Detailed Notes on Non-Refoulement and Externalization

Non-Refoulement and Externalization

• Non-refoulement is a cornerstone of international refugee law, originating from the 1951 Refugee Convention.
• It prevents states from returning individuals to countries where they could face persecution, torture, or severe harm.
• Externalization policies, which involve states managing migration through third countries, are increasingly undermining non-refoulement.

Tension Between Non-Refoulement and Externalization Policies

• Outsourcing asylum processing involves transferring asylum seekers to third countries.
• Destination states claim compliance with non-refoulement, but migrants may face less secure protections in these third countries.

State Sovereignty vs. Humanitarian Obligations

• State Perspective: Prioritizes border security and control.
• Human Rights Perspective: States have a duty to uphold humanitarian commitments for those fleeing persecution.
• Rise of Securitization: Framing migration as a security issue often leads to prioritizing state control over humanitarian considerations.

Legal Basis for Externalization

• The legal basis for externalization is complex and lacks a unified framework.
• It can be described as a patchwork of precedents, agreements, and selective interpretations of international law.
• Externalization emerged from European states’ desire to manage increasing migration flows since the early 2000s.

Legal Ambiguities

• European states use orchestration strategies to delegate migration control to third countries.
• This allows them to "break the legal link" without explicitly violating international law.
• By selectively interpreting non-refoulement and safe third-country principles, states avoid direct violations.
• Practices create a grey area where states technically operate within the law while sidestepping humanitarian responsibilities.

Role of International Organizations

• International bodies like the UNHCR and IOM collaborate with states on externalization policies, aiming to uphold human rights standards.
• Despite cooperation, legal ambiguities persist, and ethical concerns remain.

Justifications for Externalization

• National Sovereignty: Countries have the right to control their borders.
  • Example: Italy-Albania and UK-Rwanda agreements rely on loopholes in international law rather than robust legal principles.
  • Selective interpretations can weaken global asylum protections.
• Safe Country: Countries deemed safe for processing asylum claims.
  • Allows destination countries to transfer asylum seekers while claiming compliance with non-refoulement.
  • Criticism: Raises concerns about relative safety and the risk of indirect refoulement.

Financial Incentives and Ethical Concerns

• Financial incentives and policy orchestration encourage third countries to act as migration gatekeepers.
  • Example: Italy's cooperation with Libya using EU funds for "pull-back" strategies.
• Consequences:
  • Bypasses direct responsibility and creates legal loopholes.
  • Migrants face abusive conditions in transit countries.
  • Raises ethical and legal concerns about the morality and durability of such practices.

Prioritizing «Border Rights» over Human Rights

• Securitization and political convenience weaken human rights standards.
• Asylum transforms from a right to a privilege, contingent on geographic factors.

UK-Rwanda Agreement

• Aim: To relocate asylum seekers from the UK to Rwanda for processing and resettlement.
• The UK Secretary of State could transfer asylum seekers to Rwanda without affording them legal rights in UK or international courts.
• Rwanda received an initial payment of £140 million (reached £240 million by the end of 2023).
• First flight stopped by the European Court of Human Rights (ECtHR) due to potential refoulement risks.
• UK Court of Appeal ruled the policy unlawful, citing concerns about Rwanda's asylum system and refoulement risks.
• UK Supreme Court upheld the Court of Appeal’s decision, declaring the Rwanda policy illegal due to insufficient safeguards against refoulement.
• The Supreme Court referenced similar issues in past Rwanda-Israel asylum agreements.

UK-Rwanda Agreement – HR Issues

• Human Rights concerns by HR groups, and international criticisms by UNHCR:
  • Rwanda’s high rejection rates of asylum claims (sometimes 100%).
  • Inadequate legal protections for applicants.
  • No written, appealable decisions.
  • Risk of refoulement.
  • Insufficient/non-existent independent monitoring.

UK-Rwanda Agreement - the Bill

• December 2023: the UK government introduced the "Safety of Rwanda (Asylum and Immigration) Bill”, declaring Rwanda a “safe country” by law.
• The legislation was passed in April 2024, to ensure flights to Rwanda could resume as early as mid-2024
• The new Bill:
  • restricts judicial reviews on Rwanda's status as a “safe” country: UK courts cannot challenge the assumption of safety for deported asylum seekers
  • It also limits the application of the European Court of Human Rights (ECtHR) interventions, allowing the UK government to ignore ECtHR’s urgent orders to halt flights if deemed necessary

UK-Rwanda – the Bill controversy

• Public and political debate, with concerns about the law overstepping the UK’s international obligations
• Bill created a “legal fiction” by legislating Rwanda’s safety, despite documented concerns and potential human rights abuses
• Civil Servants’ resistance: British civil servants, filed a legal challenge against the policy, as it could force civil servants to violate the Civil Service Code by preparing flights in potential breach of international law
• Logistical issues: Rwanda kept defending its record on refugee care, noting that it remained ready to accept migrants from the UK under favourable conditions. But properties in Kigali initially marked for migrants were all sold to residents, leaving in a limbo the initially planned accommodations
• Public opinion in the UK remained divided both about the plan and the Bill.

UK-Rwanda – the non-existent results

• As of today:
  • No migrants have left the UK towards Rwanda
  • The UK Government switched to offering money (£3,000) to anyone who wanted to “relocate” there (as of July 2024, 4 people had accepted)
  • Sunak’s Government lost the elections in June 2024, and the new ruling party vowed to never apply the Safety of Rwanda Bill
  • Rwanda has refused to refund UK

Italy Albania agreement

• The deal was announced on November 6, 2023, AIM-> externalize migration management by transferring migrants, intercepted by Italian authorities, to Albania for processing
• Parliaments approved the deal.

Italy Albania agreement – Legal pitfalls

• Democratic and transparency deficits
• People rescued at sea will not be disembarked at the nearest Italian ports but may instead be transported over 700 km to Albania.
• The agreement lacks clear legal protections for asylum- seekers in Albanian centers, with concerns about limited judicial recourse and language barriers

Italy Albania agreement – The costs

• Total Projected Cost: The Italian government estimated the agreement would cost around €650 million over five years
• Italy will cover expenses for deploying Italian law enforcement officers and legal personnel to manage and support operations.

*AIM-> *The government's new genius anti-migrant plan: Welcome back to Italy!

Externalisation, summarised

• More Than Just Border Control -> Externalization goes beyond logistics; it has far-reaching economic, ethical, and political implications
• Shift from Protection to Security -> Europe's focus is moving from humanitarian obligations to controlling who enters and stays

Control over Compassion – a hidden Agenda

• Externalization deals often focus on limiting migration rather than providing genuine protection for those fleeing danger
• Agreements like the UK-Rwanda deal are designed to deter future migrants, signalling that Europe’s doors are closing
• Containment policies crafted to keep the reality of migration struggles out of the public eye, reducing domestic pressures

A Colonial Legacy in Modern Policies

• Modern externalization reflects colonial-era practices of managing migration by sending people to distant locations.
• reflects racial and geopolitical biases
• Agreements with countries like Albania or Libya reveal continues to exert influence over regions seen as less powerful

Hidden Agreements and Risks

• Opaque Decision-Making: many externalization deals rely on informal agreements like Memorandums of Understanding (MoUs) that avoid public and parliamentary scrutiny.
• the lack of transparency raises concerns about compliance

Costly Policies, Empty Promises

• Billions of euros are funnelled into externalization projects, but evidence suggests these measures often don’t achieve long-term results

Political gain over People

• Externalization policies often serve political narratives, reinforcing the idea of “Fortress Europe” rather than addressing existing migration needs
• Right-wing and populist rhetoric push for tighter controls, appealing to fears of an “invasion” rather than focusing on real economic or humanitarian needs

Multi- faceted bordered penality in Italy

• Seen as lenient with low deportation enforcement.

Key Concepts

• Bordered Penality: Management of migrants through various control mechanisms, not necessarily deportation but punitive
• Continuum of Confinement: Multiple overlapping forms of detention
• Banoptical: A surveillance approach targeting specific groups (e.g., migrants) for exclusion and control.

Italy as Migration Gateway

• Frequently used as a political tool to gain electoral support
• Treating migration as a temporary crisis rather than a structural challenge (-> stricter border controls and heavier reliance on detention centres)

Migration Control Mechanisms

• Low Deportation Rates: 0.6% of undocumented migrants deported in 2022
• Confinement Beyond Deportation: Governance through continuous cycles of containment

Structure of Confinement in Italy

• Three-Tier Facility System:
  1. Pre-Removal Detention Centers (CPRs):Holding illegalized migrants pending deportation
  2. Hotspots:Screening centers with de facto detention conditions
  3. Emergency Reception Centres (CAS):Temporary accommodation for asylum seekers

Challenges

• Site-specific practices and inconsistencies
• Arbitrary categorization of migrants as “economic” vs. “asylum seekers”
  *Economic migrants àorder to leave àdeportation /release to the community
  *Asylum seekers àemergency reception centres (CAS) à accelerated procedure and detention in hotspots and CPR

Humanitarian control – containment oriented

• Consequences for Migrants:
  • Disempowerment: Limited autonomy and control over their circumstances.
  • Social Exclusion: Marginalized and precarious living conditions.
  • Differential Inclusion: Migrants included in the labor market under subordinate conditions.

Key Findings and Analysis

• Border Control Effectiveness:
  • Italian system does not prioritize deportation
  • Focuses on maintaining a controlled yet un- deportable migrant population
• Political leverage in domestic debates

Conclusions

• Italian Migration System’s Dual Nature
  • Simultaneously punitive and integrative

Eastern Europe – Adrift between the North ad the South

• The East is too rich to be a proper part of the South, but too poor to be a part of the North.

The East as analytical perspective

• Being part of the EU stratified the belonging

*How do these considerations about the East help us to conceptualize migration?
Citizens of Eastern EU countries face processes akin to those in the GS: Deportation practices disproportionately target citizens of post-2004 EU member

In-Between region Poland

• emigration country (more than million of Poles live abroad
• immigration country (1.5 million of Ukrainians only in January 2022
• transit country

Returns of Polish citizens

• Forced: deportation of EU nationals but also criminals and prisoners returned

Forced returns of Polish citizens – after return

• Many Poles resist deportation, as they no longer view Poland as home after years abroad.

Deporting borders

• All control instruments are in place: detention (and its alternatives), deportation/return policy, strict and unwelcoming asylum policy

*Violence
Racialised Practices creates a divide between the approach
Green border directed by Agniezska Holland
Ping-pong between Belarusian and Polish officials

INTERNATIONAL CROSSROAD

• TRANSIT and a DESTINATION country

OPEN DOOR POLICY & T.P.R

• Syrians were given immediate refuge, and all their biometric data were stored by the Turkish authorities.
• The program offered free healthcare services, and access to public schools.
  Syrians were always designated as “guests”, not refugees, limiting their legal rights

RISING XENOPHOBIA AND SOCIAL TENSIONS

• amplified by political campaigns and social media, has led to widespread discrimination and violence

CRIMINALISATION OF MIGRATION

• The 2016 EU-Turkey deal further escalated this trend, focusing on detaining irregular migrants and returning them to Turkey from Greece.

ERDOGAN’S ‘SAFE ZONE’ FOR SYRIANS

• The zone serves as a bargaining chip in negotiations with the European Union and other international actors, potentially securing financial and logistical support for Turkey’s efforts.

The ‘Safe Zone’ Problems

• There have been reports of forced displacements and human rights abuses within the proposed safe zone, raising ethical and legal issues.

HUMAN RIGHTS CONCERNS Forced Displacements

• reports indicate that some Syrians have been coerced or pressured into signing forms indicating their voluntary return.

LEGAL IMPUNITY AND VIOLENCE AGAINST MIGRANTS

• A troubling Turkish feature is the culture of IMPUNITY surrounding violence against migrants.

Kayseri 2024

• many syrians houses, businesses and cars were targeted.
• Thousands of Turks took to the streets demanding Erdogan to resign and send Syrians out of the country

What?

• Nationalism
• US agreements and funding.

EU-TURKEY DEAL AND MIGRATION CONTROL

• While intended to curb irregular migration, this policy led to overcrowded detention centres and increased deportations.

POST-EARTHQUAKE MIGRATION CHALLENGES

• The February 2023 earthquake strained refugee communities

Refugee Reception in Indonesia

*Geography matters

Key Concepts

• Humanitarianism without obligations
• Containment Strategy

Galang Island Camp (1979-1996)

• Symbolizing Indonesia’s humanitarian response

Transition Phase to detention (mid-1990 – early 2000)

• Shift from camps to detention centres centres

Australia set the scene (2004-2012)

• Pressure from Australia to make Indonesia a containment country, funded by Australia

Immigration detention centres (2012-

• Dramatic living conditions and violence

Alternatives to Detention (2011-)

*Emergence of ATDs in the early 2010s due to the insufficient capacity in the detention centres
Refugees would have to be detained then assigned to IOM

Autonomous Living and Urban Refugees (2013-)

*Legal and bureaucratic barriers limit access to healthcare, education, and employment.

The Rohingya Case in Aceh

• Local communities welcomed these refugees.

Current Issues and International Involvement

*Much of the funding for refugee management comes from international donors, such as Australia and the European Union

## Australia has a vested interest in Indonesia's containment policies

Key Takeaways

• Containment
• Humanitarianism
• International pressure

After reading: Mexico’s Air Deportation

*From 2001 to 2021, Mexican authorities expelled 2,588,009 migrants, 90% of whom were from Guatemala, Honduras, and El Salvador. (p.21)

US pressure

• National Guard
  *
  Nancy Hiemstra (2019) calls this process the “the elasticisation of the US southern border”
  However, this new approach to migration was not well received by the US administration
  Mexico has a human rhetoric about migrants
  AMLO’s administration is already marked by three major elements:
  *in the history of Mexico
  Covid excuse:The perfect excuse to increase the number of deportation was
  In the first month of 2020, in the context of the Migrant Caravans that arrived at the southern border of Mexico on 18 and 20 January.
  Grupo Aéreo Monterrey (Magnicharters)