Rethinking access to asylum: border-shifting, burden-shifting and externalisation of international protection in the light of the UK-Rwanda arrangement

 Guest post by Micaela Malena* and Sonia Morano-Foadi. Micaela Malena holds a PhD in Constitutional Law (University of Bologna) and was Honorary Research Associate at Oxford Brookes University. She joined UNHCR in 2008, working in Italy, Uganda and Burundi, and currently in the Division of International Protection. Sonia Morano-Foadi is Professor of Law and Migrants and Refugees Research Network’s Steering Committee Member, Oxford Brookes University. She holds a PhD in EU Law, and her research interest is at the intersection of European citizenship, migration, fundamental rights and integration – on which she has extensively published. The authors published ‘Integration for Third-Country Nationals in the European Union: The Equality Challenge’ (2012). This is the fifth post in the Border Criminologies themed series on 'UK Borderscapes’, organised by Dr Karen Latricia Hough and Dr Kahina Le Louvier.

Asylum and migration are increasingly addressed by states from a security perspective and an overly restrictive approach, and by negotiating economic agreements with third countries to prevent onward movements or arrange transfers. In the Global North, economic power seems to be used as a shield against new arrivals on the state territory, leveraging needs and interests of the Global South. 

In this blog, cutting across international human rights and international refugee law, we argue that ‘externalization’ oriented border practices represent a shift of state responsibility and international obligations beyond its territory and jurisdiction. We argue that they constitute an erosion of the individual right to asylum through a redefinition of territorial boundaries and of the scope itself of international protection, and we question their compliance with international refugee and human rights law.

A litmus test

The UK-Rwanda arrangement, published on 14 April 2022, is taken as a litmus test to explore these new border practices which challenge the concept itself of territorial asylum and the actual border landscape. Under this memorandum of understanding, asylum-seekers in the UK may be transferred to Rwanda where their claims for international protection would be determined under the national Rwandan asylum system. Individuals transferred to Rwanda would not be relocated back to the UK once their claims have been decided upon.

While the primary responsibility to provide protection rests with the state where asylum is sought, this mechanism implies a shift towards a third country, either than the country of origin of the asylum seeker nor the country where their willingness to claim international protection is manifested or formalised. This third country is not a place of past transit or anyhow a previous destination of the individual concerned, and it is not a country where they may have found refuge earlier. The only link is the one established through a financial based agreement pursued by the State that - according to international law - should have rather granted access to its territory and to its national asylum system.

The UK-Rwanda arrangement fails to meet the required standards relating to the legality and appropriateness of bilateral or multilateral transfers of asylum-seekers, and contradicts the foundational element of international refugee protection, that is international cooperation in line with the principle of responsibility-sharing enshrined in the 1951 Refugee Convention and in the Global Compact on Refugees.

On 29 June, the UK Court of Appeal ruled on the case of AAA vs. SSHD: the majority judgment held that Rwanda could not be considered a ‘safe third country’ and that, unless and until the deficiencies in its asylum processes are corrected, removal of asylum-seekers to Rwanda will be unlawful. Other important grounds raised by the appellants were not successful, yet the decision remains of great importance. It recognizes that the UK-Rwanda arrangement is lacking essential safeguards, in breach of the principle of non-refoulement and Article 3 of the European Convention on Human Rights.

The UK Government has already stated its intention to appeal to the Supreme Court. If the decision is overturned by the Supreme Court, an application to the European Court of Human Rights in Strasbourg is expected. However, the UK normative landscape on asylum is under revision and a new bill is now making its way through the Parliament.   

A more general trend

UNHCR refers to externalisation of international protection as those measures taken by states— unilaterally or in cooperation with other states—which are implemented or have effects outside their own territories, and which directly or indirectly prevent asylum-seekers and refugees from reaching a particular country or region, and/or from being able to claim or enjoy protection there.

Extraterritorial processing of asylum claims violates international refugee and human rights law when it is a way to attempt avoiding jurisdiction or evading international responsibilities, in the absence of adequate protection safeguards and of durable solutions for the concerned individuals. Asylum-seekers and refugees thus end up in limbo, exposed to risks of refoulement and further human rights violations, such as indefinite stay in isolated places or in punitive conditions, at great harm to their physical and mental health.

Instead of deterring refugees from perilous journeys, externalisation practices only magnify risks, causing refugees to seek alternative routes, and exacerbate pressures on frontline states that individuals are seeking to pass through. Externalisation jeopardizes the individual right to asylum making international protection negotiable for states and increasingly inaccessible for persons in need

* The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations nor of UNHCR.

Any comments about this post? Get in touch with us! Send us an email, or post a comment here or on Facebook. You can also tweet us.