The EU Discussions on Extraterritorial Processing: Solution or Conundrum?

Abstract

Intense discussions have taken place on extraterritorial processing of asylum claims in the European Union over recent years. Despite extensive political controversy and media interest generated by the debate, it has not yielded any 'extraterritorial solution' for Europe's asylum challenges. EU Member States have examined a number of proposals which highlight their interest in the possibility of joint processing arrangements in third countries for asylum claims which would otherwise be the responsibility of Member States. For now, however, these ideas are not supported by the majority of EU states or institutions, nor by UNHCR, and do not include proposals to address the overwhelming legal and practical constraints that stand in their way. There are, however, some elements of the European Union's existing asylum law and policy which do operate effectively in practice to shift responsibility for claim determination - either from one Member State to another, or from states within the EU to those outside. These less visible and more widely-accepted European measures and provisions raise questions about the quality and availability of refugee protection in Europe. Large numbers of asylum applicants are sent to third countries without final decisions on their claims after rejection on safe third country grounds and invocation of readmission agreements. Within the EU, Member States have a well-established system under the Dublin II Regulation for transferring responsibility for asylum claims to other European States, which lacks adequate provision for burden-sharing. In many cases, it is also applied in a way which does not permit substantive or timely examination of claims, or fair treatment for claimants throughout the Dublin II procedure. These mechanisms can undermine the ability of asylum seekers to gain access to a fair and effective procedure or, at worst, create the risk of refoulement or other breaches of international refugee law. Along with the more obvious discussions on specifically-labelled extraterritorial processing schemes, these provisions warrant careful observation by supporters of the institution of asylum in Europe in the future.