Europe and Extraterritorial Asylum

Maarten Den Heijer

• Publisher: Hart Publishing
• Year: 2012
• Print ISBN: 9781849462709
• eBook ISBN: 9781847319074
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

Increasingly, European and other Western states have sought to control the movement of refugees outside their borders. To do this, states have adopted a variety of measures - including carrier sanctions, interception of migrants at sea, posting of immigration officers in foreign countries and external processing of asylum-seekers. This book focuses on the legal implications of external mechanisms of migration control for the protection of refugees and irregular migrants. The book explores how refugee and human rights law has responded to the new measures adopted by states, and how states have sought cooperation with other actors in the context of migration control. The book defends the thesis that when European states attempt to control the movement of migrants outside their territories, they remain responsible under international law for protecting the rights of refugees as well as their general human rights. It also identifies how EU law governs and constrains the various types of pre-border migration enforcement employed by EU Member States, and examines how unfolding practices of external migration control conform with international law. This is a work which will be essential reading for scholars and practitioners of asylum and refugee law throughout Europe and the wider world. The book received 'The Max van der Stoel Human Rights Award 2011' (first prize category dissertations); and the 'Erasmianum Study Prize 2011'.

Chapter 1

Introduction

1.1 BACKGROUND

THIS BOOK DEFENDS the thesis that when European states endeavour to control the movement of asylum-seekers outside their territories, they remain responsible under international law for possible wrongdoings ensuing from their sphere of activity. To substantiate this thesis, the book first conceptualises the relevant international legal framework governing the external activities of states and the status of individuals who seek protection from a state but are outside that state’s ordinary legal order. The book goes on to examine how this legal framework governs and constrains current and unfolding European practices of external migration control.

The study was sparked by a proposal presented by the UK government to its European partners in 2003 to fundamentally change the system of asylum protection in Europe. In order to deter those who enter the European Union illegally and make unfounded asylum applications, the UK government proposed to establish protected zones in third, non-EU, countries, both in regions of the refugees’ origin and along transit routes into the EU, to which asylum-seekers, including those who had already arrived in the EU, could be transferred to have their applications processed. Only those recognised as refugees would be eligible for resettlement within the EU, while failed claimants were to be returned to their countries of origin or integrated locally.¹ The proposal aimed, amongst other things, to break the link between illegal immigration and asylum-seeking, to reduce the burden on European states of rapidly fluctuating and unmanaged intakes of asylum-seekers, to scale down the numbers of failed asylum-seekers residing illegally in Europe, and to provide more equitable protection for genuine refugees. In an internal document, the British Home Office summarised the proposals as reflecting a ‘prorefugee but anti-asylum seeking strategy’.²

The British ‘New Vision for Refugees’ was widely reflected upon in political arenas across Europe and legal academia. Not only did the plans constitute a fundamental shift in traditional thinking about the reception of asylum-seekers in Europe (and were as such perceived as ‘a serious challenge to the institution of asylum as we know it’³), they also raised a variety of legal and theoretical issues relating to the responsibilities of states under international law to protect refugees and other displaced persons. These concerned, in particular, the question whether obligations stemming from refugee law, and most notably the prohibition on return (or refoulement), would also apply to asylum-seekers not within the territory of the EU; the legal regime that would apply to reception and processing in third countries; the extent to which European states could be held responsible for violations of international law taking place in those regional processing and reception centres; what the quality of protection in such centres should be; and under what circumstances responsibilities for the treatment of asylum-seekers could be transferred to international organisations or third countries.⁴ A lack of clarity on those issues, it was submitted, would risk leaving the asylum-seekers in a legal vacuum.⁵

It soon became clear that the British proposal was too ambitious to enjoy the political support of a majority of the Member States of the EU. Although the idea of processing all applications of asylum-seekers outside the EU’s external borders has occasionally resurfaced in policy debates across Europe,⁶ it has never featured as such in any of the policy agendas of the European Commission or the Council of the EU which set forth the future strategic aims of the common policy in the field of asylum. In directly responding to the UK’s New Vision, the European Commission underlined that any new approaches to the question of asylum ‘should be built upon a genuine burden-sharing system both within the EU and with host third countries, rather than shifting the burden to them’.⁷ The Commission further noted that ‘[a]ny new approach should be complementary rather than substituting the Common European Asylum System, called for at Tampere’.⁸ This complementary nature was later endorsed by the European Council in the Hague Programme.⁹

But the UK’s New Vision was not simply another radical proposal to address the asylum issue. The proposal is perhaps best characterised as the ultimate consequence of a policy rationale which has taken root in Western immigration countries over the last decades and which embodies the idea that burdens posed by illegal entries and false asylum claims can only be addressed effectively if policies are developed which manage or control the movement of migrants before they present themselves at the border of the state. Instead of following the traditional model of deciding upon rights of entry and residence of migrants in the course of spontaneous arrivals, European and other immigration countries have in recent years developed policies which give expression to this strategy of establishing a system of global migration and asylum management. The UK proposal thus fitted into a general trend under which Western states have increasingly sought to enforce their migration policies outside their borders.

In academic literature, various terms are used to describe this trend of pre-border migration enforcement: the outsourcing, externalisation, off-shoring or extraterritorialisation of migration management, external migration governance, remote migration policing and others.¹⁰ Typologies of the different policy instruments include the imposition of visa requirements, the posting of immigration officials at foreign airports, the imposition of sanctions on commercial carriers transporting improperly documented migrants, the interception of migrant vessels at sea, and various forms of pre-inspection regimes.¹¹ Other measures which may be bracketed under this trend are capacity building programmes for migration management and refugee protection in countries of origin or transit, which may include the reception and processing of migrants and asylum-seekers in third countries.

A common feature of these types of measures is that migrants may encounter the state they wish to migrate to long before they arrive at that state’s territorial border. The migrant may be required to first obtain a visa at a consular post of that state within his country of origin; he may be subject to pre-boarding checks by immigration officers of a foreign state while at the airport in his country of origin; or he may be subject to various types of enforcement measures while crossing the open seas. It is also possible that the migrant, while en route, does not encounter the foreign state directly through its agents posted abroad, but that he is indirectly confronted by immigration measures emanating from that state. He may, for example, be redirected to a reception centre staffed or funded by that state; he may be subject to stringent checks by private carriers which perform enforcement activities normally pertaining to the state; or he may be subject to border controls in his country of origin or countries of transit which are carried out by local agents who have been trained, funded or supplied with special equipment by the foreign state.

This process of relocating migration management and shifting responsibilities for controlling the border is drastically changing the nature of the border. It has been aptly posited that borders are no longer ‘stable and “univocal”, but instead “multiple”, shifting in meaning and function from group to group’.¹² Migration control no longer focuses exclusively on the geographical border as the ultimate threshold for a foreigner to be allowed entry into a state’s sovereign legal order, but is exported to other countries so that persons may experience a foreign border while still within their country of origin.

The rationale for the proliferation of pre-border migration policies can be appreciated in different ways. The EU and Western states commonly perceive pre-border enforcement as a necessary mechanism to protect the border and control the entry of foreigners, in accordance with the right of states, as inherent in their sovereignty, to exclude aliens from their territory. As such, pre-border enforcement is seen to foster migration through ‘regular’ channels and to prevent the inflow of ‘unauthorised’ arrivals.¹³ By intervening before a migrant can effectuate an irregular entry, legal and logistical burdens can be avoided, especially in respect of those migrants whose return may be difficult to enforce. It is further said that to regulate migration movements away from the border is conducive for the security and safety of the migrants themselves, for it may prevent, amongst other things, migrants from embarking upon perilous journeys on unseaworthy ships or as stowaways and it avoids the exploitation of migrants by human smugglers and traffickers.¹⁴ Further, by obtaining prior permission, bona fide travellers may obtain legal certainty concerning their entry and/or residence status and may benefit from expedited controls once they present themselves at the border.

Others have considered practices of external migration control less favourably, in noting that states may employ such measures to the detriment of refugees seeking access to protection.¹⁵ These authors point to the fact that states have an incentive to prevent asylum-seekers, be they genuine refugees or not, from reaching their borders, because it relieves them of financial and societal burdens incurred by the processing and granting of protection to asylum-seekers. The UK, for example, has in the past decided to introduce visa requirements for particular countries coupled with pre-inspection regimes at airports in those countries precisely in response to an increase in asylum-seekers originating from those countries.¹⁶ It has also been observed that states may deliberately seek to take measures outside their territorial jurisdictions so as to create a nebulous legal zone in which the state can avoid its responsibilities under international law for the protection of refugees.¹⁷

Regardless of the underlying aims of external migration policies, it is scarcely disputed that refugees often travel by irregular means and that they are therefore prone to be affected by measures which aim to prevent unauthorised migrants from arriving at the state’s border.¹⁸ That external migration measures, be they specifically targeted at asylum-seekers or at irregular migrants in general, affect, as a matter of empirical reality, the free movement of persons seeking asylum, is acknowledged not only in legal and social studies, but also by the states employing these policies, the EU and UNHCR.¹⁹

This study is not as such interested in the rationales behind the various pre-border strategies. Rather, it proceeds from the assumption that these strategies may in one way or another impact upon the possibility of refugees gaining access to Europe. The key legal question that then arises is how these policies correspond to the specific rights of refugees to seek, claim and be granted international protection. In the ordinary situation of ‘territorial asylum’, where a person presents himself at the border or within the territory of a state and claims asylum, that state is obliged to grant protection, in accordance with international refugee and human rights law, to those who can either be defined as refugees or who can be brought within the ambit of complementary protection regimes which have developed around the prohibition on refoulement as established under general human rights law. This protective duty is not self-evident in the absence of a territorial linkage between the individual and the state. By operating outside its territorial boundaries, the state also steps out of its sphere of territorial sovereignty and its domestic legal order. This gives rise to issues of defining state competences, of defining the applicable law and of identifying the actor who can be held responsible for upholding individual rights. In examining the legal framework governing the relationship between the person seeking protection and the state employing such policies, the present study submits that, although questions of ‘territorial asylum’ differ in several respects from questions of ‘extraterritorial asylum’, international law continues to constrain the liberty of states in their dealings with internationally protected categories of migrants.

1.2 AIMS AND SCOPE

The goal of the study is twofold. First, and in its most concrete terms, the study aims to provide a legal response to a new empirical reality which may significantly impact upon the rights of refugees and other forced migrants. The immediate goal of this study, therefore, is to provide a better understanding of the manner in which human rights and refugee law govern and constrain the discretion of states that employ various types of pre-border migration enforcement. There is, unfortunately a marked discrepancy between the pace at which European states are implementing their external migration policy agendas and the speed with which the law catches up with that development. Many of the legal questions raised by the UK’s New Vision are of equal relevance to other forms of pre-border migration enforcement but have not, or have only partially, been subject to thorough scrutiny. The EU’s Member States and its institutions have on multiple occasions acknowledged that the legal framework applicable to the various external migration policies is insufficiently clear. In 2006, the European Commission communicated that an analysis should be made of the circumstances under which states must assume responsibilities under international refugee law when engaged in operations involving sea border control and that practical guidelines should be developed in order to bring more clarity and a certain degree of predictability regarding the fulfilment by Member States of their obligations under international law.²⁰ In 2009, the European Commission re-emphasised the need for a clarification of the international rules applicable to maritime controls, while also underscoring the necessity of conducting a study into the feasibility and legal and practical implications of joint processing of asylum applications both inside and outside the Union.²¹ The four-year Stockholm Programme (2010–14) repeated these concerns and further called for an exploration into possible avenues concerning access to asylum procedures targeting main transit countries.²²

One of the most profound consequences of the contested legal nature of extraterritorial migration measures is that it may foster a development by which states simply refuse to acknowledge any international responsibility for the effects of their extraterritorial activities. In the context of interception and rescue activities carried out on the seas between Africa and Europe, various European governments have not only questioned but explicitly denied any responsibilities towards refugees subjected to those activities.²³ Although the present study does not purport to provide a detailed set of guidelines for each and every manner in which European states engage with asylum-seekers outside their territories, it does aim to formulate a general set of parameters which can furnish the guidance that a rule of law must provide to enable states to understand and fulfil their obligations.

The second goal of the study is to identify how human rights law responds to a phenomenon whereby states, through a variety of avenues, engage in external activity and seek cooperation with other actors in pursuit of particular political objectives in the course of which the enjoyment of fundamental rights may be negatively affected. The increased European involvement in the regulation of migration movements around the world can well be perceived as a specimen of the wider international development, often explained from the notions of globalisation and interdependency, where governmental activity takes place across legal orders and involves a plurality of actors.²⁴ This interaction between jurisdictions and international actors complicates attempts to define the applicable law, to determine the responsible actor and, ultimately, to identify the consequences for individuals in terms of the scope and justiciability of their rights vis-à-vis the exercise of power. Apart from providing the normative framework for examining the extent to which unfolding European practices give rise to responsibilities under human rights and refugee law, the chapters discussing the ability of human rights law to respond to these atypical forms of state conduct aim at contributing to existing international legal theory on extraterritorial state activity, the protection of human rights and the allocation of responsibilities in situations of joint conduct.

The structure of the book is as follows. Chapters 2 and 3 set forth the international law regime regarding the delimitation of international obligations and the allocation of responsibilities for violations of human rights in circumstances where states become active, possibly through intermediary actors, in legal systems other than their own. Chapter 2 explores the general theory, case law and legal doctrine on the extraterritorial applicability of human rights. By foc...

Table of contents

• Cover
• Title
• Copyright
• Acknowledgements
• Contents
• List of Abbreviations
• Table of Cases
• Chapter 1: Introduction
• Chapter 2: The Extraterritorial Applicability of Human Rights
• Chapter 3: The Responsible Actor
• Chapter 4: Extraterritorial Asylum under International Law
• Chapter 5: Extraterritorial Asylum under European Union Law
• Chapter 6: Interdiction at Sea
• Chapter 7: External Processing
• Chapter 8: How to Take Refugee Rights into Account
• Bibliography
• Index