By Jeff Crisp
The international refugee regime is under unprecedented pressure, prompting an increasingly urgent search for new responses to the plight of people who are displaced by persecution and armed conflict. This blog takes the form of a review essay that examines this quest, focusing primarily on the notion of ‘transnational asylum’, a concept coined by refugee law specialist Nik Tan in a recently published book.
A regime at risk
We have reached a critical point in the history of refugee law and protection. In September 2025, President Trump of the US addressed the UN General Assembly, delivering a blistering attack on asylum, migration and the United Nations itself. In the weeks that followed, his administration made further announcements, making it clear that the US government intended to dismantle the 1951 UN Refugee Convention and curtail the role of UNHCR.
By the end of the year, a new UN High Commissioner for Refugees, Barham Salhi of Iraq, had been selected. A daunting job at the best of times, it is now perhaps an impossible one. With its funding seriously cut, UNHCR is currently operating with a $300 million deficit. A merger with IOM is being seriously considered by the UN Secretary-General. And numerous member states of the organization’s own Executive Committee – Ethiopia, Iran, Israel, Pakistan, Russia and the US, for example – are pursuing policies that have both the intention and effect of displacing millions of people.
At the same time, the European Union has introduced a Pact on Migration and Asylum that will curtail the rights of refugees and arriving from other parts of the world, an initiative that has induced the cash-strapped UNHCR to support problematic externalization initiatives such as ‘return hubs’ and ‘whole of route approaches’.
We do not know what (if any) compromises Mr. Salhi has had to make with the UN’s most powerful member states as a condition for his appointment. And even if the new High Commissioner chooses to fight on behalf of the Refugee Convention and the institution of asylum, he might well find that the intellectual and policy environment in which he is obliged to operate has irrevocably changed for the worse.
In recent months, for example, the influential and US-based Migration Policy Institute has published a number of reports that question the continued relevance of ‘territorial asylum’, a principle that recognizes the right of persecuted people to leave their own country, to travel to another state by whatever means possible and to submit an asylum application once they have arrived there.
According to one MPI report, the Refugee Convention “is creaking under the weight of today’s realities. Mass displacement driven by economic collapse, conflict, gang violence and climate change has taxed humanitarian systems. Meanwhile, asylum systems have become an outlet for the mobility pressures created by demographic change and economic inequality, making it hard to distinguish the deserving from the chancers. And potential asylum seekers often journey through multiple countries on their way to a final destination.”
In another report, ominously titled ‘The end of asylum?’ MPI says that “there is now a need to reorient the international protection system away from territorial asylum” and to replace it with “the use of safe and orderly means of entry to seek protection. “To be effective, MPI acknowledges, such a reoriented system would have to “disincentivize irregular arrivals at borders” by “restricting access to asylum at the border for individuals who have had a valid opportunity to apply for asylum en route.”
While MPI has traditionally been regarded as a friend of refugee protection, it is difficult to avoid the impression that the Trump administration and many European states would see a good deal of merit in the strategy that the think-tank is now proposing as a means of addressing the asylum issue.
Innovative concept
A more constructive approach is to be found in a new book by Nikolas Tan, Transnational Asylum: Toward a Principled Framework. It is in many respects a courageous publication, challenging the position taken by more conservative lawyers and advocates, namely that the Refugee Convention and the notion of territorial asylum are still fit for purpose, and that any attempt to replace or revise them would hasten the demise of the international refugee regime. To the contrary, he suggests, refugee protection might best be secured by means of a shift from territorial to transnational asylum, an innovative concept that he defines as “the internationally lawful provision of asylum processing or international protection by two or more states.”
More specifically, Tan elaborates upon the principal ways in which this notion might be operationalized: first, pre-entry processing undertaken by the authorities of a destination country or regional entity in a partner state; second, third country processing arrangements that involve the transfer of an asylum seeker from the territory of a destination state to a partner state for the purpose of processing their asylum claim; and finally, third country protection, involving the transfer of a refugee from a destination state to a partner state where they would be granted asylum and the opportunity of local integration.
There is a great deal to admire in Tan’s work. The book provides an insightful account of previous attempts to reconceptualize the global asylum system. It deftly combines empirical, conceptual and legal analysis, and does so in a manner that is accessible, clearly structured and meticulously referenced. And it takes up a challenge posed by the author of this blog at a 2019 workshop held in Melbourne, where Tan is now based: are there any elements of the externalization process that could be implemented in a positive way, and which, instead of functioning in an exclusionary manner, provide refugees with effective protection and lasting solutions?
Tan’s answer to that question is a qualified ‘yes’. Transnational asylum, he says in an opening statement, “has the potential, if implemented in good faith, to form the building blocks of a protection framework based on genuine international cooperation with full respect for binding obligations of international human rights and refugee law.” The remaining chapters of the book seek to substantiate this assertion, and, in doing so, they raise a number of questions that are worthy of further consideration.
Constraints and limitations
First, can we conclude that the practice of territorial asylum is no longer sustainable, or have the well-known difficulties associated with it been exaggerated by actors that are hostile to the notions of asylum and refugee protection? Didn’t Europe’s response to the Ukrainian refugee emergency (and even Bangladesh’s much more restrictive response to the Rohingya influx from Myanmar) demonstrate that established approaches to large-scale cross-border movements of people can still be made to work? Rather than moving away from the notion of territorial asylum, as suggested by MPI, could steps not be taken to ensure that it functions in a more effective, equitable and consistent manner?
Even if the notion of transnational asylum can be made to work on a pilot basis, will it be possible for this approach to be scaled up to any significant degree? As with proposals for the establishment of ‘complementary pathways’ and ‘safe routes’ (e.g. family reunion, labour mobility, educational scholarship and humanitarian corridor arrangements), the number of refugees involved is likely to be modest, leaving many to rely on territorial asylum as the only means of seeking safety.
Second, and as indicated already, Tan wisely argues that if the notion of transnational asylum is to be implemented, it must be done so in good faith, in accordance with international law and on the basis of true cooperation between states. The big question is whether such standards can be reached in the current international environment, which is characterized by a growing degree of unilateralism and a diminishing commitment to a rules-based international order.
Will the Trump administration, for example, have any interest in genuine international cooperation in relation to asylum and migration, at a time when it is advancing an America First agenda and entering into transactional deals such as the deportation and detention agreements that it has induced many Global South countries to sign? Given the readiness of the world’s most prosperous states to expel asylum seekers to countries with which they have no prior connection (the aborted UK-Rwanda pact being a case in point), what hope is there for the principled and rights-based approach set out so carefully in Transnational Asylum?
Third, it would be interesting to learn more about UNHCR’s reaction to and potential role in the implementation of the transnational asylum approach. In the blurb she has written for the book, the head of UNHCR’s Protection Policy Unit says that it “provides important new insights and ideas around how states can work more effectively together, in ways which uphold and recognize the enduring relevance and applicability of the 1951 Convention.” But that statement falls short of an explicit commitment to UNHCR’s operational involvement in the three forms of transnational asylum presented in Tan’s work.
More generally, and based on his recent experience of working as a consultant with the organization, it would be fascinating to know Tan’s views with respect to UNHCR’s future. Does it still regard the Global Compact on Refugees as the “minor miracle” that it was once declared to be? Why, as Tan points out, were fundamental principles such as the right to seek asylum not included in the Compact? And will the organization (especially if it is merged with IOM) be obliged to cooperate with the unprincipled and exclusionary forms of externalization rightly criticized in his book? In that respect, a disturbing precedent has been set by IOM’s willingness to be an active participant in the US government’s programmes of ‘self-deportation’ and third country expulsions.
Finally, and as Tan acknowledges in his study, the recent discourse on asylum policy has been dominated by states and other actors in the Global North. But what about other stakeholders, especially refugee-hosting states in the Global South? What is their perspective on the notion of transnational asylum, and what incentives do they have to cooperate with its implementation in a way that is consistent with the standards demanded by Tan? Will they not feel that they have more to gain by responding to the sticks and carrots yielded by Global North states that are eager to establish externalization deals that violate the rights of refugees and asylum seekers?
Taking the discourse on transnational asylum forward, there is a particular need to solicit the view of refugees and refugee-led organizations with respect to this approach to protection. From a practical and ethical rather than a legal perspective, the author of this blog has always thought that proposals for a reformulation of the global asylum system, even if formulated with the best of intentions, will encounter difficulties if they oblige refugees to go to places where they do not want to go and prevent them from moving to their preferred destination. While “genuine cooperation between states” can strengthen the principle and practice of asylum, any arrangements made to provide refugees with protection and solutions will also require their consent.
Dr. Jeff Crisp is a Research Fellow at the Refugee Studies Centre, Oxford, an RLI Affiliate, and former Head of Policy Development and Evaluation at UNHCR. This blog is a revised version of a presentation given to the RLI Working Group on Externalization.
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