This article was originally published in French
Europe’s plan to outsource asylum applications to stem the influx of migrants is facing major legal hurdles.
According to the Federal Office for Migration and Refugees, 204,000 asylum applications were filed in Germany in the first half of 2023.
Some European countries are considering outsourcing asylum applications to third countries to deal with migration pressure.
Susan Fratzke, an expert at the Migration Policy Institute, told Euronews that the idea is taking hold in mainland Europe: “European countries are increasingly interested in the possibility of processing asylum applications outside the EU’s borders”. Denmark, Italy, Germany and Austria are considering this solution to slow the influx of migrants.
According to Tania Racho, a researcher at the University of Paris-Saclay and member of Desinfaux Migration, asylum is a “burden” that governments are trying to relieve.
“European governments see this policy as facilitating the return of people who do not need protection. Their applications are rejected: they are deported from the third country and they never enter the EU. Don’t”, said Fratzke.
Italy reached an agreement with Albania on 6 November under which migrants rescued at sea will be transferred while they wait for their asylum applications to be processed.
Philippe de Brucker, professor of asylum and immigration law at the Université Libre de Brussels, said it was “a political gesture on the part of the European Union.” [premier] Meloni will show her voters that she is taking action on the immigration issue. In De Bruycker’s view, the cost of their transfer could be high, “since a camp in Albania would have to be built, managed, staffed and, of course, housed on the spot for the asylum seekers at Italy’s expense. Legal aid was arranged”.
Risk of differential treatment
Although it does not apply to minors, pregnant women and other vulnerable people, the project has brought many other issues into the spotlight.
“The Memorandum of Understanding creates an ad hoc extra-territorial asylum system, which is characterized by a number of legal ambiguities”, said Council of Europe Commissioner for Human Rights Dunja Mijatovic. “In the absence of legal certainty, essential human rights guarantees and the obligation to answer for violations cannot be respected,” he said.
Carmine Conte, legal expert at Migration Policy Group, confirmed, “There is a danger of differential treatment between asylum applications examined in Italy and asylum applications examined in Albania”, because “Albania is not obliged to follow European asylum law”. , he continued. ,
Does European law apply?
The agreement provides for the construction of two centers in the ports of Shengjin and Gazader, which could create problems in terms of compliance with international and European law.
“European law does not allow for the automatic detention of all asylum seekers and requires an individual examination in each case. Therefore, detention should not be the first response”, De Bruycker explained.
Another problem raised by legal experts was the violation of the fundamental ‘non-refoulement’ principle enshrined in the Geneva Conventions. It prohibits sending asylum seekers back to a country where they are at potential risk of persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion.
“If people present themselves as asylum seekers to Italian authorities and are then forcibly displaced, that is retaliation,” Racho said.
However, a preliminary legal assessment by the European Commission indicates that European law is not applicable outside the EU territory.
But this agreement also raises ethical questions.
“This normalizes the externalization of member states’ responsibilities,” said Ivana Belen Ruiz Estramil, a researcher at the University of Coimbra.
So far, no Member State has successfully deported asylum seekers from the EU to a third country.
On Wednesday, Britain’s Supreme Court struck down the government’s plan to send asylum seekers to Rwanda.
It ruled that the planned partnership with Rwanda was illegal. Britain’s top court said asylum seekers face a “real risk of ill-treatment” and could be returned by Rwanda to their home countries they fled.
“If Britain, which is no longer in the EU, couldn’t do it, I would be surprised if Italy could do it,” Racho said. Many questions remain unanswered regarding the feasibility of such a project.