Overwhelmed by the need to process quickly the growing numbers of asylum-seekers, the USA and European countries have expressed an interest in ‘external processing’ of asylum claims. This would involve establishing asylum processing centres in other countries, either in third party countries that are transit destinations for refugees- such north Africa for those headed to Europe. Or as the United States has already started to do, process claims in sending countries such as El Salvador and Honduras, from which the majority of unaccompanied minors entering the US originate their journeys.
External processing, its claimed, can help provide safe pathways for asylum seekers to reach their target countries, avoiding the hazardous journeys they often take, as well enabling their claims to be processed more quickly and at a smaller cost. The Australian experience, however, provides us a disturbing warning of the ways in which external processing can fall foul of a state’s humanitarian and human rights obligations and add further injury to those who are seeking refuge from violence and persecution.
Since reinstating a policy of mandatory offshore processing for “unauthorised maritime arrivals” in July 2013, Australia transports all refugees and migrants arriving in Australian territory by sea to Manus Island, belonging to Papa New Guinea (PNG), and the Island nation of Nauru. Australia has repeatedly stated that none of the refugees transported there will ultimately be settled in Australia.
An immediate issue that must be considered with external processing is the applicability of the principle of Non Refoulement (Art. 33 of the Refugee Convention) which protects asylum seekers from being sent back to persecution, torture, inhuman or degrading treatment, nor expelled to countries that would send them onwards to those risks. The choice of Nauru and Manus Island present challenges for Australia in complying with the principle of Non Refoulement. The European Court of Human Rights has held up this principle as applicable whenever a European country exercises control or jurisdiction over a person potentially in need of protection, that is even in another state’s territory, in international waters, or in border zones between states (see the European Court of Human Rights in Hirsi v Italy (2012)). Reports of assault, harassment and rape of settled refugees and detainees on day-release and threats by local communities to attack the center on Nauru compromise Australia delivering on this obligations, accepting such an obligation does exist.
The Australian asylum process on Nauru and Manus Island also fail to support the argument that external centers enable faster processing of asylum seekers. Lengthy delays have been experienced in the refugee status determination (RSD) process, with applications taking a year and even much longer to be processed . Many of those in detention have been deemed to be refugees but are still waiting to be formally granted refugee status. Human Rights Watch reported in July 2015 that, two years on, none of the 850 asylum seekers and 87 refugees on Manus had been integrated in PNG or resettled elsewhere (as the re-settlement agreement with PNG requires).
The lack of capacity and resources of the Nauruan government has led to weaknesses in the RSD process that compromise the rights of those being detained. This includes, for example, the lack of legal representation during initial interviews between immigration officials and asylum seekers, and the absence of an independent appeals procedure where asylum is refused. The secondment of Australian immigration officials makes it unclear whether the responsibility for such delays and procedural safeguards lies with the Australian and/or Nauruan government.
In addition to concerns surrounding access to justice, living conditions in the centres are suspected to be in contravention of multiple human rights obligations, particularly with regards to the treatment of children. Currently,103 children are still being held on Nauru, with reports that there have been cases of unaccompanied minors being mistakenly sent to Manus. Many have developed serious trauma as a result of their detention, with reports of self-harming, including a teenager who sewed his lips together and a reported suicide attempt by a six- year old.
The Moss Review and a recent Australian Senate Committee Inquiry found that children on Nauru (which is party to the Convention on the Rights of the Child), had spent on average 570 days in detention and were exposed to undue suffering and long-term psychological damage as a result of their detention. A report of the Special Rapporteur on Torture affirmed that detaining children in immigration centres should only happen as an ultima ratio measure, “[…] to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases”. The report made clear that the failure to limit children’s detention to the most exceptional cases would implicate the State in subjecting children to torture or other ill-treatment.
After Save the Children staff and medical professionals attempted to draw attention to the sexual abuse of children in the centre on Nauru, Australia criminalized public disclosure of conditions in the centers, punishable by two years in prison.
While external processing- such as offshore centers within third countries- may provide alternatives to some of the challenges of providing safe and effective refuge for those seeking asylum in Europe, the Australian experience illustrates that a commitment to humanitarian and human rights obligations must be central to any such policy.
Art credit: Jason Crislip,
Special thanks to Judith Reen for input.