The Costs of Outsourcing

Last month the European Court of Human Rights (ECtHR) granted an urgent interim measure according to Rule 39 of the Rules of the Court in a case concerning an imminent removal of an asylum-seeker from the UK to Rwanda (KN v. the United Kingdom, application no. 28774/22).

In doing so, the Strasbourg Court halted the first flight of a controversial policy to send asylum-seekers to Rwanda, ordering the removal of the last passenger from the airplane. This flight aimed to implement a partnership arrangement of April 2022 between the UK Government and the Republic of Rwanda agreed upon in a Memorandum of Understanding (MoU). The MoU details the policy which would allow the transfer of any asylum seeker whose claims were deemed inadmissible (entered the country irregularly and passed an initial vulnerability screening) for their asylum process and possibly permanent settlement in Rwanda in “exchange” for an initial GBP 120 Mio.

The MoU further highlights that the partnership is in line with international law, upholds fundamental human rights and freedoms and the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The memorandum text stresses its aims to prevent human-smuggling networks and to deter migrants from making the dangerous sea journey across the Channel to England from France.

The ECtHR, advocacy groups, the UN High Commissioner for Refugees and the UN Special Rapporteur on trafficking in persons, but also the European Commission disagree with this reading, questioning not only the compatibility of the policy with the UK´s international law obligations but also its effectiveness when it comes to preventing human smuggling.

Given that the ECtHR decision was merely an interim measure, the Court offered only a summarily reasoning for its decision which is nevertheless quite indicative when it comes to the policy’s legality. The Court states that it regarded

“the concerns identified in the material before it, […] that asylum-seekers transferred from the United Kingdom to Rwanda will not have access to fair and efficient procedures for the determination of refugee status as well as the finding by the High Court that the question whether the decision to treat Rwanda as a safe third country was irrational or based on insufficient inquiry gave rise to “serious triable issues””.

Based on this conclusion, the ECtHR granted the interim measure to prevent the applicant’s removal until the domestic courts have had the opportunity to consider those issues. Generally, the Court applies such measures in very limited circumstances where there is an imminent risk of irreparable damage, such as in case of a threat to life (Article 2 of the Convention,) or the ill-treatment prohibited by Article 3 of the Convention.

Trending: Outsourcing migration management to Global South states

Unfortunately, this policy of outsourcing refugee protection is part of a larger trend in migration management. Cooperation with third countries and the shift of border controls outside a state’s territory –  the so-called process of externalization – has become a key component of migration control policies of many western states ranging from the USA to the European Union member states, Australia and Israel. This process is multifaceted and consists of an array of different strategies from temporary transfers to third states for asylum procedures or prevention of departure and pull-backs at sea and with this policy – not for the first time – to permanent transfers of refugees to third states. The scope and selection of a specific policy by a certain state depend to a large extent on the geographic circumstances of the respective country; the proximity to the countries of origin where the majority of migrants and asylum seekers come from, and the domestic, regional and international laws a country is bound by (e.g., Australia, which does not have a written constitution, is surrounded by ocean, USA direct land border with Mexico, EU states which are bound by European human rights law and Northern Africa are separated by the Mediterranean). Even though states like the UK praise these policies for deterring migrants, preventing human smuggling, and preventing the loss of life, these claims are questionable. At the same time, such outsourcing or externalization tendencies come at a cost. So, is the UK policy holding up to its promises?

The UK’s outsourcing policy at what costs?

Research shows that these policies fail to achieve the goals they promise: the arrival numbers decrease insignificantly, migrants choose even more dangerous routes, and smuggling networks shift. In the case of the UK, a similar pattern has been visible since the policy’s announcement in April 2022.

Second, these policies have severe human rights implications – which may not only lead to a legal condemnation by the ECtHR in the future but may also negatively affect the UK’s reputation and credibility on the international level.  

Maja Grundler and Elspeth Guild convincingly argued elsewhere that the policy raises compatibility concerns with refugee and human rights law, including the 1951 Refugee Convention, the Convention against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Anti-trafficking law (Council of Europe Convention on Action against Trafficking in Human Beings (ECAT)).

As a member state of the European Convention on Human Rights (ECHR), the UK is bound to its obligations which it may violate by its outsourcing policy. As the asylum seekers are physically present in UK territory before their involuntary transfer to Rwanda, the question of the applicability of the ECHR (Article 1 ECHR) – compared to other externalization policies – is not contested. When looking at the substance of the Convention, a possible violation of the prohibition of ill-treatment in Article 3, the right to an effective remedy in Article 13, and the prohibition of collective expulsion in Article 4, Protocol 4 to the Convention come to mind.

The procedural dimension of Article 3 ECHR entitles any migrant to an individual assessment of their claim that expulsion will expose them to degrading and inhuman treatment – here about their removal to Rwanda. The individual assessment must be independent and rigorous and requires a prompt response. Further, a person must be able to access a remedy with automatic suspensive effect (Article 13, MK and Others v. Poland, para. 143). The prohibition of collective expulsion in Article 4 Protocol 4 ECHR complements this by preventing states from expelling “a certain number of aliens without examining their circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority” (Hirsi Jamaa and Others v. Italy [GC], para. 177).

UK officials first screen every asylum seeker before deciding on their removal to Rwanda. However, amongst others, the United Nations High Commissioner for Refugees and other UN experts have raised serious concerns on whether this screening complies with the safeguard standards as it fails to identify and recognize the specific protection needs of asylum seekers, including victims of trafficking. Besides that, these experts criticize the UK’s ignoring significant shortcomings in the capacity of the Rwandan asylum system. Based on these assessments, the UK arguably violated several ECHR provisions when implementing this current policy.

The deepening of the rift between the UK and the ECtHR

However, these possible ECHR violations seemingly breeze over the UK government, which in response to the ECtHR’s interim measure, put in question the Court’s legitimacy instead of rolling back its policy. Home Secretary Priti Patel, for example, stressed that they “will not be put off by the inevitable legal last-minute challenges”. Cabinet minister Therese Coffey agreed, stressing that the government was “surprised and disappointed” by the ECtHR ruling and that the “public will be surprised at European judges overruling British judges”. Prime Minister Boris Johnson even revived threats to leave the ECHR. Hostility and threats of leaving the Convention are no news in the UK. In 2006 already, Conservatives raised the idea of repealing the domestic Human Rights Act, which implements the ECHR into UK law. In 2011, a debate over an ECtHR ruling on prisoners’ voting rights sparked claims about sovereignty. These ongoing tensions went hand in hand with a rising hostility to immigration in the late 2000s, which gave the UK government fuel for its most recent criticism.

Especially since 2016, the ECtHR has been more cautious when considering the state’s concerns and pressure in migration matters, responding to migrants’ rights in expulsion scenarios. This is visible in numerous cases in past years, especially in the 2020 ND and NT v. Spain Grand Chamber decision or just this April´s AA and others v. North Macedonia judgment   (for an in-depth assessment of the relevance of the case, see this contribution by Dana Schmalz). Especially in the most recent case, the Court seemed to have caved in to pressure from states like the UK, significantly curtailing migrants’ fundamental rights to a fair procedure.

To make its stance towards the ECtHR even clearer, the UK government dropped another bombshell – not even ten days after the ECtHR’s interim decision: a proposed Draft Bill of Rights. As Marko Milanovic poignantly concludes, despite its lofty name, the proposal does not provide much more than what the ECHR already guarantees, and “everything else in this Bill of Rights is about diminishing rather than expanding the effective protection of human rights in the UK.” It is worth reading the entire proposed Bill as it contains numerous “surprises” to believers in a strong ECHR system as a guarantor of human rights in Europe. However, directly related to the ECtHR’s Rule 39 decision is the proposal’s section 24, titled “Interim measures of the European Court of Human Rights”. The provision is clear in its wording that ECtHR interim measures are irrelevant when determining the rights and obligations under the domestic law of a public authority or any other person” (section 24 (1)). This is even the case when a UK court considers applications for relief (section 24 (3)). If ever entered into effect, this could lead to the deadlocked situation that the ECtHR orders the non-removal of an asylum-seeker from the UK but domestic authorities and courts are barred from implementing them, putting the state into non-compliance with the ECtHR ruling.

Given this track record and particularly this most recent development, it is hoped that the Court will stand firm to the UK´s most recent threats of leaving the system. Either way, the current debate constitutes another incidence showing the rift between the ECtHR and the UK government.

Expanding dangerous migration control precedence

Lastly, – if the policy may never or only on a small scale be implemented – it sets another dangerous precedence when it comes to restricting territorial asylum and the basic rights of asylum seekers. Australia and Israel had implemented similar policies in past years of permanently transferring people in need of international protection, “stretching further the (il)legality and (im)morality of Western externalization policies”. The UK seemingly jumped on the bandwagon of such externalization trends sparking, in turn, debates in Denmark on equally implementing such policies with Rwanda.

In conclusion, it is doubtful that the UK-Rwanda agreement will deliver on what it promised. It is expensive, contrary to international human rights obligations, has significant adverse effects on those affected, scratches the state´s reputation, and increases existing tensions with the ECtHR. Unfortunately, this approach is not a singular and misguided policy suggestion to please certain voters, but part of a larger externalization trend of Global North states aiming at outsourcing their legal obligations to Global South states.