Blog post by Nikolas Feith Tan, Elizabeth Mavropoulou, David Cantor and Mariana Gkliati*
Introduction
The possibility of transferring asylum seekers offshore after they have arrived in the UK is set to remain part of the 2021 Nationality and Borders Bill. The basis for that power is found in Clause 30 (previously Clause 28 in earlier incarnations) of the Bill. Specifically, this clause curtails the existing basis for asylum seekers to remain in the UK whilst their claims are determined and lowers the bar for the declaration of ‘safe third country’. It thus paves the way for the transfer of asylum seekers to either a British Overseas Territory or another third country.
As researchers on refugee protection law and policy, we are concerned about Clause 30 and its impact on asylum seekers, the UK asylum system and the international protection regime. In this short piece, we examine the content of Clause 30, locate the UK approach in respect of other forms of offshore asylum processing, highlight key human rights and refugee law questions concerning the approach and consider the prospects for implementing Clause 30 in practice.
Why was Clause 30 inserted into the Bill?
Section 77 of the Nationality, Immigration and Asylum Act 2002 prevents asylum seekers from being removed from the UK while their asylum claim is pending. However, whilst the UK was a member of the EU, the Dublin Regulations had already created an exception that allowed the removal of asylum seekers to safe third countries in the EU bloc if there was proof that the asylum seeker had previously entered one of those EU States. After the end of the Brexit Transitional Period, this exception no longer applies.
It is against this backdrop that Clause 30 and Schedule 4 of the 2021 Bill – as the Explanatory Notes to an earlier version of the Bill spell out (para. 311) – create the power for the UK government to remove an asylum seeker to a safe third country whilst their asylum claim is pending (without having to issue a certificate under Schedule 3 of the 20014 Asylum and Immigration Act). This ‘new’ power supports ‘the future object of enabling asylum claims to be processed outside the UK and in another country.’
The same Explanatory Notes (para. 313) affirm, though, that the UK remains committed to upholding its non-refoulement obligations under the 1951 Refugee Convention and the 1950 European Convention on Human Rights (ECHR). As a result, this would prevent the UK from sending (refouling) an asylum seeker to a country where they there is a real risk of persecution on Refugee Convention grounds or of torture, inhuman or degrading treatment or punishment contrary to Article 3 of the ECHR.
Locating Clause 30 in international practice
Clause 30 represents the latest attempt on the part of the UK to externalise some of its own asylum commitments. This externalisation of migration and asylum functions by States (and the EU) is not limited to the UK and forms part of a set of wider dynamics that has excited the concern of both practitioners and scholars across many parts of the world. Although the term ‘externalisation’ is rather vague, it clearly functions as an umbrella concept to refer to the efforts by some States (particularly those in the Global North) to try and externalise certain basic functions in the spheres of border control and asylum.
One particular form of externalisation involves attempts to send asylum seekers who are intercepted in, or en route to, a State’s territory away to some other country for ‘offshore processing’ of their asylum claims in that other territory. In 2003, the UK’s ‘New Vision for Refugees’ proposed the establishment of both ‘Regional Protection Areas’ and ‘Transit Processing Centres’. The proposal included processing of asylum seekers in transit states en route to the EU, with refugees to be resettled by a quota system within the EU, as well the post-arrival transfer after arrival in the EU. Potential cooperating states included Albania, Romania, Croatia, Russia, Turkey, Ukraine, Iran, Somalia and Morocco. The proposal received insufficient support at EU level and was subsequently abandoned
Intriguingly, as we noted in our introductory remarks, Clause 30 seems to envisage two potential forms of ‘offshore processing’ as options for the British government to pursue.
First, it seems that asylum seekers may be transferred to a British Overseas Territory, with Ascension Island (located 4,500 miles from the UK in the South Atlantic Sea) mooted as a possible processing site. Other British Overseas Territories reportedly considered include Saint Helena, Gibraltar and the Isle of Man. Such an approach would resonate with Australia’s use of Christmas Island to process and detain asylum-seekers. Christmas Island, an Australian external territory, has long been excised from Australia’s migration zone.
Second, Clause 30 envisages the potential transfer of asylum seekers in the UK to a third country for the purpose of asylum processing. This form of ‘third country processing’ is more squarely in line with the US’ use of Guantanamo Bay, Cuba, as a processing centre and Australia’s policy of forced transfer and detention of asylum-seekers in Nauru and Papua New Guinea in two iterations, from 2001-07 and 2012 to the present. Within Europe, this form of offshore processing is currently being pursued by Denmark, which passed legislation of its own in June 2021 providing for the transfer of asylum seekers to a third country outside Europe.
Indeed, while Albania and Ghana have outright rejected the possibility of receiving asylum seekers transferred from the UK, Rwanda has been recently linked to both Danish and UK third country processing plans. Nevertheless, we emphasise that thus far no country has agreed to go along with the UK offshore processing notion and this may well remain the case. Although this is not to say that some countries will not see political or economic advantage to be gained through negotiations with the UK over the possibility of hosting some kind of offshore processing facility for its unwanted asylum seekers, the prospects at present do not look hopeful for the UK.
Human rights and refugee law dimensions of offshore processing
It would be impossible within the confines of this short post to comprehensively outline the myriad human rights and refugee law concerns raised by the UK’s offshore processing proposal. Indeed, the range of legal constraints imposed by basic principles of international and domestic law is likely to make these kinds of offshore processing schemes all but unworkable in practice.
Nonetheless, even if we were to assume that these offshore processing schemes would be lawful in principle and feasible in reality, international law imposes a number of strict parameters that the UK would need to observe carefully when designing the offshoring arrangements and operating them in practice. For reasons of space, we confine ourselves to describing three key legal requirements that the UK would be required to satisfy:
First, the UK would have to establish a pre-transfer procedure to undertake individual assessment of each transfer in order to avoid the risk of direct or indirect refoulement or collective expulsion and to uphold other human rights law obligations (such as the best interests of the child and the right to family reunification). Ideally, this procedure would take place in UK territory and not, for example, on board a vessel or aircraft. It would need to include the right to promptly appeal a transfer decision to an independent decision-making body.
Second, any offshore asylum procedure would have to be fair and effective, and otherwise in line with the UK’s obligations under Article 3 ECHR. In principle, in the third country, the transferred individuals should be able to receive adequate information about the asylum procedure, access to a reliable system of communication between the asylum seeker and the authorities, effective access to interpreters and legal aid as required.
Third, where the UK’s offshore processing arrangements might extend to the provision of asylum or international protection by the receiving state in its territory, the UK would have to ensure ongoing protection against refoulement and standards of protection in line with Articles 2-34 of the Refugee Convention are in place in the receiving state.
Any offshore processing arrangement that did not comply with these rules would be highly likely to breach international law obligations on the UK government.
The future of UK asylum policy or a dead letter?
The stated policy purpose of the Clause 30 offshore processing proposal is ‘to manage the UK’s asylum intake and deter irregular migration and clandestine entry to the UK’. Against a deterrence objective, it is questionable whether such a move from the Home Office is merely a strategy of ‘negative nation branding’. Even if that is the case, it is still problematic to have such a policy codified into primary legislation. It is highly unlikely that such as policy will become the default approach in the UK asylum system.
Beyond finding a partner state or an overseas territory that is willing to enter into such an agreement and give effect to Clause 30, the government will have to justify the exorbitant costs to the taxpayer. Offshoring cost Australia A$1 billion per year to maintain the scheme while the first two years of establishing the facilities and outsourcing the management and operation of the centres exceeded the A$1 billion. During debate on the 2021 Bill, British NGOs working in the refugee sector used Australian figures to calculate that running this kind of off-shoring operation would cost the UK £1.44 billion per year.
Finally, if the scheme is operated anything like the Australian one, then considering the likely ensuing violations to the asylum seekers’ rights with respect to non-refoulement, liberty and security, physical and mental health and the general absence of relevant legal safeguards, it is likely that the UK government will face a series of legal challenges and litigation, both domestically and potentially before the European Court of Human Rights.
* The authors are convenors of the Refugee Law Initiative (RLI) Declaration on Externalisation, which will be launched at the RLI Annual Conference 29 June – 1 July 2022.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.
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