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13 June 2022, Gateway House

The trouble with Europe outsourcing asylum

The attempts of responsibility-transfer of asylum-processing and refugee-protection by the UK and Denmark to Rwanda, reflect a fundamental shift from the conventional principle of territorial asylum and set an undesirable precedent. Deporting the vulnerable to countries with perpetual internal socio-political and economic issues and inadequate asylum infrastructure, will gravely compromise their safety, welfare, human rights and benefit claims as refugees.

Assistant Professor, FLAME University, Pune

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The first flight from Britain carrying asylum seekers to Rwanda, set to depart yesterday, was cancelled after an intervention by the European Commission of Human Rights amid protests[1] and legal bids[2] to stall the controversial deportation policy of the United Kingdom (UK) government. Their deportation to Rwanda was facilitated by the signing of the bilateral Migration and Economic Development Partnership[3] between the UK and Rwanda on April 14, 2022. The central aspect of the Rwanda deal is the “expedited and humane” relocation of those people arriving through illegal channels into British territory, to the reception centres in Rwanda starting today, June 14, 2022.[4] The failed asylum claimants and those awaiting a decision on their asylum claims in the UK who are in limbo are also included in the list of potential deportees. As per the deal[5], the Rwandan government will take responsibility for these deportees, process their asylum cases, and provide them with the right to apply for residency in Rwanda after the approval of their refugee status.

This deal was premised on the New Plan for Immigration introduced by the UK Home Secretary, Priti Patel, on March 24, 2021. In her statement[6] to the Parliament, she categorically placed asylum and illegal migration as priorities of action for the current Conservative government led by Prime Minister Boris Johnson. Her statement highlighted the  record[7] entry of irregular immigrants to the UK – over 31,000 arrivals in 2021 – and the substantial increase in[8] asylum claims in the past years – 55,146 asylum applications in the first quarter of 2022 compared to 36,546 in the second quarter of 2016 which  was the height of the Syrian refugee crisis. This has resulted in long asylum queues. The administrative oversight in interrupting illegal migration channels and repatriating the failed asylum claimants, has further overburdened and paralysed Britain’s immigration enforcement system.

To address these lapses, the New Plan emphasised the “rapid and fair removal of failed asylum seekers, irregular immigrants, and foreign criminals who have no right to be in the UK” as one of its core objectives. By stipulating maximum sentences for human smugglers under British laws and providing greater enforcement powers to the UK Border Force, the New Plan for Immigration is also intended to prevent asylum seekers from arriving in the UK via another safe European country such as France[9] (i.e. the country of initial entry) where they can apply for asylum as per the Dublin Regulations.[10]

Patel’s move has support. There is a general antipathy[11] among the British public, often rooted in racial and ethnic differences, about the taxpayer-funded free housing and financial support given to asylum seekers while awaiting a decision on their claims. Immigration and asylum were key concerns in the 2016 Brexit vote and subsequent electoral campaigns, following a surge in the popularity of Euroskeptic, anti-immigrant parties like the UK Independence Party (UKIP). The 2020 Brexit made the country solely responsible for its border security as it failed to secure a deal with the European Union (EU) on the deportation of asylum claimants back to the EU countries of initial entry. This seems to have prompted the British government to consider partnerships with non-EU third countries, similar to the Rwanda deal, as a viable way to expedite its asylum processes and clear backlogs.

Signed in this context, the 120 million pound Rwanda scheme (and other potential partnerships) is expected to restrain people abusing the British asylum system and deterring them from undertaking life-threatening[12] border crossings to the UK, facilitated by migrant smugglers and traffickers.

Even though these grounds for externalising asylum may sound reasonable, the manner in which the UK government adjudges[13] the incoming cross-Channel asylum seekers as  “illegal immigrants” trying to abuse the system rather than genuine asylum seekers in desperate need of protection and humanitarian assistance, is being questioned. The Home Office statistics[14] indicate that most asylum seekers arriving in the UK are from West Asian and African countries – Iran, Iraq, Syria, Afghanistan, Sudan, Albania, Ethiopia, etc. – fleeing conflict and persecution. It is unfortunate that they were forced to engage in illicit border crossings via the English Channel with the aid of smugglers and traffickers because of the limited, or lack of access to, safe and legal migration pathways. Furthermore, the reluctance to host non-white and non-Christian asylum seekers is pervasive among European nation-states, a fact that was manifest in their differential response[15] to Ukrainian asylum seekers fleeing the on-going Russian invasion.

The UK’s Rwanda plan has met with criticism and legal challenges[16] from factions in the ruling and opposition parties, from the UN refugee agency UNHCR, and several civil society organisations[17] (CSOs). Condemned as an unethical and inhuman plan, they disputed Britain’s compliance with its international obligations[18] as a signatory to the 1951 Refugee Convention and its 1967 Protocol and the European Convention on Human Rights.[19]

Several media reported the faulty[20] procedures associated with the Rwanda scheme that can deny asylum seekers a fair hearing in Britain, where they were hopeful of restarting their lives with dignity. The deportation notice letter explicitly denied[21] asylum seekers the right to appeal the decision and urged them to accept deportation to Rwanda, by giving them an ultimatum[22] of otherwise “voluntary” return to their home countries. This negates the “right to seek safety”, which is the very focus of this year’s World Refugee Day[23], falling on June 20, 2022.

The efficacy of the Rwanda plan to serve as a deterrent is debatable[24]. After all, sub-contracting out asylum obligations and protection responsibilities to Rwanda or any other potential partner third country, can result in long-running legal disputes. The costs associated with the scheme could make it impractical[25] in the long run. And of course, the deportation will separate families with different refugee statuses and break their community networks. The indefinite wait at the pre-departure centres without access to education, work, and other welfare services, and the ever-impending thoughts of uncertainty and insecurity, will adversely affect[26] their mental health and well-being.

The integration challenges for non-African deportees in Rwanda and their safety are also critical concerns due to Rwanda’s internal problems[27] and refugee treatment records.[28] Rwanda’s capacity to accommodate and assist deportees from the UK is ambiguous as its refugee system is already overburdened by  refugees fleeing the Democratic Republic of the Congo (DRC), Burundi, and Libya.[29]

The UNHCR’s foreboding that other European countries will follow the UK’s lead came true when Denmark sought to strike a similar deal with Rwanda.

The Case of Denmark

The Danish government held talks[30] with Rwanda on April 20, 2022, to transfer its asylum seekers to Rwanda. If a deal is signed, Denmark will then become the first EU member state to offshore asylum. This dialogue aligned with the L226 Law[31] passed on June 3, 2021, in the left-leaning Social Democrat-led Danish parliament by 70 votes to 24. This could be a move from the ruling party to bring back supporters from the right-wing populist camps. The L226 law, similar to Britain’s New Immigration Plan, was widely criticised[32] in Europe for its dire implications for refugee rights and the possibility of other EU member states jumping on the bandwagon. Such a turn of events will confer legitimacy on externalising asylum in Europe and further complicate the highly divisive and fragmented asylum policies in the EU.

This is, in fact, not the first time an EU country is considering setting up refugee centres outside the Union’s borders. Several member states have previously considered the idea of external delegation of the asylum-processing responsibility following the 2014/15 Syrian refugee crisis, but did not pursue it due to political, legal, and financial concerns. Denmark witnessed the arrival[33] of nearly 15,000 asylum seekers in 2014 and over 21,000 in 2015, especially from Syria, which was a substantial increase from the earlier years. The peak in the asylum applications resulted in a policy shift[34] from permanent protection and local integration of refugees, to voluntary repatriation or overseas resettlement of asylum seekers. The repeatedly stiffened immigration rules and border controls intended to achieve a “zero” refugee target and “crack down illegal immigration networks,” have made it harder for people to seek asylum in Denmark. This, along with the 2016 EU-Turkey deal[35] to stem Syrian refugee inflow to Greece and the consequent Balkan route closure[36], ensued a drop in asylum numbers, though a steady increase has been noticed lately. While 2,099 asylum seekers were logged in[37] 2021, the count touched 2,717 in the first quarter of 2022. The majority of the asylum seekers and refugees in Denmark are from Syria, Eritrea, Morocco, Iran, and Afghanistan.

It is ironic that Denmark, the first country to sign the 1951 Refugee Convention, is now one of the toughest and most restrictive immigration regimes in the EU. Maintaining that many who arrive are false claimants, over the last decade the country has framed immigration policies that are increasingly harsh and indifferent to the protection needs of asylum seekers and refugees. In February 2016, Denmark set forth a policy to seize assets[38], such as cash, jewelery, watches, mobile phones, computers, and other valuables, from asylum seekers to cover their housing, food, and other maintenance costs.

Measures to delay family reunification were imposed by extending the waiting period for sponsorship application from one to three years, along with restricted access to permanent residence permits. These policy approaches have endangered the human rights of these vulnerable people desperately looking for protection assistance, including the right to family life enshrined in the European Convention on Human Rights (Article 8)[39] and the UN Convention on the Rights of the Child (Article 9)[40].

The 2021 Danish Return Act[41] legalised “motivation-inducing measures”, such as detention and exclusion from financial benefits, education, and employment, to pressurise rejected asylum seekers to “voluntarily” return. Further, based on the report[42] by the Danish Immigration Service, the Ministry of Immigration and Integration revoked (or not renewed) the temporary protection status and residence permits of many Syrian refugees, mostly women, children, and the elderly, in 2021. By maintaining that parts of Syria, including Damascus and the surrounding region, are safe zones to return to, they were shifted to pre-deportation or departure centres as a pressure tactic, despite no immediate prospect of repatriation. This is a clear violation of the principle of non-refoulement[43] that prohibits the expulsion or return of refugees from host states. On the contrary[44], returnees may still face risks of arbitrary detention, extrajudicial executions, torture, enforced disappearance, or persecution by Syrian security forces.

The European Commission (EC), the UNHCR, Amnesty International[45], the Danish Refugee Council, and other CSOs[46] have condemned these hard-line policies, premised on the logic of deterrence, to dissuade new arrivals from seeking refuge in Denmark. The EC pointed out that such policies breach Denmark’s international obligations and non-compliance with existing EU rules and the proposed New Pact on Migration and Asylum, even though the country has opted out of many EU asylum rules. Another irony is that while granting refugee status and residence permits to non-European asylum seekers is remarkably low, Denmark’s policy response to the Ukrainian asylum seekers is markedly different.

The attempts of responsibility-transfer of asylum-processing and refugee-protection by the UK and Denmark reflect a fundamental shift from the conventional principle of territorial asylum. This will set an undesirable precedent for other countries in Europe and elsewhere, which host a considerable number of asylum seekers and refugees in their territories. Deporting the vulnerable to countries with perpetual internal socio-political and economic issues, and with inadequate asylum infrastructure, will gravely compromise their safety and welfare, human rights, and benefit claims as refugees. Further, the external processing of asylum claims will limit their access to fair asylum procedures and protection mechanisms in the “new” host countries.

Finally, to vilify all asylum seekers as “illegal migrants” is a misguided approach, which is insensitive to the losses and sufferings they have already endured. Refugees are those who have escaped conflict, left their lifetime tangible and intangible assets, and put their lives at grave risk to reach the UK or the EU countries or elsewhere for better and safe living opportunities. They deserve compassion and a dignified treatment and fair and unprejudiced hearing of their cases, regardless of the mode of arrival.

Divya Balan is Associate Professor of International Studies, FLAME University.

This article was exclusively written for Gateway House: Indian Council on Global Relations. You can read more exclusive content here.

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