Can the international refugee protection system be reoriented in a way that enables the victims of persecution and violence to find safety in other States without risking their lives on hazardous routes?

For the last 75 years, the international refugee protection system has been based on the notion of territorial asylum. According to this principle, people who are threatened with persecution and violence in their own country have the right to leave it, to make their way to another State and to claim refugee status once they have arrived on its territory.

In recent times, this system has come under growing pressure. On one hand, and as demonstrated by other articles in this issue of FMR, the journeys made by refugees have become increasingly dangerous, exposing them to the risk of death, injury, physical and sexual abuse, exploitation and slavery. Paradoxically, in seeking protection, refugees are often obliged to put their lives at risk.

On the other hand, States and societies in many parts of the world have become increasingly resistant to the arrival of asylum seekers, especially when they come in large numbers, in short periods of time and in an irregular manner. In many countries, especially those in the Global North, refugees are regarded as a threat to the nation’s sovereignty, security and social stability. They are consequently to be excluded by any means possible, even if this requires States to violate their obligations under international refugee law.

From territorial asylum to migration management

In place of territorial asylum, the UN’s Member States and humanitarian organisations have increasingly espoused an alternative refugee protection paradigm, that of ‘managed migration’. While this is not a new concept, it was traditionally employed in relation to the movement of labour migrants and the relocation of refugees and displaced people to countries of permanent settlement.

In its new guise, however, the notion is based on the premise that forced migratory movements can be predicted, planned and organised, especially if this is done on the basis of large-scale data collection and analysis. At the same time, the current incarnation of the migration management concept rests on the assumption that the movement of refugees, asylum seekers and other irregular migrants can be prevented or at least curtailed. In this respect, three strategies are of particular relevance: strengthening border controls; addressing the so-called ‘root causes of displacement’; and implementing ‘whole of route’ programmes that provide protection and assistance to refugees at the early stages of their journey, so that they do not feel obliged to undertake long, intercontinental movements.

In all of these different ways, the migration management approach promises to address the perceived threat of spontaneous, unplanned and irregular population movements, bringing them under the control of States and the aid agencies that they sponsor.

Implementing the new approach

In recent years, the world’s more prosperous countries have taken numerous steps to operationalise the migration management agenda. Border controls have been reinforced and supported with new forms of technological surveillance. Poorer countries have been incentivised or induced to curtail the onward movement of refugees through the process of externalisation.

And overseas aid programmes have been redesigned, so that they serve the primary purpose of ‘stabilising’ vulnerable populations in their own community and country. The EU has been the most enthusiastic proponent of this strategy, establishing a $5 billion Emergency Trust Fund for Africa (EUTF), the stated purpose of which is “to address the root causes of instability, forced displacement and irregular migration and to contribute to better migration management.”

UN agencies have played an increasingly important role in the implementation of the new paradigm. With the support of donor States, both the International Organization for Migration (IOM) and UNHCR have established centres for the collection and analysis of data on mobile populations. This is a key feature of the migration management agenda, and one which features prominently in the Global Compact on Refugees, as well as the Global Compact on Safe, Orderly and Regular Migration – an especially revealing title in this context.

For the purposes of this analysis, the most important outcome of the transition from territorial asylum to migration management can be seen in recent efforts to provide refugees with authorised routes to protection, thereby averting the need for them to embark on difficult, dangerous and often deadly journeys.

UNHCR has taken a lead in this process. With territorial asylum under growing threat in many parts of the world, it has encouraged governments to provide refugees with new and organised routes to protection, above and beyond the State-sponsored refugee resettlement programmes that the organisation has traditionally administered.

These ‘complementary pathways’, as UNHCR has labelled them, include community-based resettlement initiatives and family reunion programmes, as well as labour mobility and educational scholarship schemes for refugees with appropriate skills and qualifications. At the same time, refugee advocates and analysts have broadened the definition to include humanitarian visa, humanitarian corridor and humanitarian evacuation programmes, all of which enable people who are at risk in their country of origin, first asylum or transit to move in a regular manner to States that have authorised their admission.

To give just a few examples of such initiatives, in 2015 Canada established a community-based resettlement programme for 25,000 Syrian refugees, sponsored by families, neighbourhood groups, faith-based and civil society organisations. Following the Russian invasion of their homeland in 2022, the UK introduced a scheme whereby Ukrainian refugees could be admitted to the country and accommodated with families already and legally resident in Britain.

In recent years, the Catholic and Protestant churches of Italy and France have jointly implemented a humanitarian corridors programme that has allowed vulnerable refugee families in countries such as Ethiopia and Lebanon to take up residence in Europe. During the same period, Australia, Canada, Italy and the UK have all initiated pilot programmes that allow refugees with specified skills to take up employment opportunities in those countries.

In the US, the Biden administration introduced a Safe Mobility Initiative in 2023 that enabled asylum seekers to submit their requests for admission and refugee status in a number of South and Central American countries, thereby averting the need for them to make the long journey through Mexico to the US border.

While these ‘complementary pathways’ differ considerably in terms of their scale and the selection criteria used to determine access, they have the common objective of providing managed migration opportunities to people who might otherwise be inclined to move in a spontaneous and irregular manner.

Limitations and negative consequences

The migration management paradigm has a significant role to play in sparing refugees from the many dangers they would encounter in finding their own way to a country of asylum. At the same time, there is a need to be realistic about the constraints and potentially negative outcomes of this approach.

First, historical experience has demonstrated that refugee movements often take place in an unpredictable and unexpected manner, in situations of intense chaos and confusion. It is for this reason that efforts to establish early-warning and prediction systems for man-made crises have repeatedly failed. And, as yet, there is no evidence to suggest that this situation will be changed by the advent of Artificial Intelligence.

In these circumstances, it is naïve to believe that, in the words of IOM Director-General Amy Pope, “all migration should be safe, orderly and humane.” When whole communities are fleeing from persecution and human rights violations, they are likely to move very rapidly, in large numbers and in multiple directions. In their desperation to find safety elsewhere, they will take whatever routes are available to them, irrespective of the dangers they might encounter. Rather than waiting to be admitted to an organised departure programme, they will seize whatever opportunity they have to escape.

Second, it has become increasingly clear that the task of anticipating and averting refugee movements by addressing their ‘root causes’ is fraught with difficulties and might even be fundamentally misconceived. A highly critical and official evaluation of the EUTF, for example, found that the resources devoted to ‘prevention’ in the Horn of Africa had been spread too thinly, not properly prioritised and had ignored human rights concerns. More significantly still, the review found that livelihoods programmes designed to increase the income available to vulnerable populations in the region “could have the effect of triggering more migration instead of reducing it.”[1]

Third, even if safe routes for refugees can be established and expanded, it seems highly unlikely that States will allow this to be done on a scale that would meet the demand for access to them. That prospect seems even more distant with the election of Donald Trump in the US, and his very rapid decision to terminate the Safe Mobility Initiative and to close other safe pathways to protection in the US. Needless to say, people who are confronted with immediate threats to their life and liberty and who are refused admission to any safe routes that exist will continue to have every incentive to seek refuge elsewhere by moving in an irregular and unplanned manner.

Fourth, there has been a tendency amongst the most enthusiastic advocates of safe routes to use the notion as a somewhat simplistic slogan, ignoring the difficult decisions that will have to be made with respect to their implementation. How many refugees should each destination country admit by means of safe routes and over what period of time? Which countries of origin should those refugees come from and which categories of refugee would be prioritised for admission? How would the selection process be organised? Would people who are permitted to move by means of safe routes enjoy full refugee status or be given only temporary residence rights in the countries to which they are admitted? And, as indicated already, what would happen to those refugees who are denied access to such routes?

Finally, there is a need to consider the consequences of the migration management paradigm for the principle and practice of territorial asylum. In this respect, there would appear to be a serious risk that States in the Global North will use the existence of such routes, however small in scale they might be, as a pretext for the exclusion of asylum seekers who arrive in an irregular manner, arguing that they should not be allowed to ‘jump the queue’ in which so-called ‘genuine refugees’ are patiently waiting.

In a recent report, ominously subtitled ‘The end of asylum’, the Migration Policy Institute (MPI) has suggested that the current international refugee protection system is “under intolerable pressure,” calling into question “the ability of nations to meet their international obligations to refugees.”[2] According to the publication, there is now a need to “reorient the international protection system away from territorial asylum,” and to replace it with “the use of safe and orderly means of entry to seek protection.” In other words, a substantial shift towards the migration management paradigm.

But there is a real devil in the detail of this proposal. To be effective, MPI acknowledges, such a reoriented system would have to “disincentivize irregular arrivals at borders” by “restricting access to asylum at the border for individuals who have had a valid opportunity to apply for asylum en route,” and offer “softer incentives such as reduced access to certain status or benefits entitlements for those who transit through a safe country or chose not to use regular channels.” Such an approach, it says, would “encourage individuals to claim protection nearer to their country of origin, rather than traveling longer distances through other countries to reach a different destination.”

As this statement reveals, while the migrant management paradigm has the potential to spare refugees from the many risks of dangerous journeys, it is also closely aligned to the deterrence and externalisation agenda being pursued by the world’s most prosperous States. Although this approach might not mean the complete ‘end of asylum’, it certainly threatens to restrict it to countries of the Global South and to specific groups of refugees whose demographic, political, ethnic or religious profile appeals to States in the Global North.

 

Jeff Crisp
Refugee Studies Centre, University of Oxford, UK
jefferyfcrisp@gmail.com
X: @jfcrisp

 

[1] See ‘EU fund to stem migration from Africa “fails to address risks” – watchdog‘, The Guardian, 25th September 2024

[2] Fratzke, Susan, Meghan Benton, Andrew Selee, Emma Dorst and Samuel Davidoff-Gore (2024) ‘The End of Asylum? Evolving the Protection System to Meet 21st Century Challenges‘, Migration Policy Institute

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