Moving asylum and migration policies to the third countries—the so-called externalisation—is gaining increasing support amongst EU governments. But Europe’s human rights watchdog cautions it could test the very foundation of the EU’s legal order.
Michael O’Flaherty, the Council of Europe (CoE) Commissioner for Human Rights, delivered a clear and cautionary message: the externalisation of asylum and migration policies, increasingly presented as an ‘innovative solution’, is neither new nor free of serious human rights risks.
If anything, past experiences suggest that these strategies carry structural dangers that Europe cannot afford to ignore, he said before the European Parliament’s Subcommittee on Human Rights (DROI).
Not much innovation
Migration, the commissioner reminded Members of Parliament, is as old as humanity itself. “People continue to migrate primarily by regular means, to seek asylum typically in their region of origin, and to return voluntarily when they no longer have a right to stay,” Mr O’Flaherty explained. Countries within the EU ultimately consider only a small percentage of migrants for return (4.5 per cent per annum).
Yet political narratives continue to emphasise deterrence and ‘tough’ responses, creating the impression that exceptional measures are not only justified but necessary. It is within this climate that externalisation policies have gained renewed traction.
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People continue to migrate primarily by regular means. And to return voluntarily when they no longer have a right to stay. — Michael O’Flaherty, Commissioner for Human Rights, CoE
The CoE commissioner examined three principal forms of externalisation: asylum procedures conducted outside EU territory, return procedures relocated to third countries, and the outsourcing of border management.
From Nauru to Guantánamo
Far from being innovative, these approaches mirror earlier experiments implemented by countries such as Australia with offshore processing in Nauru and Papua New Guinea, by the United States in Guantánamo-related contexts, and by Israel through arrangements with Rwanda. The historical record, as he noted, shows documented human rights violations rather than successful protection models.
“I recommend that states should explicitly adopt a precautionary approach. In other words, embed attention to human rights from the very outset,” Mr O’Flaherty said at the parliamentary hearing.
Externalised asylum procedures raise particularly acute concerns. In some proposals, asylum seekers are transferred to a third country where that country conducts the procedure. In others, the externalising state continues to handle claims but does so on foreign soil. Both models carry significant risks.
Fundamental guarantees in jeaopardy
According to UNHCR guidance, alternatives to territorial asylum should remain exceptional and must not result in responsibility-shifting or weakened safeguards. Even where the externalising state retains procedural control, guaranteeing effective access to judicial remedies and oversight outside national territory presents profound practical and legal challenges. Rights that exist in principle may prove extremely difficult to enforce in practice.
The concept of externalised return procedures, including the so-called return hubs, presents a different but equally troubling set of issues. If individuals are transferred to a third country pending removal, the sending state must carefully assess the human rights environment in that country. Failure to do so may expose individuals to ill-treatment, arbitrary detention, or degrading living conditions.
Moreover, as Mr O’Flaherty warned, there is a real risk that people could become stranded in situations of prolonged uncertainty, without clarity about their future or effective access to remedies. In such circumstances, the prohibition of refoulement and other fundamental guarantees may be placed in jeopardy.
