E.g., 10/26/2016
E.g., 10/26/2016

The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims

March 2015

The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims

Two Eritreans wait to board a ferry in Greece (A. D'Amato/UNHCR)

Much attention has focused recently on “external processing” of asylum claims, and the possibility of the European Union (EU) establishing processing centers in North Africa or elsewhere to manage asylum seekers and migrants traveling to Europe. While the European Union and Member States have signaled their interest in the topic of extraterritorial processing, no clear proposals have yet emerged. That the media and others have latched onto a discussion that was not held at the March Justice and Home Affairs (JHA) Council, as if it were future EU policy, speaks to the paucity of workable policy solutions to date to respond to the twin migration management and humanitarian challenges that have unfolded in recent years at Europe’s external borders.

The EU refugee protection system is under strain. Despite years of investment and legal norms and institutions that equip Member States to respond to those fleeing persecution, today’s reality is that significant numbers of people in need of protection are unable safely and legally to access the EU asylum system. Alongside other migrants, refugees resort to the services of smugglers and undertake dangerous journeys that may lead to harm or death. At least 3,500 people were reported drowned while attempting to cross the Mediterranean in 2014—a figure likely to be a significant underestimate; nearly 400 have perished on the same route in the first two months of 2015.

Seen from another angle, large numbers of irregular arrivals bring heavy demands on resources, as well as political and security risks. In addition, only a limited proportion of those who arrive will be entitled to refugee protection under international and EU law. Many lawmakers argue that the needs of the legitimate few do not justify dilution of the strict measures needed to gain more effective control over EU borders; others point to the high cost (and limited effectiveness) of return measures for those ineligible for protection.

The conundrum can be articulated simply: how can the European Union ensure the protection of larger numbers of refugees, whilst maintaining the credibility of external border control? In recent months key actors, including the Fundamental Rights Agency (FRA) and United Nations High Commissioner for Refugees (UNHCR), have underlined the importance of facilitated legal paths to asylum to identify those in need of protection before they reach Europe’s borders. But can these be designed to ensure their legality, practicality, and political feasibility?

The Benefits and Drawbacks of Extraterritorial Processing

External processing encompasses a wide variety of practices whereby a protection claim is examined to some extent before arrival in an asylum country. While existing EU policy foresees some avenues for those seeking protection, including humanitarian visas or resettlement, recent conversations have focused on another idea: extraterritorial processing, or the assessment of claims for asylum in non-EU countries under arrangements operated or supported by the European Union collectively.

This discussion, which generally foresees the creation of processing centers in third countries, is not new. Extraterritorial processing was most controversially put forward by the United Kingdom in 2003, while Germany proposed asylum centers in North Africa in 2005. Its attraction for some lay in the possibility of taking stricter approaches to border arrivals, and potentially dealing with asylum claims at lower cost in non-EU countries, with fewer challenges around removal of those rejected. These proposals were strongly criticized as contrary to international law by advocates who foresaw the expulsion of asylum seekers already arrived in Europe, after Member States’ Refugee Convention responsibilities had been activated.

Has Anything Changed to Make These Ideas Worth Revisiting?

Arguably yes. The EU asylum law framework has developed extensively over the past 15 years, with adoption of comprehensive EU legislation and entry into force of the EU Charter of Fundamental Rights. European court decisions have clarified states’ obligations. And the institutional landscape has evolved: the European Asylum Support Office (EASO) has explicit authority to cooperate with third countries, whilst the European External Action Service (EEAS) is seeking more intensive working relationships with non-EU countries, including on migration and asylum. Finally, the imperatives are great: while resettlement, national visa policy, and cooperation and humanitarian aid for third countries have brought some positive results, they have not been enough to address the exponentially growing protection needs at Europe’s doorstep, let alone worldwide.

The concept of EU-sponsored extraterritorial processing, however, still requires the development of a model that is not only acceptable to 28 Member States, but respects several key principles. This includes the crucial obligation of nonrefoulement, not clearly addressed in previous proposals. Supporting this principle, the European Court of Human Rights in Hirsi v Italy (2012) found that whenever a European country exercises control or jurisdiction over a person potentially in need of protection—even in international waters, border zones, or another state’s territory—those people cannot be sent back to persecution, torture, inhuman or degrading treatment, nor expelled to countries that would send them onwards to those risks.

In short, on legal grounds, any scheme may need to be without prejudice to the right to seek asylum in EU borders. Yet if it simply yields additional refugees for Europe, without alleviating current arrival pressures, the political incentive for Member States to invest in the idea might be lost. Procedural safeguards must also be ensured, such as the right to an interview and appeal if the asylum claim is rejected.

Many practical questions have not yet been satisfactorily addressed, deriving from the fact that the Common European Asylum System essentially remains a collection of 28 national asylum systems. Who would take the asylum decision in an extraterritorial processing system? If it were an EU or “joint” body, Member States would have to agree on the applicable law and be willing to recognize the legal authority of decisions made. Would an EU corps of asylum officers be needed?

Post-adjudication, the system would have to ensure access to protection in the European Union for recognized refugees and set up a “distribution key” or other arrangement to designate which EU country would provide it. For Member States, this could mean a potentially unquantifiable open-ended commitment. But without it, no third country is likely to agree to host any processing center. Other outcomes—involving support for removal from the host country—will also be essential for those not in need of protection, to avoid the risk of an unwanted, growing population of failed asylum seekers.

Potential host-country demands may extend beyond a commitment to resettle, including concerns that a processing-center arrangement might draw more asylum seekers (including many not in need of protection) to their territory. Strong incentives, and a demonstration that third countries’ interests are served by the arrangement, would be critical.

The Way Forward?

The extraterritorial processing concept immediately raises the spectacle of EU-managed asylum camps in inhospitable locations. But an EU proposal might develop in other directions: for example, use of EU delegations to issue humanitarian visas or a process for granting entry permits to potential asylum seekers. The idea of significantly expanding resettlement to Europe, through an established, EU-funded, and UN-coordinated process, also has untapped potential.

It must be emphasized that no proposals are formally on the table for a fully-fledged EU extraterritorial processing system. But a well-informed discussion could clarify whether the European Union and Member States are ready to invest what would be required to make this a lawful and viable course—or whether other channels could result in safer and better managed routes to protection. Discussions should include rigorous cost-benefit analysis, considering states’ interests but based also on protection principles and fundamental rights.

While the political desire to launch attractively packaged solutions is strong, it should not override the need for careful consultation, design, and reflection to ensure a lawful and realistic way forward. These steps are crucial to address a multi-layered challenge that is not being met, and which the European Union cannot afford to disregard. 

Madeline Garlick is a Guest Researcher and PhD candidate at the Centre for Migration Law at Radboud University, Nijmegen, the Netherlands. She is an International Migration Initiative (IMI) Fellow with the Open Society Foundations, leading a project with MPI Europe on the future of asylum in the European Union. She was Head of the Policy and Legal Support Unit in the Bureau for Europe of the Office of the United Nations High Commissioner for Refugees (UNHCR) and responsible for UNHCR’s liaison to the European Union institutions from 2004-13.