Joint Statement: The future EU must uphold the right to asylum in Europe

To ensure that refugees can access protection, states must guarantee the right to seek and enjoy asylum and uphold their commitments to the international refugee protection system. This obligation applies to all EU Member States under Article 18 of the EU Charter of Fundamental Rights. Yet, the recent and increasing attempts by the EU and its Member States to evade their asylum responsibilities by outsourcing asylum processing and refugee protection risk undermining the international protection system. The undersigned human rights and humanitarian organisations are alarmed by these developments and urge the EU and its Member States to safeguard the right to territorial asylum in Europe.

Discussions on the externalisation of asylum are not new, and have been consistently criticised, contested and rejected over the years. The European Commission itself ruled out the legal feasibility of such models in 2018, describing them as “neither desirable nor feasible”. Global protection needs are higher than ever and low and middle income countries are hosting 75% of the world’s refugees. Despite this, there has been a recent upsurge in proposals to shift the processing of asylum applications, or indeed the responsibility for providing refugee protection, to non-EU countries.

Italy, for instance, is currently seeking to process asylum applications of certain groups of asylum seekers outside of its territory, from detention in Albania – which risks leading to prolonged, automatic detention, a denial of access to fair asylum procedures with necessary procedural guarantees, and delayed disembarkation
for people rescued or intercepted at sea. Others, such as Denmark and Germany, are assessing the feasibility of this type of arrangement. 15 EU Member States and some political groups have endorsed similar shortsighted measures to shift asylum processing outside EU territory and encouraged the European Commission to explore ways to facilitate this through further legislative reform, including through a watered down ‘safe third country’
concept.

These attempts must be seen in the context of parallel containment efforts that seek to stem departures and prevent the arrival of asylum seekers to EU territory through partnership agreements with third countries, with little to no attention to the human rights records of those authorities. Over the past years, the European
Commission has continued bypassing public or parliamentary scrutiny and EU legislative frameworks as it concludes ever more controversial and untransparent deals with non-EU countries, throwing at them large sums of money with no genuine human rights safeguards or monitoring mechanisms, with the aim to contain and deter migration and onwards movement of refugees toward the EU at seemingly any human cost.

Human costs of externalisation

Attempts to outsource asylum to third countries are a manifestation of states’ flagrant shirking of their legal responsibility for people in need of protection. Outsourcing asylum processing and protection to third countries who cannot provide effective protection or are already disproportionately hosting refugees, is inconsistent with the objective and spirit of the Refugee Convention. It also obfuscates jurisdiction and responsibility, making it more difficult for people to access justice when their rights are violated. Where extraterritorial asylum processing has been tested, it has caused immeasurable human suffering and rights violations.

Most notably, Australia’s offshore detention scheme demonstrates how these models have created prolonged confinement and restricted freedom of movement, deeply harming both the mental and physical health of people seeking protection. Persistent human rights abuses arise as a result, including the imposition of conditions amounting to inhumane and degrading treatment, neglect, a lack of access to legal aid, lack of identification of and support for specific needs, and family separation. This should have served as a warning.

But more recent attempts – such as the UK-Rwanda asylum scheme, which is not yet in effect following the UK Supreme Court declaring it unlawful and in any event is unlikely to be operationalised at any significant scale – have already led to people being placed in detention and in a damaging legal limbo under threat of removal. Sending asylum seekers to Rwanda and other third countries breaches arrival countries’ obligations under international refugee norms, and undermines their commitment to the rule of law.

The EU and Member States’ false promises of ensuring compliance with fundamental rights in the context of externalisation arrangements are no more than empty words. As the extensive track record of human rights violations in partner countries such as Libya demonstrates, the EU and Member States have no adequate tools and competencies to effectively monitor or enforce human rights standards outside of EU territory.

Beyond the dire human cost, these arrangements also have a ruinous impact on the administration and cost of asylum systems, with the UK’s attempts to forcibly remove people to Rwanda being projected to cost a staggering £1.8 million per asylum seeker returned. This is not only an unjustifiable waste of public money, but also a lost opportunity to spend it in ways that would truly aid people seeking asylum by investing in fair and humane asylum systems and the communities that welcome them.

Ripple effects of evading responsibility

The political feasibility of externalisation arrangements has also been heavily contested, given third countries’ reluctance to take on responsibility for asylum seekers or refugees that Europe refuses to welcome. The outsourcing of asylum processing and refugee protection sends a dangerous signal to countries in the global South on EU countries’ refusal to uphold their responsibilities towards refugees and do their fair share. Far from showing international solidarity, the EU is attempting to further push its responsibilities onto countries who already host the majority of refugees with often far fewer resources – a policy that is not necessarily conducive to building global influence, the European Commission’s stated aim. Simultaneously, the bloc is reducing the non-migration-related support it offers partner countries, by redirecting already scarce aid to
efforts to prevent migration, and spending large shares of development aid on domestic programmes. Almost 17% of EU Development Assistance Committee (DAC) members’ Official Development Assistance (ODA) is allocated to in-donor refugee costs, meaning it never leaves their territories. Trade or visa relations have also become bargaining chips in controversial deals with non-EU countries to press them to fulfil the EU’s domestic migration objectives.

This lack of commitment to responsibility sharing, international treaties and the global refugee protection system is not lost on partner countries, and risks undermining their willingness to provide protection: why would other major refugee hosting countries be incentivised to take on the EU’s responsibility for refugee protection, when the EU itself refuses to uphold the right to seek asylum on its territory? The potential ripple effect could be devastating for refugee protection globally.

Civil society organisations have been clear about their serious concerns with regards to the recently agreed reforms under the Pact on Migration and Asylum. Nonetheless, the transfer of asylum seekers outside of EU territory for asylum processing and refugee protection is not provided for in the Pact, nor within current EU law. After the EU and Member States have spent close to a decade attempting to reform the EU’s asylum system, they should now focus on implementing it with a human rights centred approach that prioritises the right to asylum per EU law and fundamental principles of international refugee law to which they remain bound. They should not, mere weeks after the reform has passed, waste further time and resources on proposals that are incompatible with European and international law.