Pushing Out the Boundaries of Humanitarian Screening with In-Country and Offshore Processing

Publics and policymakers in Europe and the United States have been taxed in recent months by attempted entries at their southern borders of significant numbers of unauthorized migrants. Many of these migrants have possible humanitarian protection claims—whether unaccompanied children from Central America arriving at the U.S.-Mexico border or would-be asylum seekers journeying across the Mediterranean in rickety, overloaded boats.

In the United States, more than 68,500 unaccompanied children, the majority from El Salvador, Guatemala, and Honduras, arrived in fiscal year (FY) 2014, fleeing violence and endemic poverty, and seeking a better life in the United States. The sharp spike in child arrivals, some as young as 4 years old, overwhelmed the capacity of the U.S. Border Patrol and the Office of Refugee Resettlement responsible for their care in the United States, resulting in the opening of emergency shelters on military outposts and scenes of children being bused or flown across the country.

In Europe, as of the end of September, more than 165,000 people had arrived by sea, nearly triple the total of 60,000 recorded in 2013. Italy has received more than 140,000 of the arrivals, most rescued at sea through the Mare Nostrum search-and-rescue naval operation. More than 3,000 migrants have died crossing the Mediterranean this year, a grim addition to the tally of more than 22,000 who have lost their lives since 2000 trying to reach Europe, according to the International Organization for Migration (IOM).

The mixed flow of asylum seekers and irregular migrants to Europe and the United States, in combination with rising numbers of migrants, has complicated the ability of governments to determine who has a legitimate claim to protection based on humanitarian principles. Longstanding public concern about illegal immigration in the United States, and about cultural change and costs brought by immigrants in the European Union, have complicated and shaped policy responses in national capitals as well as at the EU level.

This article explores policy concepts considered in Europe and the United States to push outward the border with respect to humanitarian claims, focusing on the processing of refugee applications abroad via in-country or offshore programs. The Obama administration in September announced it would provide in-country processing of certain refugee claims at U.S. embassies in El Salvador, Guatemala, and Honduras. The European Union is discussing establishing offshore processing centers, most likely in North African transit countries where hundreds of thousands of migrants are waiting to complete journeys to Europe. While externalizing refugee processing may alleviate some pressure on border-control agencies and lessen the chances that some migrants undertake dangerous, and potentially deadly, journeys, critics challenge such policies’ consistency with other humanitarian principles and international law. They also question the feasibility of such programs at practical levels, and whether the policies would be effective in reducing unwanted entries.

Migration in Context: Security, Public Opinion, and Push Factors

Terrorist attacks in New York, Washington, Madrid, and London have reshaped border security policies and systems in the United States and Europe, greatly increasing the scrutiny of legitimate travelers and would-be refugees, while also seeking to make it harder for unauthorized immigrants to enter. Extraterritorial border controls, including advanced passenger screening, have raised concern that those who require international protection have limited or no access to it through legal migration channels. Within such a security environment, external processing appeals as an immigration solution that keeps potential migrants at a distance while their humanitarian claims are considered, rather than having them appear individually or en masse at a country’s borders or other ports of entry.

The global economic crisis that began in 2008 and is still being felt in places in Europe was seized upon by far-right parties that have played on public fears that immigration of all types, whether intra-EU, humanitarian, or other, deprives the native born of limited jobs and imposes new costs on already stretched public budgets. Recent European parliamentary elections saw a marked increase in the success of nationalist, anti-immigrant parties, particularly in France and the United Kingdom, among others.

In the United States, public opinion has long shown majority support for ensuring strong border controls while also favoring the legalization of the estimated 11.3 million unauthorized immigrants living in the country. In the wake of the recent crisis over rising child migration from Central America, public support for legalization has dropped, at least temporarily, and doubts have again been raised about the government’s ability to effectively manage the border.

Recent Migration Pressures Faced by the European Union

The Arab Spring uprisings across North Africa in 2011 resulted in a surge of migrants seeking safety across the Mediterranean. EU policymakers fear the continued instability in the region—particularly in post-Gaddafi Libya—has created an open door to Europe via the sea.

Hundreds of thousands of migrants—driven by violent conflict, repressive regimes, and poverty—from Syria, Afghanistan, Eritrea, and Somalia, among others, are believed to be waiting across North Africa for an opportunity to cross into Europe. This prospect has raised concerns in Europe about the security of the border and the safety of the migrants making the dangerous crossing, as well as the integration and social cohesion challenges they may present. The civil war in Syria has caused the internal displacement of more than 6.5 million people and the exodus of nearly 3 million others as of October, chiefly in neighboring countries; as of May 2014 the European Union had received fewer than 125,000 claims for asylum from Syrians, mostly in Sweden and Germany.

Recent Migration Pressures Faced by the United States

Several factors are pushing thousands of Central Americans of all ages to flee their homes in El Salvador, Guatemala, and Honduras, among them gang violence, abuse, and endemic poverty. Honduras had the world’s highest murder rate in 2012 with 90 per 100,000 residents. El Salvador and Guatemala are in fourth and fifth place globally, with 2012 rates of 41.2 and 39.9, respectively. Many unaccompanied child migrants report facing threats of abuse, sexual assault, or death from violent gangs that target schools and children as young as 10 for recruitment. Families—often in the United States in unauthorized status—raise the money to bring their children across Mexico with smugglers on an uncertain, dangerous journey.

Of the more than 68,500 unaccompanied minors who crossed into the United States during FY 2014, 15,634 were from Mexico. These Mexican unaccompanied minors face different processing rules under U.S. law, with most swiftly returned to Mexico. Those from Central America are allowed to stay in the United States pending long-off deportation hearings where they can present a claim for asylum or other forms of humanitarian relief; more than 80 percent are released to the care of parents or other family members already in the United States.

The uptick is not limited to unaccompanied children; Border Patrol statistics show the number of “family units” (generally a parent traveling with one or more minor children) apprehended at the Southwest border jumped from 14,855 in FY 2013 to 68,445 in FY 2014. The number of arrivals dropped significantly in July and August, after the United States and Central American governments launched public service campaigns warning of the dangers and Mexico stepped up deportations of Central Americans apprehended in transit.

In-Country Processing for Entry to the United States

In September, in an effort to discourage more unaccompanied children from embarking on the journey, the Obama administration announced it would allow some Salvadorans, Guatemalans, and Hondurans with relatives who have lawful immigration status in the United States to apply for refugee status from within their home countries.

The rationale behind in-country processing, carried out by U.S. immigration officials on the ground, is both humanitarian and practical in that it would, in theory, prevent the at-risk population from having to undertake the dangerous journey to the U.S. border and wait for their cases to be heard. It would also reduce the backlog of cases in immigration court and the number of migrants held in immigrant detention. Critics have noted that only small numbers of children would be likely to gain refugee status; the ceiling for refugees from all of Latin America and the Caribbean for FY 2015 was capped at 4,000—down from 5,000 last year.

While the United States has designated in-country processing for Cuba, Iraq, and countries of the former Soviet Union, this will be the first such program for countries reachable by land.

The U.S. History with In-Country Processing

In-country processing was initially used by the United States in the 1970s in the context of the Cold War as a method of promoting foreign policy objectives and to provide a means of escape for individuals, such as political dissidents, who were being persecuted in their country of origin and where the home country was willing to let them leave. The UN Refugee Convention and U.S. law define a refugee as someone who is outside his or her country of origin; however, the U.S. Immigration and Nationality Act (INA) provides the president the authority to designate countries whose nationals may be processed for refugee status within their home country.

In-country processing has been used by the United States most comprehensively in Vietnam starting in 1979, followed by programs beginning in the late 1980s and early 1990s in the Soviet Union, Cuba, and Haiti. The Orderly Departure Program, initiated to stem the tide of people fleeing post-war Vietnam by boat, processed more than 523,000 individuals for admission to the United States as refugees, immigrants, and parolees between 1979 and 1999; nearly 400,000 additional Vietnamese refugees were admitted through other programs, including refugees in first asylum countries in the region.

In the 1990s, the United States opened the Naval Station at Guantanamo Bay to refugee processing for thousands of Haitians fleeing persecution following a coup (see Box 1). The policy of interdiction and offshore processing was implemented in concert with an in-country program based at the U.S. Embassy in Port-au-Prince. Very few of those who applied in Haiti succeeded in gaining entry to the United States, despite high levels of violence and persecution. Between the start of the program in February 1992 and the end of FY 1994, 5,209 people were admitted. The U.S. base at Guantanamo Bay continues to be used to facilitate refugee processing for Haitians, Cubans, and other Caribbean asylum seekers.

Managing Humanitarian Migration Flows in the European Union

The European Union and its Member States are searching for ways to manage new inflows of would-be asylum seekers and prevent the deaths and injuries that occur on the dangerous sea journey to Europe. Italy, through Mare Nostrum, has shouldered the immediate burden of retrieving migrants from the Mediterranean; more than 8,000 people were rescued in one weekend alone in July and about 140,000 have been rescued during the first nine months of 2014. Beyond Mediterranean crossings, the Spanish enclaves of Ceuta and Melilla in Morocco have repeatedly been the target of crowds of hundreds of migrants who storm the wire-topped fences trying to get a foot on European soil.

The drowning of more than 360 migrants, mainly from Eritrea, off the coast of the Italian island of Lampedusa in October 2013 vividly demonstrated the grave risks of illegal entry to the European Union. Fresh reminders of the danger came in September 2014, when as many as 700 migrants drowned in two separate shipwrecks.

Italy responded to the 2013 shipwreck with the launch of the Mare Nostrum operation, reported to cost 9 million euros ($12.28 million) a month. Italy has asked the EU border agency Frontex to take responsibility for the operation, but so far the response has been only to supplement it with Operation Triton, starting in November 2014 at the earliest. Other Member States have been slow to help, because of concerns that Italy may be allowing migrants to slip through the system to be dealt with by other countries. Frontex continues to search for additional funding and contributions of aircraft and patrol vessels from EU Member States for Operation Triton.

Separately after the 2013 drownings off Lampedusa, the European Union formed the Task Force Mediterranean, mandating the implementation of short- and medium-term operational actions to prevent further tragedy. Aiming for a comprehensive approach to migration management, the task force’s mission ranges from development programs to address root causes of migration in origin countries and more concerted efforts to combat trafficking, smuggling, and organized crime.

Renewed Discussion of Offshore Processing

One policy option, an idea that has floated around the European Union for more than a decade, is to externalize or “offshore” the processing of asylum seekers before they reach European borders. The idea is that a safe place beyond EU borders might be agreed to where humanitarian migrants can wait while their applications are processed, lessening pressure to make a crossing that often spells danger and death. A recent IOM report found that over the last 20 years, Europe appears to have recorded the greatest number of reported migrant deaths, which the organization estimated have reached more than 40,000 globally since 2000.

With the spotlight on migrants arriving via ship and those intercepted at sea, discussion of building processing centers abroad took on new urgency. Greece, which held the EU presidency for the first half of 2014, and Italy, which assumed the presidency in July 2014, favor migrant processing centers in North Africa; in May, Italian Premier Matteo Renzi called on the United Nations to set up such centers in Libya. The EU Justice and Home Affairs Council alluded to the possibility of external processing in its conclusions earlier this month; and a resolution passed by the Parliamentary Assembly of the Council of Europe in June included language to consider the establishment of camps in North Africa, although this was later amended. European Commissioner for Home Affairs Cecilia Malmström suggested several offshore policy options, including handling asylum requests at consulates established in refugee camps. “But those proposals have not gone down very well,” she said. The concept has garnered little support beyond the southern Member States facing the greatest influx, in large measure because before offshore processing could begin, countries would have to commit to a distribution mechanism for accepted refugees—and because of skepticism that off-shore processing of limited numbers would stop the boat arrivals. In raising the idea of opening an EU asylum processing center beyond Europe, Malmström advocated for the implementation of a quota system for allocating resettled refugees among Member States before any kind of external processing could be put in place.

There been several calls for feasibility studies on the possibility of external processing, but none have been commissioned to date due to a lack of political will and the complexities of a Common European Asylum System (CEAS) that remains a work in progress. The European Union and those Member States facing the greatest influx of migrants have sought to manage migration through bilateral deals with their neighbors in North Africa. In particular, both the European Union and Italy have a history of seeking partnerships with Libya, offering millions of euros in foreign aid, equipment, and training in order to, among other things, combat illegal migration at the point of departure. Through these deals Italy in earlier years provided funding for immigrant detention camps in Libya and pushbacks of migrants caught at sea; this practice contradicted Italy’s international protection obligations as Libya has not signed the Geneva Conventions, does not recognize refugees, and abuses of migrants and refugees (including forcible returns to countries of origin) in Libya are well-documented.

As there are no official EU-level or Member State policies in place to frame offshore refugee processing, the term has come to take on several different meanings. According to the Dutch Advisory Committee on Migration Affairs, it is most often used to indicate “the processing of the merits of an application for international protection by and/or subject to the responsibility of the EU or one of its member states which takes place at a location outside the borders of that state or of the EU.” This process is also known as external, extraterritorial, or transit processing.

External processing could take place in or near origin countries, or in transit countries on the border of the European Union. It would require the cooperation of the host country, and most likely partnership with UNHCR or another international agency such as IOM, or both.

Logistical questions have also been raised regarding the operation, location, and capacity of offshore processing, as well as migrant access. Humanitarian groups have expressed concern that asylum seekers already on EU territory could be removed to an offshore center. Also in question is which Member States would be responsible for processing and resettling applicants, as well as the need for an agreement with the state hosting the center and its ability to ensure certain standards of living within. Most importantly, all operating procedures must be in line with existing EU and international laws.

Forms of externalized refugee and asylum processing have been proposed in Europe since the mid-1980s, as a means of ensuring compliance with the 1951 Refugee Convention. Proposals made in the 2000s have reflected the changing security and migration environment, as Member States began to focus on more restrictive admission policies. The United Kingdom’s 2003 “Vision Paper” most explicitly described a system of external processing whereby asylum seekers in the European Union could be removed to transit and processing centers outside of the bloc. The paper stoked controversy as critics argued that it enshrined refoulement, or the return of refugees to a state in which they have good reason to fear persecution—a principle counter to the 1951 Convention. The following year continued the trend with a German-Italian proposal to open processing centers in North Africa to provisionally assess the applications of asylum seekers interdicted at sea and returned to their point of origin in Libya or Morocco. The EU proposals have drawn comparisons to Australia’s policy of interdiction and offshore processing, widely condemned by human-rights and refugee advocacy groups (see Box 2.)

Concerns Regarding External Processing

High-level statements that external processing may be necessary as Europe braced for new inflows of irregular migrants during the busy summer months have been resisted by some human-rights organizations, which argue that humanitarian migrants in offshore processing centers could find themselves at the mercy of governments with poor human-rights records. In the United States, human-rights groups and refugee advocates split over the White House’s earlier suggestion of an in-country processing program in Honduras. Some see it as a helpful alternative to the dangerous journey, while others contend the program would be unable to help many facing immediate dangers and could provide a rationale for summarily denying claimants. With the administration’s announcement of a program of in-country processing for certain cases in El Salvador, Guatemala, and Honduras, child migrant advocates and others also argued that the program was inadequate in scope and numbers.

Concerns generally expressed about offshore and in-country processing include the possibility of avoiding international obligations, the safety and treatment of applicants, and the necessity for an arrangement with the host country. Moreoever, and unless carefully constructed and monitored, external processing may be in contravention of the principle of nonrefoulement, whereby countries agree to not return individuals to a state in which they fear persecution. The principle is binding on countries that have signed the 1951 Geneva Convention or 1967 Protocol Relating to the Status of Refugees (as have the United States and European countries), and many legal experts argue that it has achieved the force of customary international law. External processing in which asylum seekers would be removed from U.S. or EU territory to their home countries could be in direct contravention of the principle of nonrefoulement. Unanswered to this point is the acceptability of removal to a third country and placement in a facility run by international organizations with decisions made by an asylum corps constituted of UNHCR personnel and asylum officers from all EU Member States.

The European Council on Refugees and Exiles (ECRE) has strongly opposed the forced transfer of asylum seekers on EU territory to offshore processing centers, saying it would undermine the right to seek asylum enshrined in Article 18 of the EU Charter of Fundamental Rights. UNHCR notes that migrants intercepted in international waters also must be protected against refoulement. In-country processing may pre-empt the principle, as individuals in need have not left the state they fear and as such cannot be returned to a place in which they are already present. When combined with interdiction and repatriation, as was the case in Haiti, the individual’s right to seek asylum, enshrined in the Universal Declaration of Human Rights, is limited or denied.

An obstacle to in-country or external processing raised by humanitarian protection organizations is the ability of the vulnerable population to access the application center. Individuals living in fear of persecution are often unwilling to stand in line at a consulate or processing center for fear of exposure. This was particularly the case in Haiti, as the U.S. Embassy was located within sight of the security apparatus of the Haitian government, where officials could monitor those who sought to leave. Amnesty International sees proposed centers in North Africa as “doomed to fail because of the sheer number of people” likely to file applications, while it is “unlikely that EU countries will provide an open-ended number of places,” limiting the population granted access to these asylum procedures.

A related concern is the ability to keep applicants safe and well-treated during the process. In theory, in-country processing provides no guarantee that applicants will be safe for the duration of the procedure, which may require multiple interviews at a public office, although the White House proposal for a pilot program in Honduras included plans for a resettlement center in Honduras to shelter applicants. In the European context, a number of human-rights organizations have expressed concern over establishing asylum processing centers or camps in North Africa, a region UNHCR calls “not conducive…for security reasons.” Amnesty International notes documented cases of human-rights abuses by government agencies, armed groups, and criminal gangs in Egypt and Libya, including exploitation, torture, and arbitrary deportations.

In order to secure basic rights and living conditions for asylum applicants, destination countries must secure the cooperation of the host country. This may pose challenges to the safety of the vulnerable population. With in-country processing, the need for documentation from the home country may require individuals to interact with the government they fear in order to receive exit documents. The request to establish a program may also affect bilateral relations, as it implies responsibility for the causes of migration on the part of the host government, a current concern in U.S.-Honduran relations. For the European Union, offshore processing would take place in North or sub-Saharan Africa, regions marked by non-democratic, weak, or failing states, making partnership difficult. These states may use cooperation as a bargaining chip for economic aid or military support, as Libya did, repeatedly threatening to stop preventing illegal departures to Europe.

Critics have warned against the possibility of external processing replacing existing asylum protections and mechanisms. The United States Conference of Catholic Bishops welcomed the proposal to establish in-country processing in Honduras, as long as it does not replace current protections for Central American children, especially those already seeking asylum on U.S. territory. In reference to the program in Haiti, the former director of Amnesty International’s Refugee Program, wrote, in-country processing “ought, at best, to be considered as complementary to the right to seek asylum outside the country by other means, not as a substitute for the right to seek asylum as embodied in Article 14 of the Universal Declaration of Human Rights.”

The Challenge Remains

The European Union and United States, as two of the world’s major immigrant-receiving destinations, face some similar challenges with respect to their ability to effectively manage their borders and parse mixed migration flows.

The European Union faces an extra degree of complexity: needing to harmonize asylum regulations across 28 countries and find a balance between Member States with respect to burden-sharing and solidarity. At Europe’s southern edge, Greece, Italy, and Spain confront the largest flow of migrants as the countries of entry. The European Union’s Dublin Regulation allows asylum seekers in some circumstances to be transferred back to the first European country in which they arrived. Tremendous pressure exists on the asylum systems of both Italy and Greece, as well as their capacity to shelter and provide for asylum seekers while their cases are being investigated. In addition, the numbers of refugees resettled in the European Union are unevenly distributed. Sweden and Germany have accepted more than 50 percent of Syrian refugees, leading to calls, including by German President Joachim Gauck, for more solidarity and willingness by more Member States to accept refugees.

The United States, like Europe, faces multiple viewpoints on the proper balance between border control and humanitarian protection, struggling to develop a policy that balances both objectives. With vast differences between Republicans in Congress and the Obama administration on the response to the child migration crisis, its root causes, and more systemic reform of the U.S. immigration system, shared solutions are few.

What remains clear is that in capitals in Europe and the United States, governments will continue to grapple with what constitutes the appropriate humanitarian and border enforcement responses, even as migrants continue to make dangerous journeys across Central America and the Mediterranean in hopes of better futures.

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