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 the days after the Taliban took over Kabul, tens of thousands of people tried to escape Afghanistan through emergency airlift evacuations. Many sought passage to the United States (US), having been associated with the American presence in the country. Between the fall of the Afghan government on 15 August and the end of the US withdrawal on 31 August, tens of thousands of Afghans were able to flee the country among the nearly 130,000 people evacuated on US aircraft.
However, not all of the Afghans landed on US soil. Instead, a range of other countries, with various levels of experience hosting refugees and some with no ties to the conflict in Afghanistan, announced that they would temporarily host evacuated Afghans on behalf of the US. As reported by the US State Department, this list now includes Albania, Bahrain, Canada, Colombia, Costa Rica, Chile, Ecuador, Guyana, India, Kuwait, Mexico, Netherlands, North Macedonia, Poland, Portugal, Qatar, Rwanda, Singapore, Uganda, and the United Arab Emirates. In addition, thousands of other Afghans transited or are still in one of the US military bases in the Middle East or in Europe. Altogether, these agreements represent an novel form of international cooperation: the provision of temporary protection in third states at US request, in the context of the largest emergency evacuation since the Kosovo crisis.
While the Biden administration has not made explicit why it asked third countries to provide temporary refuge to evacuees, three main factors can explain this decision. First, these deals have bought the US government some time to run security screenings in these countries, before moving evacuees to US soil. While a number of the evacuated Afghans already applied for the Special Immigrant Visa (SIV) or Priority 2 (P-2) programs,[1] the Biden administration initially needed more time to decide on the legal channels for all those who have not completed their application, as well as the at-risk Afghans who are not SIV or P-2 applicants. Lastly, some analysts have pointed that these arrangements with third countries were partly driven by political concerns, with the Administration worried about a public backlash if tens of thousands of Afghans landed on US soil simultaneously and without a thorough security vetting.
This post sets out what we know about the situation of the Afghans who were evacuated to a third country (outside of a US military base), specifically looking at what living conditions, protection, and legal pathways to the US the evacuees have access to. The post finally discuss whether these agreements between the US and third countries should be understood as a form of responsibility sharing or externalisation of international protection.
Temporary hosts
So far, the group of states that have offered temporary protection to evacuated Afghans announced pledges ranging from 450 in Northern Macedonia, 2,000 in Uganda and 5,000 evacuees in Ecuador. But while governments have publicised these targets, there is limited information as to how many Afghans each country has received so far, and how many more people, including family members of evacuees, could be evacuated in the future.
The nature of the agreements between the US and third countries has also been informal so far, mainly publicised through government press releases or media coverage. There are presently no signs of more detailed arrangements, suggesting they were negotiated hastily, with operational details being worked out after public announcement.
At operational level, reception conditions for Afghans upon arrival vary from country to country, with evacuees being hosted in reception centres or ad hoc accommodation, including student housing and hotels. In Albania, for instance, the reception capacity for asylum seekers is limited overall but the government decided to open a separate mechanism to host the rescued Afghans.
The budget and funding for these arrangements are yet to be made public, but the US government is presumably bearing the costs of reception and processing. However, in high-income countries like Canada or where the government is directly coordinating the operation, it remains unclear which state bears the costs for these arrangements.
Finally, and critically, the duration of the arrangements remains unclear. The agreements for the purpose of transit through US military bases made clear that Afghan evacuees should not spend over 10 days in the third countries, including the United Arab Emirates or Germany. In contrast, the information available on the temporary hosting arrangements with third countries shows that these governments have not set a time limit, simply calling it a temporary mechanism. The Albanian government, for example, already shared that it expected the evacuees to stay for at least one year.
Unanswered questions and emerging answers
The procedure for Afghans in these third countries is yet to be clearly outlined, starting with the question of who was (and could be) sent there in the first place. Due to the chaotic situation at Kabul airport before 31 August, it is possible that evacuated Afghans were sent to US bases abroad or third countries more-or-less at random. But it is also likely that people who had already launched a SIV or P-2 application were sent to US military bases to be processed more quickly. Some anecdotal evidence also suggests that the distribution may be based on the occupation of the evacuees in Afghanistan. For instance, the North Macedonian government reported they would host people who previously worked with US-led international forces while the Albanian Prime Minister said they were focusing on Afghans who previously worked for the North Atlantic Treaty Organization.
Second, it remains to be seen what status Afghans will enjoy in these third countries, and the implications for their rights, including reception conditions and freedom of movement. Albania, for instance, reported that it would grant evacuees temporary protection status, Kosovo announced they would get a one-year residence permit and North Macedonia provided them with a three-month visa.
Third, there is limited information as to what will happen to evacuees after screenings in these third countries and how this procedure differs in nature and duration from a screening in the US or at a US military base abroad. It remains unclear, for example, how many of the evacuees in these third countries could benefit from the humanitarian parole scheme announced for 50,000 Afghans on 23 August, that allows access to the US on a temporary humanitarian residence permit. Other legal pathways to the US could be offered to these groups, but it remains to be seen what they would be and how long it would take for these options to materialize.
The third country agreements seem to leave open the possibility that some Afghans could be granted a form of local integration in the host state as refugees or beneficiaries of other forms of international protection. While there has been little indication of such development in the third countries so far, 90 Afghans staying in a US base in Germany have applied for asylum there in the past week.
Ultimately, one of the most pressing questions is what will happen to those evacuees who are ‘screened out’ by the US. The government insists that Afghans who do not pass the security vetting will not be allowed into the US, or may be deported if security concerns arise after their arrival on US soil. However, officials have not specified where these people will be sent.
Of course, the US and third states are bound by the principle of non-refoulement, which prohibits the return of any person to a real risk of torture or other ill treatment at the hands of the Taliban. Some Afghans in third states may receive offers of local integration or an alternative resettlement country, though where they are rejected by the US on security grounds, it is difficult to imagine that any other country would want to assume this responsibility.
Responsibility sharing or externalisation?
The rapid emergence of these temporary protection agreements could be a sign of a new responsibility sharing mechanism for refugees, but it could also constitute another form of externalisation designed to prevent Afghan refugees from accessing US territory and protection. Given that these arrangements grew out of an emergency situation and were primarily agreed upon broad principles, their operationalization in the next few weeks should provide a definitive answer to this question.
Responsibility sharing, on the one hand, is a principle of international refugee law emerging from the preamble to the 1951 Refugee Convention, which provides in part:
the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation
The principle does not form part of the substantive obligations of the Convention, though a UNHCR expert roundtable on the principle recommends that cooperation must ‘enhance refugee protection and prospects for durable solutions’ and ‘must be in line with international refugee and human rights law’. The Global Compact on Refugees, a non-binding agreement passed by the United Nations General Assembly in 2018, has ‘more equitable sharing of the burden and responsibility for hosting and supporting the world’s refugees’ as its primary objective.
Thus, one reading of the third country arrangements for Afghan refugees is as a new form of responsibility sharing, with a varied range of states, often with no prior links to Afghanistan, stepping up to host evacuees as a sign of international solidarity. This might neatly fit into what Durieux labels the ‘rescue paradigm’ as the provision of a safe haven by a collective of states. Many of these countries are from the Global South, with some like Colombia and Uganda already hosting very large refugee populations despite widely underfunded humanitarian and development responses. But even though these arrangements were born to a sense of global responsibility, it remains to be seen how the US will have to show its appreciation and payback.
On the other hand, externalisation describes migration control policies carried out by high-income states outside their borders. Crisp previously defined externalisation as ‘measures taken by states in locations beyond their territorial borders to obstruct, deter or otherwise avert the arrival of refugees.’ UNHCR recently referred to ‘measures preventing asylum-seekers from entering safe territory and claiming international protection, or transfers of asylum-seekers and refugees to other countries without sufficient safeguards.’ While the term ‘externalisation’ does not appear in international refugee law, it has developed into an umbrella concept encompassing migration control measures intended to deter asylum seekers and refugees either extraterritorially or with extraterritorial effects.
Another reading of these arrangements could then place them alongside existing externalisation efforts. Thus, rather than providing evacuees admission into its territory, the US government is using its diplomatic clout to delegate responsibility for Afghans to partner states. This is likely to raise serious challenges as without guarantees that evacuated Afghans will receive protection in the US, they could enter a form of legal limbo, with no status in the third country nor the US, and no possibility to return home.
Conclusions
It is too early to say whether the current US-led temporary protection arrangements for Afghan evacuees in third countries should be considered responsibility sharing, externalisation or even a third policy approach. What is clear is that the US government is still figuring out how these arrangements will be implemented. Ultimately, they will be assessed based on their impact on the rights of Afghans in need of protection, including their reception conditions and freedom of movement in third countries, the duration of their temporary hosting, the scale of admission to the US, and the provision of solutions for those who are not granted passage to the US.
Many thanks to Camille Le Coz for her invaluable help in drafting this piece.
[1] The SIV program grants those who worked with the American government of the International Security Assistance Force (ISAF) or a successor mission in Afghanistan legal status in the US. On August 2, the US government also announced a broader category, the Priority-2 refugee status, opened to a broader category of applicants such as Afghans who do not qualify for SIV but still worked for the US government or ISAF, Afghans who worked for a US-funded program, and Afghans who were employed by a US-based media organization or non-governmental organization.
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