The Readmission of Asylum Seekers under International Law by Mariagiulia Giuffré

In this new series of articles for Rights! – we talk to human rights authors about their latest books. Kicking off the series is Mariagiulia Giuffré, who discusses her latest publication – The Readmission of Asylum Seekers under International Law (Hart Publishing, 2020).

Overarching premise

This work is prompted by the disquieting discourses on, and current practices of, maritime interception, port closure to vulnerable groups, criminalisation of migrants, and the swift removal of asylum-seekers to allegedly ‘safe third countries’. It primarily aims to investigate whether the implementation of bilateral agreements linked to readmission can hamper refugees’ access to protection – an overarching concept shaped by the combination of non-refoulement and the right to access asylum procedures and effective remedies before removal to a country of origin or transit.

By investigating the diversification and informalisation of these co-operative tools of migration control, this work aims to add clarity to the ‘readmission’ discourse, which is fraught with confusion and partiality in both its terminology and substance. It broadens the legal analysis beyond standard readmission agreements to encompass a wider range of interstate accords aimed at facilitating the removal of irregular migrants with no status or right to stay within European territory, and the prevention of arrivals by outsourcing migration controls, push-backs, and, indirectly, responsibilities relating to refugees. 

Human rights contribution

This book helps define the contours of human rights and refugee law obligations binding states in territorial and extraterritorial operative contexts, engaging with issues that remain highly contested, not least the nebulous notion of jurisdiction and responsibility in cases of ‘contactless’ migration controls. Indeed, the activity of human rights courts and committees is, by and large, openly or tacitly constrained by jurisdictional filters, which have traditionally been territorially limited. It follows that not all cases of alleged violations of rights are considered admissible in court. This work therefore aims to enhance European states’ awareness that they cannot be divested of both their previously-contracted human rights obligations and their international responsibility (either direct or indirect) every time they offshore, or outsource, migration controls to the authorities of a third state. This applies even when the planned policy and operational cooperation are based on long-distance control and ‘influence’ over the third country (through technical, logistical or economic support).

I am of the view that balancing arguments weighing up national security and the rights of non-nationals should not be used to excuse derogations from fundamental human rights, such as non-refoulement to torture and inhuman treatment. Moreover, I question the reliability of diplomatic assurances issued by governments that practise torture against detainees, even if the deportee has been elevated to a case of high diplomatic significance. In a context in which the removal of suspected terrorists to unsafe countries has become highly a politicised issue, subjected to electoral interests myopically pandering to xenophobic or panic-stricken public opinion, restating the salience of human rights as justiciable obligations becomes all the more urgent.

Key findings

Freedom from refoulement and the right to access asylum procedures and effective remedies before removal are overarching terms whose full meaning can be better shaped through the use of different international refugee and human rights instruments. These instruments require a European state to comply with a number of obligations every time it decides to remove an asylum-seeker. Such a comprehensive approach is particularly helpful in the context of maritime interceptions/rescue of migrants. States should prioritise a systemic interpretation of their duties towards migrants and asylum-seekers, thus making their border-control measures consistent and compliant with international human rights and refugee standards, the law of the sea, and their search and rescue obligations.

However, this book also contributes to the discussion on the extraterritorial applicability of non-refoulement, showing how this principle can be invoked outside the territorial jurisdiction of the destination state. It includes analysis of more recent cases of ‘contactless’ migration controls at sea where interception and rescue operations are conducted by third countries with support from European states. In these circumstances, access to asylum procedures and effective remedies depends first on access to the territory.

Method and geographical scope

Although developing countries are home to approximately 84% of the world’s refugees, wealthy states (in particular European states) are those most frequently involved in bilateral agreements with countries of origin and transit to counter unauthorised or unwanted entries and stem arrivals to Europe. In doing so, they use their political and economic clout to achieve co-operation with third countries, which often lack the necessary resources and interest to tightly guard their land and sea borders. 

Italy and the UK have been chosen as case studies for two interwoven reasons. Italy is one of the most involved European states in bilateral co-operation linked to readmission. The UK, on the other hand, has historically been less prone to conclude agreements with third countries of migrant origin or transit. Nevertheless, these two states are diversifying their bilateral co-operation agreements for the removal and readmission of undesired immigrants and asylum-seekers. Indeed, Italy and the UK provide some of the best examples of agreements linked to readmission.

The results drawn from this research’s selective exercise are relevant to similar arrangements concluded by several other countries globally with the intent of removing or preventing the arrival of unwanted non-nationals. Moreover, dealing with formal and informal bilateral agreements as well as human rights conventions, this work relies on the general rules of treaty interpretation as enshrined in Articles 31–33 of the Vienna Convention on the Law of Treaties.

Conclusions and recommendations

First, I conclude that, while readmission agreements do not offer the legal basis for removal decisions, this is not the end of the story. Indeed, in situations of emergency and/or informal border controls (including in transit zones), readmission agreements may boost swift and accelerated identification and removal procedures, with the risk of transferring asylum-seekers, as unauthorised migrants, to allegedly ‘safe third countries’.

Second, the actual negotiation of diplomatic assurances in concrete situations might not only violate the principle of confidentiality of asylum applications, but it can also influence removal decisions to countries where there is a risk of torture and inhuman and degrading treatment. Access to protection could therefore be hampered, in particular if assurances are exchanged before examination of an individual’s asylum claim is completed. Third, push-backs and push-backs by proxy through bilateral agreements for technical and police co-operation, which prevent migrants entering the territorial jurisdiction of a European state, de facto undermine refugees’ access to protection.

I also find that there is more commonality between these three categories of agreements than expected, in particular regarding the importance they place on bilateral relations. Such commonality includes the incentives the two parties have to persuade the partner state to negotiate and/or to comply with the commitments taken; the modality of negotiation/conclusion of the accords, which frequently denies parliamentary scrutiny and public accountability; and finally, the detrimental effects they might have on refugees’ access to protection.

As a way forward, firstly I argue that diplomatic assurances – whether framed within Memoranda of Understanding or not – are not reliable when issued by governments that practice torture, have previously infringed similar undertakings, or notoriously fail to investigate the allegations of prohibited treatment against other detainees. Second, European states should ensure that bilateral agreements on extraterritorial migration control are not negotiated with countries that produce the largest numbers of refugees, or with transit countries that are known for poor treatment of migrants and refugees on their territory. Third, as readmission agreements do not generally include separate provisions on refugees, I recommend the insertion of both non-affection clauses and procedural human rights clauses creating extra safeguards for asylum-seekers at risk of being removed as unauthorised migrants, to allegedly ‘safe third countries’. To this end, this work makes a number of concrete proposals of draft provisions as a platform for further discussion among legal scholars and policy-makers.

Finally, this book showed that lack of transparency is problematic both at the supranational and national level. Informalisation of agreements linked to readmission enhances legal uncertainty because of the lack of sufficient procedural guarantees, thereby depriving individuals of the opportunity to enforce their rights. These agreements have often not been made public or subjected to parliamentary scrutiny. The lack of control on the terms of the accords impedes a proper democratic accountability and judicial oversight. This fosters a system where the legislator is bypassed in favour of the executive, the operability of the agreements is subject to the health of diplomatic relations, and responsibilities and procedural safeguards are diluted, with a heightened risk of violations for apprehended migrants and refugees.

Dr Mariagiulia Giuffré (PhD, LLM, FHEA) is a Senior Lecturer in Law at the Department of Law and Criminology, Edge Hill University (UK), a Research Affiliate to the Refugee Law Initiative (RLI), School of Advanced Study, University of London, an Associate to Italian Association for Juridical Studies on Immigration (ASGI), a Fellow of the Higher Education Academy, a Member of the Society of Legal Scholars and of the European Union Studies Association, as well as a Member of the Advisory Board of Süleyman Demirel University Faculty of Law Review (Turkey). Follow her on twitter @mariagiuliagg

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