Without iron-clad legal safeguards, offshore migration centres can only repeat the worst mistakes of the recent past
Europe has entered a new era of outent, the EU’s return regulation is nearing adoption – promising “more efficient” returns and “swifter” procedures to deport unwanted migrants. This will give countries the legal runway to set up return hubs – that is, offshore facilities to process people deemed to have no right to stay in the EU
Despite opposition from countries such as Spain and France – and an outcry from rights groups – many other governments appear anxious to join in. An open letter signed by 19 EU member states just days after the vote at the European parliament, urging the “full use of the new possibilities”, indicates that implementation might be coming soon. Frontrunners like Austria, Denmark, Germany, Greece and the Netherlands are already on the starting block, poised to establish joint hubs which are likely to become operational in short order.
These developments signal that positions once dismissed as fringe, legally untenable and driven by ideology rather than by evidence have been successfully rebranded as mainstream, commonsense governance. The deep politicisation of this shift was on full display when some MEPs chanted “Send them back” inside the European parliament during the vote, celebrating the removal of human beings with the fervour of a campaign rally. In the pursuit of ever stricter migration policies, the human rights protections that Europe was founded to uphold are increasingly treated as disposable.
The decision to pave the way for extraterritorial centres should alarm anyone familiar with the human cost of these schemes in the past. History shows us that they are not harmless administrative workarounds. There isn’t a single initiative to outncerns
When Australia pioneered offshore processing on Nauru and Papua New Guinea, thousands of people, including children, were – according to the UN – subjected to years of arbitrary detention in inhumane conditions, resulting in severe physical and mental trauma and at least 12 deaths. Similarly, human rights organisations called out Israel’s attempts in the 2010s to press Sudanese and Eritrean asylum seekers into “voluntary” relocation to Rwanda and Uganda, which resulted in abuse, legal limbo or forced onward flight.
In the US, the 1990s experiments of holding Haitian refugees outside domestic judicial reach – including in Guantánamo Bay – have evolved into agreements to remove people to countries where they have no links. These agreements have led to documented reports of arbitrary detention, torture and other ill treatment, enforced disappearances and denial of access to family and legal counsel. In some cases, receiving states subsequently returned individuals to their country of origin, exposing people to a risk of refoulement (that is, sending someone back to danger).
The recent highly publicised collaboration between US Immigration and Customs Enforcement (ICE) and El Salvador’s Cecot mega jail – where deportees were held under extreme conditions – prompts a fundamental question for European policymakers: is this the kind of punitive, out
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Europe is no stranger to externalisation policies. Longstanding violations of the rights of refugees and migrants in Libya and Tunisia demonstrate that migration cooperation aimed at preventing arrivals to the EU will probably result in serious and widespread human rights violations if adequate guarantees are not established from the outset.
Earlier European attempts at extraterritorial centres confirm this pattern. Italy’s agreement with Albania has been beset by questions over its compatibility with EU law. This shows how moving people offshore can severely restrict their access to lawyers, interpreters and judges, thereby jeopardising the effectiveness of the legal remedies that are essential for protecting other human rights. Meanwhile the UK’s cooperation with Rwanda, an attempt to outsource asylum procedures rather than returns, fell foul of the UK supreme court due to systemic weaknesses in the Rwandan asylum and judicial system that failed to guarantee that people sent there would be safe from refoulement.
How can anyone reasonably believe this time will be any different? Yet European governments pursuing the establishment of return hubs continue to offer the same reassurance: that they will operate in strict compliance with their international human rights obligations.
With implementation imminent, vague assurances are no longer enough. The stakes are simply too high. On one hand, European countries are experimenting with human lives. The dangers are well documented, and will only increase if governments partner with countries with poor human rights records. On the other hand, the effectiveness of return hubs remains unproven. This initiative could absorb vast public funds until the courts intervene, damaging Europe’s international credibility.
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Before a single flight takes off or a single euro is allocated, governments should make four essential commitments.
First, to fully assess human rights risks before any agreement is reached, while making sure people have clear avenues to submit complaints and access courts. If violations cannot be reliably prevented, cooperation should not proceed.
Second, to allow rigorous, independent, real-time monitoring of conditions on the ground. Findings should trigger follow-up actions, and the entire system should include an off switch that suspends cooperation the moment that evidence of serious human rights violations emerges.
Third, to form legally binding agreements with iron-clad, judicially enforceable human rights clauses. If a host country cannot or will not accept binding legal commitments, the deal should be off.
Finally, to make all of this public – the assessments, agreements and reports – guaranteeing effective scrutiny from courts, parliaments, the media and the public.
Demanding this level of rigour is not asking the impossible. Rather, it is the minimum required to mitigate the risks of the “innovative solutions” outlined in the open letter. If European governments choose to forge ahead into risky territory, they need to accept the guardrails necessary to prevent them setting up human rights black holes.
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Michael O’Flaherty is the commissioner for human rights of the Council of Europe
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