Visibility Diminished, Instability Prolonged: Trends Impeding Access to Protection

Migration policies sometimes have visible effects . The optics of border pushbacks and the ‘scene of exclusion’ receive support from anti-immigration political factions and criticism from civil society and the legal community. Conversely, the ‘scene of rescue’ at national borders provoke broad public attention and humanitarian compassion, while inciting outrage among those resistant to migration. This blog post explains how policymakers strike middle path between the contravening political pressures by using low-visibility policies to limit individuals’ access to protection. Policies that externalise asylum responsibilities and impair the effective adjudication of asylum applications avoid largescale public criticism. Their effect is to prolong the instability that people seeking protection face by failing to provide them with a durable solution.

Amidst the situations of individuals seeking protection at the European Union’s external borders with Belarus and fleeing Taliban-controlled Afghanistan, it is important to understand how the less visible policies enacted in the EU and United States obfuscate access to protection.

The Right to Seek Asylum

International law affirms the right to seek asylum, yet social constructions of individuals seeking protection as an ‘other’ predicates the implementation of policies aimed at avoiding this legal obligation. Regardless of their mode of transit or status, Article 14 of the Universal Declaration of Human Rights guarantees individuals’ right to cross national borders to seek asylum. Furthermore, Article 31 and 33 of the 1951 Convention and 1967 Protocol Relating to the Status of Refugees and Article 5 and 14 of the UNODC Protocol against the Smuggling of Migrants enshrine the principles of non-penalisation and non-refoulement. 

Despite this strong legal basis to seek international protection, the Asylum Capacity Support Group established by the United Nations Global Compact on Refugees identified “capacity gaps at many levels” that create “a large number of pending cases and protection gaps” as a key challenge to effective asylum support. Rather than addressing such underlying capacity gaps, well documented political efforts to constrain individuals’ ability to access asylum systems proliferate.

Some efforts that infringe on individuals’ ability to access asylum, such as border pushbacks, receive greater media and civil society attention. Even the more clandestine maritime pushbacks, used by the United States, the Australian government, and Greek authorities, garner attention due to the visibility of security personnel’s involvement. More bureaucratic visa restrictions and non-entrée regimes that significantly restrict refugees’ and other migrants’ global mobility also received increased media attention following the US Executive Order 13769. Public attention and pressure can exert larger influence than empirical evidence on politicians’ migration policy decisions, forcing policymakers to justify their decisions. This makes the visibility of migration policy essential in determining actors’ political solvency.

By lowering visibility and sidestepping clearly identifiable mechanisms such as visa regimes, policies that expand the role of third countries for majority-hosting countries’ migration management goals achieve a level of public acceptance and political durability that other containment strategies cannot. Externalising national borders and degrading the quality of asylum processing enables countries to avoid the legal responsibility for providing protection and stability.

Lower Visibility: the Externalisation of Asylum Responsibilities

The externalisation of border management primarily occurs through partnership agreements, capacity building support, and targeted funding. Despite significant evidence showing both that the majority of individuals seeking protection do so in neighboring countries and that countries in the Global South support the gross majority of asylum applicants, EU and US political priorities still rely on the unfounded belief that they are the sole destinations of ‘irregular’ migration. This misperception results in the expansion of the aforementioned policies that camouflage the ‘scene of exclusion’, invisibilising the prolonged instability that individuals’ lack of access to durable solutions creates.

EU agreements facilitated through the Migration Partnership Framework, which aimed at “stemming the flows” of irregular migration, seek to facilitate quick results while avoiding the ‘scene of exclusion’. Partnerships reached by the EU Member States with Libya in 2017 and Morocco in 2013, 2016, and 2018 all seek to evade legal responsibility for processing asylum applications by expanding these neighboring countries’ migration management capabilities. These policies are set to expand through new “Anti-Smuggling Operational Partnerships” envisioned by the Renewed EU Action Plan Against Migrant Smuggling. New EU draft migration partnership partnerships are currently underway with Niger, Nigeria, and Iraq.

The presence of European staff working on migration beyond the EU’s borders expanded rapidly in recently years. The opening of five new Frontex Liaison Offices (FLOs) and the establishment of EU Common Security and Defence Policy missions support third countries’ role in preventing ‘irregular’ migrants seeking protection from reaching the EU, without adequately addressing some of these individuals’ legal right to claim asylum. Development funding also disguises EU migration management priorities, reducing their visibility, with funding from the EU Emergency Trust Fund for Africa used to enhance border management, and with approximately €8 billion from the NDICI financial envelope designated to finance migration-related action in third countries.

The United States similarly signed new Asylum Cooperative Agreements, also known as ‘Safe Third Country Agreements’ (STCAs), in 2019 with Guatemala, Honduras, and El Salvador. These agreements facilitate the return of any individuals applying for asylum in the United States who first traveled through any of these countries. Each of these agreements was accompanied by a Border Security Agreement signed the same year, facilitating US support for “security activities that make it possible to address irregular migration”. Finally, the individual USAID Country Development Cooperation Strategies for 2021-2025 for Guatemala, Honduras, and El Salvador all list using American funding to expand these countries’ capacity to “reduce irregular migration” among their Development Objectives.

Lower Visibility: the Degradation of Asylum Processing

When individuals reach where they intend to claim asylum, new policies undermine the ‘scene of rescue’ by eroding the quality of asylum processing and expediting removal. The simplification of asylum processing symbolically fulfills legal obligations while also making asylum less accessible.

In the EU’s New Pact on Migration and Asylum, the amended Asylum Procedures Regulation (APR) proposal aims to expedite asylum application processing at the EU’s external borders. It would establish a pre-entry screening phase for “fast channelling” asylum processing and implement an Accelerated Examination Procedure for individuals from countries with a lower than 20% average asylum acceptance rate. Similar procedures already exist in the Spanish enclaves of Ceuta and Melilla, involving the ‘immediate return’ of individuals deemed ineligible. These strategies of accelerated processing attempt to publicly display ‘due process’, yet risk violating individuals’ fundamental rights. New legislation introduced in Poland and Lithuania in reaction to the situation on their borders with Belarus create the precedent for collective expulsions and risk violating the principle of non-refoulement.

Similar procedural hurdles in the United States impede access to full asylum processing. Individuals that reach US territory after passing through a country with which the United States has a STCA are subject to ‘Expedited Removal’ procedures that are further accelerated by the suspension of asylum officers’ requirement to conduct a ‘credible fear interview’. During the pandemic, the processing of individuals’ asylum claims was further curtailed by the use of US Code Title 42 §265, which allows the removal of individuals without having their asylum claim heard in order “to prevent spread of communicable diseases”. Despite legal challenges to this practice, a preliminary injunction issued in September allows such removals to continue.

The Invention of ‘Buffer Countries’

Finally, these two trends of externalising migration management and reducing the rigour of asylum processing culminate in the policies that establish asylum ‘buffer countries’, avoiding both the ‘scene of exclusion’ and the ‘scene of rescue’.

The 2016 EU-Turkey Statement took early steps to create such a ‘buffer’ by returning individuals crossing into the EU irregularly in exchange for resettling refugees from Turkey to the EU. Recently, amendments passed by the Danish Parliament that would allow the transfer of all asylum claimants arriving in Denmark to third countries for processing, potentially including Tunisia and Rwanda, continue this trend.

During its chaotic withdrawal from Afghanistan, the United States created such ‘buffer countries’ where Afghan refugees remain in limbo, waiting for their American visas to process. Following requests from the US, Albania, Kosovo, Uganda, Rwanda, Sudan, and Somaliland all offered to host individuals during their applications process. The duration of these applicants’ stays were originally anticipated to last months, but now some predict they will last more than a year, further delaying a stable solution. This ‘buffer’ policy occurred previously with the US Migrant Protection Protocols (MPP), which empowered the DHS to require that individuals applying for asylum wait in Mexico while their application processed. Despite an October 29th DHS Memorandum Terminating the MPP, they will remain in effect until a final judicial decision overturns the injunction requiring its implementation, with an application for stay of the MPP denied by the US Supreme Court. This policy simultaneously externalises responsibility for individuals’ wellbeing to Mexico while also impairing due process protections, prolonging individuals’ instability as they wait. Implementation of the MPP resumed recently on December 6th.

Conclusion

These broad policy trends prompted to the UNHCR to state that efforts to externalise asylum management are “…inconsistent with global solidarity and responsibility sharing” and to specify that “imposing a blanket measure to preclude the admission of refugees or asylum-seekers without measures to protect against refoulement would not meet international standards, even in times of emergency”. Thus, when advocating for more effective global protection systems, we must expand our focus beyond border pushbacks and deportations to also include these more recent low-visibility trends that prolong individuals’ instability.

The European Commission defines ‘durable solutions’ as occurring when the situations that individuals face are “satisfactorily and permanently resolved”. The low-visibility policies of the EU and US discussed herein accomplish neither of these aims. The degradation of asylum processing limits applicants’ access to justice and prevents ‘satisfactory’ solutions. The externalisation of migration management duties to third countries not only fails to provide individuals with a ‘permanent’ solution, but also enables the use of migration policy for political purposes, as illustrated by the case of Belarus. True ‘durable solutions’ demand that policymakers address the inaccessibility of regular migration pathways and asylum systems, rather than employing low-visibility policies to sweep the issue under the rug.

Andrew Fallone is a student at the European University Institute’s School of Transnational Governance. This blogpost is part of our forum on the transnational governance of migration. The views and opinions expressed in these posts are the author’s own.