Externalizing Asylum: Evading Obligations

Externalizing Asylum: Evading Obligations

BAJI is proud to introduce its Externalizing Asylum Report Series. In this upcoming series, we call out the specific policies used by top host countries to circumvent obligations under international law. Each report will highlight the harm caused by exporting asylum and the disproportionate impact on Black migrants.

Over the past decade, the number of forcibly displaced Black migrants has more than tripled, creating a substantial need for humanitarian protections around the world ¹. Nearly 1 in 3 forcibly displaced persons are from majority Black countries, a share that is projected to continue increasing over time ². Rather than upholding international laws relating to migrant protections, top host countries such as the United States, members of the European Union, the United Kingdom, and Australia, have all implemented evasive policies to circumvent their legal obligations. From mass expulsions to restrictive barriers to entry, host countries are pushing their restrictive policies beyond their borders and endangering the livelihoods of countless migrants. Black migrants are not only disproportionately targeted by such policies, but they are also subjected to systematic racism that limits their access to employment, social services, and legal representation while trapped in transit countries³. 

The implementation of inhumane border controls allows host countries to cheat their asylum obligations. Externalizing asylum is the practice of a country imposing restrictive migration policies beyond its borders to evade its legal obligation to provide protection to asylum seekers. Migrants are either prevented from entering a country’s legal jurisdiction or deemed legally inadmissible without an assessment of their asylum claim ⁴. Externalization is implemented through bilateral and multilateral agreements with third-party or transit states and requires the adoption of restrictive policies that criminalize migration and violate the freedom of movement. While host countries are coercive, third-party or transit states are making a choice to join these agreements. There are a number of reasons why countries may push for or feel pressured to limit the free movement of asylum seekers, including economic or political pressure, domestic attitudes, xenophobia, elevated status, or receiving incentives from host countries. For Black migrants, externalizing asylum is exceptionally harmful. Institutionalized racism is a global problem that pervades many of the policies and systems navigated by vulnerable asylum-seekers. Through their journey, Black migrants are not only barred from accessing social services, they are also disproportionately exposed to xenophobia, corruption, and violence because of their race ⁵.

Despite a rise in host countries evading their responsibilities, the number of migrants seeking asylum continues to increase. Border controls do not deter migrants seeking safety abroad, but only exacerbate the dangerous conditions faced while in transit. The OHCHR warns that restrictive policies result in precarious situations for migrants by making borders more difficult to cross safely⁶. This also creates greater danger for migrants with little financial means because they are less able to pay corrupt officials and human traffickers⁷. Exporting border controls blocks migrants from gaining entry both irregularly and legally. Host countries violate the principle of non-refoulment by neglecting their obligation to assess asylum claims. Large-scale deportations return migrants to countries where they are at risk of persecution. Increases in migrant apprehensions and the proliferation of migrant detention centers are also measures that violate core human rights principles. The 1951 Refugee Convention specifically forbids imposing penalties on migrants, on account of their illegal entry or presence, without assessing the merits of their asylum claim. This is a direct violation of the rights afforded to migrants under international law. 

To disguise the illegal denial of migrants’ rights, host countries often use intentionally misleading justifications; such as security, public health, or humanitarian efforts. Coded rhetoric, such as “public safety’ or “law and order” is racist language used to scapegoat migrant groups for societal problems in order to garner public support. This narrative fuels xenophobia and positions vulnerable asylum seekers as criminals. In addition, the COVID-19 pandemic also led to a global rise in policies that denied entry or immediately expelled migrants without accessing the merits of their asylum claims. These restrictions were enforced despite a lack of sufficient evidence that such practices actually prevent the spread of viruses⁸. Host countries also ironically characterize their restrictive policies as humanitarian efforts to prevent migrants from making the journey through dangerous paths, such as the Mediterranean Sea or the Darien Gap. However, many of these policies worsen existing humanitarian crises and shift a greater burden onto the vulnerable migrants in need of protection. 

Exporting asylum is a failure of governance that harms migrants. Host countries like the United States, members of the European Union, and the United Kingdom played key roles in the development of international human rights laws and have the greatest available resources to address the growing humanitarian crises faced by migrants. Despite this fact, host countries do not aim to solve the crisis, but rather cheat their obligations under international law. The evasion of their responsibilities mirrors the lack of accountability for their role in creating the instability that forces Black migrants to flee their homes. The countless harms caused by colonialism, environmental and natural resource exploitation, forced regime change, and other violations of sovereignty are rarely included in migration policy discourse. There is a double standard in the application of international human rights laws that requires adherence from some countries while the wealthiest countries cheat the rules without consequence. Several African countries uphold their responsibility to provide asylum protections and host over one-third of the world’s refugee population. 

The United Nations Refugee Agency (UNHCR) has widely condemned the externalization of asylum as a practice that is “contrary to the letter and spirit of the Refugee Convention… [and] threatens the international refugee protection regime.” ⁹ Rather than acknowledging the illegality of their actions, host countries are increasingly choosing to export asylum. In our upcoming series, we call out the specific policies used by top host countries to circumvent obligations under international law. Each report will highlight the harm caused by exporting asylum and the disproportionate impact on Black migrants.