Slow down the arrival of migrants in Europe by outsourcing asylum requests. Although the idea appeals to several EU member countries, it faces significant legal obstacles.
204,000. This is the number of asylum applications filed in Germany in the first half of 2023, according to the Federal Office for Migration and Refugees.
So to cope with migratory pressure, certain European countries are seeking to outsource asylum requests to third countries.
And the idea is gaining ground on the Old Continent. “European countries are increasingly interested in the possibility of processing asylum applications outside the EU borders“, notes Susan Fratzke, expert at the Migration Policy Institute. Denmark, Italy, Germany and Austria are considering this solution to curb the irregular arrival of people entering the EU.
“Asylum is a burden that States seek to shed“, comments Tania Racho, researcher at Paris-Saclay University and member of Désinfox Migrations.
“European governments see this policy as a way of facilitating the return of people who do not need protection. Their application is rejected: they are returned from a third country and never enter the EU“, adds Susan Fratzke.
Italy reached an agreement with Albania on November 6 to transfer migrants rescued at sea by the Italian authorities there while waiting for their asylum applications to be processed.
A “political gesticulation on the part of Meloni to show her electorate that she is acting on the migration issue“, estimates Philippe De Bruycker, professor of Asylum and Immigration Law at the Free University of Brussels. According to him, this relocation could cost more, “since we will have to build a camp in Albania at Italy’s expense, manage it, transfer staff, obviously organize legal aid for asylum seekers there.
Risk of differential treatment
If it does not apply to minors, pregnant women and other vulnerable people, the project raises many concerns.
“The Memorandum of Understanding creates an ad hoc extraterritorial asylum regime, characterized by numerous legal ambiguities”, reacted the Council of Europe Commissioner for Human Rights, Dunja Mijatović. “Without legal certainty, essential human rights guarantees and the obligation to answer for violations risk not being respected“, she added.
Outsourcing measures increase the risk of human rights violations, estimates the intergovernmental organization based in Strasbourg.
“There is a risk of differential treatment between asylum applications which will be examined in Italy and asylum applications which will be examined in Albania“, confirms Carmine Conte, legal expert at the Migration Policy Group.
“Albania is not required to comply with EU asylum law“, he continues.
Is European law applicable?
The agreement provides for the construction of two centers in the ports of Shengjin and Gjader which could pose a problem of compliance with international and European law.
“European law does not allow all asylum seekers to be automatically detained and requires an individual examination of each case. It also requires that detention not be the solution used as a first resort.” specifies Philippe De Bruycker.
Another problem raised by jurists is the violation of a fundamental principle enshrined in the Geneva Convention: that of non-refoulement. “If people present themselves as asylum seekers to the Italian authorities and they are displaced, this is refoulement“, assures researcher Tania Racho.
A first legal assessment by the European Commission, however, indicates that European law is not applicable outside the EU territory.
But the agreement also raises moral questions.
“It normalizes the externalization of the responsibility of Member States“, estimates Ivana Belén Ruiz Estramil, researcher at the University of Coimbra.
ADVERTISEMENTFor the moment, no project between an EU member country and a third country has yet come to fruition. And the recent failure of a similar project across the Channel does not bode well for the future of the agreement between Rome and Tirana.
In the United Kingdom, the Supreme Court ruled that the planned partnership with Rwanda was illegal.
“If the United Kingdom, which is no longer in the EU, cannot do it, it would surprise me if Italy does.“, comments Tania Racho. Many questions about the feasibility of such a project remain unanswered.
