Migration: Europe intensifies its push for third country agreements despite human rights concerns

Yola Verbruggen, IBA Multimedia JournalistFriday 8 December 2023

As crises in the Middle East and North Africa drive migrants to its shores, the EU is looking towards further deals with North African countries to curb the number of people coming into the bloc. The questionable human rights records of these countries, as highlighted by non-governmental organisations, raise concerns about Member States’ adherence to their own international protection responsibilities.

European Commission President Ursula von der Leyen declared in October the intention to finalise an agreement with Egypt, similar to its existing arrangements with Libya and Tunisia that provide EU funds for security forces to prevent departures, as a ‘priority’. The countries of Mauritania and Senegal are also on the President’s radar in terms of the EU’s response to migration.

Abuses against migrants and asylum seekers in these North African countries have been well-documented. Refugees and asylum seekers in Egypt have been subjected to ‘arbitrary detention, physical abuse, and refoulement’ – the forcible return to a person’s home country, where they may face inhumane treatment – according to Human Rights Watch.

Meanwhile, severe abuses by Tunisian security forces against Black Africans have been reported. Tunisian President Kais Saied has previously stated that migrants receive ‘humane treatment’ in Tunisia.

According to independent watchdog Statewatch, EU support for the Libyan coastguard continues despite a UN report, published in March, that found grounds to believe that migrants in the country are subjected to crimes against humanity.

The extending outwards of borders effectively deep into other jurisdictions unquestionably damages the international refugee regime

Alex Stojicevic
Newsletter Officer, IBA Immigration and Nationality Law Committee

Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary University of London and the Radboud University in Nijmegen, Netherlands. She says that funding countries with questionable human rights records in order to stem migration is problematic. ‘It may be seen as paying other countries to carry out human rights abuse, or reckless behaviour as regards the human rights consequences of this kind of payment,’ she explains.

‘The respect for human rights and democratic principles are at the heart of [the] EU’s partnerships with all countries,’ a spokesperson for the European Commission told Global Insight. ‘When it comes to migration, under the MoU [memorandum of understanding], the EU and Tunisia agreed that we will cooperate on border management, anti-smuggling, return and on addressing root causes, in full respect of the international law, and the dignity and rights of migrants.’

Increasingly, as many EU Member States take a more hardline approach to the issue of migration, some are unilaterally exploring their own deals for offshore processing. Italy, which sees a high number of arrivals from across the Mediterranean, announced a deal with Albania – a first-of-its-kind agreement between an EU Member State and a European country outside the bloc – in November. The deal would confine asylum seekers picked up by Italian boats to migration centres in Albania that will be managed by Italian authorities, while their asylum request is processed in Italy.

Dunja Mijatović, the Council of Europe Commissioner for Human Rights, said in a statement that the agreement ‘creates an ad hoc extra-territorial asylum regime characterised by many legal ambiguities’, which would ‘undermine’ human rights safeguards. However, Italian Foreign Minister Antonio Tajani has said that ‘migrants will have exactly the same treatment as foreseen under Italian and European regulations’ and that ‘there is no outsourcing of the processing of asylum applications to a third country.’

Alex Stojicevic is Newsletter Officer of the IBA Immigration and Nationality Law Committee and co-founder of MKS Immigration Lawyers in Canada. ‘While this might ultimately fit the immediate security interests of prospective destination countries, the extending outwards of borders effectively deep into other jurisdictions unquestionably damages the international refugee regime,’ he says.

Austria is reportedly exploring a scheme similar to the UK’s Rwanda plan – under which migrants arriving in the UK via irregular means, such as small boats, would be sent to Rwanda to be processed. These plans were recently struck down by the UK’s Supreme Court because of the risk for asylum seekers in being returned to their home countries, where they could face inhumane treatment. The Rwandan government rejected the Court’s conclusion.

Nicolas Rollason is Chair of the IBA Immigration and Nationality Law Committee and a partner at Kingsley Napley in London. While EU Member States are subject to a different legal system than the UK, he says the UK judgment contains lessons for other countries exploring similar deals, as it’ll be instructive as to the level of scrutiny that the third country will need to receive to ensure it’s safe. The UK Supreme Court didn’t, notably, dismiss the possibility of asylum seekers being sent to a third country that has been deemed safe.

Anne O’Donoghue is a former Co-Chair of the IBA Immigration and Nationality Law Committee and the current Vice-Chair for Diversity and Inclusion of the IBA Global Employment Institute, and Director and Principal Lawyer of Immigration Solutions Lawyers in Sydney. She says the definition of a safe third country is key to finding solutions to the ‘dysphoria around refugees and asylum seekers’ in Western countries. ‘If this is not established, then the legalities of moving refugees to a third country cannot be established nor enforced,’ she explains.

According to the UNHCR, the UN refugee agency, policies that reduce migration to safe countries and that allow for forced transfers to jurisdictions that lack safeguards for migrants and asylum seekers – known as externalisation – could be unlawful. Stojicevic says that examples such as the detention of people attempting to reach Australia – the first country to have used offshore processing – on the island nation of Nauru highlight the rights concerns that third country processing poses. ‘Externalisation prevents people from exercising their right to seek asylum, puts them at risk of significant human rights violations and unquestionably contributes to an increased risk of harm to them,’ he says.

The EU has stated that, in addition to containing migration, its policies will also prevent migrant deaths on routes to safe countries, such as at sea, and help to combat people smuggling gangs. However, in Stojicevic’s view, ‘externalisation, as a practice, has pushed asylum seekers to undertake increasingly risky journeys involving human smugglers, traffickers and corrupt government officials. It is a terrible practice’.

Image credit: Middle-eastern refugee girl in hooded vest holding plaid while freezing in tent camp for migrants. pressmaster/AdobeStock.com