Are affluent states about to outsource refugee protection to low-cost, no-frills countries? Some observers would affirm that this is already happening, with the deflection policies of the North leaving the South with a disproportionate share of the protection burden. The recent European debate on processing asylum claims in regions of origin or transit indicates that a radical change to the asylum regime is looming.

In 2003, the governments of Denmark, the Netherlands and the United Kingdom engaged in a review of asylum policies which culminated in a 'New Vision for Refugees'. Its central tenet was that certain classes of asylum seekers would be removed to centres outside Europe or at its fringes. This initiative effectively imported the so-called 'Pacific Solution' of the Australian Government into the European context. The Pacific Solution entailed the transfer of asylum seekers to, and the processing of their asylum claims in, third countries in the Pacific.

The European proposals

The United Kingdom's paper entitled New International Approaches to Asylum Processing and Protection, circulated in early 2003, was the core document in the European debate on the issue. Essentially, it consisted of four elements:

1. The creation of 'regional protection areas' (RPAs) to improve protection in the region. UNHCR would be responsible for providing 'protection and humanitarian support' to refugees, and would have to ensure that the prohibition of inhuman treatment in Article 3 of the European Convention on Human Rights was not contravened. This meant safeguarding asylum seekers from threats within RPAs as well as removing such threats.
   
2. The return of spontaneous arrivals in the United Kingdom or cooperating countries to an RPA. This would discourage 'economic immigrants using asylum applications as a migration route into third countries' and bring down the number of applications in the United Kingdom (provided the RPAs had sufficient geographical coverage).
   
3. International recognition of the need to intervene to reduce flows of genuine refugees and enable refugees to return home. Options in this regard ranged from assistance to countries of origin to military intervention.
   
4. An assumption that the main way in which refugees would move to a third country would be through RPAs, where managed resettlement schemes would add some options for onward movement. 'Although not all refugees would be accepted for resettlement, this would enable countries who currently accept asylum seekers to share the refugee burden but in a managed way'. Refugees who did not gain a resettlement place would be helped to integrate locally in their region of origin.

In its subsequent deliberations at the international level, the United Kingdom introduced an important distinction between RPAs in the region of origin and Transit Processing Centres closer to the external borders of the European Union.

Shortly after the United Kingdom informed its partners about its new vision, UNHCR attempted to take the lead in the evolving debate by presenting a three-pronged model to deal with the issue. The three prongs encompassed solutions in the region, improved domestic asylum procedures and the processing of manifestly unfounded cases in European Union-operated detention centres within the Union's borders. They were met with little enthusiasm by European governments.

While Denmark, the Netherlands, Italy and Spain were outspoken supporters of the idea, a number of member states, including Sweden, Germany and France, were clearly opposed. By mid-2003 it had emerged that the United Kingdom could not muster enough support for a radical reformulation of the protection system.

Nonetheless, a number of experimental pilot projects with a regional protection component were launched in collaboration with the European Union, interested member states and UNHCR. In 2004, the German government changed its earlier stance for an appropriation of its idea. Later that same year Italy deported boat arrivals from the island of Lampedusa to Libya, which is not a signatory to the 1951 UN Refugee Convention. It seemed as if a crude version of the British government's 'vision' was being implemented, with Italy taking the lead. 'Outsourcing' had clearly grasped the imagination of the European Commission, which decided to sketch plans for 'Regional Protection Programmes'. However, unlike the United Kingdom's plan, the programmes would include the transformation of third countries to safe ones.

The barbed wire conundrum

What, then, is the problem with 'regional protection areas' or 'transit processing centres'? Essentially, it is the necessity for barbed wire. An RPA or processing centre must offer human rights protection on a level roughly equivalent to that within the European Union. This would be necessary to satisfy European courts that removal to such centres is in accordance with human rights and refugee law. Then, barbed wire is needed to keep out the local population of the country where the centre is located. On the other hand, if an RPA or processing centre offers human rights protection below the European Union level its migrant inhabitants will continue their efforts to reach the Union. Barbed wire would be needed to keep them in.

Can extraterritorial processing offer an effective response to human smuggling? Not as long as such processing is based on the use of force rather than on convincing migrants that states offer better alternatives than smugglers. Confined to a camp or transit centre, asylum seekers are expected to swap the right not to be refouled for the privilege of a place in the resettlement queue. Some will see this as their only chance in circumventing the camps and trying to access the informal labour markets in the North. Refugees and other migrants will be at least as desperate to use the services of smugglers under a camp regime as they are today. We can reasonably assume that they will move to destination states in the same numbers as before, but perhaps abstain from filing an asylum application.

Processing in camps: the legal issues

Processing in camps raises intricate legal and practical issues. The most pressing one is about state responsibility: which state will bear the legal responsibility for offshore processing? Will it be the territorial state where the processing camp is located? Or the state financing and removing asylum seekers there? Or will it be both? The right answer will depend on a number of factors, and presumes the existence of a precise blueprint of how the processing camps are to work. Yet this much is clear: under Article 1 of the European Convention on Human Rights, states cannot evade legal responsibility for their actions abroad.

Then again, will the asylum seeker understand this? And if so, will there be access to a lawyer at the camp?

Will that lawyer be able to work the human rights mechanism of another continent? The answer in all three cases is: not likely. European governments might dilute their responsibility further by employing international organizations and private enterprise as operative partners. Media will find it difficult to access camps and follow their operation, which will remove the fate of its inhabitants from television screens and newspapers. In effect, judicial monitoring and public awareness will be significantly reduced.

Which groups of asylum seekers should be removed for processing in camps? This question reveals a grave dilemma. To move almost all processing and much of the protection work outside European Union territory and to deter spontaneous arrivals, a large majority of such arrivals would need to be targeted for removal. However, to deliver on international legal obligations, persons to be removed after screening would need to be very carefully screened in accordance with their protection needs, thus undermining the objectives of volume, speed in processing and deterrent effect. Either the scheme will hardly make a difference in terms of migration control, or it will violate international law by exposing individuals and groups to discriminatory treatment.

What safeguards are applicable at the removal stage? First, it will be necessary to operate screening procedures before removing asylum seekers to an offshore processing camp. In cases where removal would arguably amount to a violation of rights and freedoms under the European Convention on Human Rights, some form of legal remedy is indispensable.

What are the protection standards to be applied in the processing camps? The minimum elements of physical safety and shelter are necessary, yet insufficient from the perspective of international law if the individual needs of persons reallocated to such camps are not taken into account. Invariably, there must be an element of legal protection. In the 2000 case of T.I. vs. The United Kingdom before the European Court of Human Rights, the respondent government argued that the applicant was safe in Germany, among other things because the country was party to the European Convention on Human Rights. Any violation of its Article 3 by German authorities, it was averred, could be brought before the Strasbourg judges again. The same logic would apply to the return from the United Kingdom or another contracting state to an offshore processing camp. There must be an effective legal remedy to avert violations of human rights.

Finally, consider a situation where a refugee in a processing camp finds that all resettlement quotas are exhausted, local integration is unavailable and voluntary repatriation inconceivable due to persistent risks in the country of origin. Such a refugee would be confined to indefinite detention, which would fly in the face of international refugee and human rights law.

Box 2.1 Towards a common European asylum system

Box 2.3 The Tampa Affair: interception and rescue at sea