E.g., 07/19/2019
E.g., 07/19/2019

International Experience Suggests Safe Third-Country Agreement Would Not Solve the U.S.-Mexico Border Crisis

Commentaries
June 2019

International Experience Suggests Safe Third-Country Agreement Would Not Solve the U.S.-Mexico Border Crisis

Mexican National Institute of Migration

As the Trump administration seeks to stem the large numbers of Central Americans and other migrants and asylum seekers arriving at the U.S.-Mexico border, it is increasingly pressuring Mexico, and now Guatemala, to play a greater role. The U.S. government hopes that by enlisting the assistance of these two key countries through which migrants are transiting, and in Guatemala’s case where many originate, it will be able to prevent most from ever reaching the U.S. southern border.

Central to the Trump administration’s diplomacy with Mexico and Guatemala has been the idea of negotiating a “safe third-country” agreement with each country. Such agreements would prevent individuals who arrive at the U.S. border via Mexico or Guatemala from applying for asylum in the United States, on the presumption that they could have safely applied for, and plausibly received, protection in one of these countries. Asylum seekers who transit through Mexico or Guatemala would most likely be returned there to make a claim for asylum in that country.

The prospect of labeling either Mexico or Guatemala safe third countries has been met with alarm by legal experts and refugee advocates, who argue these agreements would fall short of upholding their humanitarian imperatives, noting the exceedingly high homicide rates, broader security issues, and embryonic asylum systems in both nations. Yet as the experience of safe third-country agreements elsewhere demonstrates, even if conditions in Mexico and Guatemala were far more favorable, there are significant practical concerns that call into question the viability of such deals as an effective strategy to manage arrivals at the U.S. southern border.

Safe Third-Country Agreements in International Practice

According to international precedent, safe third-country designations are usually based on an assessment that the country in question has an asylum system that is functioning according to international standards and that will not place asylum seekers and refugees at risk of refoulement (return to a place where they are liable to be subjected to persecution) or additional persecution. Yet the Mexican and Guatemalan asylum systems lack the capacity to absorb large numbers of new asylum claims, and thus grant effective protection. Indeed, Mexico’s tiny asylum agency, with an annual budget of $1.3 million, is already on track for 60,000 asylum applications this year, double last year’s number.  And advocates have raised concerns that migrants and refugees returned to Mexico or Guatemala could face threats from gangs and criminal groups similar to those that led them to flee initially, placing them at continued risk of persecution.

Safe third-country agreements are an established part of asylum regimes in other parts of the world. To date, the concept has been most extensively applied between the Member States of the European Union via the Dublin Regulation, which assigns responsibility to process asylum claims to the Member State where an asylum seeker entered. However, other examples exist. Canada and the United States signed such an agreement in 2002. More recently, Norway in 2015 unilaterally declared Russia to be a safe third country, in response to rising arrivals of asylum seekers at its northern border. And in 2016, the European Union negotiated an agreement with Turkey that allows asylum seekers arriving in Greece, particularly Syrians, to be returned to Turkey to seek protection.

The appeal of these arrangements for countries facing mixed migration flows of humanitarian and economic migrants lies in three assumptions:

  1. Handling cases through safe third-country procedures will be faster than conducting a full asylum determination, and thus reduce pressures on overstretched asylum systems
  2. Returning asylum applicants to the safe third country will be easier than returning them to their origin country
  3. Such agreements will discourage new applications from asylum seekers who would have otherwise transited the safe country to reach their destination.

Unfortunately, these assumptions have often not been borne out in practice and are unlikely to hold true in the U.S. context.

Four Lessons for the United States from the International Experience

Lesson No. 1: Enforcement and Execution of the Agreement in Practice Can Be Difficult

Existing safe-third country agreements have generally proven to be difficult to enforce for a mix of practical and legal reasons. The actual numbers of asylum seekers returned to safe third countries under the EU-Turkey deal, the Dublin Regulation, and from Norway to Russia have been extremely low. In the three years after the EU-Turkey agreement was signed in March 2016, just 2,441 people were returned from Greece to Turkey, out of 145,582 arrivals to Greece. Fewer than 400 people, out of 5,500 arrivals, were returned from Norway to Russia in 2015. And in 2017, just 20 percent of eligible Dublin cases were actually transferred between EU Member States.

A number of practical barriers have prevented transfers. First, these arrangements rest on being able to prove that an asylum seeker transited the safe country. At formal ports of entry between two countries, this may be relatively easy to do, as border officers can visually confirm an asylum seeker’s prior presence in the third country. Where transit occurs between ports of entry, or where the safe third country does not share a land border with the intended asylum country, other evidence of transit is needed. The U.S.-Canada agreement, for example, was limited to formal ports of entry because of the need for evidence, in this case visual confirmation, of how asylum seekers entered Canada. Amid a rise in individuals crossing between ports of entry and then seeking asylum, Canada has requested an expansion of the agreement on the basis that current information-sharing protocols between the two countries would allow Canadian asylum agencies access to biometric data from the United States (e.g. visa applications) that could confirm an asylum seeker’s previous presence in the United States.

Under the Dublin Regulation, asylum and border agencies also rely on documentary evidence such as bus tickets or on biometric data taken from asylum seekers by other Member States to prove point of entry. This system is far from foolproof, however. Most asylum applicants are aware of the rules and discard any documentation of their travel route before filing a claim, and biometric data are only useful for individuals who filed a prior claim or whose entry was documented.

Both issues may surface in the context of agreements with Mexico, where crossings most often occur between ports of entry, and Guatemala, which does not share a land border with the United States. This raises questions regarding whether evidence would be needed to confirm transit—and if so, what—or if Mexico and Guatemala would be willing to accept asylum seekers back without such evidence (e.g. with route of entry presumed based on nationality).

Second, the safe third country must be willing in reality to readmit the asylum seekers who transited its territory. Disagreements between partner countries over the exact terms of transfers and difficulties with coordination and scheduling return flights have all limited the speed and scale with which returns have been conducted under Dublin—leaving them to fall victim to some of the same challenges that have hindered returns to the country of origin.

Lesson No. 2: There Is No Deterrence Without Credible Enforcement

The difficulties of enforcing safe third-country agreements can limit their deterrent effect. The Dublin Regulation offers a vivid example. With transfer rates notoriously low, Dublin has done little to limit the movement of asylum seekers between EU countries, which rather remains a persistent problem.

The EU-Turkey deal, in particular, has been cited as an example of how safe third-country agreements can deter new arrivals. Indeed, acting U.S. Homeland Security Secretary Kevin McAleenan did so during a recent Senate Judiciary Committee appearance. While the EU-Turkey deal arguably correlated with a decrease in flows, other factors unrelated to the safe third-country provisions were more likely responsible. In particular, interceptions of migrant boats in the Aegean by the Turkish coast guard, another element of the deal, have arguably had a much larger effect. According to the Turkish interior ministry, more than 79,000 migrants and refugees were intercepted attempting to cross into Greece during the first four months of 2019—dwarfing the number of people returned under the safe third-country agreement.

Lesson No. 3: Safe Third-Country Arrangements Do Not Necessarily Make Asylum Systems More Efficient

These accords have done little to improve the efficiency of asylum procedures. In Greece, cases processed under the EU-Turkey deal have proven highly likely to be appealed, due to concerns about the individual vulnerabilities of applicants and the effectiveness of Turkey’s asylum system, which could put refugees at risk of refoulement in contravention of EU and international asylum law. These appeals have quickly overwhelmed the Greek court system, further slowing down any transfers and taking up capacity needed to process other asylum cases. The Dublin Regulation has also been subject to legal challenges over asylum conditions in Greece and Italy. The questionable state of Mexico and Guatemala’s asylum systems undoubtedly could leave these agreements open to similar challenges in U.S. courts.

Lesson No. 4: Pay Attention to Incentives

Finally, safe third-country agreements, as with any enforcement measure, create new incentives that will inevitably shape the behavior of those who are subject to them. In Europe, the Dublin Regulation has led to two perverse and unintended outcomes. First, applicants have a strong incentive to avoid detection and asylum application in the first country in which they arrive, which has created a market for smuggling networks to extend their services deeper into Europe itself. Second, Dublin has encouraged applicants to lose or destroy their documentation or even to attempt to damage their fingerprints in order to avoid having their route of entry documented. This makes it more difficult to conduct identity and security checks, with broader implications for the integrity of the overall asylum system.

It is conceivable that a U.S.-Mexico deal could have a similar effect, increasing the complexity and sophistication of smuggling networks with the goal of helping clients evade detection en route, thus expanding the market for smugglers and increasing the dangers for migrants and asylum seekers themselves.

The Wrong Solution to the Wrong Problem?

While safe third-country agreements appear on paper to hold the potential of deterring new asylum applications and speeding up asylum procedures, experience suggests that these may be false promises. The reality is that these arrangements have generally proven to be difficult to enforce, have played little role in deterring new claims, and have added new complexities to procedures for already overwhelmed asylum systems.

Despite the Trump administration’s push for Mexico and Guatemala to sign such arrangements, bringing these countries to the table with a combination of threats and promises of aid in the case of Guatemala, safe third-country arrangements are thus unlikely to hold the key to solving the crisis unfolding at the U.S. southern border.

Rather, U.S. enforcement goals may be better served by improving U.S. asylum procedures to allow for the speedier return of those ineligible for protection (the Migration Policy Institute has advanced recommendations to improve processing), as well as increased cooperation with Mexico on interior security, enforcement, and strengthening of its asylum system. In Europe, faster asylum processing and expanded cooperation on enforcement and anti-smuggling operations with third-country partners such as Morocco and Turkey have proven to be more effective in practice than a safe-third country accord.

The United States would do well to learn the right lessons from Europe’s experiences.