Since the so-called immigration crisis in Europe in 2015, a number of attempts have been made to stem the flow of irregular migrants into Europe. This has triggered some hazy and populist ‘innovative’ externalisation policies focused on outsourcing asylum processing and hosting responsibilities to mostly impoverished or opportunistic third countries for a fee. We characterise this practice as ‘asylum and protection mercenarism’. We assess the impact of such ephemeral yet devastating policies on continental attempts at a rights-based approach to migration governance in Africa. We conclude that externalising asylum responsibilities by turning third countries into asylum and protection mercenaries directly impacts negatively on the global rules-based system.
This contribution draws on a desk review of available literature and our own experience of working on migration governance for more than a decade to examine some of the effects of the EU externalisation measures on Africa’s migration management and governance efforts. The text does so by first outlining African Union (AU), Regional Economic Communities (RECs) and Member States efforts to manage migration and mainstream it for sustainable development and regional integration through the implementation of guidelines, frameworks and policies. The contribution then draws on examples and case studies of EU externalisation measures and agreements with individual African states that are affecting human mobility, human rights, and protection of migrants. We highlight how the EU’s policy of outsourcing migration management and border control practices is implicating the image of African states both in terms of the global migration landscape and of fuelling the migration crisis along the EU-Africa corridor. We then provide some concluding reflections.
African migration governance agenda: a snapshot
In line with the recognition of the potential and actual contributions of migration to sustainable development of origin, transit and destination countries, the AU has worked to develop or formulate several legal instruments and frameworks for its member states to govern migration on the continent. In addition to the Agenda 2063 – ‘The Africa We Want’, which highlights the need for effective migration management to promote sustainable development, – two policy documents are fundamental to the AU’s position on migration governance for sustainable development. These include the African Common Position on Migration and Development and the Migration Policy Framework for Africa (MPFA). Developed in 2006 and evaluated and revised in 2018, the MPFA serves as the cardinal framework for AU member states and Regional Economic Communities (RECs) to develop and implement regional and national migration policies to better manage and govern migration. The MPFA provides guidelines on eight migration-related issues, namely human rights of migrants, border management, labour migration, migration and development, migration data management, forced displacement, irregular migration, inter-state cooperation and partnership, and internal migration. Existing research opines that while the MPFA seems overly ambitious, it highlights the importance of positioning international humanitarian ideals of migration within human rights law. The MPFA directs AU member states and RECs to develop programmes and policies aimed at protecting and upholding the fundamental human rights of migrants through, for example, conducting civic education and awareness-raising to curb discrimination and xenophobia. Additionally, the MPFA calls on member states to ‘harmonise national legislations with international conventions’ to promote the rights of migrants (e.g., ensure access to courts) and promote ‘the integration of migrants in host societies in order to foster mutual cultural acceptance and as a means of ensuring the rights of migrants are respected and protected’.
There is also the AU Free Movement Protocol which is a flagship programme of the Agenda 2063. Adopted in 2018, the protocol aims to promote free movement of persons to harness the benefits associated with labour migration, trade, interconnectedness, and integration. Several migration and mobility-related provisions are captured in the protocol, including progressive realisation of the free movement of persons, rights of residence and right of establishment (Article 5), free movement of students and researchers (Article 13), free movement of workers (Article 14), permit and passes (article 15), mutual recognition of qualifications (Article 18), social security portability benefits (Article 19), remittances (Article 23), procedures for the movement of specific groups (Article 24), cooperation between member states (Article 25), as well as coordination and harmonisation (Article 26). Thirty-Two countries had signed the protocol as of 2021. It has contributed to facilitating free movement through the adoption and implementation of visa-free regimes which has removed barriers to entry in some countries.
Regional Initiatives in Africa
At the regional level, RECs have worked to develop and are at different stages of implementation of migration governance mechanisms manifested mainly through free movement of persons, goods, and services. The Economic Community of West African States (ECOWAS) was the first to set the pace for migration management by developing the Free Movement of Persons, Residence and Establishment Protocol in 1979. Other supplementary protocols were developed to guide the implementation of the free movement protocol, key being the Code of Conduct for the Implementation of the Protocol on Free Movement of Persons and the Right of Residence and Establishment (1985) and the Supplementary Protocol (1986) focused on migrant workers moving within the REC as well as on right of residence. The phase which focuses on establishing the right of entry has been fully implemented. However, there have been delays in the implementation of phases two and three due to difficulties such as a lack of coherence between member states on national laws related to right of residence.
Other RECs such as COMESA have focused their attention on developing a conducive environment to facilitate efficient trade among member states. COMESA has worked to develop two important protocols to remove barriers to free movement and labour mobility. They include the Protocol on the Gradual Relaxation and Eventual Elimination of Visa Requirements (1984) and the Protocol on Free Movement of Persons, Labour Services, the Right of Establishment and Residence (1998). Moreover, the East African Community’s (EAC) Protocol on the East African Community Common Market (2010), also known as the Common Market Protocol (CMP), provides guidance for partner states on free movement of persons and migrant workers. The Southern African Development Community’s (SADC) Protocol on the Facilitation of Movement of Persons (2005) provides guidelines on all forms of migration (e.g., regular and irregular migration) between member states. Finally, the Economic Community of Central African States (ECCAS) member states developed the Protocol on Freedom of Movement and Rights of Establishment of Nationals of Members States (1983) to promote free movement and right of establishment of community citizens across the REC. However, socio-economic instability in the region has hindered the smooth implementation of the protocol.
Overall, it is clear that AU and RECs have made substantial efforts at developing guidelines, frameworks, and protocols as a step to manage migration and mainstream its potential for development. However, these attempts sit uneasily with growing externalisation measures from the EU, which we turn attention to in the next section.
The Concept of Asylum and Protection Mercenarism
We characterize the recent engagement between Europe and some African countries as ‘asylum and protection mercenarism’ because akin to the military context whereby states employ the services of groups that are motivated by a financial gain to execute missions that might be extrajudicial, territorial asylum processing and the hosting of asylum seekers and refugees is increasingly being outsourced to third countries for a fee. The monetisation of asylum processing is not different from mercenary activities in distant countries. There has been an incremental approach to externalising migration policies and obligations since the onset of the so-called migration crisis in Europe in 2015.
The actions of richer countries such as the UK and Germany (currently under consideration) are directly jeopardising the rules-based international order. This amounts to double standards in selectively respecting rights that suit rich countries and wilfully overlooking those that seem to be an inconvenience to Europe. We argue that an international order cannot be sustained by picking and choosing when and to whom to accord rights and protections. Wealthy countries are turning impoverished countries into what we call ‘asylum and protection mercenaries’.
The externalisation actions are directly at odds with the collective efforts by the African Union and its eight Regional Economic Communities both in terms of continental and regional migration governance efforts. The trend of hatching bilateral agreements with vulnerable and impoverished countries such as Niger (prior to the recent coup d’etat) and opportunistic countries such as Rwanda is creating unnecessary suspicion and tension among member states of the AU. In addition to policies and protocols, the AU has set up institutions (the Migration Observatory in Rabat, Morrocco, the African Remittance Institute in Nairobi, Kenya, and the Centre for the Study and Research on Migration in Bamako, Mali) for capacity building, to catch up with the advanced countries on migration governance, while the so-called role models are unravelling the rules-based system.
The African guiding principles on the rights of migrants, refugees, and asylum seekers, for instance, include 38 principles that were unanimously adopted by the African Commission on Human and People’s Rights. Principle 21 is on asylum which among other things notes that:
- Every person has the right to seek and to obtain asylum in other countries in accordance with laws of those countries, regional, and international conventions.
- Asylum seekers shall not be rejected at the frontier, returned or otherwise expelled without being able to access a fair and efficient status determination.
- States shall receive refugees and secure the settlement of those refugees who, for well-founded reasons, are unable or unwilling to return to their country of origin or nationality.
- The granting of asylum is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any African Union Member State.
In addition, the AU is finalising the AU Guidelines on Return, Readmission and Sustainable Reintegration. Here again, the continent is trying to harmonise its processes by emphasising a rights-based approach to dealing with situations whereby migrants have to be returned, readmitted, and reintegrated. Some of these positive steps on the continent are inspired by the need for a collective rights-based approach to managing migration in line with the 2018 Global Compact on Migration.
There are, therefore, some fundamental questions to be answered by countries that seek to pursue externalisation policies:
- How are rights of asylum seekers who are shipped off to third countries safeguarded?
- What are the long-term plans for such refugees beyond the expiration of such contracts and deals?
- What are the security guarantees and implications for vulnerable asylum seekers if shipped off to a neighbouring country for processing and hosting?
- How will the risk of assassinations in third countries and special protections for high profile or vocal critics of home governments be dealt with?
Concluding Reflections
Once the outsourcing approach is popularised and accepted, it becomes a proof of concept for other global challenges and responsibility sharing. Turning Global Southern countries into unwilling but incentivised accomplices in breaching international conventions on the rights of asylum seekers and refugees is unconscionable.
This populist approach to the governance of migration amounts to putting plasters over gaping wounds. The stress on asylum systems is largely informed by ever-narrowing legal pathways to migration and bureaucratic inefficiencies. We conclude that continental migration governance initiatives on the African continent are being stifled by short-term populist externalisation policies from Europe. In an era where overseas development aid/assistance is increasingly repurposed by European countries to fund immigration control, it is no surprise that some developing countries would agree to externalisation deals, including those that go contrary to collective continental agreements, protocols, and principles. We also conclude that irregular arrivals are a symptom of a problem of inadequate regular pathways to migration rather than the problem itself.
This contribution is an adapted version of the text published at Externalizing Asylum