Offshore Processing of Refugees: Human Rights Law Implications

‘Offshore processing’ is a recurring idea within the European context. Drawing on lessons from Australia, what are the international refugee and human rights law implications of this practice that Europe must consider?

I. Introduction

In response to an increase in refugees and asylum seekers, Australia has experimented with different asylum policies over the last two decades. Within these policies, the practice of so called ‘offshore processing’ has been a central component.[1] Generally speaking, ‘offshore-processing’ describes the process of the removal of an asylum seeker to a third state while their claim for international protection is being assessed.[2]

In Australia, asylum seekers arriving by boat are sent to either Nauru or on Manus Island in Papua New Guinea, where their refugee claims are determined. This kind of immigration policy practiced by Australia means one thing in particular – a high cost. A high financial price with annual running costs currently estimated at more than $1 billion per year since 2012.[3] A heavy human price makes the practice of offshore processing an extensive violation of human rights. Multiple times the conditions of detention in Nauru and PNG’s refugee reception centres have been extensively criticised by United Nations Bodies and international human rights organisations.[4]

Nonetheless, the policy can be seen as ‘hard but effective’. Therefore, in the light of Europe’s biggest influx of migrants and refugees (most of them fleeing from war and terror in Syria and other countries[5]) since the second world war[6], some European Union leaders have suggested to follow Australia’s lead and to process asylum seekers offshore.[7] Together with proposals to enhance the Common European Asylum System, aiming to ensure harmonisation of asylum measures across member states of the EU, alternative measures to facilitate access to asylum in the EU were put forward in 2015.[8] These include the idea of offshore processing. But can Australia – especially regarding the costs to human lives of these policies – realistically be a role model for Europe?

This essay will analyse in detail the international refugee and human rights law implications associated with such policy that Europe must consider when following Australia’s concept.

Firstly, in order to provide some general understanding about Australia’s practice of offshore processing and its purpose, the functioning of Australia’s asylum policy as well as development over time will be outlined shortly referring to both the ‘Pacific Solution’ (2001-2008) and ‘Operation Sovereign Borders’ since 2013. Following this, Australia’s practice of offshore processing will be thoroughly examined in respect to its legality under international law, including international refugee and human rights law. Next, the compatibility of such asylum policy with stricter European regulations will be analysed.  The question ‘Can the “offshoring” of responsibility for asylum seekers be consistent with the member states’ human rights obligations?’ will be raised and answered. The main issue associated with a European offshore processing regime that will be discussed is ‘inhuman and degrading treatment of refugees’, held to violate Article 3 of the European Convention on Human Rights. In conclusion, this essay will emphasize the importance of Europe making a well-conceived decision regarding its asylum policy, as it will set a pattern for other countries.

II. The Australian Model

First introduced in 2001[9], offshore processing of refugee claims is an effort to deter the arrival of asylum seekers by boat to Australia. Known as the Pacific Solution, this policy included an agreement with Nauru and Papua New Guinea’s Manus Island for asylum seekers arriving in Australia by boat to be sent to these islands where they would wait in camps while their refugee claims were processed.[10]

Australia’s offshore processing policy was abandoned in 2008 before reinstated in August 2012 as a response to increasing arrivals of asylum seekers by boat. Negotiations with Nauru and Papua New Guinea were made for offshore processing centres to be re-established on their territories.[11]

In August 2013, the Labor government finally introduced Operation Sovereign Borders announcing that no asylum seeker arriving in Australia by boat would remain here. Instead, asylum seekers would be transported to Papua New Guinea where their refugee claims would be processed and where they would be resettled if found to be refugees.[12]

As a response, various reports highlighting ongoing and serious concerns about safety and security in these detention centres on Nauru and Manus Island were released. Among special concerns were the mental and physical health of asylum seekers detained in those camps since late 2012.[13]

III. A role model for a joint EU external processing scheme?/ A Solution for Europe?

Since the unprecedented influx of refugees and migrants into the EU in 2015 and 2016[14], the idea of introducing offshore procedures for the determination of refugee status abroad has also been in circulation amongst European countries. Many proposals were made for setting up offshore processing camps in EU neighbouring countries such as Albania, Ukraine, Morocco and other North African countries.[15] In recent times, there has further been a push to establish camps further afar in transit countries including Mali, Niger, Burkina Faso, Ethiopia, Chad and Sudan.[16] None of these initiatives has yet been put into practice. However, the EU-Turkey deal (which entered into force in 2016) can be seen as such form of offshore processing. The terms of the deal are that Turkey accepts the return of some asylum seekers from Greece. For each asylum seeker sent back, the EU then resettles one Syrian refugee processed by UNHCR in Turkey.[17]

Before introducing any offshore processing scheme for Europe, the applicable legal framework should be defined; be it the Common European Asylum System (‘CEAS’) instruments, or a dedicated legal instrument yet to be adopted.

One of the key challenges facing a joint offshore processing scheme is ensuring that the subject matter, legal framework, and implementing practices are clearly defined and delimited in order to effectively assist in facilitating access to protection to those in need. Essentially, one set of issue that requires particular attention is legal constraints. Using Australia’s asylum policy as a leading example, what can EU lawmakers learn from Australian experience considering engagement in future transfers?

IV. Legality of Australia’s Approach

In an open letter to Donald Tusk (European Council President), written to coincide with the 5^th anniversary of Australia’s “Regional Resettlement Agreement” on 19 July 2018, Amnesty International Australia urged EU heads of state to heed the lessons of the illegal Australian policy, which has seen thousands of refugees and asylum seekers forcibly sent to detention camps in Nauru and Manus Island where they continue to be exposed to dreadful conditions.[18] “Before proceeding with their own disembarkation policy, we urge EU member states to take a long, hard look at the appalling patterns of abusive treatment and intentional neglect by governments in Nauru and Manus Island since 2013. Australia’s policy has failed refugees and migrants on a grand-scale and must not be used as a template for others to follow,” said Claire Mallinson, National Director of Amnesty International Australia.[19]

In light of the numerous concerns raised by several international organisations in relation to Australian detention policy and practice, it seems reasonable to ask ‘Is refusing to process asylum seekers arriving at Australia’s borders and withholding settlement from people found to be refugees legal under international law? Or, is Australia violating its obligations under both the Refugee Convention[20] and international human rights law by doing so?’[21]

1. Arbitrary Detention

The circumstances in which asylum seekers can be detained are limited by international human rights instruments.[22] Most importantly, Art 9 of the International Covenant on Civil and Political Rights (‘ICCPR’)[23] prohibits arbitrary detention. This provision was interpreted by the UN Human Rights Committee (‘UNHRC’) as requiring an individualised assessment as to whether detention of a person in a particular case is ‘reasonable, necessary and proportionate’.[24]

Furthermore, the Refugee Convention provides protection against detention for asylum seekers in light of their specific vulnerabilities.[25] Fleeing from persecution, asylum seekers are often unable to obtain appropriate travel documents and visas.[26] Art 31 of the Convention thus prohibits states from penalising refugees and asylum seekers for unauthorised entry or stay. This creates a presumption against detaining asylum seekers in the absence of compelling reasons to do so.[27] Australia’s policy of blanket and automatic mandatory detention is arbitrary in nature and a violation of both art 9 of the ICCPR and art 31 of the Refugee Convention.[28] Mandatory detention will always violate the principles of proportionality and necessity as people are detained without individual assessment of the need for detention in a given instance.[29]

Arguments put forward by the Australian government in attempt to justify its immigration detention policies fail to meet the test for proportionality.

First, it was argued mandatory detention was a necessary step to ensure public health and safety.[30] People who have not yet had their identities verified nor undergone health and security checks could pose a risk to public safety. Although this may be true in some instances, this justification only supports the use of mandatory detention for the time period it takes to establish a person’s identity and to run health and security checks.[31]

Second, Australia tries to justify its policy by arguing confinement was required to ensure individuals turn up for their immigration hearings.[32] This aspect is problematic in that it creates a ‘false dichotomy between full-fledged detention and unsupervised release’[33]. There are numerous alternative measures governments can take that allow for the monitored release of individuals into the community. Many of them have a successful track record of ensuring high levels of compliance. Either way, these measures should be used in circumstances where persons would otherwise be detained only, rather than as an alternative to release. This is because of the severe human rights implications such intruding measures involve. An example of a less intrusive option proven to be successful is community supervision.[34]

The requirement of an appropriate and proportionate justification for detention was confirmed by UN treaty bodies.[35] Accordingly, UNHRC found that Australia’s immigration detention practices fail to meet this requirement. In A v Australia, it held that whilst it was not arbitrary per se to detain individuals requesting asylum, there is need for justification beyond legal entry, particular to the individual being detained.[36]

2. Right to Challenge Detention

Mandatory detention provisions may further violate art 9(4) of the ICCPR.[37] Art 9(4) rules that anyone deprived of their liberty should be entitled to challenge their detention in court. Among others, this requires that the court be empowered to order the release of the detainee in case detention contravenes the ICCPR. Accordingly, review must, in its effects, be ‘real and not merely formal’ and involve consideration of whether detention is consistent with the ICCPR.[38] EXAMPLE? Under its current mandatory detention policy, Australia does not afford effective review that satisfies these requirements.[39]

3. Conditions of Detention/Conditions in Extraterritorial Camps

Among others, the Australian Human Rights Commission expressed concerns about the conditions under which refugees and asylum seekers are held in one of Australia’s many immigration detention facilities – including those on Nauru and Manus Island – and found many to be inappropriate places in which to hold people, particularly for enduring time periods.[40]

Art 10 of the ICCPR rules that governments must ensure every person detained is treated with humanity as well as respect for their inherent dignity. Besides, detention must not contravene art 16 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (‘CAT’)[41] and art 7 of the ICCPR, both prohibiting cruel, inhuman and degrading treatment.[42]

Despite recent changes on both Nauru and Manus Island which purport to have transformed detention centres into open reception facilities[43], a report by Amnesty International has found asylum seekers and refugees continue to be held in a ‘detention-like environment’ and that ‘Nauru is to all intents and purposes an open-air prison that people cannot leave, even where they have been officially recognised as refugees.’[44] The restrictions cumulative impact along with the fact that people are confined to a small territorial area they cannot leave is likely sufficient to conclude that asylum seekers and refugees on Nauru and Manus Island are still being detained. This approach has been affirmed by both the European Court of Human Rights and UNHCR.[45] Following this, detention on Nauru and Manus Island should be seen as arbitrary. UNHCR held that the ‘Policy and practice of detaining all asylum-seekers at the closed RPC, on a mandatory open-ended basis, without individualised assessment as to necessity, reasonableness and proportionality of the purpose of such detention amounts to arbitrary detention that is inconsistent with international law’.[46]

Furthermore, the living conditions in detention camps on Manus Island and Nauru are increasingly worrying. Matters of concern include overcrowding, lack of privacy, exposure to the elements and lack of sufficient drinking water, sanitation and food.[47] On top of that, asylum seekers and refugees have to fight a range of serious tropical diseases (eg in 2017, an outbreak of dengue fever on Nauru infected 10 percent of the asylum seekers and refugees living in the RPC).[48] Medical services in both locations are held to be inadequate. Waiting times for basic treatments are long and specialist doctors are missing. This may be the reason for the death of various asylum seekers.[49] Moreover, the poor conditions and a lack of adequate medical treatment, in combination with open-ended mandatory detention and an absence of viable long-term settlement solutions, have resulted in high levels of mental illness among detainees.[50]

Reportedly, refugees and asylum seekers have also been victims of abuse and neglect. Several Australian government reviews into the conditions in the Nauru and Manus Island RPCs have found evidence of sexual and physical assault of detainees, including minors.[51] Even worse, there have been reports about refugees and asylum seekers being attacked by locals outside the centres.[52] Local police on Nauru and Manus Island seem reluctant to protect detainees yet to investigate claims of physical or sexual abuse.[53] Instead, police have evidently been responsible, in fact complicit in several physical assaults perpetrated against asylum seekers and refugees.[54] After all, there have also been allegations of arbitrary arrest and intimidation.[55]

Evidently, the conditions relating to the treatment of refugees and asylum seekers on Nauru and Manus Island breach the right to humane conditions in detention and amount to cruel, inhuman or degrading treatment, potentially even torture, thus violating art 7 and 10 ICCPR and art 16 CAT.[56]

4. Duration of Detention

Another aspect to consider is the duration of detention. Long-term detention can raise serious concerns under international law. This is particularly true if duration of detention is undetermined, possibly indefinite.[57] UNHRC criticised Australia in two cases in respect of ongoing and potentially indefinite detention of asylum seekers who were found to be refugees but not released from detention on the grounds of ‘imposing security risks’. In both cases, detention was held to be arbitrary as Australia had failed to demonstrate that other, less intrusive measures could not have been used instead.[58] Furthermore, UNHRC held that the indefinite nature of the detention, in conjunction with the arbitrary nature and difficult conditions of detention and the lack of access to information or procedural rights, was causing severe psychological harm to complainants. Hence, this amounted to cruel, inhuman and degrading treatment prohibited under art 7 of the ICCPR.

5. Quality of RSD and Risk of Refoulement

RSD of asylum seekers transferred to PNG and Nauru is carried out pursuant to the domestic law of those countries. Unfortunately, neither country has a lot of experience in carrying out such a role. As a result, both nations have repeatedly been criticised for lacking the expertise and capacity to carry out fair and effective RSD procedures.

PNG’s legislative framework contains several substantial shortcomings giving rise to the risk of refoulement. Generally, the grounds for exclusion from protection are broader than those found in the Refugee Convention. The regulations do not require the consideration of complementary protection grounds in the RSD procedures, therefore risking a breach of the non-refoulement provisions of the CAT, ICCPR and other human rights treaties.

Moreover, ‘effective review of negative determinations’ is concerning. Albeit in PNG asylum seekers have access to merits review before the purportedly independent Refugee Assessment Review Panel, public information as to its composition or function is missing; nor does it appear to have any legislative authority. The scope for judicial review is unclear, with the PNG Migration Act expressly stating that ‘any decision relating to the grant of an entry permit or removal from the country is not reviewable or open to challenge in any court on any ground’.[59]

WHICH ARTICLE BREACHED?

6. State Responsibility

Australia’s government argues it is not responsible for activities (and potential breaches of international human rights or refugee law) carried out within the sovereign borders of Nauru and PNG by the authorities of those governments.[60] Nowadays it is well established in international jurisprudence that a state can have human rights obligations to persons situated outside their territory, given the state exercises ‘effective control’ over that person.[61]

The governments of Nauru and Manus Island are pretendedly responsible for managing the RPCs and carrying out RSDs. Nonetheless, there is evidence the Australian government has exercised and will continue to exercise control over asylum seekers transferred to Nauru and Manus Island to a considerable extent.[62] For instance, Australia is solely responsible for funding the processing centres whilst also paying a leasing fee for the sites to the Nauruan and PNG governments.[63] Not only is there considerable presence of Australian staff working at both locations[64] but Department of Immigration officials have been involved in carrying out RSD procedures.[65] Additionally, it is the Australian government’s ultimate responsibility to facilitate resettlement.[66]

In light of these factors, the Parliamentary Joint Committee on Human Rights as well as the UN Committee against Torture came to the conclusion that Australia could be viewed as exercising ‘effective control’ over the treatment of people it had transferred to Nauru and Manus Island. Even if the Australian government’s involvement did not account to effective control, it may nonetheless be responsible for human rights violations occurring in Nauru and PNG under the ‘principle of joint and several liability’.[67] Hereto, it must be shown that Australia knowingly aided or assisted, directed or controlled, or coerced Nauru and PNG to commit these violations. According to UNHCR, at a minimum, such level of influence exists. Thus, Australia is jointly responsible with PNG and Nauru under international law for care and protection of all asylum seekers transferred to those destinations.

7. Transferring Asylum Seekers to Third Countries

Where the extraterritorial processing location is a third country, additional constraints under international law apply before asylum seekers are transferred.[68] Generally, the preferred and normal practice for processing asylum claims continues to be the provision of access to fair in-country procedures.[69] Nonetheless, under certain strict conditions, it may be permissible to transfer asylum seekers to third countries.

In its Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum Seekers[70], UNHCR sets out the minimum standards any third country transfer arrangement must meet. These guidelines require legally binding undertakings, including that transferees will be protected against refoulement; have access to fair and efficient procedures for RSD and be treated in accordance with accepted international standards.[71]

The Memorandum of Understandings (MOUs) Australia has concluded with Nauru and PNG do not satisfy these requirements. Firstly, quite a few of these protections are simply not mentioned at all.[72] Secondly, the MOUs are not legally binding on the parties, meaning there is no legal obligation on either party to honour their commitments under the arrangements, or hold each other accountable for any breaches.[73] Lastly, there exist serious concerns that persons transferred to PNG and Nauru may be subject to direct and secondary refoulement.[74]

Direct refoulement occurs when a refugee is transferred to a country where they face persecution due to their race, religion, nationality, political opinion or membership of a particular social group.[75] Certain asylum seekers transferred to PNG and Nauru reportedly face persecution in this fashion.[76] Further, direct refoulement occurs when transferees are subject to certain types of serious harm set out in the ICCPR, CAT and CRC, including torture or cruel, inhuman or degrading treatment. As examined above, there is strong evidence that the treatment of asylum seekers transferred to Nauru and PNG amounts to such harm. This is particularly true for vulnerable asylum seekers, including children and pregnant women.[77]

States transferring asylum seekers for third country processing are liable not just for persecution or harm asylum seekers may face in that country, but also for situations in which asylum seekers may be forwarded to another country where they would be at risk. In light of the shortcomings of RSD procedures in PNG and Nauru analysed above, and the pressure placed on asylum seekers to ‘voluntarily’ return to their home countries, there exists a serious risk of such secondary refoulement for refugees sent to those countries.[78]

8. Special Protections for Child Asylum Seekers

Special concerns arise in relation to asylum seeker and refugee children subject to the practice of offshore processing. The CRS requires that the primary consideration regarding all government decisions affecting children should be the ‘best interests of the child’.[79] But how can placing a minor in immigration detention realistically be justified as being in the best interests of a child?

The CRS further imposes strict limitations on detention, requiring that children should only be detained as a measure ultima ratio and for the shortest appropriate amount of time.[80] Aside from that, they shall be treated with humanity and respect for their inherent dignity.[81]

Child protection is further afforded by art 24(1) of the ICCPR which provides that ‘every child shall have, without any discrimination […] the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State’.

As of now, long-term mandatory detention of children onshore in Australia is quite rare. Yet, in Nauru, a large number continue to be kept under detention-like conditions in Nauru.[82] Despite a policy change in July 2013 in that Manus Island RPC is supposed to only house adult males, children were reportedly sent there by mistake.[83] In light of the general harm suffered by all asylum seekers and human rights violations occurring at those destinations, it is hard to see how the transfer of a child to either Nauru or PNG could ever meet the ‘best interests of the child test’.[84]

9. Non-discrimination and non-penalisation

Under the Refugee Convention it is prohibited to impose penalties on refugees for entering or being present in a state’s territory without authorisation.[85] Mandatory detention in Australia however, targets asylum seekers arriving without authorisation. Moreover, maritime interdiction and extraterritorial processing only apply to asylum seekers utilising a particular form of unauthorised arrival: namely, travelling by boat. Compared to those processed onshore, persons subject to these policies are afforded considerably less rights and protections.[86]

The differences in treatment may potentially further violate prohibitions against discrimination under international law. Article 26 of the ICCPR acknowledges the fact that ‘all people are equal before the law’ as well as ‘entitled to equal protection of the law without discrimination’.[87] This refers to any kind of discrimination on grounds including ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.[88] Specific protections against racial discrimination can be found in the Convention on the Elimination of all Forms of Racial Discrimination (‘CERD’)[89]. The CERD prohibits any distinction having the purpose or effect of impairing rights and freedoms.[90]

In so far as Australia’s policies of mandatory detention, maritime interdiction and extraterritorial processing disproportionately target asylum seekers from particular countries, they amount to effective discrimination.[91]

V. Lessons learned

First of all, it is hard to equate Australia’s externalised processing regimes with EU proposals. Australia’s approaches are no ‘regional’ ones as such pursued by a number of States with a common objective. Instead, the system is premised on bilateral agreements with each participating State, rather than a multilateral process involving several countries in the region. Additionally, Australia does not agree to resettle those found to be refugees, whilst most EU proposals contemplate the resettlement of at least some refugees across the EU.

In terms of refugee and human rights law obligations, Australia’s practice of offshore processing pushes the boundaries of what is acceptable under both domestic and international law. Reflecting on the serious concerns which the Australian policy raises under international law, what are the main factors EU lawmakers need to take into consideration in order to avoid such failure?

Generally, for any externalised or regional processing scheme to be considered legal under international law, the human rights and protection needs of all asylum seekers, refugees and migrants must be respected. Among others, it needs to be ensured there are adequate RSD procedures in place in that to identify people at risk of persecution or other serious harm, and conditions of treatment in processing centres must be in accordance with international human rights standards. In the case that asylum seekers are transferred to processing centres, individual determinations must occur before removal in order to ensure they are not at risk of persecution or serious harm in the country where the processing centre is located.[92]

UNHCR confirms that offshore processing may be allowed if used ‘as part of a burden-sharing arrangement to more fairly distribute responsibilities and enhance available protection space.’[93] It further acknowledges that processing in North Africa and the Middle East may be a necessary measure to help prevent loss of life at sea, given that certain legal safeguards are put in place.

Under international law, States cannot just divest themselves of legal responsibility for asylum seekers transferred elsewhere. Any State involved in a regional processing arrangement must accept responsibility for implementing it in accordance with their international, regional and domestic legal obligations.[94]

Among minimum preconditions, it needs to assured that asylum seekers will: be admitted to the country in which the centre is located; be protected against refoulement; have access to legal assistance; have access to fair and impartial RSD procedure; have access to a fair and impartial appeals process; have the right to remain while appeals take place; have the right to family unity respected; have access to durable solutions; and be treated in accordance with accepted international standards.[95]

Unlike Australia, Europe has a legally binding human rights protection regimes in the form of the Charter of Fundamental Rights of the EU,[96] the European Convention on Human Rights[97] and the Treaty on the Functioning of the EU[98] (requiring that all asylum policies implemented by the bloc be in accordance with the Refugee Convention and other relevant treaties).[99] While Australia’s Migration Act authorises the removal of a person regardless of whether or not that action could constitute refoulement, the European Court of Human Rights (‘ECtHR’) held that the non–refoulement principle applies extraterritorial.[100] Accordingly, States cannot lawfully remove individuals to other territories for processing purposes unless it can be proved (on a case-by-case basis) the particular territory is ‘safe’.[101]

According to a recent European Commission note assessing the legal and practical feasibility of several disembarkation scenarios under discussion “sending back an asylum seeker to a third country without processing their asylum claim constitutes refoulement and is not permitted under EU and international law. […] It is not possible under EU law on returns to send someone, against their will, to a country they do not originate from or have transited through.”[102] Any model of external processing may thus need to be formulated in a way that does not override the right to claim asylum.[103] This way, the idea of adopting the Australian model – which is designed specifically to prevent that right from being exercised – would have to be discarded.

Potentially, these guardrails in EU law could prevent at least some of the worst abuses that have taken place under Australia’s policy.

VI. Conclusion

Europe should consider the risks of following Australia’s lead carefully – especially in view of the fact that there are much stronger human rights protections in Europe than in Australia.

The protections set out in the Refugee Convention and other human rights treaties are only as effective as their application in the real world by state practice. The implementation of international law into state practice requires leadership. States need to lead by example to induce, persuade and acculturate other states to adhere to protection norms.[104] The restrictive policies introduced in Australia examined in this essay mean that Australia now lacks the credibility to take on this leadership role.

Instead, all eyes are now on Europe. Despite the recent adoption of restrictive measures having eroded some of Europe’s credibility, a great part of the world still looks towards the EU and its member states as among the last stronghold of rights protection. The world is at a make-or-break tipping point. If Europe follows Australia’s path, it will be inflicting a ‘death wound’ on the universal principle of asylum and the international refugee protection regime more broadly.

Rather than appeasing political apprehensions with plans that will put more refugees at risk of death or abuse, the EU and UNHCR need to reconsider real long-term solutions that are in full compliance with both international law as well as European regulations.[105]

Bibliography

Bochenek, Michael G., ‘Australiens Flüchtlingspolitik kein Vorbild für Europa’, Die Presse (online), 3 January 2017, .

Bochenek, Michael G., ‘EU cannot copy Australia’s offshore asylum policy’, euobserver (online), 19January 2017, .

Brandt, Jessica, Higgins, Claire, ‘Europe wants to process asylum seekers offshore – the lessons it should learn from Australia’, Brookings (online), 31 August 2018, .

Brouwer, Evelien, ‘Extraterritorial Migration Control and Human Rights: Preserving the responsibility of the EU and its Member States’, Immigration and Asylum Law and Policy in Europe, Volume 21 (2010), 170-228.

Davitti, David, ‘Why offshore processing of refugees bound for Europe is such a bad idea’, The Conversation (online), 28 July 2017, .

Den Heijer, M.: ‘Europe and extraterritorial asylum’, Bloomsbury Publishing, 2012

Garlick, Madeline, ‘The EU Discussions on Extraterritorial Processing: Solution or Conundrum?’, International Journal of Refugee Law, Volume 18 (2006), 601-629.

Garlick, Madeline, ‘The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims’, Migration Policy Institute (online), March 2015, .

Ghezelbash, Daniel, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press

Ghezelbash, Daniel, ‘Why Europe shouldn’t follow Australia’s lead on asylum seekers’, The Conversation (online), 28 March 2018, < https://theconversation.com/why-europe-shouldnt-follow-australias-lead-on-asylum-seekers-90304>.

Gleeson, Madeline, ‘Offshore: Behind the wire of Nauru and Manus’ (2016), NewSouth Publishing

Gleeson, Madeline, ‘Offshore processing: failing those who we should protect (Australia’s refugee offshore processing)’, Law Society of NSW Journal, Issue 32 (2016), 24-25.

Goodwin-Gill, Guy S., ‘The refugee in international law’, Oxford University Press, 2007

Goodwin-Gill, Guy S., ‘The Right to Seek Asylum: Interception at Sea and the Principle of Non-Refoulement’, International Journal of Refugee Law, Volume 23 (2011), 443-475.

Henley, Jon, ‘What is the current state of the migration crisis in Europe?’, The Guardian (online), 15 June 2018.

McAdam, Jane, ‘Why seeking Asylum is legal and Australia’s policies are not’ (2014), NewSouth Publishing

Nethery, Amy and Holman, Rosa, ‘Secrecy and human rights abuse in Australia’s offshore immigration detention centres’, The International Journal of Human Rights, Volume 20 (2016), 1018-1038.

Roth, Anna-Lena, ‘Australiens Flüchtlingspolitik: Abschrecken, abschotten, abwälzen’, Spiegel Online, 10 December 2017, .

Tan, Nikolas F., ‘The Future of Offshore Processing’, E-International Relations (online), 25 July 2017, .

Wisdorff, Flora, ‘So viel Australien steckt in Europas Flüchtlingspolitik’, Welt (online), 23 November 2017, .

Treaties/Conventions

Charter of Fundamental Rights of the European Union (2000), ‘European Charter on Human Rights’

Convention Relating to the Status of Refugees (1951), ‘1951 Refugee Convention”

European Convention on Human Rights (1950)

Protocol Relating to the Status of Refugees (1967), ‘1967 Protocol’

Treaty on the Functioning of the European Union (2007), ‘Treaty of Rome (1957)’

Treaty on European Union (2007), ‘Maastricht Treaty (1993)’

United Nations Convention on the Law of the Sea (1982)

Universal Declaration of Human Rights (1948)

Other

Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (2013), ‘Directive 2013/32/EU’

Cases

A v Australia, UN Doc CCPR/C/59/1993

FKAG et al v Australia, UN Doc CCPR/C/108/D/2094/2011

MMM et al v Australia, UN Doc CCPR/C/108/D/2136/2012

Hirsi Jamaa & Ors v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23 February 2012).

READINGS:

https://www.refugeecouncil.org.au/getfacts/seekingsafety/resettlement/offshore-program/

oxford handbooks online!

Kids off Nauru

Visitors access to places of detention

Refugee council of Australia report: unwelcome visitors

REFUGEE STATUS DETERMINATION

Children und discrimination nach oben

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[1] Christopher D. Foulkes, ‘Australia’s Boat People: Asylum Challenges and Two Decades of Policy Experimentation’, Migration Information Source (online), 11 July 2012.

[2] Nikolas F. Tan, ‘The Future of Offshore Processing’, E-International Relations (online), 25 July 2017.

[3] David Davitti, ‘Why offshore processing of refugees bound for Europe is such a bad idea’, The Conversation (online), 28 July 2017.

[4] Michael G. Bochenek, ‘Australiens Flüchtlingspolitik kein Vorbild für Europa’, Die Presse (online), 3 January 2017; p. 1; Flora Wisdorff, ‘So viel Australien steckt in Europas Flüchtlingspolitik’, Welt (online), 23 November 2017.

[5] ‘The EU and the Migration Crisis’ European Commission (online), July 2017.

[6] Jon Henley, ‘What is the current state of the migration crisis in Europe?’, The Guardian (online), 15 June 2018.

[7] Anna-Lena Roth, ‘Australiens Flüchtlingspolitik: Abschrecken, abschotten, abwälzen’, Spiegel Online, 10 December 2017.

[8] David Davitti, ‘Why offshore processing of refugees bound for Europe is such a bad idea’, The Conversation (online), 28 July 2017.

[9] Madeline Gleeson, ‘Offshore: Behind the wire of Nauru and Manus’ (2016) NewSouth Publishing, 15.

[10]

[11]

[12] Madeline Gleeson, ‘Offshore: Behind the wire of Nauru and Manus’ (2016) NewSouth Publishing, 17.

[13] Caroline Fleay, Sue Hoffman, ‘Despair as a Governing Strategy: Australia and the Offshore Processing of Asylum-Seekers on Nauru’ 33 Refugee Survey Quarterly 2.

[14] ‘The EU and the Migration Crisis’ European Commission (online), July 2017.

[15] Daniel Ghezelbash, ‘Why Europe shouldn’t follow Australia’s lead on asylum seekers’, The Conversation (online), 28 March 2018.

[16] Ibid.

[17] Ibid.

[18] ‘Australia: EU Countries Must Not Repeat Human Rights Failures of Cruel Australian Refugee Policy’, Amnesty International (online), 19 July 2018.

[19] Ibid.

[20] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (‘Refugee Convention’)

[21] Madeline Gleeson, ‘Offshore: Behind the wire of Nauru and Manus’ (2016) NewSouth Publishing, 15.

[22] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 133.

[23] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 May 1976) art 9(1).

[24] Human Rights Committee, General Comment No 35: Article 9 (Liberty and Security of Person), 112th sess, UN Doc CCPR/C/GC/35 (16 December 2014) [18] citing Human Rights Committee, Views: Communication No 560/1993, 59th sess, UN Doc CCPR/C/59/D/560/1993 (30 April 1997) [9.3]–[9.4] (‘A v Australia’).

[25] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 134.

[26] Ibid.

[27] Guy Goodwin-Gill, ‘Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-Penalization, Detention, and Protection’ in: Erika Feller et al (eds), ‘Refugee Protection in International Law: UNHCR’s Global Consultations on International Protection’ (2003), Cambridge University Press, 185, 195-6.

[28] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 134.

[29] Ibid.

[30] DIAC, ‘Response to the Australian Human Rights Commission report on the Use of Community Arrangements for Asylum Seekers, Refugees and Stateless Persons Who Have Arrived to Australia by Boat’ (2012), Australian Human Rights Commission (online).

[31] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 135.

[32] See A v Australia, UN Doc CCPR/C/560/1993 [7.1]; see 8 CFR §212.5.

[33] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 135.

[34] Ibid.

[35]

[36] A v Australia, UN Doc CCPR/C/59/1993, [9.3]–[9.4].

[37] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 136.

[38] A v Australia, UN Doc CCPR/C/59/1993, [9.5].

[39] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 137.

[40] See, eg, Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention 2014 (November 2015).

[41] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’).

[43] See, eg, Government of the Republic of Nauru, ‘Nauru Commences Open Centre Arrangements’, 25 February 2015.

[44] Amnesty International, ‘Island of Despair: Australia’s ‘Processing’ of Refugees on Nauru’ (Report, Octover 2016) 5.

[45] See Amur v France (1996) 22 Eur Court HR 533, [42]; UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012), [6].

[46] See UNHCR, UNHCR Monitoring Visit to the Republic of Nauru: 7 to 9 October 2013 (Report, UNHCR, 26 November 2013) 2; UNHCR monitoring visit to Manus Island, Papua New Guinea: 11-13 June 2013 (Report, UNHCR 26 November 2013) 1; UNHCR, Submission on the Inquiry into the Serious Allegations of Abuse, Self-Harm and Neglect of Asylum-Seekers in Relation to the Nauru Regional Processing Centre (Submission 43, UNHCR, 12 November 2016) [16].

[47] Amnesty International, ‘Australia: This Is Still Breaking People: Update on Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea’ (Report, 12 May 2014) 5-8; Amnesty International, ‘Island of Despair: Australia’s “Processing” of Refugees on Nauru’ (Report, October 2016) 5.

[48] Michael Koziol, ‘Dengue Fever Outbreak in Nauru Hits 10 Per Cent of Asylum Seekers’, Sydney Morning Herald (online), 27 April 2017.

[49] Amnesty International, ‘Island of Despair: Australia’s “Processing” of Refugees on Nauru’ (Report, October 2016) 23-29; Amnesty International, ‘Australia: This Is Still Breaking People: Update on Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea’ (Report, 12 May 2014) 9.

[50]  Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 155.

[51] DIBP, ‘Review into Recent Allegations Relating to Conditions and Circumstances at the Regional Processing Centre in Nauru’ (Final Report, 6 February 2015) ; Select Committee on the Recent Allegations relating to the Conditions and Circumstances at the Regional Processing Centre on Nauru, Parliament of Australia, Taking Responsibility: Conditions and Circumstances at Australia’s Regional Processing Centre in Nauru: Final Report (2015) 133.

[52] Amnesty International, ‘Island of Despair: Australia’s “Processing” of Refugees on Nauru’ (Report, October 2016) 34-7; Amnesty International, ‘Australia: This Is Still Breaking People: Update on Human Rights Violations at Australia’s Asylum Seeker Processing Centre on Manus Island, Papua New Guinea’ (Report, 12 May 2014) 48-9.

[53] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 157.

[54] See Eric Tlozek, ‘Manus Island Asylum Seekers “Bashed by PNG Police” Released from Custody’ ABC News (online), 2 January 2017.

[55] Amnesty International, ‘Island of Despair: Australia’s “Processing” of Refugees on Nauru’ (Report, October 2016) 39-42.

[56] CAT art 1(1), 16; ICCPR art 7; CRC art 37(a).

[57] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 137.

[58] FKAG et al v Australia, UN Doc CCPR/C/108/D/2094/2011; MMM et al v Australia, UN Doc CCPR/C/108/D/2136/2012.

[59]

[60] See, eg, Human Rights Council, Report of the Working Group on the Universal Periodic Review: Australia, 31st sess, Agenda Item 6, UN Doc A/HRC/31/14/Add.1 (29 February 2016) [14].

[61] See Human Rights Committee, General Comment No 31: Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (29 March 2004) [10].

[62] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 160.

[63] Parliamentary Joint Committee on Human Rights, Parliament of Australia, Examination of the Migration (Regional Processing) Package of Legislation’ (2013) 37-8.

[64] Ibid 39.

[65] Ibid, 40-1.

[66] Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, signed 3 August 2013, cl13.

[67]

[68] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 162.

[69] UNHCR, ‘Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum Seekers’ (Note, May 2013) [1].

[70] UNHCR, ‘Guidance Note on Bilateral and/or Multilateral Transfer Arrangements of Asylum Seekers’ (Note, May 2013).

[71] Ibid [3(vi)].

[72] See Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues, signed 3 August 2013, cl 12.

[73] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 162-3.

[74] Ibid, 163.

[75] Refugee Convention art 33(1).

[76] See, eg, UNHCR, UNHCR Monitoring Visit to Manus Island, Papua New Guinea: 23 to 25 October 2013 (Report, UNHCR, 26 November 2013) [123]–[124].

[77] Madeline Gleeson, ‘Offshore: Behind the wire of Nauru and Manus’ (2016) NewSouth Publishing, 7.

[78] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 163.

[79] CRC art 3.

[80] Ibid art 37(b).

[81] Ibid art 37(c).

[82] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 164.

[83] Oliver Laughland, ‘”Every Day I am Crying”: Boys Held on Manus Island Tell of Their Despair’, The Guardian (online) 7 November 2013.

[84] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 164.

[85] Refugee Convention art 33(1). This protection only applies where the refugee has come directly from a territory where they faced persecution and has presented themselves to authorities without delay.

[86] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 165.

[87] ICCPR art 26.

[88] Ibid.

[89] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (‘CERD’).

[90] CERD art 2(1)(c).

[91] Daniel Ghezelbash, ‘Refuge Lost – Asylum Law in an Interdependent World’ (2018), Cambridge University Press, 166.

[92] Jane McAdam, The Andrew & Renata Kaldor Centre for International Refugee Law, ‘Policy Brief: Extraterritorial Processing in Europe’ (2015).

[93] UNHCR, ‘Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with respect to Extraterritorial Processing’ (Protection Policy Paper, 2010) para 3.

[94] See eg, Madeline Gleeson, The Andrew & Renata Kaldor Centre for International Refugee Law, ‘Who is legally responsible for offshore processing on Manus and Nauru?’ (2018).

[95] UNHCR, ‘Maritime Interception Operations and the Processing of International Protection Claims: Legal Standards and Policy Considerations with respect to Extraterritorial Processing’ (Protection Policy Paper, 2010) para 35.

[96]

[97]

[98]

[99] Jessica Brandt, Claire Higgins, ‘Europe wants to process asylum seekers offshore – the lessons it should learn from Australia’, Brookings (online), 31 August 2018.

[100] Hirsi Jamaa & Ors v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23 February 2012).

[101] See Select Committee on European Union (UK), ‘New International Approaches to Asylum Processing and Protection’ in Handling EU Asylum Claims: New Approaches Examined, House of Lords Paper No 74, 11^th Report of Session 2003-04 (2004),para 68.

[102] ‘The Legal and Practical Feasibility of Disembarkation Options European Commission’ (Follow-up to the informal working meeting of 24 June 2018, European Commission).

[103] Madeline Garlick, ‘The Potential and Pitfalls of Extraterritorial Processing of Asylum Claims’, Migration Policy Institute (online), March 2015.

[104] Daniel Ghezelbash, ‘Why Europe shouldn’t follow Australia’s lead on asylum seekers’, The Conversation (online), 28 March 2018, < https://theconversation.com/why-europe-shouldnt-follow-australias-lead-on-asylum-seekers-90304>.

[105] Davitti, David, ‘Why offshore processing of refugees bound for Europe is such a bad idea’, The Conversation (online), 28 July 2017.