The Impacts of Border Externalization on Asylum Seekers and Migrants: the Unsettling Precedent of the UK-Rwanda Asylum Scheme
By Susana Brazão
Editors: Veronica Corcodel, Dimitra Fragkou
Abstract
Global North countries have focused on restricting the entry of migrants and shifting their responsibilities towards them. This blog post offers insights into the externalisation of migration management and its associated humanitarian protection responsibilities. It critically examines the impact of these practices on migrants’ human rights, with a particular focus on the recent UK-Rwanda asylum partnership.
Keywords
Externalisation, Migration Control, International Human Rights Law, Responsibility
- Introduction
As people increasingly move from less developed regions to developed countries, these nations intensify efforts to restrict and halt migration before it reaches their borders. Current migration policies are shaped by a securitisation discourse, where the most developed destination countries aim to enhance their border controls by imposing harsher restrictions and establishing partnerships to prevent and intercept asylum seekers and migrants from entering.
Migrants are often perceived as threats by political leaders who label them as potential criminals that could endanger the host country’s lifestyle, economy, or culture. This perception shapes community views, fostering suspicion and intolerance and leading to support for anti-migration policies. Recent EU elections have shown a rise in support for anti-immigrant far-right parties, particularly in Italy, France, and Germany.[1] The increased presence of these parties in parliament is likely to impact future migration policies with strong anti-migration stances.
Although bound by human rights obligations, governments have adopted various strategies to manage migration and to shift the burden of humanitarian protection beyond their borders. This allows them to bypass their international and European human rights commitments. One key political strategy to prevent migrants from entering and staying in developed countries is the externalisation of borders. This consists of processes of outsourcing border controls in third countries with the purpose of deterring mobility towards destination countries or/and processing of applications for international protection, or/and the provision of such protection in third countries for relieving the ‘burden’ of destination countries. The latter practice shifts the responsibility for assessing asylum claims to countries with less capacity to uphold rights and process claims according to international standards.
It is within this logic that, in 2022, the UK government announced that any asylum seeker entering the UK illegally from a safe country could be sent to Rwanda, where their asylum claims would be processed instead of in the UK. Although recently abandoned,[2] the UK-Rwanda deal constitutes a concerning precedent in externalisation practices, showcasing not only the human rights challenges of such agreements, including the right to seek asylum and the prohibition of refoulement, but also the political determination with which governments manipulate the law to circumvent judicial review.
II. Practices of Externalisation and their Development
The process of externalisation typically involves a partial or total transfer of functions that are undertaken by a State within its borders to locations outside its territory.[3] In the context of migration, this often means outsourcing border controls, asylum processing, and international protection duties from destination states to transit states or countries of origin.[4]
Externalisation generally involves three key actions: remote control, remote processing and remote protection. Remote control shifts border controls to third countries and may take a variety of forms, including the financing of detention centres in the interest of destination countries that seek to deter mobility. This may also take the form of capacity building, where skills and resources are transferred from developed destination countries to third-country governments to ‘help’ them develop and implement effective migration policies.[5]
Remote processing involves establishing processing centres and relocating asylum seekers, as was the case under the UK-Rwanda agreement, which will be analysed further below. Remote processing has also been recently established under the Italy-Albania partnership for the processing of claims for international protection of those rescued at sea by Italian ships. [6] Remote protection, also included in the UK-Rwanda partnership, seeks to provide extraterritorial international protection in a third country with or without links with the asylum seeker. The notion of ‘safe third country,’ notably under the EU-Turkey Statement, has been used in the EU for outsourcing international obligations of protection to a third country with which the asylum applicant has some links, such as having transited through this country. Under the UK-Rwanda partnership, such links were not required, which means that the responsibility of processing applications of international protection, as well as the provision of such protection, would have been outsourced to Rwanda even if the applicant had no preexisting links with Rwanda.
Amid the increasing politicisation and securitisation of migration, states’ bilateral or multilateral externalisation agreements serve as strategies for stricter border control to prevent migrants from entering their borders rather than focusing on the protection and security of migrants themselves. This aim is achieved by outsourcing to third countries and assisting them with the task of combatting and preventing irregular migration and facilitating the return of irregular migrants.
Some practices of externalisation have been integrated into the EU legal framework. It is since the early nineties, with some seeds in the late 1980s, that the EU started to develop an external dimension to its migration policy as a measure to address the gaps resulting from the elimination of borders within the Schengen area.[7] The European Council’s adoption of the Global Approach to Migration and Mobility (GAMM) in 2005 sought to develop a comprehensive migration strategy as a central EU political objective, focusing on international protection and cooperation with Mediterranean countries to enhance external migration policies.[8]
Nevertheless, the critical point came ten years later, in the context of the 2015/2016 migration ‘crisis’, with the adoption of the EU Emergency Trust Fund for Stability and Addressing the Root Causes of Irregular Migration and Displaced Persons in Africa (‘EUTF for Africa’) at the 2015 EU-Africa Valletta Summit on Migration. The Fund aimed to enhance migration management in African countries, as well as address the root causes of migration from African transit countries or countries of origin. Another important development in relation to the 2015/2016 ‘crisis’ context was the EU’s 2016 migration ‘deal’ with Turkey, whose informal nature set the scene for now increasingly informal partnerships, which bypass the usual procedural formalities for international treaties and are consequently harder to contest through judicial review. The lack of transparency in these agreements raises critical concerns about migrants’ human rights.[9]
These measures aim to tackle the ‘problem’ of asylum seekers and irregular migrants by shifting responsibilities to states that were never their destination. This approach seeks to discourage future claimants from migrating, sidestep international human rights obligations, and evade legal accountability for migrants’ treatment by avoiding jurisdictional links.
The next section examines the recent UK-Rwanda agreement, a notable case study illustrating how externalisation agreements can violate migrants’ rights.
III. The UK-Rwanda asylum scheme
In April 2022, the UK government announced a policy stating that any asylum seeker entering the UK illegally after January 1, 2022, from a safe country could be relocated to Rwanda to process their asylum claims rather than having them processed in the UK.[10] According to political actors, this scheme aimed to “deter people from making dangerous journeys to the UK to claim asylum”, particularly when they had already travelled through safe third countries.[11]
However, in November 2023, the UK Supreme Court unanimously ruled that the UK-Rwanda asylum scheme was unlawful. The Court raised significant concerns about Rwanda’s general human rights situation, the inadequacy of Rwanda’s asylum system, including its history of refoulement, and Rwanda’s failure to comply with commitments made under international human rights conventions.
The Court highlighted that the UK intended to return migrants and asylum seekers to Rwanda, a country that has endured one of the most horrific episodes of violence in modern history, marked by the 1994 genocide driven by ethnic conflict. Despite significant economic and social advancements, Rwanda’s human rights record has faced substantial criticism.[12]
Rwanda’s government has been involved in political killings, prompting British police to warn Rwandan nationals in the UK of credible plans by their home state to assassinate them.[13] In 2021, the UK government criticised Rwanda for extrajudicial killings, deaths in custody, enforced disappearances and torture. Specifically, regarding the refugee system, in 2018, Rwandan police used live ammunition against refugees protesting for ration cuts, killing at least 12 people.[14] These incidents indicated to the Court that Rwanda has a poor human rights record and raised concerns about its adherence to international obligations.
Regarding the inadequacies in Rwanda’s asylum system, the Court observed that, while asylum claims should not be rejected by law, Rwanda denied 8% of asylum applications between 2020 and 2022 without providing reasons.[15] Additionally, asylum seekers from Afghanistan, Syria, and Yemen experienced a 0% success rate in their claims despite the ongoing conflict in these nations. Moreover, despite establishing the right to appeal to the Rwandan High Court in 2018, no appeals have been filed to date.[16]
The UK Supreme Court also expressed concern about the Rwandan government’s misunderstanding of the Refugee Convention and its practice of reporting refugees to their countries of origin, where they may face persecution or other human rights violations, thus breaching the principles of non-refoulement.[17] For instance, the UNHCR reported six recent cases of individuals who sought asylum upon arrival at Kigali airport and were expelled, resulting in refoulement or situations ‘that would have led to refoulement without UNHCR’s intervention.’[18]
Primarily for these reasons, the Supreme Court concluded there were “substantial grounds for believing that the removal of the claimants to Rwanda would expose them to a real risk of ill-treatment by reasons of refoulement“.[19]
Nevertheless, on December 5, 2023, the UK and Rwanda signed a legally binding treaty to address the Supreme Court’s interpretations of the partnership, adding new guarantees and protections that were not included in the initial political agreement. This included enhancing Rwanda’s asylum system and ensuring that Rwanda would not return anyone to an unsafe country.[20]
The treaty was complemented by the Safety of Rwanda (Asylum and Immigration) Bill, which aimed to establish in UK law that Rwanda is considered a safe country and mandated courts to disregard legislation that would prevent deportations to Rwanda.[21] This questionable and unjust move suggested that the determination of Rwanda as a “safe third country” was based on political motives rather than an impartial and objective judicial assessment, effectively controlling the judiciary.
In addition to the criticism from the UK Supreme Court, numerous political leaders and human rights activists expressed their dissatisfaction with this new partnership, recognising the challenges it posed for migrants and refugees. Filippo Grandi, the UN High Commissioner for Refugees, noted that this partnership “seeks to shift responsibility for refugee protection, undermining international cooperation and setting a worrying global precedent”.[22] Furthermore, Deprose Muchena, Amnesty International’s Director for East and Southern Africa, asserted that, with this asylum deal, “the UK government is shirking its international responsibility under the Refugee Convention to protect people in need of asylum.”[23]
The deal was stillborn because the newly elected Labour government maintained its political promise not to proceed with it, cancelling it on the first day of assuming authority.[24] Nevertheless, the precedent of the UK-Rwanda deal showcases the increasing tendencies of externalisation by governments, paving the way for a modus operandi of circumventing human rights obligations.
Most significantly, the increase in partnerships that outsource migration control, international protection and processing of asylum claims reflects the prevailing perspectives towards displaced individuals. Migrants and asylum seekers are often viewed as a threat to ostensibly ‘safe and orderly societies,’ and asylum and migration are increasingly perceived as burdens rather than as rights to which individuals are entitled under international, regional and domestic human rights law, as well as international and domestic refugee law.
IV. The Impact of externalisation on asylum seekers and migrants
Initially, externalisation efforts seemed to curb arrival numbers temporarily, but this shifted with the emergence of a more extensive central Mediterranean route.[25] These initial results came at the expense of refugees’ and asylum seekers’ lives, exposing them to the risk of deadly journeys on unsafe vessels and hindering their ability to seek asylum and protection in destination countries and affecting their human rights.
In the Refugee Convention, Article 33 prohibits refoulement by ensuring that no State party expels or returns in any manner a refugee to a place where his or her life or freedom would be threatened.[26] The UNHCR has stressed the significance of the principle of non-refoulement being universal and applicable in all situations to guarantee people are given the opportunity to access safe countries where they can seek and enjoy asylum or any other international protection.[27]
Furthermore, all Member States of the Council of Europe (including the UK) are parties to the European Convention on Human Rights, which prohibits the removal of asylum seekers to countries where they might face prolonged detention or inhumane treatment, as stipulated in Article 3.[28] Additionally, the ECtHR asserts that expelling asylum seekers without examining their claims breaches the rights safeguarded in this provision.[29] Indeed, refugee law mandates individual assessment of asylum claims. Therefore, agreements disregarding these principles violate both refugee and human rights law and, consequently, cannot be considered lawful.
Although these strategic partnerships serve as means to avoid legal responsibilities in the realm of migration, they primarily leave migrants and asylum seekers in a state of insecurity and uncertainty and vulnerable to abuses. The externalisation agreements frequently undermine the human right to seek and enjoy asylum, and since they often disregard the conditions in the host state, they also put migrants’ lives at risk, leading to subsequent violations of the non-refoulement principle. Therefore, the primary critique against the externalisation of migration management is its harmful impact on migrants’ lives and rights.
Liberal-democratic countries, great advocates of human rights and their protection, are often aware of this inhumane reality in the context of migration yet choose to ignore it and enter into dubious partnerships.[30] However, the removal of asylum seekers and refugees to countries with a history of violence and disrespect for human rights in general, and episodes of violence against refugees in particular, entails complicity in human rights violations by the states involved.
Nevertheless, part of the goal of such an agreement is circumventing accountability for these human rights violations as they obscure each party-state’s involvement. As a consequence, accountability for such violations is significantly diminished.[31] Despite the various international legal frameworks that hold States accountable for violations arising from externalisation practices, their practical accessibility and enforcement remain ineffective, particularly for migrants.
It must also be noted that they establish a power dynamic where one actor (typically the destination country) holds financial and political leverage over the other one (often the transit country or country of origin). Additionally, they reinforce stereotypical perceptions about migrants and mobility. These unequal relationships create spaces of control and resistance, altering the lives and migration paths of migrants and their families.[32]
In the meantime, the alleged benefit of such agreements to reduce arrival numbers is seen only in the short term; a longer-term evaluation proves that they cannot halt migration. People will continue to move, and the occurrences of deaths at sea and human rights violations will persist. Rather than providing protection and effective solutions, these partnerships create obstacles to mobility and enhance securitisation, further exacerbating the current refugee system’s shortcomings and failing to address the protection gap.
These partnerships that prevent migrants from entering destination countries and transferring responsibility to other nations are clearly illegal. However, other collaborative efforts, based on solidarity and empathy towards migrants, could facilitate states establishing functional partnerships and relationships that recognise and protect the human rights of migrants and provide legal pathways, curbing the abuses migrants endure during flight.[33]
Therefore, it is essential to advocate for a more humanitarian approach to establishing relationships between States, ensuring safe and legal migratory pathways for individuals, and prioritising the human rights at stake. However, achieving this requires solidarity from States towards migrants, a commitment that has been waning in recent years.
V. Conclusion
The proliferation of externalisation agreements, such as the UK-Rwanda deal and the Italy-Albania agreement on migration, underscores an emerging pattern in global migration governance and humanitarian protection. However, it is essential to critically evaluate the significant impacts these arrangements may impose on the well-being of migrants and asylum seekers.
Rather than emphasising stringent border control measures and halting migration flows, efforts should be redirected towards saving human lives and upholding human rights protection. Consequently, States should thoroughly examine the root causes of displacement and establish lawful and secure migration pathways in destination countries instead of transferring responsibilities to other nations without due consideration.
By prioritising human life and dignity, policymakers can ensure that migration policies are rooted in compassion and uphold the fundamental rights of all individuals. This approach fosters a more humane and equitable response to the multifaceted challenges posed by migration in contemporary societies.
HOW TO CITE THIS BLOG POST:
Brazão, Susana; “The Impacts of Border Externalization on Asylum Seekers and Migrants: the UK-Rwanda Asylum Scheme”. NOVA Refugee and Migration Clinic Blog, 28 November 2024, available at: https://novarefugeelegalclinic.novalaw.unl.pt/?blog_post=the-impacts-of-border-externalization-on-asylum-seekers-and-migrants-the-unsettling-precedent-of-the-uk-rwanda-asylum-scheme
[1] European Parliament, European Parliament 2024-2029 https://results.elections.europa.eu/en/france/ accessed 26 November 2024.
[2] ‘Sir Keir Starmer Confirms Rwanda Plan “dead” on Day One as PM’ (BBC News, 21 November 2024) https://www.bbc.com/news/articles/cz9dn8erg3zo accessed 21 November 2024.
[3] Refugee Law Initiative, ‘Declaration on Externalization and Asylum’ (2022) 34 International Journal of Refugee Law 114.
[4] Annick Pijnenburg, ‘Externalization of Migration Control: Impunity or Accountability for Human Rights Violations?’ (2024) 71 Netherlands International Law Review 59.
[5] Chiara Maritato, ‘Migrants’ Transit (Im)mobility within the EU Borderland: Three Decades of EU Externalization at the EU-Turkish Border’ in Rosita Di Peri and Daniel Meier (eds), Mediterranean in Dis/order: Space, Power, and Identity (University of Michigan Press, 2023).
[6] Protocollo tra il Governo della Repubblica Italiana e il Consiglio dei Ministri della Repubblica di Albania per il rafforzamento della collaborazione in materia migratoria (Rome, 6 November 2023) https://www.esteri.it/wp-content/uploads/2023/12/PROTOCOLLO-ITALIA-ALBANIA-in-materia-migratoria.pdf accessed 21 November 2024.
[7] Christina Boswell, ‘The “External Dimension” of EU Immigration and Asylum Policy’ (2003) 79 International Affairs 619.
[8] European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: Applying the Global Approach to Migration to the Eastern and South-Eastern Regions Neighbouring the European Union COM (2007) 247 final.
[9] Salvatore Fabio Nicolosi, ‘Externalisation of Migration Controls: A Taxonomy of Practices and Their Implications in International and European Law’ (2024) 71 Netherlands International Law Review 1.
[10] Home Office, Inadmissibility: A Guide to the Immigration Rules (2024).
[11] Ibid.
[12] Government of Rwanda v Nteziryayo and others [2023] UKSC 2023/0093, [2023] EWCA Civ 745, [75].
[13] Government of Rwanda v Nteziryayo and others [2017] EWHC 1912 (QB), [370].
[14] Government of Rwanda v Nteziryayo and others [2023] UKSC 2023/0093, [2023] EWCA Civ 745, [76].
[15] Ibid, [79-81].
[16] Ibid, [82].
[17] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention), art 33.
[18] Government of Rwanda v Nteziryayo and others [2023] UKSC 2023/0093, [2023] EWCA Civ 745, [87-91].
[19] Ibid, [149].
[20] Home Office, UK-Rwanda Treaty completes ratification process: UK and Rwanda pass further milestone with treaty ratification (2024).
[21] Safety of Rwanda Act 2024, c 8 https://www.legislation.gov.uk/ukpga/2024/8 accessed 17 June 2024.
[22] Office of the High Commissioner for Human Rights, ‘UK-Rwanda Asylum Law: UN Leaders Warn of Harmful Consequences’ (2024) https://www.ohchr.org/en/press-releases/2024/04/uk-rwanda-asylum-law-un-leaders-warn-harmful-consequences accessed 17 June 2024.
[23] Amnesty International, ‘Rwanda: Commonwealth Leaders Must Oppose UK’s “Racist” Asylum Seeker Deal’ (2022) https://www.amnesty.org/en/latest/news/2022/06/rwanda-commonwealth-leaders-must-oppose-uks-racist-asylum-seeker-deal/ accessed 17 June 2024.
[24] ‘Q&A: The UK’s Former Policy to Send Asylum Seekers to Rwanda’, Migration Observatory (2024) https://migrationobservatory.ox.ac.uk/resources/commentaries/qa-the-uks-policy-to-send-asylum-seekers-to-rwanda/ accessed 21 November 2024.
[25] Lorena Martini and Tarek Megerisi, ‘Road to Nowhere: Why Europe’s Border Externalization is a Dead End. European Council on Foreign Relations’ (European Council on Foreign Relations, 14 December 2023) https://ecfr.eu/publication/road-to-nowhere-why-europes-border-externalisation-is-a-dead-end/ accessed 17 June 2024.
[26] Refugee Convention, art 33.
[27] Office of the United Nations High Commissioner for Refugees, ‘Access to Territory and Non-Refoulement’ (2023) https://emergency.unhcr.org/protection/legal-framework/access-territory-and-non-refoulement accessed 16 July 2024.
[28] European Convention on Human Rights (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 222 (ECHR), art 3.
[29] MSS v Belgium and Greece ECHR 2009-VIII/30696, paras 358-360.
[30] Ruben Zaiotti, ‘Mapping Remote Control: The Externalization of Migration Management in the 21st Century’ in Ruben Zaiotti (ed), Externalizing Migration Management: Europe, North America and the Spread of ‘Remote Control’ Practices (Routledge, 2016).
[31] Nicolosi (n 9) 1.
[32] Inka Stock, Aysen Ustubici, and Susanne Schultz, ‘Externalization at Work: Responses to Migration Policies from the Global South’ (2019) 7 Comparative Migration Studies 1, 4.
[33] Martini and Megerisi (n 25).
