Breaking the spiral of deterrence

UK-Rwanda asylum deal scrapped

The new British Prime Minister Keir Starmer has declared the Rwanda deal ‘dead and buried’. Under the agreement, people entering the UK irregularly would not be able to apply for asylum. Instead, anyone attempting to cross the English Channel to enter the UK would be flown to Rwanda, 6,000 kilometres away, where their asylum clams would be processed under Rwandan law. They would not be allowed to return to the UK. By scrapping the deal, Starmer has effectively put paid to the debate on outsourcing asylum processing to third countries. Human rights concerns most certainly also played a role in this decision. More importantly, however, he was not prepared to continue with “gimmicks” that don’t act as a deterrent.

Strong reservations from German government experts

This is also the preliminary result of the series of multi-stakeholder hearings organised by the Federal Ministry of the Interior with 23 national and international experts tasked with examining the outsourcing of asylum processing. The vast majority of the experts – 20 in total – expressed criticism of or were at the very least sceptical over legal and practical implementation. Many believed this would massively increase the risk of legal violations or a progressive erosion of the refugee system, warning that this could lead to a massive expansion of red tape for asylum seekers, incalculable dependencies on dubious regimes as well as substantial financial and geopolitical costs. The experts also spoke of the impact on the physical and mental health of those affected, as identified in implemented models. For the Conference of Federal State Prime Ministers, on 20 June, to nevertheless call for the Federal Government to develop concrete models for asylum processing in transit and third countries, disregards the outcome of these hearings. It would appear that some politicians are clinging to a policy of deterrence that has been failing Europe for years, resulting in countless victims on the EU’s external borders.

The dirty deals behind border control outsourcing

For years, the EU and its member states have been involved in dirty deals that involve outsourcing border security to countries outside Europe where refugees are then detained. With the 2017 Italy-Libya deal, increasing sums of money were channelled to Libyan authorities for the purpose of setting up coastal patrols and reception camps – camps in which serious human rights violations have been and continue to be committed, including by EU partners. Since then, EU funds have increasingly been used to finance such projects. For example, 60 million from the EU Trust Fund to help Libyan authorities combat people smuggling. This also included providing training and training materials for the Libyan Coast Guard, which repeatedly threatens to deploy armed force on civilian sea rescue ships, intervening in ongoing rescue operations using risky manoeuvres, putting those in distress at sea in mortal danger. The Libyan Coast Guard uses ships, some donated by the Italian government, to tow people back to Libya against their will, where they are usually locked up in detention centres. Back in Libya, they find themselves trapped in a vicious circle of violence, abuse and torture. This is why the United Nations and the European Parliament have accused the EU Commission, individual member states and EU agencies of being partly responsible for the human rights crimes in Libya. The report by the UN Commission of Inquiry, for example, states that the Libyan Coast Guard and other state-run organisations financed by the EU are involved in crimes against humanity. Although those responsible in the EU are aware of the situation on the ground, there have been no consequences for this cooperation. On the contrary, at a recent migration forum in Tripoli, at which the German government was present, this cooperation was endorsed.

Outsourcing asylum processing would lead to further escalation

Third-country processing of asylum applications – something a number of EU states would like to introduce – would be the next level of escalation in the spiral of deterrence. The only thing standing in the way of this is international and EU law. And yet a good 15 EU member states continue to look for ways to send people who are already in the EU or who fall under the control of an EU member state to third countries. If necessary, they would like to see this achieved through a change in EU asylum law, as outlined in a letter to the Commission. This move comes in the wake of the recent adoption of the reform of the Common European Asylum System, which already severely restricts access to protection in Europe for displaced persons from non-EU countries.

Italy is not a good example

Italy believes it has already found a way to circumvent EU law, with the Italian government preparing to have migrants that are rescued or apprehended in international waters taken to camps in Albania for processing before they reach Italian territory, i.e. before they enter the EU. The government’s plans would see migrants registered at a reception camp in the harbour area of Shengjin before moving them to detention centres near Gjader where they would await the further processing of their asylum applications. Due to begin in May 2024, this scheme had to be postponed following problems with the construction of the detention centres. Although there were to be exceptions for vulnerable individuals, many of the details, including legal and practical obstacles, are yet to be resolved, for instance the matter of where and how vulnerable individuals will be identified and who will be responsible for this. This applies, in particular, to those whose needs are not immediately recognisable, such as victims of torture, human trafficking or gender-based violence, the chronically ill, older minors or people with mental health problems.

According to Amnesty International, this deal also violates Italy’s obligation to bring people rescued at sea ashore as quickly as possible. The journey to the Albanian port of Shengjin would take two to three days by sea, which would be significantly longer than to the nearest safe Italian port.

Another question is how the Italian authorities intend to guarantee fair asylum processing or judicial review of detentions in Albania. The Italian authorities have made it clear that those who are transferred to Albania are not allowed to leave the centres while their applications are being processed. This means that they will be detained automatically, a step which would be arbitrary, making it in breach of Italian, international and EU law.

If implemented, the Italian outsourcing model would most likely affect the health and wellbeing of those seeking protection as well as violate their rights. These are the very lessons that have been learnt from the Australian and UK models.

Australia and UK examples show there is no such thing as a humane deterrent

For years, Australia and the UK (and the EU-Turkey deal) have been used as examples of how pragmatic and effective a solution outsourcing models can be. Yet we know that the deterrent effect has not been sufficiently proven and the few examples from practice simply do not to work – on the one hand because they violate national and international law, but also because very few third countries are willing to accept the terms of any such agreement or will only do so in return for considerable financial and political benefits. Beside this lack of deterrent impact and the problems encountered with practical implementation, outsourcing models also come with enormous costs. For example, the failed UK-Rwanda deal has already cost the British taxpayer more than 830 million euros. Had this deal gone through, it would have cost more than one billion euros. The Albania deal is expected to cost almost €670 million over five years, with additional costs for judges, security personnel and doctors.

And last but not least, the harm and suffering of those affected by outsourcing models is also immense, as data from Médecins Sans Frontières (MSF) shows. As early as 2001, the Australian government concluded an agreement with the island states of Papua New Guinea and Nauru that would see asylum seekers who reached the country by sea transferred to the Pacific islands. The indefinite offshore detention under appalling conditions on the island of Nauru led to a mental health crisis, with a team from Médecins Sans Frontières stepping in to provide mental health support on the island. A report by the MSF published in 2018 exposed the devastating consequences of Australia's internment policy, with reports of 60 percent of patients with suicidal thoughts and 30 percent having attempted suicide.

In the UK, the health consequences of the government’s offshoring plans can be backed with data, although ultimately no one was sent to Rwanda. At the end of May 2024, Médecins Sans Frontières published a report that clearly shows the health consequences of such plans: more than 74 percent of the people who sought medical help in Wethersfield, a mass containment site in Essex, were suffering from severe mental health problems, 41 per cent had intentionally self-harmed, were plagued by suicidal thoughts or had survived a previous suicide attempt. After years on the run in some cases, they believed they had finally found a safe place. Until the deportation plans put them in a legal limbo where they could not apply for asylum, but the question of when and how they would be transferred to Rwanda remained unresolved. This uncertainty about their own fate and their feelings of helplessness inevitably had an impact on their mental health.

Preventing human rights violations

As if the financial and health issues resulting from what in the majority of cases prove to be ineffective migrant deportation deals were not enough, such agreements can also cause huge damage to the refugee system at international level. This is because three quarters of refugees worldwide live in low- and middle-income countries. If Western states outsource their responsibility, why should countries that are far worse off economically continue to take in and bear the burden of caring for refugees? An example of this can be seen in Chad, one of the poorest countries in the world with 18 million inhabitants, which gave refuge to more than 600,000 people fleeing civil war in neighbouring Sudan. Examples such as this are the reason why the UN High Commissioner for Refugees warned of the risk of a downward spiral in international refugee protection as early as 2021. In an interview he asked how he can be expected to continue to call on countries such as Lebanon, Uganda and Bangladesh, which have already taken in millions of refugees, to fulfil their international obligations, while Europe is shirking its responsibility with new border fences, push-backs and migrant deportation agreements.  

It's time for the EU to break the deterrence spiral

By now it should have become clear that a human-rights oriented policy of deterrence is nothing but an illusion and the outsourcing of asylum processing is not a pragmatic solution, but ‘more of the same’ outdated logic of deterrence we have seen many times before. It has enabled migration to be politically instrumentalised, with the increasingly brutal measures and mechanisms used against those seeking protection gradually becoming acceptable at European level, endangering people’s health and dignity – a creeping dehumanisation that will also leave its mark on the populations of Europe. To turn this around, we need a change in mindset towards evidence-based policies that do not insist on portraying those seeking protection as a threat. The obsession with reducing irregular migration obscures one’s ability to see – and find ways of dealing with – the underlying causes of flight, such as wars and conflicts, which is where the focus should be. Furthermore, if realistic solutions are to be found, politicians need to consider the consequences and risks of such deals in third countries. After all, such deals not only bring health and financial risks; they also run the risk of creating greater political instability, intensifying violence and conflict, and eroding international refugee protection.

What can be done?

The European Commission must place restrictions on the outsourcing plans of individual EU member states. As the guardian of EU law and regulations, it is the Commission’s job to use every means at its disposal to ensure that EU and international law is implemented fully rather than circumvented. The Commission must carry out a transparent and detailed legal assessment of the deal between Italy and Albania and evaluate whether the plan is compatible with Italy’s obligations under the EU Charter of Fundamental Rights and EU asylum law. The Commission must also ensure that the deal does not hinder civilian sea rescue operations. Saving lives and providing humanitarian aid – especially when people are in danger at sea – is a human rights imperative that should neither be criminalised nor prosecuted.

The external dimension of EU migration policy, including its various agreements and arrangements with countries such as Libya, Tunisia and Egypt, must be scrutinised. The decision-making processes that lead to migration policy cooperation and the content of such processes must be publicly accessible for transparency and accountability on the part of the actors involved to be guaranteed. In addition, independent mechanisms are needed to monitor the human rights situation at the EU’s external borders as well as in third countries the EU cooperates with. Only by doing so will the EU be able to ensure that cooperation fully upholds the principle of ‘do no harm’. And if there is a high risk of human rights violations or other harm or if any such risk cannot be effectively reduced, the EU must pause or terminate cooperation. That being said, the EU’s migration policy has already caused enormous damage, leaving an image of an EU that is no longer a credible protector of human rights.