EU Externalization in a Modern Context, an analysis

Marshall Everett
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Albania’s Prime Minister Edi Rama and Italy’s Prime Minister Giorgia Meloni in Rome, Italy, 2023
Source: (Roberto Monaldo/LaPresse via AP)

Italy-Albania

As 2023 came to a close, Italy and Albania announced a new bi-lateral agreement concerning people rescued at sea by Italian authorities outside of both Italian and broader European Union waters; with those rescued being taken to Albania for processing. While Italy was quick to note that said deal would not be applied to vulnerable groups – such as children and pregnant women – human rights organizations have accused the deal of violating international law in addition to raising a variety of questions on matters such as implementation and human rights protections. However, this is not the first deal of this nature reached by an EU member state and non-member state concerning the externalization of responsibility for those seeking to reach the EU.

What is Externalization?

The United Nations High Commissioner for Refugees (UNHCR) defines externalization as the process by which asylum seekers are forcibly transferred to third-party states whose human rights safeguards and resources are usually not sufficiently adequate to ensure the rights of asylum seekers. Furthermore, the UNHCR notes that the transferring state must still guarantee the rights of the asylum seekers being transferred under international law. However, these obligations are often not met during the externalization process.

Rescue at sea by MSF off the coast of Libya, 2023 Source: (Paolo Santalucia/AP Photo)

Amnesty International adds to this understanding of externalization by highlighting the many ways in which it can be articulated. For example, seeking to shift the responsibility of the rights of both asylum seekers and migrants entirely to a third-party state, the enlistment of so-called transit countries to restrict border crossings, push-back operations that endeavor to push back people seeking to cross a border, as well as cooperation and capacity-building agreements for border control infrastructure and activities in third-party states among other articulations – with this often being predicated upon aid for said third-party states.

Just as with the aforementioned deal between Italy and Albania, the above-listed methods of externalization all pose a myriad of legal questions and issues. To be clear, what’s at stake here are the rights of any asylum seeker or migrant deemed irregular by such policies. Hence, human rights experts are concerned about the EU’s modern externalization policies.

The EU and Türkiye

In a modern context, one of the most notable EU externalization arrangements was reached between the EU and Türkiye in 2016. Under this agreement, both the EU and Türkiye have worked together to turn back any irregular arrivals to Greece – including asylum seekers – to Türkiye. Thus, committing to prevent any irregular border crossing from its territory to the EU; with Türkiye hosting some 4 million refugees as of October 2023, with the vast majority – 3.6 million – being Syrian refugees who fled the Syrian Civil War more than 12 years ago now. In an effort to support Türkiye vis-à-vis the housing of refugees, the EU has provided around €10 billion to Türkiye since 2011 – with €5 billion having been provided since the deal in 2016 — and an additional €3 billion allocated for the prior year of 2023. Amnesty International has criticized this externalization agreement as it has resulted in thousands of men, women, and children being subjected to inhumane conditions in overcrowded camps they are unable to leave. In addition, Türkiye has even returned people to Syria – highly likely a violation of the principle of non-refoulment. Türkiye is not the only country that the EU has worked out such an arrangement with, though.

Turkish President Recep Tayyip Erdoğan and European Council President Charles Michel ahead of a meeting in Brussels, Belgium, 2020. Source: (AP Photo/Virginia Mayo)

The EU and North Africa

Likewise, the EU has sought to establish externalization agreements with various states in North Africa. Tunisia stands as one such example. In this case, The EU signed a Memorandum of Understanding with Tunisia this past year to restrict migrants’ efforts to reach the EU. In return, the EU has pledged €105 million to Tunisia for so-called border management — with nearly €1 billion in additional support amid Tunisia’s economic crisis. Human rights organizations have, much as with the Italy-Albania and Türkiye deals, lambasted what they see as an attack on human rights. Human Rights Watch (HRW) has noted that the Tunisian coast guard has committed abuses during and after interceptions of people seeking to leave Tunisia for the EU, such as acts of violence and theft; furthermore, HRW draws attention to the fact that Black Africans have suffered from increased violence, arbitrary detentions, and forced expulsions to border zones with Libya and Algeria.

Tunisia is not the only state in North Africa with which the EU has come to an agreement on such matters. This past March, the EU and Egypt reached a €7.4 billion deal aimed at — among other matters — assisting Egypt with migration-related programs, contending with irregular migration, combating smuggling and human trafficking, strengthening border management, and ensuring sustainable return and retention. The deal — and others like it that have expanded the EU’s externalized process — has been criticized by both human rights organizations and EU politicians for a lack of human rights safeguards, exposing people to brutal conditions in camps, as well as financially backing undemocratic regimes. Amnesty International has noted that refugees and migrants are consistently arrested for entering the country illegally, that they are detained in inhumane conditions or unlawfully deported with little in the way of proper protection, with further issues relating to Egypt’s human rights record also being raised.

While there are undoubtedly other states that could be spoken of, such as Libya and Morocco, the picture that appears to have been painted by human rights organizations would still be rendered in the same fashion; the EU has implemented and expanded an externalization process with states that have a questionable human rights record in an effort to reduce irregular migration – including that of asylum seekers– in return for funding. Incidentally enough, this characterization is not too terribly far off from that of the EU’s own description of its externalization policies.

Looking Ahead

The EU describes its “extraterritorial processing of asylum claims” as having brought a much-needed external dimension to its approach to migration management. Furthermore, President of the EU Commission, Ursula von der Leyen, affirmed in a letter to the EU Commission in October 2023 that external aspects of irregular migration control were critical in implementing EU migration policy – most notably via establishing comprehensive partnerships with non-EU member states. This emphasis is drawn to what the EU would describe as its extraterritorial – externalization – policy, as the region prepares a major overhaul of its approach to refugees and immigration with a new EU pact on the matter.

European Commission President Ursula Von der Leyen addressing the EPP Congress in Bucharest, Romania, 2024 Source: (AP Photo/Vadim Ghirda)

On April 10th, the EU will vote on its new Pact on Migration and Asylum. Amnesty International warns that the ensuing changes will put people at increased risk for human rights violations, noting that the pact will weaken existing protections, make it more difficult to access asylum for people moving, expand detention at the border, and shift responsibility even further to third party states outside of Europe. Meanwhile, HRW indicates that the legislation provides provisions for EU members to abstain from certain human rights obligations under specific circumstances, claiming that these rules would move the EU closer to legalizing the denial of the right to asylum. However, the EU has stated that the new pact will bring about a fairer, more efficient, and sustainable asylum and migration framework for the union, further claiming that the pact is designed to modernize these processes for the long term, rooted in the principles of human rights.

The EU has placed increasing emphasis on externalization in a modern context. Whether that be through the bi-lateral agreements that member states have reached with non-member states, such as Italy and Albania, EU-wide agreements that have been reached with specific non-member states, or the imminent vote on the EU Pact on Migration and Asylum, it is clear that the EU is transfixed with the externalization policy. This process has routinely been denounced by various human rights organizations, who see them not only as a way to shift responsibility away from the EU but as inherently rife with major human rights abuses as well.

Policies such as these are gaining traction in the EU, with the conservative European People’s Party (EPP) vowing to take an even stricter stance on immigration in the future, angling to bolster Frontex – the EU’s border security agency – in addition to indicating an interest in seeking to replicate the UK government’s as of yet implemented Rwanda deal to externalize asylum claimants to processing in so-called safe third-party states – despite the myriad of legal challenges that has faced. With EU parliamentary elections slated for this June and the EPP projected to take the lion’s share of the vote in part due to these aforementioned proposals, it’s clear that the EU’s focus on this matter won’t be going anywhere.

Suggested Readings

Martini, Lorena Stella and Megerisi, Tarek. “Road to nowhere: Why Europe’s border externalisation is a dead end.” ECFR. 2023.

“The 1951 Refugee Convention.” UNHCR. 1951.

“UNHCR Note on the ‘Externalization’ of International Protection.” UNHCR. 2021.

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EU Externalization in a M…

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