Blog post by Dr Nikolas Feith Tan, a senior researcher at the Danish Institute for Human Rights. He is convenor of the core module ‘Protecting human rights, refugees and displaced persons in international law’ on the RLI’s MA in Refugee Protection and Forced Migration Studies and chair of the RLI’s Working Group on Externalisation.
In February 2018, Denmark’s Social Democrats proposed transferring all asylum seekers arriving on Danish territory to a third country outside Europe for the processing of their asylum claims and protection in the third country for those found to be refugees. Now the ruling party in government, the Social Democrats has released a proposed law in making such transfers legally possible under Denmark’s Aliens Act, set to go to parliament in late April.
The Danish proposal represents a fundamental shift from the status quo of territorial asylum, by which the state upon which an asylum seeker arrives assumes responsibility for assessing her asylum claim and providing protection. The Danish proposal builds upon a widely-recognised gap in international refugee law, by which the 1951 Refugee Convention neither ascribes a positive right to seek asylum nor sets out the conditions in which states can share responsibility for refugees.
Five years on from the EU-Turkey Statement, this contribution provides an overview of the legal and practical risks associated with extraterritorial asylum, with specific reference to the Danish proposal and drawing on lessons from US and Australian-led practice.
Proposals to externalise their asylum processes are not new. In fact, as early as 1986, Denmark put forward a draft United Nations General Assembly resolution for the establishment of ‘regional United Nations processing centres’. The concept has been raised repeatedly since the European migration and refugee crisis of 2015. Most notably, in March 2016 Greece began returning Syrian asylum seekers to Turkey on the basis of the safe third country concept under the EU-Turkey Statement.
Nevertheless, Denmark’s current effort is novel, reflecting an interest in emulating the EU-Turkey Statement as well as elements of the often-criticised policy approaches pursued by Australia in the Pacific and the United States in Guantanamo Bay, Cuba, and more recently, in Guatemala.
The Danish proposal
A government taskforce has been working on the legal and diplomatic aspects of the proposal since early 2020, with potential partners countries including Tunisia and Rwanda. While the immigration minister has referred to negotiations with a handful of countries, no concrete agreement is yet in place.
At EU level, the Danish proposal has so far been rejected. The New Pact on Asylum and Migration, released in September 2020, focuses on rapid border procedures rather than extraterritorial processing to make asylum and return processes more efficient. Nevertheless, there remains the possibility that ‘coalition of the willing’ of some European states will join Denmark’s proposal.
In February 2021, the government released its law proposal, which proposed to insert a new section into the Aliens Act. The proposal inserts a new section stating that a foreigner seeking asylum shall be transferred to a third country for asylum processing under an international agreement, unless it would be in breach of Denmark’s international obligations.
A number of legal and practical questions remain unanswered, briefly addressed below.
Who will be transferred?
It is clear from Denmark’s international law obligations that not every asylum seeker can be transferred to a third country. Among others, Denmark’s non-refoulement obligations (under both Article 3 ECHR and Article 33(1) Refugee Convention) proscribe the transfer of any person to a real risk of persecution or other serious harm. Moreover, Denmark’s obligations with respect to the right for family and private life under Article 8 ECHR and various obligations under the Convention on the Rights of the Child limit Denmark’s ability to transfer asylum seekers arriving.
The law proposal flags a number of likely exceptions, including seriously ill persons, asylum seekers with family residing in Denmark and nationals from the third state itself. These asylum seekers will go through Denmark’s national asylum process instead. However, a number of questions as to the scope of these exception rules remain. For example, will unaccompanied children be transferred to a third country with which they have no connection? Will families with children equally be transferred?
Who will be responsible for the asylum process?
According to a government legal note released in January, Denmark is considering two possible models. Under Model 1, Denmark will run and control over the centre in the third country. Under Model 2, the third country will assume responsibility for the operation of the centre.
Unfortunately, the law proposal does not specify which model is being pursued in practice. This matters because the legal and practical standards required vary depending on whether Denmark controls and runs the centre or whether the third country does so.
However, in both cases access to a functioning fair and efficient asylum procedure is of fundamental importance. Under Model 1, Danish authorities must provide a first and second instance asylum procedure that meets the standards of Article 3 and Article 13 ECHR, as well as providing reception conditions in line with the ECHR more generally. Under Model 2, the third country is expected to provide an asylum process that meets Denmark’s international obligations, including with respect to complementary protection.
At the Australian-run centres in both Nauru and Papua New Guinea, for example, there were no functioning asylum systems when people were transferred. As a result, the asylum seekers waited in detention for about two years before the first decisions were made. Under the Asylum Cooperative Agreement in 2019 and 2020, 939 asylum seekers were transferred to Guatemala for the purposes of asylum processing. Guatemala’s asylum system only had six employees and there have been no asylum decisions handed down yet.
Which protection is available in the third country?
Finally, it is important to think beyond the procedural questions arising in the fairly short time that an asylum process takes, to the equally important question of how refugees are afforded protection in the third country and to what degree Denmark has responsibility for that protection.
What is often lost beyond questions of non-refoulement, is the series of civil and socioeconomic rights set down in the Refugee Convention. If the Convention is designed to provide a maximal set of protections to refugees, then to transfer someone obliges a state to ensure that the full set of rights are, in fact, available.
Articles 2-34 of the Refugee Convention is structured in a such a way that rather than being given a universal set of rights upon arrival, the refugee gains or accrues rights as the connection to the asylum state grows over time.
I argue that at least the core rights contained in the Refugee Convention must be available in the third country. In particular, the right to education (article 22), right to work (article 17), access to housing (article 21), freedom of movement (article 26) and right to identity documents (article 28) are essential for the realisation of protection in any asylum state.
Previous extraterritorial asylum policies have not met these standards. In Papua New Guinea, for example, even once refugees were free from detention, many could not integrate in the host community because of religious tensions between the local community and the refugees. Similarly, hundreds of refugees have, in fact, ended up in Australia because of the need for medical care not available in Nauru and Papua New Guinea. Others have been resettled to Canada and Europe because of the lack of durable solutions in Nauru and Papua New Guinea.
A realistic vision?
Denmark is embarking on a risky vision to externalise both asylum processing and refugee protection to a third country. Whether it will materialise remains to be seen, but it is worth recalling the Refugee Convention’s raison d’etre of providing the greatest possible protection to refugees. For such extraterritorial approaches to work they must provide for real protection, not simply the absence of a fear of persecution.
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