Offshore Processing and Complicity in Current EU Migration Policies (Part 1)

It has certainly been a busy summer in terms of developments in European Union (EU) migration policies. From an intensification of cooperation between Italy and the Libyan Coast Guard to intercept and ‘pull back’ migrants at sea; to a controversial Code of Conduct for non-governmental organisations involved in migrants’ rescue operations at sea; and the further mobilisation of funds for the EU-Africa Trust Fund, things have been all but calm on the Southern European front.

Together with images of a right-wing Defend Europe ship sailing the Mediterranean to track the activities of humanitarian NGOs, the summer has also left behind renewed plans for offshore processing centres to identify persons in need of international protection outside of the EU. On 27 September 2017, the European Commission presented its new plans for a ‘stronger, more effective and fairer EU migration and asylum policy’, aimed at ‘enhancing legal pathways for persons in need of international protection’. Whilst press releases emphasise the resettlement aspect of the plan, a closer analysis of the official documents and related policies issued throughout the summer, reveals a slightly different picture.

In this first blog post we reconstruct a complex web of EU migration policies that, in our view, indicate a shift towards extraterritorial protection, and more specifically the introduction of a multi-stakeholder mechanism for the offshore processing of asylum claims in the Sahel. It is crucial to have as much conceptual clarity as possible with regards to the nature and scope of the policies introduced by the EU and its Member States, in collaboration with the International Organisation of Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR) and several African States. This is because the implementation of these policies undoubtedly poses legal concerns, both in terms of human rights and protection needs (see here) and in terms of complicity in and remedies for international wrongful acts which may result from these policies (issues that we discuss in part 2 of this blog).

It is important to note that the idea of setting up offshore processing centres is not new. Since as far back as 1986, proposals have been presented by various Member States (MS), usually in response to sharp increases in incoming migration flows. Denmark (UN Doc A/C.3/41/L.51 of 12 November 1986), the United Kingdom, Germany, Italy and even the UNHCR have all put forward proposals aimed at identifying ‘new’ extraterritorial approaches to refugee protection. These proposals presented many similarities (see e.g. here) and focused mainly on two forms of extraterritorial protection, namely the creation of third-country processing centres (also known as offshore processing centres) and/or of regional protection areas. The former are centres outside of the EU to which ‘irregular’ migrants are transferred and effectively detained while their asylum claim is processed. In theory, if the claim is successful, the individual can then be resettled in a MS or in an alternative safe country. If the claim is unsuccessful, they can be returned to their country of origin. The latter, on the other hand, aim at providing temporary protection to refugees within their region of origin.

A more recent proposal for extraterritorial protection was presented in Paris on 28 August 2017 in a Joint Statement Addressing the Challenge of Migration and Asylum (Paris statement). Here France, Germany, Italy, Spain, Niger, Chad, the Chairman of the Presidential Council of Libya and the EU High Representative/Vice President for Foreign Affairs and Security Policy confirmed their support for the ‘activities conducted under the EU-IOM partnership for West Africa and Libya adopted under the Emergency Trust Fund for Africa, including the protection centres created along the route’. They also recognised the need to resettle ‘particularly vulnerable’ people in need of international protection. In light of this, France, Germany, Italy and Spain, ‘in close liaison with UNHCR and in line with EU priorities’, agreed to carry out protection missions in Niger and Chad ‘to examine the conditions’ for implementing the actions agreed in the Paris statement.

A further document accompanying the Paris statement explains the nature of these protection mechanisms, to include variously:

– identification by the UNHCR, following registration by the country of first arrival, of persons who could be eligible for resettlement, using closed lists and on the basis of commonly determined criteria that could include:

• relevance of the case under asylum rules;
• link to transit towards Europe;

– Interviews and security assessment in the country of reception of candidates by missions of the relevant authorities of resettlement;

– For selected candidates, resettlement to a European country in liaison with the IOM and UNHCR and with EU financial support.

In relation to the above, an answer to a written Parliamentary question by the German Parliament revealed, in August 2017, the existence of an agreement between the UNHCR and Niger for an ‘Emergency Evacuation Mechanism’ (Nottransfermechanismus) whereby the most vulnerable migrants would be transferred from Libya to Niger. In Niger, their need for protection would then be closely examined and the possibility of resettlement—including in EU Member States—explored. These plans for extraterritorial processing were further confirmed by the German media, which in early September 2017 began debating a leaked implementation plan drafted by the European Commission.

The existence of such an agreement between UNHCR and Niger is not altogether surprising, since already in 2015 the European Agenda on Migration had referred to the creation of a ‘pilot multi-purpose centre in Niger’ in cooperation with the IOM and the UNHCR. The functions of this centre, however, remained unclear at the time and experts disagreed on whether these plans actually referred to offshore processing per se. Irrespective of the original 2015 plans for the multi-purpose centre, statements by the French President’s office also indicated a desire for ‘asylum requests [to be] processed as close as possible to the migrants’ countries of origin in sub-Saharan Africa’. In July 2017 Vincent Cochetel, UNHCR Special Envoy to the Central Mediterranean, also announced his support for ‘screening systems for EU-bound migrants in countries en route to Libya, such as Mali, Niger, Burkina Faso, Ethiopia, Chad and Sudan’, following a proposal by African and European ministers in Tunis discussed earlier that month.

So, is it possible to ascertain with clarity what the EU plans actually are?

The latest proposal released by the Commission on 27 September 2017 sheds further light on the way in which these processing and resettlement mechanisms will function. In its Recommendation on enhancing legal pathways for persons in need of international protection, the Commission confirms the intention to ‘follow-up on the announcement in the Action plan on measures to support Italy, reduce pressure along the Central Mediterranean route and increase solidarity [of 4 July 2017] to resettle from the key African countries along and leading to the Central Mediterranean migratory route, including Libya, Niger, Chad, Egypt, Ethiopia, and Sudan’. The Action plan builds on the initiatives undertaken by Italian Interior Minister, Marco Minniti, who is considered to be the architect of Italy-Libya migration agreement, and a further agreement with Libya, Niger and Chad of 21 May 2017. According to this latter document, the Interior Ministers of these countries agreed to ‘support the creation in Niger and Chad, as well as support the management in Libya, of reception centres for irregular migrants, in line with international humanitarian standards’. They also set up a ‘control committee’ (cabina di regia) made up of the Interior Ministers of Italy, Libya, Niger and Chad for ‘periodic and effective consultations on topics agreed upon during the meeting’.

To sum up, the policies discussed so far seem to point in the direction of new offshore processing centres in Niger and potentially Chad, and of simultaneous attempts to make the already abysmal conditions in the detention centres in Libya more ‘humane’ by involving humanitarian NGOs in managing them. In light of the failure in effectively relocating people in need of international protection from the ‘hotspots’ in Italy and Greece, and in resettling them from Turkey, there is a high risk that people will remain stranded in the Sahel, with their asylum claims being inevitably delayed, leaving them vulnerable to further abuse. As we discuss in the second part of this blog post, this failure has also serious implications in terms of the legal complexity that scenarios like this present when seeking accountability for violations stemming from the process.