solidarity Centre e.V.) and Philipp Schulz (University of Bremen)

Debates about the externalization of asylum procedures and migration management remain pressing and urgent – in light of the UK-Rwanda deal or recent attempts in Germany to externalize asylum procedures to third countries, such as Albania. Yet, the obsession of limiting the number of asylum seekers/refugees is not peculiar to Germany or the EU, but rather fits into a broader pattern of migration management that, as we argue in this article, sacrifices international refugee protection. In this brief essay, we direct our attention to the issue of EU externalization of asylum procedures and consider why its very existence is not only problematic as a migration policy given its shaky legal footing, but also because of its far-reaching consequences for the asylum applicant. These elaborations then also provide possibilities to venture into some possible alternatives.

Introduction

Since the last couple of decades, there have been serious debates by European politicians and policy makers about migration management. [1] By and large, these debates have primarily focused on the number of people seeking asylum in the European Union (EU). Besides the question of how best to limit the numbers of people who enter the EU and seek asylum, these debates have also entertained the issue of the speed with which such applications are dealt with and the necessity to ensure swift deportation of all those whose cases have been denied – fairly or otherwise.

At the time of writing this essay, in the summer of 2024, these debates are as resounding and loud as ever, and questions related to migration management and externalization remain pressing, urgent and problematic. To illustrate: In mid-June 2024, the German Ministry of Interior reportedly assessed whether asylum procedures and processes could be externalized and transferred to third countries such as, for instance, Albania[2] – following the UK’s approach of outsourcing such processes to Rwanda.[3]

The obsession of limiting the number of asylum seekers/refugees may not be entirely peculiar to Germany as a country or the EU as a region. Indeed, a semblance of it can be found in the United States southern border with Mexico and Australia’s extra-territorial processes in Nauru, Papua New Guinea, to name but a few contemporary examples.[4] Nevertheless, in the context of EU externalization of asylum procedures, it is salient to understand the general motivation and frame as well as the ramifications of the approach that Germany, and the EU in general (including the UK), have developed and adopted to deal with this perceived problem, whether real or imaginary: The number of asylum seekers/refugees coming to the EU.

For a start, it is worth noting that the externalization of asylum procedures and the attendant consequences are only one part of the EU’s broader approach to migration management that is already being implemented, for example, in Germany. Other parts of this approach include the EU border expansion through its border management regime; the reception – that is, the forced accommodation in camp facilities for asylum applicants –; the generic and institutional discrimination of asylum seekers in terms of social benefits, housing, and medical care, amongst others. For the purpose of this brief article, let us look at the singular issue of EU externalization of asylum procedures and consider why its very existence is not only problematic as a migration policy given its shaky legal footing but also because of its far-reaching consequences for the asylum applicant. These elaborations then also provide possibilities to venture into some possible alternatives.

In tabling our arguments in this brief essay, we primarily draw on Sunny Omwenyeke’s extensive experience and expertise in activism, advocacy, and research on several questions related to forced migration, and in working closely with groups of refugees, asylum seekers, and forced migrants in Germany but also the UK; as well as on Philipp Schulz’s research experience with groups of forced migrants in various settings globally.

What exactly is externalization of asylum procedures or extra-territorial asylum processing?

For broader, overall contextualization: Asylum procedures involve applying for international protection by a claimant in a given country, territory, or space (like an embassy) and determining that application by the designated state authority. Externalization of asylum procedures, in theory, simply refers to the same processes but done outside of the territory in which protection is sought. As it relates to the EU: “External processing entails applications for international protection being processed beyond the EU’s external borders, in third countries. An individual processed externally whose claim was successful would then, in theory, be resettled to an EU Member state.”[5] In theory, the resettlement in the EU component may come into play, but it is certainly not a guarantee, as emerging examples would show.

The motive – asylum procedures as migration control mechanism

As indicated above, asylum procedures are a crucial part of any claim to international protection. It is the process through which the claims of the applicant are assessed, verified and decisions are reached. Upon positive assessment, the applicant is granted some form of protection based on the 1951 Refugee Convention, its 1967 Protocols and the principle of non-refoulement and international humanitarian law.[6] These legal instruments guarantee international protection against persecution, and from its inception, the concept and exercise of international protection centered on the protection and security of the claimant, including the guarantee of non-refoulement.

However, since the last couple of decades, these core elements of protection and security that are central to the concept of international protection have been gradually but steadily undermined by European politicians and policy makers in different ways, in their quests for EU migration control. For example, some European countries enact laws that largely circumvent the guarantees of these international instruments and in some cases, like in Germany with the 1993 Asylum Procedure Law (Asylbeweberleistungsgesetz), officially discriminate against asylum seekers/refugees.[7] This discrimination is evident in the restriction of movement that is imposed on asylum applicants, compelled to live in the camps under horrible conditions, and also in the disparity in the social benefits that such applicants can claim compared to German nationals (this was at least the case until the constitutional court ruled that the social benefit part was unconstitutional, some years ago).[8] The reason offered by the German government in explaining these forms of discrimination and such discrepancies stipulated that it would deter others from coming to Germany to seek asylum, and that being an asylum-seeker in Germany should not be attractive to potential new arrivals.

Since then, contrary to its raison d’étre, asylum procedures and the guarantee of protection that asylum is meant to provide became viewed and understood primarily as a migration control mechanism. A cursory look at the discourse on and development of the current externalization of asylum procedures shows the intent and motives driving this “new function” as a migration policy. In fairness, it must be acknowledged that overall, from individual countries in the EU to the EU as a region, each protagonist in this saga has been quite transparent with regard to the respective motive behind such efforts to externalize asylum procedures.[9] Perhaps because the EU is strongly united on this issue and the urgency some member states attach to it, it is no surprise that there are parallel efforts geared towards the same goal, from some individual EU states and the EU as a block. For example, there has been a concerted effort at the EU level to harmonize asylum policies and procedures as evidenced by the Common European Asylum System (CEAS) that essentially started in 1999 with a series of Directives and Laws.[10] At the same time, some efforts have also been made at externalizing asylum procedures at the EU level through the EU-Turkey Statement. On the other hand, individual European states are parallelly pursuing externalization of asylum procedures. This includes, for example, the UK-Rwanda Agreement for the Provision of an Asylum Partnership – which Denmark is also associated with – and the Italy-Albania Protocol on Migration Management, as well as more recent explorations by Germany to outsource and externalize asylum procedures to Albania.

Here, it is important to emphasise how the current externalization efforts of Asylum procedures fit into and complement other parts of the broader frame of migration control that have already been implemented for many years by the EU. Within that frame, the EU borders – where controls of people entering the EU are carried out – had already been extended beyond the physical territories of the EU to the hinterland in Africa, for instance. Already in the early 2000s, anyone boarding a flight from Ghana to Germany was controlled by German immigration and security officials at the Airports in Ghana. In 2017, there was the EU-Sahel Task Force meeting that was basically fronted by the German, French and Italian governments. These governments, on behalf of the EU, partnered with Mauritania, Burkina Faso, Mali, Niger, and Chad for an agreement to offer military support in the form of weapons and ammunitions to these Sahel countries. These resources were meant not only to stop “human trafficking” – as the officially declared aim – but also to stop the flow of refugees/migrants from sub-Sahara Africa to Europe. The agreement also included the EU, financing the construction of a multi-nation border fence across the above-named five West African countries to Ethiopia in East Africa, to complement a similar one that was already being built there for the same purpose.[11] These agreements built on the previous relationships and agreements between some EU member states like Italy and Spain and North African states like Libya, Morocco, Algeria, and Tunisia that are transit countries to the EU.[12] Added to these examples, and led by Germany, are the enormous resources that the EU has invested in FRONTEX, the well-funded border agency that is extremely and dangerously equipped to prevent any irregular entrants by sea, air or land borders. The thousands that drown in the Mediterranean Sea under the watchful eyes of FRONTEX and the incessant pushback of those in distress on the high sea attest to the determined efforts of EU policy makers and politicians towards preventing potential entrants into the EU. A strict and deadly migration regime, one might say!

Interestingly, it never mattered to the EU what type of government they were cooperating with. As a matter of fact, the EU sought cooperation with a specific type of government in its migration and border management regime; governments that were unaccountable and dictatorships that were prepared to violate human rights norms and conventions, and the rights of those trying to use their countries as transit to Europe. These specific types of collaborations and their deadly consequences are well documented through research and advocacy efforts, for instance in Christian Jakob and Simone Schlindwein’s pathbreaking book.[13] The humanitarian catastrophe that has been the result of the EU-Turkey Statement with thousands languishing in detention and long-term jail sentences in Greece for those trying to enter the EU similarly shows the length the EU would go to, to prevent people seeking international protection or better lives from doing so in territorial EU.[14]

Back to the physical EU territories, the number of border fences rose from 0 in 1990 to 19 in EU/Schengen countries in just over two decades. Starting with Spain in 1990, its border fence around Melilla and Ceuta in Morocco is particularly notable and instructive because it is probably the earliest border fence in the EU and certainly one of the deadliest. The fence has been heavily refortified several times over the years and is known for the regular violent deaths of countless migrants trying to cross into Spain, including security forces shooting and killing migrants on several occasions.[15] So, understanding the externalization of asylum procedures as a migration control mechanism allows us to recognize how a legal instrument for international protection found a new function and how it complements the treatment of refugees and the EU border regime in the broader frame of EU migration control.

Externalization of asylum procedures: Critique, ramifications and the way forward

The legal challenges that the British government has faced in its attempt to implement its externalization of asylum procedures with Rwanda is a testament to the lack of legal grounds upon which such policies are based.[16] Also within the EU legal frameworks, there is hardly any provision for the externalization of asylum procedures from the EU. Further, externalization of asylum procedures cannot really be reconciled with international humanitarian law or the 1951 Refugee Convention. Nevertheless, the policy of externalizing asylum procedures bears some ramifications for those seeking international protection and it belies the true positions of EU politicians and policy makers in relation to the much vaunted European “values” of freedom, liberty, human rights and dignity when it pertains to the “Others” in or coming to the EU.

First, when people set out to seek international protection, it is normally expected that such efforts are done in an environment that offers security and human dignity. Particularly for refugees who may have taken the arduous journey through many countries and across dangerous borders, it is particularly galling to have to face their asylum procedures outside the country where they may have landed. Take the British example with refugees being sent to Rwanda: These are refugees, who after surviving the difficulties and challenges at the borders (including through the Channel from France to the UK) are being sent to Rwanda, where they would be subjected to Rwandan asylum laws, rather than what they may have hoped for in the UK. Similarly, the Italy-Albania Protocol is so crafted that the EU asylum laws or CEAS provisions are subjugated to the Albanian national laws. In theory and practice, this implies that potential refugees would not be processed under EU asylum laws. The experience of asylum procedures in these partner countries may well be a far cry from what they would look like in the EU, even with the shortcomings in the EU system.

Perhaps more troubling are the underlying conditions of these partner countries in terms of safety and security; factors that are crucial not only in the assessment of individual asylum cases but also as they relate to the country in which asylum is sought. For example, most people seeking asylum do not regard many of the transit countries as safe. Those coming from sub-Sahara Africa certainly would not consider Niger, Libya, or Morocco as safe countries, but rather as transit points. The same would also apply to those who may have passed through Rwanda. That refugees would be vulnerable to human rights violations in Rwanda was indeed one of the reasons why the courts rejected the UK government’s plan in the first place. But given these legal setbacks, the British government has asked the Foreigner’s office to prepare and declare Rwanda a “safe” country for the purpose of sending refugees there. This is a huge call – compelling the declaration of a cooperating state as a safe third country even when to all intents and purposes, it is not. The effect of this is a prolongation, if not the perpetuation of insecurity and lack of protection for the applicant, which may ultimately never be attained.

Further, the cooperating states or partners are essentially serving as EU border management apparatus, a role in which they function as “gate persons” for the EU migration regime. As efficient “gate persons”, these cooperating partners may well help to reduce the number of asylum seekers in the EU even as their efforts may continue to endanger the lives of those trying to reach the EU by forcing them to explore more dangerous routes as evidenced in the Sahel region. But this would not offer any guarantees that the EU would ultimately offer protection to even the smaller numbers that may still seek international protection in the EU. The reason being that the purpose for which international protection and asylum procedure were created have been submersed under the new function of migration control mechanism. Related and equally worth noting here is the fact that this debate is intensively driven by the political fantasies of right-wing and anti-immigration politicians and the attempts by politicians from the mainstream political parties to pander to right-wing populism. So, the more these mainstream parties and politicians attempt to appease the far right on this issue, the more likely it is that international protection and asylum procedures are sacrificed on the altar of EU migration control. This functional change to migration control mechanism violates the right of the applicant to freedom of movement and the choice of where they want to seek protection, and it leaves them at the mercy of right-wing populism. This is not just a policy failure; it fails precisely those who need international protection.

Finally, it is difficult to overlook the fact that the EU is basically abdicating it responsibilities and obligations under international conventions and essentially shifting those responsibilities to less well-equipped countries. Further, in both its conception and implementation, there appear to be some colonial dimensions to the dominance structure on display. Take the UK-Rwanda Deal for example, and one wonders why Rwanda? It revives the memory of the British proposal for a Jewish homeland in Kenya/Uganda that was ultimately rejected by the Zionist Congress in 1903.

In general, the externalisation of asylum procedures makes a complete mockery of the oft-vaunted European values of freedom, liberty, human rights, and human dignity. It is important to acknowledge that the core issue, which prompted the development of an international protection mechanisms in the first place, continues to be present even in this fast-changing world. As a result, it is imperative that the concept of international protection and the safeguards that it affords its applicants through asylum procedures must be re-centered to serve its original purpose of protection and security, and not sacrificed on the altar of EU migration control.

In light of all of these critiques, problems, and dangers, we strongly caution against the unsafe, and dehumanizing consequences of migration externalization processes; and urge politicians and policy-makers to center more dignifying and humanizing approaches to refugee protection instead.

Footnotes

[1] Chris Jones, Romain Lanneau, Yasha Maccanico, “Access denied: Secrecy and the externalization of EU migration control”, Heinrich Böll Stiftung – Democracy, December 2022, https://eu.boell.org/sites/default/files/2023-03/secrecy_externalisation_migration_web.pdf

[2]  Rasmus Buchsteiner, Florian Gathmann and Martin Knobbe, „Warum die Bundesregierung übers Drittstaatenmodell streitet“, Der Spiegel, 18 June 2024, https://www.spiegel.de/politik/deutschland/warum-die-bundesregierung-uebers-drittstaatenmodell-streitet-a-2d67f3fb-f028-4cd0-b696-f529baacb98b

[3] Franzisca Zander, „Outsourcing Asylum to African States? An endeavour destined to fail“, Externalizing Asylum (blog), https://externalizingasylum.info/outsourcing-asylum-to-african-states-an-endeavour-destined-to-fail/#_ftn1.

[4]  Rose Jaji, “Externalization, the Commodification of Asylum, and Implications for International Refugee Law,” Externalizing Asylum (blog), June 14, 2024, https://externalizingasylum.info/externalization-the-commodification-of-asylum-and-implications-for-international-refugee-law/ 

[5] European Parliament, “Extraterritorial processing of asylum claims”, European Parliament Research Service, January 2024, https://www.europarl.europa.eu/RegData/etudes/BRIE/2024/757609/EPRS_BRI(2024)757609_EN.pdf

[6] UNHRC, The 1951 Refugee Convention, https://www.unhcr.org/about-unhcr/who-we-are/1951-refugee-convention. International Humanitarian law is based on the Fourth 1949 Geneva Convention, and the 1977 and 2005 Additional protocols on the protection of civilian person in time of war.

[7] Asylbewerberleistungsgesetz (AsylbLG), https://www.gesetze-im-internet.de/asylblg/BJNR107410993.html.

While we acknowledge the official/legal difference between asylum seeker and refugee, we take seriously the perspective of refugee activists and movements and desist from making that distinction. Their argument is that in Germany, many applicants wait for years for the determination of their cases. In these waiting periods they are denied the security and benefit of the refugee status. When such applicants are eventually accepted, there’s no acknowledgement of their due status that was denied in their waiting period. Therefore, we subscribe to the view that the terminology “refugee” applies from the commencement of the process.

[8] European Database of Asylum Law (EDAL), “Germany: Federal Constitutional Court deems material reception conditions for asylum seekers in Germany unconstitutional”, 4 October 2013, https://www.asylumlawdatabase.eu/en/content/germany-federal-constitutional-court-deems-material-reception-conditions-asylum-seekers

[9] European Parliament, “Extraterritorial processing of asylum claims”, European Parliament Research Service, January 2024, https://www.europarl.europa.eu/RegData/etudes/BRIE/2024/757609/EPRS_BRI(2024)757609_EN.pdf

[10] See: European Commission, Common European Asylum System, https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system_en

[11] See: ARD Monitor Report, „Grenzen dicht in Afrika: wie die EU Flüchtlinge vom Mittelmeer fernhalten will“, ARD Monitor, 25 August 2017, https://www.youtube.com/watch?v=BqA2uhfYEfE,

[12] See: VOX, “Europe’s most fortified border is in Africa”, 5 December 2017, https://www.youtube.com/watch?v=LY_Yiu2U2Ts

[13] Christian Jakob und Simone Schlindwein, Diktatoren als Türsteher Europas – Wie die EU ihre Grenzen nach Afrika verlagert (Ch.Links, 2017).

[14] Lucile Smith and Ben Steele, “Greek costgoard threw migrants overboard to their deaths, witnesses say” BBC TV Current Affairs, 17 June 2024, https://www.bbc.com/news/articles/c0vv717yvpeo https://www.freehomayoun.org/en

[15] See, for example: Statewatch, “Spain/Morocco: Migrants shot dead at the border fence, Spain deploys army”, 28 March 2012, https://www.statewatch.org/news/2005/october/spain-morocco-migrants-shot-dead-at-the-border-fence-spain-deploys-army/; Ed Thomas, Adam Walker, and the Africa Eye Team, “How Spain looked on as dozens were crushed to death at its border”, BBC News, https://www.bbc.co.uk/news/extra/z8i55dsu8w/spain-morocco-border; Mathew Bremner, “The Melilla massacre: how a Spanish enclave in Africa became a deadly flashpoint”, The Guardian, 29 August 2023, https://www.theguardian.com/world/2023/aug/29/the-melilla-massacre-spanish-enclave-africa-became-deadly-flashpoint-morocco; Costica Dumbrava, “Walls and fences at EU borders”, European Parliamentary Research Service, European Parliament Research Briefing, October 2022, https://www.europarl.europa.eu/RegData/etudes/BRIE/2022/733692/EPRS_BRI(2022)733692_EN.pdf

[16] See: Dominic Casciani and Sean Seddon, “Supreme Court rules Rwanda asylum policy unlawful”, BBC News, 15 November 202, https://www.bbc.com/news/uk-67423745; BBC, “What is the UK’s plan to send asylum seekers to Rwanda?”, BBC, 13 June 2024, https://www.bbc.com/news/explainers-61782866