Migrants, the Trend Is to Externalize the Problem

In recent years, migration pressure has put different countries to resort to "externalization" policies. Some recent examples, which have induced much discussion, include the United Kingdom (UK) and Italy, although their respective tools embody significant differences.

In April 2022, the UK adopted the so-called 'Rwanda policy'. This was a scheme according to which the UK considered Rwanda as a "safe third country" where people seeking asylum in the UK could be moved, so as their asylum application could be processed by Rwandan authorities, according to that country's law.

In parallel with facing strong criticism at the political level – based, first of all, on Rwanda's dubious compliance with the principle of non-refoulement – this policy was challenged before UK courts and, only a couple of weeks ago, the UK Supreme Court delivered its final ruling.
Based on the Supreme Court's decision, the policy is unlawful because there are "substantial grounds" to believe that, if moved to Rwanda, asylum seekers will be deported to their country of origin, including when they may face torture and ill-treatment once there. In other words, Rwanda is very likely to violate the principle of non-refoulement.
Importantly, the Court decided on the basis of the 1951 Refugee Convention, and its 1967 Protocol, and of article 3 of the European Convention on Human Rights (incorporated in the UK legal system through the Human Rights Act 1998), while it dismissed the grounds based on so-called EU retained law. According to these claims, the policy violated the "principle of connection", contained in the EU Procedures Directive and meaning that asylum seekers can be sent to safe third countries only if there is a "connection" between the migrant and the country (family ties, previous stays, etc.). Per the Court reasoning, the principle of connection is no longer applicable after Brexit, because it is among those provisions of EU law that were explicitly excluded from retention in the UK legal system after the exit. In this way, the Court highlighted a clear "break" in the field of migration law between the pre-Brexit and the post-Brexit era.

After the decision of the Supreme Court, the future of the policy is uncertain. On the one hand, the UK Prime Minister announced forthcoming re-negotiation with Rwanda to ensure better respect of the principle of non-refoulement; on the other hand, one might wonder whether a bilateral agreement, no matter how refined and well-written, is sufficient to enforce compliance with non-refoulement obligations in a country where recent history shows discouraging evidence in terms of human rights record.

The UK policy has been compared with the Italy's recent strategy of migrants' externalization. It is well known that, at the beginning of November, the Meloni Government announced an agreement with Albania for the construction of two centers in the Albanian territory to hold migrants rescued at sea by Italian ships.

Although the Italian policy can seem very similar to the UK one, a relevant difference is that the deal between Italy and Albania explicitly provides that the centers will be under Italian jurisdiction, and so Italian law will be applied. Reference to respect for "international and European law" is envisaged as well.

Although the Italian approach seems less worrying than the UK one, there are some legal issues that should at least be monitored in the practical implementation of the agreement with Albania.

The first is that, according to EU asylum law – even if one looks at the reform that it is undergoing – Member States (as Italy is) cannot carry out asylum procedures outside of their territory (and the application of mere jurisdiction seems not enough to satisfy this requirement).

Second, despite the application of the Italian jurisdiction is explicitly embodied in the agreement, this does not mean that Albanian law ceases to apply, as a State is not allowed by international law to waive its jurisdiction in cases like this. Hence, practically, migrants detained there will be under both jurisdictions, and how to manage this situation from a legal viewpoint needs to be carefully considered.

Third, these centers are de facto detention centers, and guarantees provided by Italian law to apply detention (review by a judicial authority, limits to the length of the stay, etc.) seem unlikely to be respected and enforced.

In conclusion, much remains to be seen as to the fate of the UK scheme after the Supreme Court's decision and as to the application of the Italian-Albanian agreement. In any case, these policies (and the comparative scenario shows further examples, such as Australia) point out a common trend towards "externalization" of migrants that, on the one side, can be seen as a response to the (uneven) migration pressure that some countries face, but, on the other side, poses serious risk in terms of human rights standards.