- 07 2021 tional condemnation due to the severe the severe to due condemnation tional human rights violations resulting from its off-shore processing. firmits remained in Australia since has the human for liable claim not is that it taking in the thirdrights place violations no has it as centres, country processing control over the centres. in this, the makers EU policy Despite Australia of the successes to refer often borders. its in managing control to With Denmark exploring options for several processing, third country asylum other EU countries might follow suit. and EU of a range by bound is The EU international legal frameworks that effectuate to hard suchmake practices without breaching fundamental human rights. Australia has received strong interna strong Australia received has PRIO POLICY BRIEF • • • • Brief Points • Peace Research (PRIO) Institute Oslo Peace Research (PRIO) Institute Oslo Peace - Ayşe BalaAyşe Akal Maria Gabrielsen Jumbert ciples upon which the EU is built. is the EU which upon ciples The European Union appears to to appears Union The European Australia a country as to look often to managed successfully that has and – maritime – borders its seal control migration. This has been by demonstrated concretely most legislation, passed newly Denmark’s of the relocation for allows which third countries to seekers asylum being are applications their while and This concerns raises processed. expectations that other countries this In brief, suit. policy follow might the seeking emulate to why show we idea, a good not is Australian model a number breach would it how and rights fundamental human prinof Processing Why looking to is not a way forward Australia The EU and Offshore Asylum Asylum Offshore and The EU

Peace Research Institute Oslo (PRIO) www.prio.org ISBN: 978-82-343-0213-8 (print) PO Box 9229 Grønland, NO-0134 Oslo, Norway Facebook: PRIO.org 978-82-343-0214-5 (online) Visiting Address: Hausmanns gate 3 Twitter: PRIOUpdates The EU Exploring Offshore Options governments have continuously demonstrated In April 2016, the PNG Supreme Court deemed deterrence to be their primary aim while estab- the detention of asylum seekers in the offshore Since the ‘migration crisis’ of 2015, the EU lishing refugee protection schemes. Although centres unconstitutional. By 2019, the detention has been continuously striving towards imple- these policies have been failures in the eyes of facilities within PNG were completely closed, and menting non-arrival regimes through various the international legal community, they have according to statistics released by the Australian external cooperation schemes. These schemes played a significant role in the electoral wins by Border Force, as of 31 January 2020, there are are emblematic of a rhetoric that aims to push various politicians, such as the former Prime no remaining refugees in the Nauru Regional migration management outside the external EU Minister John Howard. Processing Centre. The Australian government borders, and similarly push ‘out of sight’ the has indicated that Nauru will keep receiving asy- political and humanitarian situations that make The Pacific Solution was first implemented by lum seekers under the MOU, whereas PNG will no people flee. European leaders are currently look- the Australian government under the Migration longer be a part of the offshore processing scheme. ing towards even more far-reaching solutions, Amendment Act of 2001. The legislative process inspired by the Australian model. was preceded by a rather self-contradictory nar- Human rights violations rative of humanitarian concern for ‘genuine Under the Migration Act, Australia has con- asylum seekers’ and hostility aimed at ‘people Various UN bodies have taken extraordinary tracted out the processing of asylum applica- smugglers’, ‘country shoppers’ and ‘economic measures to address the human rights viola- tions to third countries. This model, known as migrants’.2 Migration across the Mediterranean tions that plagued the Pacific Solution and the Pacific Solution, has been deemed a moral, has similarly been framed as both a humanitar- requested Australia to review the Migration Act. legal and financial failure by the international ian concern, and a security issue for Europe. Among these violations, a few stand out due to community at large. their severity and persistence. The Amendment enabled the Australian gov- In September 2020, the Danish government ap- ernment to designate any island or external The right to access to justice, which can be pointed Anders Tang Friborg as special envoy on territory as an ‘excised offshore place’, which defined as ‘the ability of people to seek and migration, for the primary purpose of opening would be deemed to be outside of Australia’s obtain a remedy through formal or informal reception centres outside the EU borders, and to migration zone. Any asylum seeker who would institutions of justice, and in conformity with prevent ‘as many spontaneous asylum-seekers as enter an ‘excised Australian territory’ would be human rights standards’,4 is a fundamental possible’.1 In June 2021, the Danish Aliens Act unable to make valid asylum applications within right engraved in key international human was amended to enable the Danish government Australian territory. rights instruments such as Articles 6 (1) and 13 to transfer asylum seekers to third countries of the European Convention on Human Rights for the processing of asylum applications. In Following a period of negotiations, two separate (ECHR) and Article 2 of the International light of the intensifying anti-immigrant rhetoric memorandums of understanding (hereafter Covenant on Civil and Political Rights (ICCPR). throughout the EU, it seems very likely that more MOU) were signed with the governments of countries will attempt to follow in Denmark’s Nauru and Papua New Guinea (hereafter PNG). Under the Pacific Solution, the mandatory de- footsteps, with the end-goal of deterrence and Under these MOUs, Nauru and PNG undertook tention policy encompasses all asylum seekers, decreasing the visibility of asylum seekers within to operate the detention centres and conduct all without a case-by-case evaluation. Furthermore, European borders. activities in accordance with their own constitu- there is no time limit for how long a person tions and domestic laws. can be detained within the off-shore centres, as The Failures of the Australian Model is evident from the infamous case of Kurdish- The offshore processing centres remained op- Iranian journalist Behrouz Boochani,5 who Despite the severe condemnation directed at the erational for seven years until the first Pacific remained in detention for over six years. Australian government, numerous European Solution was dismantled in 2008 by the Labor leaders have continued to praise the Pacific government, who labelled it ‘costly, unsus- More troublingly, once in off-shore detention, Solution and push for the exploration of the con- tainable and wrong as a matter of principle’.3 refugee status determination becomes the cept of ‘regional disembarkation platforms’, where However, the scheme was reintroduced as the responsibility of Nauru and PNG. This is a con- the processing of asylum seekers could take place second Pacific Solution in 2012, in line with cerning prospect as the legal frameworks and outside of EU borders. Unsurprisingly, other the recommendations of the Expert Panel on administrative systems in both countries lack externalized asylum processing models are form- Asylum Seekers appointed by the government a majority of the safeguards and due diligence ing in the horizon. Before examining why this to advise on ‘how best to prevent asylum seek- standards – such as independent merits review– would breach a range of fundamental EU laws, it ers risking their lives by travelling to Australia that would be accessible to asylum seekers being is helpful to review how the Australian model was by boat’. Under this second Pacific Solution, processed in mainland Australia.6 established and how it worked – and failed. any person arriving to Australia by sea without a valid visa is liable to removal to the deten- Another issue on which UN bodies and human The Pacific Solution tion centres in Nauru or PNG and will not be rights organizations have raised serious concerns resettled in Australian territory regardless of are the abject conditions within the off-shore Even before the ‘refugee reception crisis’ of whether they are found to be ‘genuine refugees’ centres. Following various monitoring visits to 2015, Australia has been notorious for its strict as defined under the Refugee Convention. Nauru and PNG, the UN High Commissioner immigration policies. Successive Australian for Refugees (UNHCR) observed that:

PRIO POLICY BRIEF 07 2021 www.prio.org www.prio.org • The centres did not provide safe and humane There are a number of different ways in which The Financial Cost of the Pacific Solution conditions of treatment in detention the Australian model has given rise to a breach of the obligation of non-refoulement, such as A 2019 Asylum Seeker Resource Centre • The only real opportunity for privacy was indirect refoulement, which takes place when report revealed that between 2016 and 2020, ablution blocks, many of which were not there is a risk that the destination state – in this the off-shore scheme had cost around AUD cleaned and maintained regularly case PNG and Nauru – will return the asylum $9 billion (approx. EUR 5.7 billion), mean- seeker to another state where there is a possibil- ing around AUD $573,000 (EUR 364,241) • PTSD and depression had reached epidemic ity that the asylum seeker will face persecution. per asylum seeker each year. This number is proportions and the anticipated mental illness, Most significantly, this violation has taken place astronomical compared to the average annual distress and suicide would continue to escalate through the transfer of asylum seekers to third cost of allowing an asylum seeker to live in a in the immediate and foreseeable future.7 countries where they have been exposed to a community in Australia with a temporary visa, plethora of human rights violations. which according to the 2017–2018 estimates of The prohibition against torture and other cruel, the Australian Senate would have been around inhuman or degrading treatment, as well as be- Aside from the Refugee Convention, there are AUD $10,000 (EUR 6,357). ing embedded in a number of international hu- a number of key human rights instruments man rights instruments such as Article 3 of the in which the principle of non-refoulement is to incorporate non-refoulement obligations under ECHR, is a non-derogable norm of international crystallized. Article 3 (1) of the Convention these legislations to its domestic legislation in law. This means that under no circumstances Against Torture and Other Cruel, Inhuman a manner that protects asylum seekers against can a state limit or infringe upon this prohibi- or Degrading Treatment (CAT) encapsulates refoulement. tion. Following an analysis of the human rights the prohibition on torture and imposes a direct violations taking place in the detention centres, prohibition on refoulement as it states, ‘No State EU Safeguards against Third Country the International Criminal Court’s Prosecutor Party shall, expel, return or extradite a person Processing has stated that the conditions of detention con- to another State where there are substantial stituted cruel, inhuman or degrading treatment, grounds for believing that he would be in dan- While implementing refugee protection policies, and the gravity of the alleged conduct has been ger of being subjected to torture.’ EU countries are obliged to comply with EU law, such that it was in violation of fundamental as well as international human rights law. The rules of international law.8 Moreover, the UN Committee Against Torture EU has a variety of human rights protections in has reaffirmed this prohibition by stating that effect that make a mandatory third country pro- Violation of the principle of non-refoulement a State Party is prohibited from transferring a cessing regime unlawful. refugee to ‘a country where the extradited or ex- The principle of non-refoulement, engraved in pelled person might be exposed to cruel, inhu- Access to asylum Article 33 (1) of the Refugee Convention, is the man or degrading treatment’.9 most fundamental principle of international One legally binding supranational instrument refugee law. Under this principle, ‘No Contracting Failure to incorporate non-refoulement that serves as a significant benchmark on refu- State shall expel or return a refugee in any man- obligations into domestic Australian law gee status determination and non-refoulement ner whatsoever to the frontiers of territories is the EU Charter of Fundamental Rights. The where his life or freedom would be threatened on Under Australian law, a treaty cannot operate as right to asylum is expressly established under account of his race, religion, nationality, member- a direct source of rights and obligations unless it Article 18 of the Charter. The Article foresees ship of a particular social group or political opin- is incorporated into municipal law by statute. The that the right to asylum will be granted in accor- ion.’ The Refugee Convention also stipulates that Refugee Convention has been partially incorpo- dance with the rules of the Refugee Convention a person must find him or herself in the country rated into domestic law through the Migration and the 1967 Protocol Relating to the Status of they want to apply for asylum to, and while there is Act. Consequently, the Australian government Refugees. This right also encapsulates the right no absolute obligation for a state to grant asylum, is bound by the obligation of non-refoulement, to have access to effective asylum procedures, any signatory state is obliged to provide access to within the scope prescribed by the Convention. including the right to appeal and of access to apply for asylum for anyone who wishes to do so. review mechanisms against expulsion. An all- Despite the Refugee Convention being the encompassing mandatory detention scheme Human Rights Settlements primary international instrument concerning which would result in removal to outside EU the protection of refugees, the obligation of non- borders, without any avenue of appeal before EU In the 2015 case of Kamasaee v. Common- refoulement is also enshrined in a number of dif- grievance mechanisms, would be in direct viola- wealth of Australia & Ors., an Iranian detainee, ferent international human rights instruments. tion of this Article. Article 19 of the Charter fur- Majid Karami Kamasaee, filed a class action The CAT is among the most notable, referring to ther expands upon this protection by prohibiting lawsuit on the basis of false imprisonment and non-refoulement explicitly and with no preclu- collective expulsion, which would be an integral negligence. The case was settled among the sions. In the same vein, Article 7 of the ICCPR part of a third country processing arrangement. parties for a payment of AUD $70 million, the further expands on this principle by prohibiting largest human rights settlement in Australian removal to a country where one could be subject- Following the ICC Prosecutor’s decision to not legal history. ed to torture or to cruel, inhuman or degrading open a preliminary examination of the allega- treatment. The Australian government has failed tions made against the Australian government, www.prio.org www.prio.org PRIO POLICY BRIEF 07 2021 it appears unlikely that Australia will be held ac- common asylum policy must be in compliance flows and save lives at sea. Irrespective of the countable before an international judicial mecha- with the principle of non-refoulement, The narrative used to legitimize these models aimed nism. Unlike Australia, the EU has an oversight Refugee Convention and its 1967 Protocol. at deterrence, it is clear that any model of third mechanism in the form of the European Court country processing would be in breach of inter- of Human Rights (ECHR), delivering binding The jurisprudence of the Court continues to play national law and constrained by fundamental EU judgements on violations of the ECHR. All mem- a vital role in expanding the protection against re- legislation and oversight mechanisms. ber states of the EU are parties to the ECHR, foulement through complementary forms of pro- placing them under the jurisdiction of the Court. tection. Numerous decisions of the Court have re- Notes Article 6 of the Treaty on EU, which names the ferred to Article 3 of the ECHR, which stipulates ECHR as part of the principles of the Union’s law, that ‘no one shall be subjected to torture or to 1. Wallis, Emma (2020) Danish government: Pushing prescribes that all member states will be bound inhuman or degrading treatment or punishment’ migration outside Europe’s boundaries. InfoMi- to comply with the ECHR through accession. as an effective instrument against refoulement. grants, 11 September.

In the case of Hirsi Jamaa and Others v. Italy, In a June 2018 note on the feasibility of disem- 2. House of Representatives (2001) The Migration the applicants, who were a group of asylum seek- barkation options, the European Commission Amendment (Excision from Migration Zone) (Con- ers and refugees, were intercepted at sea by the clearly stated that sending an asylum seeker to sequential Provisions) Bill, Second Reading Speech. Italian coastguard and given no opportunity to a third country without processing their asylum 3. Marks, Kathy (2012) Julia Gillard Revives Plans to apply for asylum and consequently returned to claim would constitute refoulement and is not Deport Australia’s Boat Refugees. The Independent, Libya under the Italy-Libya 2009 MOU. The Court permitted under EU and international law. 14 August. decided that this interception by the Italian coast- guard was in violation of Article 4 of Protocol No. EU leaders’ inclination towards the Australian 4. UNDP (2005) Programming for Justice: Access for 4, which prohibits collective expulsion, and in model has not come out of the blue. The EU All – A Practitioner’s Guide to a Human Rights-Based violation of Article 13, which guarantees effec- already has a number of non-arrival regimes Approach to Access to Justice. United Nations Devel- tive domestic remedy. The Court’s case-law has in place, such as the EU-Turkey Statement and opment Programme. precedential value and has been very consistent the funding of the Libyan coastguard under 5. See BBC (2020) Behrouz Boochani: Refugee on the issues of access to asylum and complemen- the heading of ‘capacity building’, through the author granted asylum in New Zealand. BBC News, tary protections against non-refoulement. As seen European naval operation Irini. This operation 24 July. in the judgements of Kebe and Others v. Ukraine has specifically moved away from conducting and M.A. and Others v. Lithuania, the Court has Search and Rescue operations – as the prede- 6. Von Doussa, John (2007) Human Rights and Off- emphasized the obligation of member states to al- cessor of this operation was accused of serving shore Processing. UTS Law Review 3: 41–56. low applicants to remain within their territory as as a ‘pull factor’ for migrants to Europe, and 7. UNHCR (2013) Monitoring Visit to the Republic of their asylum claims are being duly processed by is primarily aimed at overseeing the UN arms Nauru 7 to 9 October 2013. UN Refugee Agency; competent domestic authorities. embargo on Libya. Despite the ruling in the UN Refugee Agency (2013) Monitoring Visit to 2012 case of Hirsi Jamaa et al., practices de Manus Island 23 to 25 October 2013. UN Refugee facto amounting to push-backs have not entirely Refoulement through human rights violations Agency. ceased, although they are carried out in more Article 19 of the Charter proscribes removal to covert ways10 (e.g. by removing rescue vessels in 8. Mochockoko, Phakiso (2020) Response from the any country where there is a serious risk that the the Mediterranean and delegating this responsi- ICC Office of the Prosecutor. person ‘would be subjected to the death penalty, bility to Libyan authorities). These controversial 9. Committee Against Torture (2017) General Com- torture or other inhuman or degrading treatment schemes create a duality for the EU in its desire ment No.1 on the Implementation of Article 3 of or punishment’. The article encompasses all to be a global champion of human rights. This the Convention in the Context of Article 22. persons, irrespective of the recognition of their duality is one of the primary reasons why these refugee status. Further, Article 78 of the Treaty policies emerge enwrapped in a humanitarian 10. See InfoMigrants (2021) Italy-Libya accord, NGOs on the Functioning of the EU reiterates that any narrative, despite their failure to stem migration call for immediate revocation. 3 February.

THE AUTHORS THE PROJECT PRIO Ayşe Bala Akal is a Reasearch Assistant at HumBORDER (2017–2022) is a multidis- The Peace Research Institute Oslo (PRIO) is a PRIO. ciplinary project with the primary goal of non-profit peace research institute (estab- E-mail: [email protected]. understanding how new types of humanitarian lished in 1959) whose overarching purpose Maria Gabrielsen Jumbert is a Research Direc- spaces are created and carved out outside, on is to conduct research on the conditions for tor and Senior Researcher at PRIO. and inside the geographical borders destined peaceful relations between states, groups and E-mail: [email protected]. to govern mobility. It employs a global scope people. The institute is independent, interna- to understand the role of borders in humani- tional and interdisciplinary, and explores is- tarianism, and uses the European Union and sues related to all facets of peace and conflict. the ‘refugee crisis’ as a specific case study.

PRIO POLICY BRIEF 07 2021 www.prio.org