The African Commission on Human and Peoples’ Rights (ACHPR) has issued a new resolution cautioning against the externalisation of migration governance and urging African States to safeguard the rights and dignity of migrants deported from non-African countries. Adopted amidst a surge in bilateral agreements between African governments and external partners–in particular the United States and the European Union–the resolution echoes similar warnings from other international monitoring bodies and underscores the serious risks associated with externalised migration enforcement schemes.
The resolution, which was issued during the Commission’s 85th Ordinary Session in The Gambia, expresses concern regarding the growing trend amongst some non-African States and regional organisations–including the United States, various European countries, and the European Union–to externalise migration and asylum governance to African States including via readmission mechanisms, extraterritorial asylum processing, funding and training for interception units, and the establishment of transit and relocation centres.
In particular, it notes the lack of guarantees for the protection of migrants’ fundamental human rights, and stresses that such arrangements “cannot delegate, transfer, or dilute the international obligations of States Parties under the African Charter and international law, particularly the principle of non-refoulement, the prohibition of collective expulsions, the right to an effective and fair individual procedure, and judicial oversight.”
Highlighting the risks that such agreements pose, including arbitrary detention, discrimination, and refoulement, the ACHPR calls on African States to ensure that no migration partnerships jeopardise the rights of migrants or a country’s obligations under regional and international agreements. Further, it urges all States to ensure that any migration deal is made public to ensure transparency and accountability and “invites African States to strengthen South-South cooperation on migration management and to promote African alternatives to asymmetrical partnerships, grounded in human rights and human dignity.”
The ACHPR has previously highlighted its concerns regarding migration partnerships facilitating the transfer of deportees to African States. In September, it urged Rwanda and Uganda–both of which have agreements in place with the United States–to respect the rights of deportees and to avoid policies that risk turning the continent into a “drop-off zone.”
Externalisation schemes are not new, and the Global Detention Project has long highlighted how these schemes have led to the creation of growing immigration detention systems across the globe (see, for instance, the 2014 GDP Working Paper “How and Why Immigration Detention Crossed the Globe”). However, in recent years there has been a renewed emphasis by wealthier countries to avoid immigration pressures by externalising controls. This has included several new bilateral agreements aimed at transferring migrants and asylum seekers to African States. While many of these arrangements involve North African and sub-Saharan “transit” countries like Mauritania, Tunisia, and Morocco–all of which have been party to initiatives for decades–more recent deals extend further south, including U.S agreements with countries such as Rwanda, Uganda, Eswatini, and Ghana. The Global Detention Project has documented a multitude of concerning practices in the treatment of migrants under these arrangements, including prolonged arbitrary detention in abusive conditions, lack of access to legal counsel or review, minimal monitoring and transparency, and refoulement, including secret collective expulsions.
Against the backdrop of these agreements, the worrying trend has been the subject of significant attention in recent years. Most recently, the UN Special Rapporteur on the human rights of migrants dedicated his latest report to the UN General Assembly to the issue of externalised migration governance and its impact on the rights of migrants. In it, he concluded that “In order to ensure that States uphold their obligations under the human rights treaties, the Special Rapporteur calls upon States to end arrangements that prevent arrival, outsource asylum processing or allow for readmission or expulsion to countries different from the country of nationality, which effectively shift responsibility for migrants and refugees to third States and, in practice, lead to violations of their human rights.”
Highlighting the three key forms of externalisation (prevention of arrival, outsourcing or relocation of asylum processing, and readmission or expulsion to third countries), he notes the risks of human rights violations as “opaque” agreements see the externalising State attempting to shirk responsibility, while the “third States often lack the capacity or political will to ensure the protection and well-being of migrants and refugees subjected to externalization.” Establishing legal responsibility for such violations, he notes, is challenging. But he stresses that States’ obligations to respect and ensure human rights can extend beyond their territory: “States exercise extraterritorial jurisdiction whenever they exercise power or “effective control” over people or places outside their territories.”
