The Convention

In many European countries, the number of asylum applications and illegal migration continues to rise, as does the popularity of right-wing parties. In response, the EU and Member States attempt to ‘outsource’ asylum to third countries. Critics say that this is a manifestation of the States’ shrinking their legal responsibility for people in need of protection and that is inconsistent with the objective and spirit of the Refugee Convention.

The world’s largest asylum receiving countries are not in Europe. According to data from the UNHCR published in 2024, Iran leads with more than 3.8 million, with Turkey following with more than 3.1 million; Colombia 2.8 million; Uganda 1.7 million; Lebanon 1.5 million; Pakistan harbours 1.4 million; and Bangladesh 932,000. Among European countries, only Germany makes it unto this list with 2.7 million refugees. What this list reveals is that the globalization of the 1951 Refugee Convention has not been accompanied by a corresponding globalization of responsibilities for the fate of the world’s refugees. It is still neighbouring countries in the Middle East and Africa that bear the burden of refugee movements caused by international conflicts and civil wars. In many cases, territorial jurisdictional lines drawn between these countries were simply the product of past imperialist conquests and made little sense for the daily existence and well-being of the populations involved. For many countries in these regions, it is increasingly impossible to distinguish state failure, official corruption, and grinding poverty from well-grounded fears of persecution.

The 1951 Convention does not recognize conditions of extreme poverty and material deprivation as grounds for legitimate asylum. Economic migrants are considered individuals who raise spurious claims to protection and refuge. The binary between “deserving refugees” and “undeserving migrants” is one that governs popular imagination as well as state policy. But how valid is this distinction? Why are extreme poverty and material deprivation not legitimate ground for seeking opportunities to escape from them?

The Convention is an increasingly inadequate instrument to deal with the global movement of people. Climate change, financial collapse and natural disasters are growing societal inequalities, and in the absence of an instrument to deal with these, there is a more general risk for people to move and for the Refugee Convention to be abused as a surrogate protection. The scope of the refugee definition in the Convention has long been identified as being a limiting factor and the grounds of persecution that are stipulated leave too much scope for their interpretation, making it easier for those so inclined to deny its application when it comes to causes that are not specifically mentioned.

In 2024, there was a notable surge in support of right-wing parties coming to power in Europe in comparison to previously years, with a dozen European countries moving towards hardline anti-immigration parties.

Over decades, European voters have abandoned mainstream parties across Europe as they grappled to contain multiple cost of living crises, a major financial crash, millions of refugees crossing its eastern and southern borders, terror attacks in major capitals and drastic energy spikes amid a stagnating war. Even if far-right are not the majority, it has been seen that they can still win by pressuring centre-right parties to take on all of their rhetoric and policies, especially when it comes to immigration policies.

There is no doubt that this is what we see happening in Europe right now - the rise of these various right-wing parties across Europe has influenced the policies on asylum and immigration of EU Member States at the national level, as well as at the Union level. One of the main types of policies that have been implemented across European countries, as well as at an EU level, is the externalisation of asylum procedures.

The Externalisation

In this context, the externalisation of asylum procedures has three main objectives. Firstly, it is aimed at discouraging those who are considering unregulated migra­tion or seeking protection from under­taking the dangerous journey to request asylum in the EU. Secondly, it should facilitate repatriation in the event the asylum request is denied. Thirdly, it is intended to signal that decisive action is being taken against unregulated migration and the smuggling organisations involved.

The various efforts to externalise responsibility for people in need of protection can be divided into three types.

Type 1: Extraterritorial Asylum Procedures

The first type of asylum procedure is known as the Extraterritorial Asylum Procedure. This type involves the physical relocation of asylum procedures to third countries while still applying the law of the externalising state. The most known historical example is the Pacific Solution, which Australia implemented from 2001 to 2007 in Nauru and Papua New Guinea, despite massive human rights violations. If refugees received a positive decision in their asylum claims, they were to be brought to Australia, although some were transferred to third countries.

The recent agreement between Italy and Albania similarly foresees the externalisation of asylum procedures, with Italian law being applied throughout. The bilateral agreement with Albania involves holding asylum seekers in Albania’s detention centres built by Italy that can hold up to 3,000 persons at a time. Asylum seekers could be held there until Italy adjudicates in an expedited manner their asylum claim. In the event of a positive decision in an asylum claim, protection will only be granted in Italy. The Italy-Albania agreement has been ratified and its planned duration is expected to be from 2024 to 2029.

Under the deal, signed by Meloni and her Albania counterpart EDI Rama, those intercepted in international waters, crossing from Africa to Europe will be held at the centre while the claims are being processed. However, an Italian court ordered the return of 12 asylum seekers to Italy, and this decision casts doubt on the feasibility and legality of the EU’s plans for offshore centres for deportees. The Italian court also asked the European Court of Justice to weigh in on the legality of the overall programme, in particular whether Italy’s recent designation of 19 countries as safe for quick returns is in compliance with EU law.

The European Commission president Ursula van der Leyen said recently that the EU leaders were discussing the idea of developing return hubs outside the European Union for people with no right to stay and said that the EU should learn from the Italian deal with Albania. The Italian leader urged other EU leaders to review their policy on Syria so that refugees from that country can return voluntarily, safely and sustainably. The Danish Prime Minister said at a recent summit that many countries are willing to work together on this and the Dutch Prime Minister confirmed that there is a different mood in Europe. His government was considering a plan to send rejected African asylum seekers to Uganda and the Greek Prime Minister said that he is happy that the EU recognises the need to think outside the box. Spain’s Prime Minister is not in favour of the Italian model and preferred to work with countries of origin to ensure migration in an orderly, secure and equalised fashion.

Many European leaders have voiced support for Poland’s Prime Minister Donald Tusk who recently announced plans to suspend the rights of asylum because of the exceptional situation his country finds itself in (the Polish government has accused Belarus and Russia of seeking to destabilise the EU by luring the migrants from the Middle East and Africa to storm the Polish border.

Type 2: Transfer of Responsibility for Procedures and Protection

A second type of asylum procedure involves the legal transfer of asylum procedures to third countries, in addition to territorial transfer. The most prominent recent exam­ple was the agreement between the UK and Rwanda. Under this agreement, asylum seekers were to be transferred from the UK to Rwanda and would be subject to Rwanda’s asylum laws. Unlike the Extraterritorial Asylum Procedure (type 1), in the event of a positive asylum claim, asylum seekers would receive protection in Rwanda rather than the UK.

Germany is now exploring the use of asylum processing facilities in Rwanda and Priti Patel said that Europe will reap the rewards of the UK Conservative government’s plans. This move by Germany can be embarrassing for Keir Starmer after his government scrapped the Rwanda Migration Scheme and opens the space for conservative figures to criticise him for prematurely discarding the policy that other nations see as viable. Furthermore, the Prime Minister is now exploring an immigration agreement with Albania having met with the Italian Prime Minister. Critics question whether it will act as a sufficient deterrent and whether it can address the scale of the issue the Rwanda plan aimed to tackle.

Whilst the UK Labour government was extremely critical of the previous Tory government’s Rwanda deal, the UK is currently in talks with Kurdistan for deals similar to the current Italy-Albania agreement. The potential Kurdistan deal will aim to stop illegal migrants from coming to the UK. In addition to Kurdistan, it is reported that the Home Secretary Yvette Cooper is currently in talks with other countries for similar, but bespoke, returns deals.

Some sources say that the various deals the UK is hoping to establish with Kurdistan and other countries, would include UK agencies helping train local law enforcement bodies to identity and break up smuggling gangs operating in their countries.

In addition to the Kurdistan deal, the Home Office is also expected to revamp an earlier deal signed with Vietnam under the Tory Government, which would involve the blitzing of social media sites with adverts targeting nationals in the country to deter them from travelling to the UK.

Type 3: Return to Transit Countries

Lastly, the third type of asylum procedure is one which involves agreements between states, which include pro­visions for the return of those seeking pro­tection to the transit countries through which they have passed. The most well-known example is the EU-Turkey agreement of 2016. Hundreds of thousands of migrants transited Turkey to reach EU soil and under this agreement, irregular migrants attempting to enter Greece will be returned to Turkey. In exchange, the European Union agreed to reduce visa restrictions for Turkish citizens, pay billions of euros in aid for Syrian migrant communities, and reenergise talks of Turkey’s succession to the European Union. The deal was subject to criticism from human rights advocates and humanitarian organisations, and in the Spring of 2020, Turkey threatened to let hundreds of thousands of migrants into Greece before backing off, showing just how much the EU relies on Turkey as a ‘stop force’.

Since 2016, multiple bilateral migration agreements have been implemented within European migration management.

Italy negotiated agreements with transit nations in Africa, including Tunisia, to win their cooperation in curbing migration to Europe. A recent agreement with Tunisia signed on 17 April 2024 would grant Tunisia €55,000,000 as part of a plan to prevent migrants from travelling through the country to reach Europe. Finally, in January 2024, Italy held a summit with African nations in which it unveiled the Mattei Plan in which Italy would provide €5B in energy and education investment in return for the prevention of migration from those countries.

With the plan, Italy is boldly positioning itself as a regional power capable of independently engaging in Mediterranean affairs, separate from other EU countries. Moreover, through five main policy pillars (education and training, agriculture, health, water, and energy), the plan could help spur economic growth in Africa, and by default, reduce some of the economic causes driving mass migration from the continent.

In 2017, the EU endorsed an agreement between Italy and Libya on migration in which Libya would receive economic assistance in exchange for preventing asylum seekers from leaving in boats to Europe and in receiving returned migrants intercepted at sea. The result has been the return of 82,000 migrants to deplorable conditions in Libya from 2017 to 2022, which the United Nations Commission for Refugees estimated that 40% were eligible for asylum in Europe. The agreement with Libya has been compared to the 2016 EU Turkey deal, but if the agreement with Turkish President Erdogan raised some questions over the respect of the human rights of migrants, in Libya’s case the violations of basic rights are almost certain. This is not really an EU Libya deal, rather an EU endorsement of a bilateral memorandum of understanding between Italy and the Presidency Council of Libya headed by Fayez al-Sarraj.

The memorandum contains three main elements; first, it restarts full implementation of the 2008 Friendship Treaty between Italy and Libya which already included a big chapter on migration containment. Second, it boosts support to the Libyan navy and coastguard in order to rescue as many migrant boats as possible in Libyan territorial water and third, it provides funds to improve healthcare in detention centres which migrants are locked once they are rescued by the Libyan coastguards. The memorandum does not mention respect of international conventions, nor does it establish an independent monitoring mechanism. Libyan law does not distinguish between migrants and asylum seekers as Libya is not party to the Geneva Convention. According to the laws approved under the former Libyan leader Gaddafi all individuals arriving without a permit are deemed illegal migrants and jailed. It is commonly thought that the Central Mediterranean route, of which Libya is the main country of transit, is mostly a route for economic migrants but this is not supported by facts as 39% of the migrants from this route who were examined by Italian asylum panels received either reduced status or humanitarian protection.

The EU and Morocco first entered into a cooperative agreement on migration in 2004. In March 2023, the EU extended the relationship providing an aid package to Morocco which includes €152,000,000 for border management, repatriation and reintegration programmes for migrants. Morocco stopped 83,000 asylum seekers from reaching Europe in 2023.

Mauritania has become both a transit and receiving country for potential asylum seekers, with a majority of more than 7,270 migrants to Spain leaving from Mauritania in January 2024. In February 2024, the EU provided €210,000,000 to Mauritania for migration control and economic development efforts.

The EU and Egypt signed a joint declaration on strategic comprehensive partnership on 17 March 2024 which includes cooperation on migration. The EU agreed to provide €8B in assistance including funding to fortify its borders and to help hold 560,000 Sudanese feeling Sudan’s civil war. Egypt is a strategic crossroads between Africa and the Middle East which Europe, including Italy, concerned at Palestinians feeling the Israel-Hamas war in Gaza, could attempt to reach Europe.

The Repatriation Improvement Act passed by German parliament on 19 January 2024 would expedite deportations, extend asylum detention to 28 days and increase the powers of the German police to search residents and to depart asylum seekers. In addition, the German government is negotiating bilateral migration agreements with Georgia, Moldova, Kenya and Colombia among other countries in order to be able to send asylum seekers there. Germany recently passed a law which creates a card for benefits rather than cash payments in order to deter asylum seekers from sending the payments to relatives.

Time will tell if all these schemes are but nothing more than costly pieces of political theatre to demonstrate politician’s commitment to battling irregular immigration.