Why Offshore Processing of Asylum Applications is Actually Racist

In a series of legislative and policy changes including the Illegal Migration Act 2023, Nationality and Borders Act 2022, the New Plan for Immigration, the UK-Rwanda Migration and Economic Development Partnership treaty and the Safety of Rwanda (Asylum and Immigration) Act 2024, the UK government in April 2024 gave effect to the UK-Rwanda asylum scheme. Under the scheme, asylum seekers in the UK were to be removed to Rwanda for having their asylum claims assessed—those whose claims succeeded were to stay in Rwanda and those whose claims failed could be sent back to their country of origin or ‘safe third countries’. Essentially, the scheme offshored or externalised the processing of asylum applications from the UK to Rwanda.

While the new Labour government has decided to scrap the UK-Rwanda asylum scheme, issues around legal and moral validity of externalisation remain. Similar schemes of offshore asylum processing are being considered widely from Denmark to Australia to EU. Both the critique and the defence of such schemes has been dubbed racist. But what really is the ‘racist’ charge on either side? This essay argues that neither the critique nor the defence of externalisation has identified precisely what may be truly racist about it, which is, first, the fact that externalisation is racially discriminatory in that it often applies to some asylum seekers and excludes others on a racialised basis; and secondly, that it involves offshoring the determination of legally guaranteed rights which is not only morally and ethically, but also, possibly, legally dubious, irrespective of where the offshoring is located or whether the principle of non-refoulement is being violated.

All things racist

In April 2022, no sooner had the UK-Rwanda asylum scheme been announced than it was declared racist. Scotland’s then Health Secretary (later First Minister) Humza Yousaf wondered whether the ‘heartless Tory Govt [was] institutionally racist?’ The African Union called the scheme ‘xenophobic and completely unacceptable’.

Those criticising the scheme were themselves branded racists. Former Home Secretary, Priti Patel, claimed that the criticism of the scheme ‘speaks of inbuilt prejudice and, I would even go as far as to say, racism’. Conservative MP Daniel Kawczynski declared the criticism of the scheme ‘very, very racist’. Daniel Hannan, a Conservative peer, counselled the critics of the scheme about their ‘racist attitudes’ and ‘to get over [their] stereotypes about Africa’.

On 15 November 2023, in R (on the application of AAA (Syria) and other v Secretary of State for the Home Department [2023] UKSC 42, the UK Supreme Court declared the scheme to be unlawful primarily on the ground that the scheme violated the principle of non-refoulement because it involved sending asylum seekers to Rwanda which was not considered a ‘safe third country’. Critics of the scheme rejoiced what they saw as an ‘anti-racist’ outcome. In response, the then UK government pressed on with formalising the scheme through a treaty and a statute—the Safety of Rwanda (Asylum and Immigration) Act 2024—which declared Rwanda to be a safe third country and ousted judicial review on this point. The new UK government announced that it would scrap the scheme and the raft of legislation passed to give effect to it on 6 July 2024.

All sides of the debate until now have been preoccupied with the factual issue of how safe Rwanda is. This is because the determination of the legality of the scheme for offshore processing of asylum applications appears to ultimately be estopped on grounds of the breach of the principle of non-refoulement in the AAA case. The principle—which prohibits returning asylum seekers and refugees to countries where their human rights may be threatened—turns on the safety of the receiving state to which the asylum seeker is being returned. In this case that state happened to be Rwanda. A conversation which began with the critique of the UK government became a conversation squarely about Rwanda and its human rights record.

This essay zooms out of that context and explores why offshore processing of asylum applications or externalisation is problematic in at least the following two senses, neither of which are about the choice of destination for offshore processing of asylum claims.

A Racialised Asylum System

Let us take for example the UK-Rwanda asylum scheme which had sought to remove ‘certain migrants to the Republic of Rwanda’. Although the Safety of Rwanda (Asylum and Immigration) Act 2024 did not define ‘certain migrants’, the preamble declared that the purpose of the scheme was to ‘prevent and deter unlawful migration, and in particular migration by unsafe and illegal routes’. The statute and thus the scheme it enacted purported to make a distinction between ‘legal’ and ‘illegal’ migration—with only the latter having the consequence of removal to Rwanda. The difficulty with such distinctions is that asylum-seeking by so-called ‘legal’ routes is rather limited by nation-states. In the case of the UK, ‘legal’ migration for asylum seekers is governed by schemes such as the Ukraine Sponsorship Scheme (Homes for Ukraine), Afghanistan Locally Employed Staff Ex-Gratia Scheme and the Hong Kong British Nationals (Overseas) Welcome Programme, which do not assist most who arrive in the UK by means such as small boats. In addition, there are general schemes which include the UK Resettlement Scheme (UKRS), Community Sponsorship Scheme, and Mandate Resettlement Scheme. For all the general schemes, the leave to enter the UK is obtained prior to arriving in the UK and based on the assessment made by the United Nations High Commissioner for Refugees (UNHCR).  It is the presence or absence of this prior leave to enter that determines ‘legal’ versus ‘illegal’ migration.

There are two main problems with such a system.

First, there often are no means for ‘legal’ migration which bypass the need for obtaining prior leave to enter a country. Anyone fleeing torture or war who happens to find themselves on the shores of a country without prior leave to enter is classified as an ‘illegal’ migrant irrespective of the actual merit of their asylum claim. How a person enters a country then becomes the yardstick for ‘legal’ migration rather than whether the person has a legitimate claim for asylum. The connection between the two however is inexplicable. The system thus fails to treat human beings as possessing equal moral worth by distinguishing between asylum seekers on a dubious basis of the mode of journeys they undertake to the country in which they claim asylum.

Second, and specifically in the case of the UK, while general schemes for ‘legal’ migration allow anyone assessed by the UNHCR to be referred for resettlement in the UK, the specific asylum schemes are rather limited—the Hong Kong scheme applies to British National (Overseas) and the Afghan scheme applies to current and previous locally employed staff in Afghanistan. The Ukrainian scheme is the only scheme with a broad scope which does not require a person’s prior connection to the UK. This though means that there is a line drawn between Ukrainians and others—a line which is presumably racial in nature. There may be good reasons for Ukrainians fleeing war to have a specialised but broad scheme for resettlement in the UK but there may be few good reasons for why other such specialised but broad schemes do not exist, say, in the case of Sudan, Myanmar, Yemen, Syria, Ethiopia or Palestine. That those fleeing war and persecution from outside Europe need resettlement options as much as Ukrainians cannot be denied. While needs are indistinguishable, there is a clear distinction being drawn between whose needs are to be catered for—the basis of which, amongst other things, appears to be racial given that those on one side of the divide are White Europeans and those on the other side are people of colour from the global south.

But the fact that asylum systems are racialised does not automatically mean that they can be successfully challenged as discriminatory under domestic law. This is especially difficult say in the case of the UK where direct discrimination challenges are precluded where no explicit racial distinctions are being drawn by the asylum system. Although externalisation schemes such as the UK-Rwanda one may not be prima facie racial, they rest on a distinction between ‘legal’ and ‘illegal’ migration—with only non-Europeans and non-White persons arriving by means classified as ‘illegal’. There is thus exact correspondence between those arriving by means classified as ‘illegal’ and race. There is reason to think that a direct discrimination challenge could be sustained such cases though the theoretical possibility that a White European, Ukrainian or White North-Americans may also arrive by means classified as ‘illegal’ (though permissible visa regimes preclude this possibility in reality), may be cited to wriggle out of the statistical and factual reality that those arriving in Europe by means classified as ‘illegal’ are indeed people of colour from the global south.

Likewise, indirect discrimination, though a better fit, is challenging to establish in practice. In the UK, successful proof of indirect racial discrimination under section 19(2) of the Equality Act 2010 requires showing that a neutral provision, criterion or practice: (a) applies to everyone; (b) puts those belonging to a racialised group at a disadvantage compared with others; (c) puts the individual claimant at that disadvantage; and (d) is not a proportionate means of achieving a legitimate aim. The second and the fourth step of this analysis proves to be particularly tricky, especially when challenging immigration policies. At the second step, what proves difficult is the choice of comparator group where the identification of a racialised group from the global south or people of colour or non-white people is often considered too unspecific for the purposes of section 19(2)(b) of the Equality Act 2010. At the final step, courts seem to allow an inordinately high level of discretion to the government to justify any indirect racial discrimination even when it is clearly established in the previous three steps.

The fact that any claim of racial discrimination may be difficult to establish only shows equality law’s inability to respond to the racialisation which undergirds much of the global north asylum and immigration law rather than the absence of such discrimination.

Offshore Processing as a form of Racism

The determination of whether offshore processing is permissible should be a legal determination; one that is currently being ducked by national and international systems alike. The determination is however important because from Denmark to Italy to Israel to Australia, offshore processing is being considered for adoption as the ‘flagship policy’ for asylum.

The critique of offshore processing so far has been on the grounds of—practicality: for its ineffectiveness in streamlining the global asylum system or curbing migration; economics: for its exorbitant costs; politics: for the optics of offshoring asylum seekers from the global north to the global south particularly to Africa for its imperial and neo-colonial implications; and law: for the breach of the principle of non-refoulement.

In particular, the legal critique (as evident in the focus of the AAA case before the UK Supreme Court) has not been about the determination of whether offshoring itself is defensible as a matter of principle in national and international human rights law but whether the choice of location of offshoring is defensible. The prohibition of non-refoulement proves to be a handy tool in the latter determination. But it does nothing to answer the prior issue of whether such offshoring itself should be permissible as a matter of law. It instead replaces the legal determination of the prior issue with the determination of fact alone. This avoids, as Mark Elliot puts it, a determination of the ‘inherent wrongfulness’ of offshore processing of asylum claims.

The right to claim asylum is recognised in the 1951 UN Refugee Convention and the 1967 Protocol. The states parties are under an obligation to respect, protect and fulfil this right through a functional system through which asylum claims can be fairly assessed. Offshoring of claims rests on making a distinction between claims – the basis of which in countries like the UK is potentially racial and hence suspect (as explained above). But even if it is not, any distinction between claims rests on an a priori assessment between claims. Because there is no partial right to asylum, without a full review, any a priori assessment should be deemed inconsistent with the right to asylum. Thus, distinguishing between claims based on the place of origin or mode of arrival is necessarily suspect because the right to asylum does not depend on these factors.

Moreover, this concern cannot be addressed by offshoring all claims. The key question here is whether international human rights treaties allow externalisation at all—where states parties extinguish their own human rights mechanisms for all or some of the rights holders and offshore the determination of rights to a different state. There is nothing in the text of human rights treaties including the Refugee Convention that bars externalisation. But there is also nothing to indicate such an allowance either.

First, to the contrary, it is unlikely that such an allowance can exist given that it essentially extinguishes a state party’s commitment to a treaty in international law especially the fundamental commitment of pacta sunt servanda or the commitment of states parties to perform obligations under a treaty in good faith. Offshoring or externalisation snips at the state party’s commitment to perform treaty obligations in good faith because it does away with the state party’s obligations under the treaty which attach to it as the state which is party to the treaty in a contractual sense. Without this individualised and personal obligation of a state party being read into article 26 of the VCLT, there will be no meaning to states signing up to treaties as states parties if they are merely signing to offload obligations to another state and hence are not committing to perform the obligations themselves in good faith.

Secondly, this would violate the special character of international human rights obligations where states parties’ consent for treaties is non-synallagmatic or non-reciprocal. International human rights obligations are after all vertical in nature, i.e. between states and the rights holders, as opposed to (only) horizontal, i.e. between states. Having another state perform a state party’s obligations could not work under international human rights law because another state may owe nothing to the asylum seeker who seeks asylum with the state party where they arrive rather than where they are removed to under offshoring schemes. Under the Refugee Convention, the asylum seeker primarily establishes a relationship of obligation with the state party where they arrive.

Thirdly, the externalisation of state obligations is also problematic because it negates the basis of human rights in human dignity and equality because it treats humans as chattels whose bodies and rights can be traded between states. It thus erodes the vertical relationship between states and individuals both by destabilising the very basis of human rights accorded to individuals and in turn the obligations of states that attach to human rights.

The analysis in this essay should make clear that the problem with externalisation is not to do with the location of externalisation and hence cannot be addressed by applying the principle of non-refoulement. Externalisation would be equally problematic if a not-so-safe third country were replaced with another country which were indeed safe. The problem is thus centrally about externalisation of state obligations assumed under a human rights treaty—an issue squarely evaded by international and domestic systems alike. The fact that such externalisation carries the risk of wholesale offloading of human rights obligations from the global north states to the global south states is what makes it not only racist, imperial and neo-colonial, but ultimately also legally indefensible under international human rights law.

The contributions to this blog debate are published simultaneously on the africanlegalstudies.blog and Verfassungsblog.