Legal transfers of Restrictive Immigration and Asylum Policies | Australia and New Zealand | bpb.de

The 1951 Refugee Convention was drafted, in part, as a response to the failure of states to provide refuge to people fleeing persecution at the hands of Nazi Germany. The plight of the 937 mostly Jewish passengers of the SS St Louis provides cautionary tale. The ship departed Hamburg in May 1939 and headed to Cuba. Even though all the passengers had landing documents permitting their entry, Cuba refused to honour those documents when they arrived. The ship then set course to the United States, but was intercepted by the US Coast Guard. With nowhere to go, the ship returned to Europe, with the passengers ending up in Great Britain, Belgium, the Netherlands and France. Some of these countries were later invaded and occupied by Nazi Germany. It is estimated that around a quarter of the passengers of the SS St Louis lost their lives in concentration camps. Part of the impetus for the Refugee Convention was to prevent a repeat of incidents like this. The cornerstone of the Convention is the protection against refoulement, which prohibits states from returning asylum seekers to a location where they would face persecution.

But around the world, governments are increasingly turning away from the protections set out in the Refugee Convention by implementing measures aimed at deterring asylum seekers and denying them access to those protections. This has been described as the ‘deterrence paradigm’. In this context, states are observing and copying deterrence policies implemented in other jurisdictions. Of course, learning or ‘transfers’ of this type also occurs in other – if not all – areas of policy-making. But the shared goals and constraints, as well as the interdependence of asylum policy, make it an area where this form of learning and transfers are particularly rife.

States increasingly share a common policy goal: to keep unwanted irregular migrants and asylum seekers away from their territories. However, the obligations enshrined in the Refugee Convention set limits to their endeavours. When a state succeeds in developing a policy, which meets the political goal of deterrence without blatantly violating the Refugee Convention, others are quick to adopt this approach.

Asylum policy making is also interdependent. That is to say that changes in the policy settings of one state, have ramifications for other states. At the most direct level, when an asylum seeker is blocked from entering a country, they are pushed back into another state. At a more indirect level, the implementation of a restrictive asylum policy in one state, may lead to an increase in asylum flows in another state. In this competitive environment, governments keep a close eye on what other states are doing, and adjust their policies accordingly.

1. Historical Transfers

This competitive environment, and the resulting legal transfers of restrictive immigration policies is nothing new. States have been monitoring and copying border control polices for as long as they have been trying to exclude certain migrants from their territories. One of the first examples of this was the spread of race-based immigration control measures across the United States, Canada, Australia, New Zealand and South Africa in the late 19th and early 20th century. While these laws predated the Refugee Convention and other human rights treaties, lawmakers did face other constraints, including formal bilateral trade treaties and informal diplomatic considerations limiting the ability of governments to enact overtly discriminatory immigration laws. When a policy was found that achieved the goal of restricting the immigration of certain races, while not being framed in directly discriminatory ways, it very quickly spread across other jurisdictions.

The first set of laws of this kind targeted Chinese immigrants in the 19th century. These measures included landing taxes on arrivals and passenger per ship restrictions, which limited the number of Chinese immigrants that ships were allowed to carry based on a proportion of the vessel’s tonnage. By 1885, all six British colonies of which Australia was made up, New Zealand and Canada were using a combination of landing taxes and tonnage restrictions, and many US states were using landing taxes. The progressive increase in the landing tax and tonnage restriction demonstrates the competitive dynamics at play. Whenever one jurisdiction tightened restrictions, others immediately adjusted their policies to match or outdo those restrictions. For example, between 1855 and 1888, the landing tax across the Australian and New Zealand colonies increased from £10 per Chinese arrival to as high as £100. Similarly, tonnage restrictions that were initially set at one Chinese passenger on a vessel for every 10 tonnes were increased to as high as one for every500 tonnes in the Australian colonies by 1888.

Around the turn of the 20th century, race-based restrictions expanded to cover other “non-white” immigrants. One of the key tools that emerged during this period was the literacy or dictation test, which required immigrants to fill out forms or read and write in a specific language. The benefit of this approach was that states could claim they were not targeting or overtly discriminating against certain nationalities, but the flexibility of the test and the way it was administered allowed them to do exactly that.

The origins of the literacy test can be traced back to the southern states of the United States that used the tool to disenfranchise black voters in the 1890s. Mississippi, for example, introduced a literacy test as a condition for the right to vote in 1891. An immigration bill containing a literacy test was vetoed by President Grover Cleveland in the United States in 1896. But it caught the attention of the self-governing British colonial territory of Natal in South Africa, which adopted the literacy test in 1897. The policy soon spread throughout the Australian and South African colonies as well as to New Zealand, and was later adopted through legislation in the United States and Canada in 1917 and 1919 respectively. These policies took a variety of forms and varied in their stringency. For example, while the United States and Canada simply required entrants to be literate in any language, the Australian test required a person to write out a dictation in any “European language” (and later, “any prescribed language”) chosen by an officer.

2. Contemporary Transfers

Today, we see a similar dynamic playing out with the spread of restrictive asylum policies around the world. One example is the so-called Australian model, that is Australia’s practices of intercepting and turning back boats with asylum seekers on board at sea and offshore processing. When Australia cannot safely turn back a boat, it transfers the asylum seekers to Nauru (and formerly to Papua New Guinea), where their asylum claims are assessed. Refugees are warehoused at these locations with no prospect of permanently settling in Australia.

However, this supposedly ‘Australian model’ has its origins in the United States. The US government has intercepted and pushed-back migrant boats at sea since 1981 and has used Guantanamo Bay in Cuba as an offshore processing centre for asylum seekers since 1991. Australia directly drew on the US example when developing its offshore processing and boat push-back policies in 2001.

Now there are growing calls in various European states to adopt the ‘Australian Model’. The United Kingdom and Denmark have both passed legislation that would pave the way for offshore processing, and have both been negotiating with Rwanda to facilitate this. The United Kingdom’s plans were frustrated by the UK Supreme Court, which determined in November 2023 that Rwanda was not a safe place to send refugees and asylum seekers. However, at the time of writing in in January 2024, the British government was in the process of attempting to circumvent the Supreme Court’s decision by introducing new legislation that declares that Rwanda is safe. Some politicians in Germany, France, the Netherlands, Denmark, Austria and Belgium have also been advocating for an Australian-style approach aimed at blocking asylum seekers from accessing Europe.

You have to look no further than Australia's experience to see the harm that can be caused by offshore processing. During its time providing mental health support to refugees and asylum seekers Australia had sent to Nauru, Médecins Sans Frontières (MSF) reported unprecedented levels of trauma – which the organisation had not even observed in the war zones they work in.

Holding people indefinitely in offshore detention centres, like Australia has in Nauru and Papua New Guinea, is not sustainable, as host countries are generally not open to granting permanent settlement. Papua New Guinea had initially said that it would allow people to stay there permanently, much the same as what Rwanda is now offering as part of the UK Ruanda deal. But Papua New Guinea changed its position, once it realised the political implications on the ground, and a substantial share of the individuals were later transferred to Australia.

The financial costs of these policies are highly disproportionate, with Australia regularly spending upwards of $1 billion a year to deal with a small number of refugees (as of 31 October 2023, a total of 4,194 asylum seekers have been transferred offshore since 2012). Redirecting these funds towards protection rather than deterrence would be a more effective approach to ensuring the safety and well-being of refugees.

The further spread of offshore processing will substantially weaken the international refugee protection regime. The risk is that we will see a race to the bottom, as countries compete to deter asylum seekers. As most countries are currently competing to deter asylum seekers, there could be a race to the bottom of increasingly restrictive policies. When devising asylum policies, governments weigh up their competitiveness in deterring unwanted irregular immigration against the value of abiding by their obligations under international law. As more states opt for deterrence over protection, this places pressure on other states to do the same. This scenario has – and will continue to have – a devastating impact on the ability of those in danger to reach safety.

3. Conclusion

The effectiveness of the Refugee Convention and the protection provisions laid down in other human rights conventions is determined by the actions of states. Implementing international law requires leadership – it needs states to lead by example to persuade other states to protect refugees. If more and more states – especially wealthy liberal democracies that have the resources required for the task – refuse to take on this leadership role, it will lead to the erosion of the universal principle of asylum and the refugee protection regime more broadly. What this means in practice, is that more asylum seekers will be placed in the same predicament as those aboard the SS St Louis, adrift at sea, with nowhere to seek refuge.