By BILL FRELICK | on 25 April 2017
Will “America first” mean refugees last?. Regardless of if you look at United States, Europe, or the Pacific, the global asylum system is quickly falling apart.
The broad outlines of President Donald Trump’s “America First” foreign policy veers from build-a-wall isolationism to jingoistic sabre rattling, but in one dimension it has been sadly consistent: the stance that refugees should be kept out, diverted to other countries, or, preferably, confined to their home countries.
Trump has presented keeping refugees in Syria or other war zones as the sole alternative to “taking massive numbers” into the United States, as though supporting refugee-hosting countries is not an option. He has also asserted that this is the solution to Europe’s refugee crisis.
Trump appears to have given little thought to the enormously complicated enterprise of keeping refugees safe in a war-torn country. But that’s unsurprising if his motivation is not the well-being of civilian victims of war in far-off places but, rather, keeping them out of the United States. In fact, it appears to matter less to him whether displaced people from Syria or Central America or Somalia are kept within their own country or in some neighbouring country like Turkey or Mexico that can be used as a buffer zone.
Trump does not stand alone in his expressed desire to contain refugee movements and externalise migration controls. Both ‘Fortress Europe’ and Australia’s ‘Pacific Solution’ demonstrate that other regions have constructed legal and physical barriers to divert irregular migration movements and deflect responsibility to countries that often have far less capacity to process asylum claims and maintain refugees in safety and dignity. And Trump’s predecessors in the United States have at times taken the same path, whether by interdicting Haitians on the high seas or working with Mexico to stem the overland trek of Central Americans.
This is not to suggest that Trump represents mere continuity and consistency. Countervailing shifts have also been developing, as articulated most clearly when the UN General Assembly adopted the New York Declaration on Large Scale Movements of Refugees and Migrants last September. World leaders stood together to acknowledge their “shared responsibility to manage large movements of refugees and migrants in a humane, sensitive, compassionate and people -centred manner” though “cooperation among countries of origin or nationality, transit and destination.”
Early on in the Trump presidency the battle lines have sharpened in the US between accelerating and expanding exclusionary policies, such as the travel ban and suspension of refugee processing, and more inclusive ‘refugees welcome’ calls for responsibility sharing as seen in street and airport demonstrations. The fate of 65 million forcibly displaced people worldwide hangs in the balance.
US efforts to contain the flow of Central Americans
In the case of Central Americans fleeing gang violence and poverty, Trump seems content to build a wall on the US-Mexico border and to use Mexico as a refugee and migrant dumping ground. His 25 January executive order on border security and immigration enforcement would return Central Americans transiting through Mexico back to Mexico, where they would undergo “formal removal proceedings” after they had already been physically removed from the United States.
We can find echoes of Trump’s bid to externalise border controls in former US President Barack Obama’s handling of Central American migrants and asylum seekers. Obama, like Trump, was keen to keep Central American migrants and asylum seekers from reaching the United States, and went to great lengths to use Mexico to stem the northward migration flow. The effort to externalise US-Mexico border controls basically started in the summer of 2014, when tens of thousands of Central American children, and in many cases their mothers, began turning up at the US-Mexico border. The optics of overcrowded detention centres in Texas came at a particularly awkward time politically, as the US Congress was then debating comprehensive immigration reform.
It became a political imperative, if not a humanitarian one, for the Obama administration to demonstrate its control over the southern border.
Even though irregular crossings of the southwestern border from 2011 through 2013 – an average of 366,282 crossings per year – were, in fact, at their lowest number since 1972, partisan rhetoric said otherwise. It became a political imperative, if not a humanitarian one, for the administration to demonstrate its control over the southern border.
So, the Obama administration made an expensive deal with Mexico to keep desperate women and children fleeing gang violence in Honduras, El Salvador, and Guatemala from ever reaching the US border. It would encourage Mexico "to interdict the flow of illegal migrants from Central America bound for the United States," according to Jeh Johnson, the secretary of homeland security at the time.
Stepped-up US funding and diplomatic pressures coincided with Mexican government initiatives to prevent the Central American migration flow. On the same day in July 2014 that Obama sent Congress an emergency supplemental request of $3.7 billion "to comprehensively address this urgent humanitarian situation", his Mexican counterpart, President Enrique Peña Nieto, issued a decree announcing the programa frontera sur (southern border programme) to boost migration enforcement efforts in four southern Mexican states.
The result was often a fast bus ride back from Mexico to the deadly places people had fled, with no real opportunity for protection either in Mexico or back in their home countries.
The Congressional Research Service estimated that US State Department funding to support migration enforcement on Mexico's southern border would exceed $86.6 million prior to the enactment of the appropriation for fiscal year 2015. The US Congress increased the president's $115 million request for fiscal year 2015 by another $79 million, specifying that it was to be used for "efforts to secure Mexico’s southern border".
A year later, the number of apprehensions at the US-Mexico border had fallen by 57%, to 70,400. During that same time, apprehensions of Central American migrants in Mexico rose by 75%, to nearly 93,000.
The Mexican government reported a 60.5% increase in the number of Central Americans deported from Mexico from 2014 to 2015.
Obama won Mexican cooperation on the Central American migration front with increased assistance, cooperation, and praise. Trump’s rhetoric and actions thus far suggest a more confrontational stance toward Mexican interests and sensitivities. It remains to be seen, of course, how Mexico will respond to US government attempts to dump Central Americans across its southern border.
EU efforts to divert asylum seekers to neighbouring countries
Echoes of the Trump ‘wall-them-out-and-contain-them’ doctrine can also be seen in European efforts to divert the migration flow to its neighbours and even to green light the idea of holding refugees in Syria in the EU-Turkey deal in March 2016.
The European Union first sought to shift responsibility toward the non-EU states on the Western Balkan migration route and then ultimately to Turkey, the main transit country for the 850,000 arrivals in Greece in 2015. At the same time, the European Union renewed its efforts to create migration partnerships with African countries, establishing an emergency trust fund for Africa in November 2015 with the explicit aim of reducing migration to Europe.
The EU-Turkey agreement ignored important ways that Turkey falls short of the criteria specified in the EU’s Asylum Procedures Directive for ‘safe third countries’.
But EU eyes were really set on Turkey – already home to three million refugees, the largest number in any country in the world – as the gateway to Europe that needed to be closed. In March 2016, the European Union and its member states used inducements of future visa-free travel for Turkish nationals, a renewed path toward EU membership, and billions of euros in aid to seek Turkey’s assistance in preventing Syrian refugees from crossing into the European Union.
On 18 March 2016, the European Union and Turkey came to a formal agreement to return “all new irregular migrants crossing from Turkey into Greek islands” back to Turkey. The agreement states that such returns will take place “in full accordance with EU and international law”. The agreement cites the EU’s Asylum Procedures Directive (APD), and indicates that asylum requests from Syrians, Iraqis, Afghans, and others arriving irregularly by boat from Turkey will be ruled inadmissible because Turkey will be identified as a “safe third country” or as a “first country of asylum” to which most asylum seekers can be returned with less than full examination of their asylum claim.
The agreement ignored important ways that Turkey falls short of the APD’s criteria, such as the inconvenient fact that no Syrian, Iraqi, or Afghan returned to Turkey would be allowed to request refugee status there because Turkey excludes non-Europeans from qualifying for refugee status. When Turkey ratified the 1951 Refugee Convention, it maintained the geographical limitation of that convention – as a post-World War II instrument – for people displaced from Europe.
Syrians do have access to temporary protection in Turkey, which means that Syrians have some access to assistance and more recently to the labour market, although in practice significant barriers remain. But Iraqis, Afghans, and other nationalities of asylum seekers are not even eligible for temporary protection. The APD also requires the safe third country to respect the principle of nonrefoulement, the prohibition on the forced return of refugees. That principle not only forbids governments from deporting refugees to places where their lives or freedom would be threatened, but also from rejecting asylum seekers at their borders who would face such threats. At the very time the EU was announcing its migration control deal, Turkey had closed its border to tens of thousands of Syrians fleeing a government offensive in the northern Syrian city of Aleppo.
The number of people crossing the Aegean Sea dropped dramatically in 2017. From January to April in 2016, 152,137 people arrived in Greece by sea compared with only 3,856 during the same period of 2017.
The containment strategy has a built-in imperative. If few Syrians are able to reach Greece by boat and the war in Syria drags on, Turkey will be left with an ever-growing refugee population. This creates an incentive for Turkey to bolster its border to prevent more asylum seekers from entering, as well as building pressure on refugees in Turkey to go back to Syria – voluntarily or not. While the deal envisions voluntary resettlement of Syrian refugees from Turkey to the European Union in exchange for the return of Syrian asylum seekers from Greece to Turkey, as of 12 April 2017, only 4,618 had been resettled to EU countries under the deal. Ten EU members, including the UK, had declined to resettle a single person. The one-for-one exchange of Syrians commodifies humans as interchangeable, and disregards the reasons some individuals may have felt compelled to board a boat bound for Greece while others were willing to wait in a camp along the Syrian border or otherwise stay for long periods in Turkey. It also leaves out a resettlement option for Afghans, Iraqis and other non-Syrian refugees.
The one-for-one exchange of Syrians in the EU-Turkey deal commodifies humans as interchangeable.
Whatever the outcome of the EU-Turkey deal, it is clear that externalisation is now the main plank of EU migration policy. This was emphasised in June 2016, when the European Commission announced a new ‘migration partnership framework’. The framework has some positive elements, including the possibility of greater resettlement and other legal routes for migration. But the overall approach is consistent with the European Union’s efforts during the refugee crisis to deflect responsibility and legal obligations away from EU member states and onto transit and origin countries, including through the EU-Turkey deal.
While much of the framework restates longstanding policy approaches, the emphasis is on economic development as the main tool to tackle root causes of migration at the expense of attention to rights abuses that drive flight. The EU also chooses questionable potential partners, like Sudan and Eritrea, that have poor records when it comes to protecting human rights. And the effort to condition general EU aid explicitly on migration cooperation is another worrying element that will require close scrutiny in the coming months and years.
While President Trump’s tweet after meeting with Australian Prime Minister Malcolm Turnbull about a “dumb deal” for the US to take “illegal immigrants” from Australia demonstrated his utter disregard for the meaning of refugee status, it also revealed Australia’s own ugly policy of outsourcing its refugee obligations.
Australia’s migration-control externalisation policy, called the ’Pacific Solution’, dates from August 2001 when the Australian navy began interdicting migrants on the high seas. That month, a Norwegian freighter, the Tampa, rescued migrants from an overcrowded vessel and sought to bring them to Australia’s Christmas Island, as the next “place of safety” – the proper place, according to international maritime law, to disembark people rescued from vessels in distress. After the Norwegian ship’s captain defied Australia’s order and entered its territorial waters, the Australian military blocked the Tampa off the coast of Christmas Island, prevented its passengers from disembarking, and transferred them to an Australian military vessel.
By mid-2013, all irregular maritime asylum seekers to Australia were being sent to Manus and Nauru for processing and none found to be refugees were being resettled to Australia.
During the weeks-long standoff at sea, the Australian Parliament passed legislation with the explicit objective of stemming the unauthorised maritime arrival of asylum seekers. Among other provisions, the legislation, which went into effect in late September 2001, excised Christmas Island and other outlying territories from Australian immigration law, thus prohibiting asylum seekers in these erstwhile Australian territories from lodging asylum claims in Australia.
During September and early October 2001, Australia detained irregular maritime arrivals on Christmas Island or on board Australian naval ships and then transferred them to the Pacific-island country of Nauru, or to Papua New Guinea, where they were confined in camps. At the time, Nauru was not a party to the 1951 Refugee Convention and Papua New Guinea, though a party to the treaty, had attached numerous reservations to its accession and did not have adequate laws and structures to provide effective protection to refugees and asylum seekers.
Australian immigration officials conducted refugee status determinations in Nauru and Papua New Guinea, but they were not for the purpose of granting asylum under Australian law. Instead recognised refugees would be considered for discretionary resettlement to other countries. The asylum seekers in Nauru and Papua New Guinea had no recourse under any national law to challenge the refugee status determinations.
Refugee processing was closed at Manus Island in 2004 and at Nauru in 2008. Nauru became a party to the Refugee Convention in 2011, but lacked the capacity to provide effective asylum procedures and refugee protection.
In August 2012, the Offshore Processing and Other Measures Bill authorised the government to transfer irregular migrants arriving by sea to Nauru or to Manus Island in Papua New Guinea, where they would be held indefinitely while their refugee claims were processed. By mid-2013, all irregular maritime asylum seekers were being sent to Manus and Nauru for processing and none found to be refugees were being resettled to Australia.
Migrants who are not returned to their “sending” country continue to be transferred for offshore ”processing” in substandard conditions, where post-traumatic stress disorder and depression “have reached epidemic proportions” among those transferred, according to a leaked report by the UN High Commissioner for Refugees.
The stated guiding principle of Australia’s Pacific Solution has been the “no advantage” test, to ensure that “no benefit is gained through circumventing regular migration arrangements”. As a consequence of this approach, Australia has refused the option of resettlement to Australia for any refugees from Nauru or Papua New Guinea. The origin of Trump’s inherited agreement is Australia’s search for third countries willing to resettle refugees from its outsourcing centres.
Australia concluded a deal with Cambodia in 2014 to accept refugees from Nauru. The resettlement agreement, coupled with A$40 million in development aid, ignored concerns about safety and the lack of capacity of the Cambodian government. The first group of four refugees arrived in Phnom Penh in June 2015 at a cost to Australia of another A$15 million, but by April 2016 all of the original four had chosen to go back to their home countries rather than remain in Cambodia. As of November 2016, only two such refugees were still in Cambodia.
In April 2016, the Supreme Court of Papua New Guinea ruled that detention of asylum seekers and refugees on Manus Island violated Papua New Guinea’s constitution. The prime minister of Papua New Guinea then called on the Australian government to find alternative arrangements for its detainees on Manus Island and to relocate refugees not wanting to stay there. However, there has been little change in the past year for those being held on Manus Island. As of March 2017, over 800 people are still being held on Manus Island, although Papua New Guinea is no longer referring to Manus as a detention centre, but instead as a centre on a naval base.
International responsibility sharing
Trump’s simplistic, concrete-solutions approach sees in the building of walls and containment zones the answers to nuanced and complex human problems. But the underlying foundation for Trump’s outlook is one of values – a willingness to see the world as us and them, haves and have nots, where “America First” trumps notions of common humanity, universal rights, and a global world order based on interdependence and mutual respect.
Containment, by whatever pretext, is not the answer; pressure cookers do explode.
Unfortunately, those values have already eroded both in the United States and among like-minded and situated allies in Europe and the Pacific. The result has been a willingness to externalise migration controls and divert and deflect responsibility toward refugees and asylum seekers to countries with far less capacity to process claims, to protect those needing international protection, and to integrate refugees with no durable solutions in their home countries or regions of first asylum.
Many refugee problems do, indeed, seem intractable: protracted situations in Afghanistan, Somalia, and Syria, among others, that not only remain unresolved, but seem to grow worse by the year as refugees continue to flee what seem like never-ending crises. Containment, by whatever pretext, is not the answer; pressure cookers do explode. And sloughing the problem off to poorer countries in the neighbourhood of conflict risks destabilising those countries and causing even more turmoil and displacement.
In fact, the choices are not reduced to either accepting large numbers of refugees or keeping them in dangerous situations in their own country, as Trump has suggested. There are responsible ways for the countries with advanced economies to help build the capacity of less developed countries to enable refugees and host communities to live in dignity. New models geared toward social and economic integration of refugees will do more than heightened enforcement to preserve the institution of asylum and the international refugee regime that supports millions of refugees in countries of first arrival like Lebanon, Kenya, and Pakistan where 86% of the world’s refugees live. And, of course, root causes cannot be ignored. Most refugees will want to go home if they feel that they can do so in safety and dignity, but that requires far more attention to conflict resolution, building respect for human rights, and the rehabilitation and reconstruction of failed states.
The global asylum system succeeds only to the extent that the more distant and wealthier countries and regions like the United States, the EU, and Australia are willing to contribute financially, through refugee resettlement, and through their own example in giving asylum seekers a fair chance to make their claims. Right now, the system is failing. At stake is not only refugee lives, but a world order built on a community of nations.
Bill Frelick's complete report on the uses and consequences of border externalisation is available from Human Rights Watch. Co-written with Ian M. Kysel, and Jennifer Podkul.