Growing Use of Externalisation in Migration Governance

Special Rapporteur’s focus on externalisation

The UN Special Rapporteur on the human rights of migrants, Mr Gehad Madi, devoted his latest report to the UN General Assembly to the phenomenon of externalisation in migration governance and its impact on the human rights of migrants. As the report notes, externalisation has become a defining feature of migration, asylum, and border governance in recent years. While not a new practice, it is clearly expanding.

Externalisation is often pursued alongside other restrictive approaches, such as the securitisation and criminalisation of migration. Together, these measures increase pressure on civil society actors working to protect migrants’ rights and contribute to the growing militarisation of borders. Given its prevalence and serious human rights implications, the Special Rapporteur calls for collective reflection.
 

What is externalisation?

The report defines externalisation of migration governance as forms of international cooperation designed to shift responsibility for migration management from destination states to other states. It distinguishes these practices from genuine, human rights-compliant, international cooperation or partnerships that facilitate migration, access to asylum, and responsibility sharing.

Externalisation takes three main forms:

• Prevention of arrival: measures that aim to stop migrants from reaching the territories of destination states, often by strengthening the border control and surveillance capacities of third countries. The European Union (EU) and its member states, for instance, have concluded a range of migration agreements designed to reduce arrivals, including those with Lebanon, Morocco and Tunisia, effectively creating buffer zones beyond EU borders.

• Outsourcing or relocation of asylum procedures: states transfer (parts of) their asylum systems to third countries. Recent examples include attempts under the UK–Rwanda and Italy–Albania arrangements.

• Readmission or expulsion to third countries: individuals are returned to states that are not their country of nationality, such as through “third-country national” clauses in EU readmission agreements, the EU-Türkiye Statement, or the “return hubs” envisaged in the European Commission’s proposed Return Regulation.
   

Risk of violating States’ obligations under international human rights law

A central concern raised by the Special Rapporteur is that externalisation practices pose significant risks of violations of international human rights obligations under core human rights treaties ratified by European countries. Key rights at risk include the right to leave any country including one’s own, the principle of non-refoulement, the prohibition of collective expulsion, the rights to due process and an effective remedy, the prohibition of arbitrary detention and torture or ill-treatment, the right to life, prohibition of enforced disappearance, economic, social and cultural rights, and the prohibition of racial discrimination.

Because externalisation measures have extraterritorial features and involve multiple actors, establishing legal responsibility for violations can be challenging. However, as the report emphasises, states cannot avoid their international obligations by outsourcing migration control to other states or private actors. The report references jurisprudence such as Sonko v Spain and A.S. and others v. Italy, in which the respondent states were held responsible for violations arising from extraterritorial migration control operations.
 

Lack of transparency

Externalisation measures often run counter to the principles of the rule of law, particularly transparency and accountability, as well as the ethical values associated with the rule of law, such as good faith. Many such arrangements are deliberately informal, avoiding parliamentary scrutiny and public disclosure. The involvement of multiple states and non-state actors, such as international organisations or private companies, further challenges transparency.
 

Recommendations of the Special Rapporteur

The report expresses regret that, rather than fulfilling their human rights obligations and recognising migrants’ positive contributions to society, many states devote substantial resources to shifting migration responsibilities elsewhere. The Special Rapporteur calls on states to end migration cooperation arrangements, which shift responsibility for migrants to third countries and lead to violations of their human rights.

He also urges states to ensure that all migration cooperation is consistent with international human rights norms and standards, as well as the principle of good faith, is gender-responsive, and does not create or exacerbate situations of vulnerability. States should also end all forms of support - financial, technical, or material - to partners engaged in human rights abuses, including the provision of equipment, surveillance tools, and technologies.

The report emphasises the significance of civil society involvement in shaping and implementing migration policies. It also calls for stronger transparency and accountability mechanisms, including ex-ante and periodic human rights impact assessments of all migration cooperation arrangements; independent human rights monitoring, ideally involving the national human rights institutions of both cooperating states; and accessible complaint mechanisms that allow individuals to report violations and seek justice.

Finally, the Special Rapporteur calls on states to conduct effective investigations into alleged human rights violations committed by law enforcement or other agents, to sanction perpetrators, and to ensure redress for victims and their families.