INTERNATIONAL COOPERATION ON INTERDICTION OF ASYLUM-SEEKERS: A GLOBAL PERSPECTIVE⁽¹⁾

François Crépeau
Professor of Law, Université du Québec à Montréal
Director, Centre d'études sur le droit international et la mondialisation

Asylum is an aspect of globalization, although it is seldom presented and analyzed as such. Migrations are being globalized as much as trade exchanges, to which they have always been related: it is not yet officially recognized by policy-makers, but they are in fact already acting upon that assumption. Because of this reality, a global perspective on asylum issues is essential in order to understand how policies were born, have been transmitted and have evolved, and to be able to anticipate new developments.

The growth in number of asylum claims in Western countries at the beginning of the '80s led to a perceived necessity to discuss the issue, to share experiences, to experiment with solutions. The United Nations High Commissioner for Refugees (UNHCR) initiated "informal consultations" which rapidly became Intergovernmental Consultations (IGC), entirely led by Western States under the direction of Jonas Widgren (now of the Vienna Group). Dating back as early as 1983, it constituted the earliest forum for cooperation on irregular migration control. The operations developed by the IGC produced results, although these have never been quantified. Examples of these operations include an operation in Turkey to block Iranian refugees en route for the West, another operation in Romania to prevent Romanians from leaving home, and the development of country profiles (such as the one on Ghana discussed at Niagara-on-the-Lake in 1992) to give all Western States a common understanding of the political situation within source countries.

The most powerful push for international migration control cooperation came with European integration. Without going into a detailed description of this integration, the principle and objective is the free movement of persons within Europe, since the Single Europe Act of 1985. The disappearance of internal borders induces new forms of police cooperation for the control of criminal activities. The abolition of internal borders has a major symbolic importance as it is a direct blow at one of the defining elements of a State since the Renaissance: policing the territory and maintaining public order is one of the few absolutely essential functions of any political power. As evidence of this, one can think of the fact that, on December 19, 1995, the French government announced another delay of several months in opening its borders under the Schengen Accord: France continued to insist that it must maintain strict border controls because of terrorist attacks. Further, police cooperation between European countries have proved to be very difficult: differences between legal and constitutional systems, differences in the police administrative structures, as well as language barriers. This cooperation covers the wide spectrum of international criminality: money laundering, smuggling, drug trafficking, arms trafficking, mafia-type criminality, terrorism, and irregular migrations. To be sure, this cooperation, as defined, produces an illegitimacy transfer to the detriment of migrants, as migration is henceforth associated to all the criminal activities mentioned.

This illegitimacy transfer has operated effectively. Public opinion has been turned within less than fifteen years, from the real openness shown towards Indochinese boat-people in 1979 to the definite reluctance to allow in refugees from Bosnia in 1993-1994. Altering public opinion was probably the major challenge facing immigration control administrations during the '80s and, coupled with an economic situation which weakened social consensus and polarized the fears of many, these administrations succeeded in denigrating the image of the asylum-seeker, associating it to that of the defrauder.

In simple accounting terms, the overall objective is to reduce the number of asylum claims to be treated by any refugee determination system. Two sub-objectives can be distinguished:

1. A law enforcement objective. Immigration departments throughout the Western world believe that no more than 10% of all asylum-seekers are bona fide refugees. Most are considered illegal economic migrants attempting to bypass the procedures. This is the message that has been conveyed to and lately accepted by Western public opinion. In an international law conference in Ottawa, Brian Grant, of the Enforcement Branch at the Canadian Immigration Department, bluntly stated that his department was an "impotent gate-keeper". This tough stand on immigration and refugee issues is politically rewarding, easily fueled by any media coverage of a new immigration horror story.

2. A cost-reduction objective. The mechanisms necessary to determine refugee status are extremely costly (not to speak of the cost of migrants to social security mechanisms), particularly so in a State which is bound by constitutional rules regarding the protection of basic human rights and fundamental justice: the Canadian Immigration and Refugee Board (IRB) and the French Commission des recours des réfugiés are the biggest administrative tribunals of their respective countries with regard to the number of cases decided each year. As we are constitutionally bound to maintain such mechanisms (in Canada, by virtue of the Canadian Charter of Rights and Freedoms; in Europe, by virtue of the European Convention on Human Rights), the only way to reduce costs is to "welcome" a considerably reduced number of asylum-seekers into the system. In order to reduce the number of refugee claims to be treated, one can try to "maximize the output" or one can try to "minimize the input".

Maximizing the output means sending back as soon as possible as many asylum-seekers as possible that have entered the territory and made an asylum claim. Several mechanisms may be used and they are now added to one another in order to achieve a cumulative effect.

- Maximization of removals. The percentage of illegal aliens actually removed from the territory remains generally low. In any given Western country, removals are within the 20%-50% bracket: more than half of illegal and removeable aliens remain on the territory, either because they are making use of all legal recourses available, or because practically they cannot be legally removed (for example, no country is willing to accept them), or because they have eluded all controls and altogether vanished underground.

- Accelerated procedures. Almost all countries have introduced into their refugee status determination mechanisms accelerated procedures designed to treat certain categories of asylum claims more quickly than others. Essentially, they aim to eliminate "manifestly unfounded claims", that is claims deemed not to be worthy of a thorough examination. Sometimes, on a more positive note, the procedures will be accelerated in favour of persons who will be deemed to be refugees (by virtue, for example, of their country of origin, deemed to be a refugee-producing country).

- Manifestly unfounded claims. Either the claim itself is considered to be prima facie unworthy or frivolous since it does not correspond to any of the criteria set out in the 1951 Geneva Convention, or the claim is made by a national of a "safe country of origin", or by a person who can be sent back to a "safe third country".

- Safe third country. The asylum claim will not be heard on the merits where it appears that the claimant could have asked for protection while in a country of transit. This mechanism is based on the idea very vocally defended presently by all Western countries, that asylum-seekers do not have the choice of their country of refuge and that they must ask for protection in the first country which they enter that is considered "safe" in the limited sense of protection from persecution. Family links or personal preferences of refugees are conveniently said to be immigration criteria that will come into play when the refugee, protected in the "safe third country", begins immigration procedures towards the country of her choice. Coupled with refoulement agreements, it will allow the West to return most asylum-seekers into the hands of its satellite countries such as Turkey, Morocco, Mexico and Poland. Canada's Immigration Act has contained a "safe third country" provision since 1989, although it has still to be put into force (no list of "safe third countries" has yet been adopted).

- Safe countries of origin. Following the same principle, an asylum claim will not be heard on the merits if the claimant comes from a country deemed not to produce refugees. In such cases, the claimant's burden of proof is higher and she will not be given the benefit of the doubt, as advocated by the UNHCR: on the contrary, the claimant is presumed to be an irregular economic migrant. Canada has a provision for recognizing certain countries as safe (again no list of "safe" countries has ever been adopted).

- Suppression of appeal procedures. Asylum-seekers are known to use (often repeatedly) every available procedure in order to delay their removal. If their life or liberty is at stake, this procedural compulsiveness can be understood. The assumption made by most Western States that 90% of asylum-seekers are not worthy of protection leads them to trim appeal possibilities in order to streamline and accelerate the overall process and thus reduce costs. Canada has a "good" record on this point. The IRB decision cannot be challenged by way of an appeal: it can only be subject to an administrative review in Federal Court, on points of law (the findings of fact of the IRB will not be challenged unless there is a very unreasonable gap between the evidence and the findings) and with the permission of the Court (seldom granted, as one can imagine, given that the IRB is the biggest Canadian administrative tribunal in terms of volume).

- Reduction of lawyers' assistance. Another way developed to avoid delays due to an "exaggerated" use of procedures is to limit access to legal aid programs. Asylum-seekers will have difficulties in making use of the intricacies of the legal system if they cannot hire a lawyer. The poorer and more illiterate the refugees, the more difficulties they will have. The Québec government, for example, has cut by half the fees awarded to lawyers in immigration procedures.

- Reduction of welfare benefits. Welfare benefits are considered a major attraction for irregular migrants and so governments have tried to reduce their availability in order to diminish their inducement capacities and reduce costs. Allowances are generally reduced to a bare minimum and often replaced by in-kind contributions (deemed less attractive), such as refugee residences or camps, food and clothes provided.

- Reduction of access to the labour market. Asylum-seekers will or will not have access to the labour market of the host country. If deterrence reasons prevail, they will not. If public finance interests prevail, they will. Both can be witnessed successively in the same country in a relatively short span of time. The immense consequences, on the social and personal levels, of remaining idle for months, in an already destructured and shattered context must however be considered.

- Readmission or refoulement agreements. Readmission agreements have been concluded bilaterally between most of Western European countries. They are intended to facilitate the return to country A of a national of a third country who has illegally entered the territory of country B through its border with country A: within certain parameters, country A is obliged to readmit the person to its territory. Unfortunately, these agreements do not distinguish between refugees and other aliens, and combined with the above-mentioned measures (especially, the manifestly unfounded claims definition) they can be of much use in rapidly sending back asylum-seekers. Central and Eastern European countries have now signed numerous such agreements between themselves as well as with Western European countries. A 1992 readmission agreement between Schengen countries and Poland is particularly notorious for it was preceded by fierce negotiation between Germany and Poland over financial compensations due to Poland if it accepted the readmission of the estimated 100,000 persons per year who illegally crossed the Polish-German border.

- Asylum-sharing agreements. This mechanism is designed to designate the country which is responsible for processing an asylum claim: it is useful to avoid "refugees in orbit", but there is a major risk of violation of international obligations. This type of situation can be avoided by asylum-sharing agreements. However, these agreements can also be a convenient means of returning asylum-seekers to another country without really considering whether the individual will effectively be protected by the authorities of the State to which she is returned. Too often, such agreements are signed between countries which have very different refugee determination mechanisms, refugee definition interpretations and social protection systems. Country A violates its international obligations under the 1951 Geneva Convention if it sends an asylum-seeker to country B, knowing full well that that person risks inadequate protection there. Asylum-sharing agreements should therefore only be signed by countries which have previously harmonized their refugee protection systems in accordance with international standards.

- Temporary protection status. The December 1995 Bosnia peace plan turned the spotlight on the Bosnians living in Germany as "tolerated" (geduldet) foreigners allowed to stay in Germany at least until March 1996. Germany granted these Bosnians only a temporary protection status and expressly disallowed their application for refugee status: the idea behind the scheme was to avoid being bound by international obligations, so as to be able to treat them as one pleases. This precarious status was awarded in order to facilitate their return to Bosnia as soon as materially possible, and to avoid the somewhat permanent nature generally associated with Convention refugee status. The result is unequal levels of protection: several years after their leaving Bosnia, on expiry of their temporary protected status (decided by the host country authorities at will), it will be difficult for the individuals to provide evidence of their well-founded fear of persecution were they to be returned, and to show that they should be awarded refugee status. Most should therefore effectively be returned soon (forcibly if necessary), and this was the ultimate objective.

Minimizing the input: Yet another way of reducing the number of asylum claims to be treated by a given host country, and one which is much more efficient, is to prevent asylum-seekers from even reaching its borders. The efficiency lies in the fact that the asylum-seeker can never invoke (with the help of a lawyer or an NGO) the constitutional guarantees or international obligations that constrain the action of the authorities (police or immigration) when the asylum-seekers have reached the territory.

- Visa requirements. All Western States have included refugee-producing countries on their list of countries whose nationals need a visa to enter their territory. The European Union has produced a common list of over 100 countries for which visas are required, including all refugee-producing countries. Further, a list of 10 countries (all of them refugee-producing) has recently been adopted obliging possession of a visa for transit purposes.

- Reinforced border controls. All Western States have upgraded their border control procedures, with some results.

- Carrier sanctions and training of carrier and airport personnel. According to the evaluation of Western States' authorities, control of airport entries is very efficient in terms of limiting the number of undesired entries. One major mechanism used is to make airline companies liable for each irregular entry upon the territory by passengers they have transported. In order to avoid the fines that are consequent to their being found liable, carriers will filter the passengers before boarding in order to make sure that they have all necessary documents to legally enter the territory of the country of destination: passengers with documents that appear not to be adequate will not be allowed to board, and no consideration is taken of any potential need of protection. Police and immigration authorities have offered training programs in order to enable carrier personnel to detect false documents. This mechanism effectively turns flight attendants into borderguards, a function for which they are not trained. Reports are constantly made as to the discriminatory attitude towards some passengers on the part of flight attendants in performing these functions. This mechanism constitutes a form of privatization of essential State functions, that engage the State's responsibility and should therefore only be performed by State employees.

- Short-stop operations. Western States' authorities sometimes send teams of employees to airports abroad in order to filter all passengers boarding there headed for the Western States in question, and disallow those with inadequate documents from boarding, as well as training airport or carrier personnel while abroad.

- Police cooperation. As an example of such cooperation, police officers accompanying returnees to a Southern country (generally the country where the alien has boarded a plane heading for the Western territory) may stay abroad to train and help police officers of that country or that airport in the detection of inadequately documented passengers.

- Readmission agreements. We have seen the immediate objective of readmission agreements: allowing country A to quickly send back to country B an alien who has irregularly entered the territory of country A through its border with the territory of country B. The ultimate and much more efficient objective of such agreements is to make sure that, fearing that it will be overflowed with returnees, country B will adopt the same immigration and police standards and mechanisms at its border with country C, thus preventing aliens from ever entering its territory and indirectly protecting country A. This in turn will force country C to do the same at its own border with country D, etc. The Schengen-Poland readmission agreement is the best example such scheme: in terms of effective returns from Germany to Poland, the agreement is a complete failure, but all Central European States have signed readmission agreements with their neighbours. In effect, Western States have created a buffer zone, where their "protection" is being implemented upon foreign territory by foreign authorities.

- Economic cooperation agreements. In 1992, a few months before the signing of an important economic agreement between the European Union and Morocco, the latter "cleaned up" its coast in front of Gibraltar, where many Africans attempt entry into Spain's territory illegally: it closed the hotels where they lived, it arrested many, detained them, then sent them back to Mauritania, and confiscated the pateras (boats which helped cross the channel), etc. Again, the goal of Western States is that other countries do their "dirty work" of arresting, detaining and returning aliens: it is much more efficient to have these functions performed in countries where States' authorities can act without being hampered by constitutional provisions protecting rights and liberties, by the action of NGOs or lawyers, by media coverage, or by the intervention of the courts. The Barcelona conference on the Euro-Mediterranean partnership in the fall of 1995 highlighted this type of cooperation. After two days of negotiations, the 15 Members of the European Union, 11 Mediterranean nations (Algeria, Morocco, Tunisia, Egypt, Israel, Jordan, Lebanon, Syria, Turkey, Cyprus and Malta) and the Palestinian Authority launched a process of political, social and economic cooperation with ambitious development and trade objectives. In the social field, the participants recognized that current population trends in the Med 12 must be counterbalanced by "appropriate policies to accelerate economic take-off", agreed to strengthen their cooperation to reduce migratory pressures and illegal immigration and acknowledged the principle that source countries had "a responsibility for readmission" of illegal immigrants to Europe.

- War and armed intervention. Western States have not hesitated to use armed intervention to prevent irregular migration flows. One only has to think of the operation against Iraqi Kurds fleeing towards Turkey at the end of the Gulf war, where, for the first time in its history, the Security Council of the United Nations determined such migration to be in itself a threat to international peace and security. One can also think of the interdiction, on the high seas, by U.S. coastguards' ships of Haitian boats fleeing the Cedras regime to which their passengers were often returned: even though technically this is piracy, the U.S. Government was criticized only by UNHCR. The U.S. Supreme Court was complacent enough to declare, against all odds, that the non-refoulement principle - the cornerstone of international refugee law and proclaimed by the 1951 Geneva Convention - did not apply on the high seas.

What is striking is the intense cooperation that now takes place in this area. Within Europe, as within the entire Western world, numerous fora at all political and administrative levels work on these issues, and constantly produce new agreements, regulations, interpretations, implementation mechanisms, procedural techniques, etc. Europe has a particularly impressive record on these issues: Schengen, Trevi, Europol, OSCE, etc. Without going into detail in this paper, it is sufficient to say that the Third Pillar (Justice and Home Affairs) of the European Union has mostly focused its action on asylum and illegal immigration control, these being considered as only one element of a wider security package which also includes drug trafficking, arms trafficking, smuggling, money laundering, terrorism, international criminality, etc.

In conclusion, one can discern that, in immigration and refugee issues, Western States base their action on a twofold operating consensus.

1. Immigrants must be selected according to criteria related to the economic benefits for the country of immigration (there are hints that Germany could adopt an immigration policy akin to the North American ones). Hence, those not selected by the country of immigration, "self-selected migrants", must be rejected and expelled as soon as possible or better yet prevented from reaching the territory altogether.

2. Most refugees can find protection in the region of origin pending repatriation and should therefore, in most cases, stay in that region. Few are the cases where resettlement abroad is required for protection purposes and Western States always respond favorably to such requests when made by UNHCR. Hence, it is generally not necessary nor advisable to protect them abroad: Western States have adopted the principle of the "regionalization" of the refugee problem and consider that they should not be called upon to host persons who originate from a distant country, as they should be send back home as soon as possible. Moreover, according to the same "regionalization principle", Western States have also adopted the principle that a refugee should claim the protection of the first available safe country on which she sets foot (usually a neighbouring country) and has no right to pick and choose her country of refuge. Any subsequent cross-border movement is no longer asylum-seeking but falls within the realm of immigration. Consequently, a refugee may be sent back to any of the countries of transit where she had an opportunity to obtain protection.

The net result is that Western States believe that they should not be held responsible for most asylum-seekers and are now openly taking all steps available to implement this new protectionist attitude.

These measures have some effect, as the number of asylum claims initially drops sharply. But this effect is generally not long-lasting as migrants rapidly find new ways and means to get in. For example, despite geographical isolation and tough immigration and police controls, the number of asylum applications in the UK in 1997 was 32,502, almost exactly the same number as five years earlier (IGC statistics).

As long as huge disparities in democracy and prosperity remain between North and South, migration pressures towards the North will be intense. Treating migration flows as a security risk, without effectively distinguishing between refugees and other migrants (although the distinction is ever harder to make), leads to a blind escalation in repressive measures that ultimately threaten the rights and freedoms of all, citizens and aliens alike.

1. The author takes responsibility for all opinions found in this paper. He thanks CHRC and the Fonds FCAR for their financial support, and Ms. Leanne Holland for her valued assistance. The paper was originally prepared for the Canadian Council for Refugees Interdiction Workshop, held in Toronto, 1 February 1996.