The Extra-Territorialisation Of Migration Control And The Right To Seek Asylum

By Asher Hirsch | 05 Dec 14

In this age of globalisation, many asylum-receiving states have attempted to restrict access to asylum through a range of extraterritorial measures that effectively prevent asylum seekers from reaching territorial borders in order to apply for protection.

As Thomas Gammeltoft-Hansen notes in his book Access to Asylum, “the last decades have seen a number of policy developments to extend migration control well beyond the borders of the state.”

These extraterritorial measures include carrier controls that place financial penalties on airlines that carry those without a visa, disruption activities in transit countries, the use of immigration officers in foreign countries, offshore processing, and the interception of boats on the High Seas.

However, rather than regulating migration, these policies have forced those who seek protection to use irregular and unauthorised pathways to find safety. Those who are experiencing persecution and living in conflict zones will always be willing to bypass regular channels and risk their lives on dangerous journeys in order to find safety.

While worldwide displacement figures have skyrocketed to more than 51 million people, asylum channels have decreased. As such, in a world with increasing demand for asylum and increased migration control, the use of irregular migration pathways become more sought after than ever.

Australia leads international practice in the extra-territorialisation of migration control.

Australia employs significant carrier sanctions on airlines that carry those without a visa, essentially forcing those without a visa to use the only other option of getting to Australia – by sea. Effectively, the airline carriers have become the border enforcement agents as there is an economic incentive to refuse to carry those without a visa rather than face fines and the cost of returning someone.

Australia also conducts extensive “disruption operations” in transit countries, directly stopping people from leaving their country of first asylum. In Pakistan, Malaysia and Indonesia, officers of the Australian Federal Police (AFP) and Australian intelligence agents have “been part of an increased effort to stem the movement of asylum seekers.” These disruption activities extend to the source country as well. The Human Rights Law Centre report, Can’t flee, can’t stay: Australia’s interception and return of Sri Lankan asylum seekers, has found that Australia has “encouraged, facilitated and resourced Sri Lanka to stop its people leaving the country … in order to stop boats at their source before they can depart Sri Lanka.”

Offshore processing is another example of Australia’s attempts to outsource its human rights obligations and move operations out of its territory. Australia is attempting to hide behind a veil, claiming that it is Papua New Guinea and Nauru who are responsible for asylum seekers and refugees in the processing centres, despite many assertions to the contrary.

The Minister for Immigration has proudly announced that 12 boats have been turned back to their country of departure since December 2013, essentially denying passengers the right to seek asylum and placing those passengers at risk of refoulement. These operations were carried out in Australia’s contiguous zone and on the High Seas, in breach of Australia’s obligations under the Law of the Sea and the Refugee Convention.

The only boat of asylum seekers that was not returned in this period was the group of 157 Sri Lankan Tamils who left India in June 2014, who have recently challenged their interception, detention and attempted return in the High Court. On 29 June, the Australian Navy intercepted the boat and detained the passengers in windowless rooms, separated from their families, without access to lawyers, adequate food, healthcare and only two hours of daylight outside per day. For 28 days they were detained on the High Seas as Australia attempted to return them to India,until negotiations failed and they were sent to the Cocos Islands on 27 July. They were subsequently taken to Nauru detention centre, again in an attempt to avoid Australia’s obligations to these people.

The current case in the High Court essentially challenges Australia’s right to extraterritorially intercept and detain people, and subsequently return them to a place where they risk harm. The decision is still pending in the High Court at the time of writing.

However, new laws introduced by the Coalition attempts to reverse any decision of the High Court that may limit Australia’s extraterritorial powers in relation to interception and returns, among many other significant changes. These laws will give the Minister for Immigration extraordinary powers to intercept and detain people at sea (both within Australian waters and on the High Seas) and to transfer them to any country or even a vessel of another country that the Minister chooses, without scrutiny from either Parliament or the court, even if that country is likely to torture or persecute them on return.

“Despite the Government’s assertion to the contrary,

Australia cannot escape its obligations under international law by acting outside its territorial borders.”

The Australian Government has argued that “Australia’s obligations under the Refugees Convention … arise only with respect to persons who enter Australia’s territory.” This interpretation is taken from the US case of Sale v Haitian Centres Council and the UK case of R (European Roma Rights Centre) v Immigration Officer at Prague Airport. However, legal scholars and the UNHCR have furiously critiqued both decisions. Indeed, in the more recent case of Hirsi Jamaa v Italy, the European Court of Human Rights has found that human rights, including non-refoulement, do extend extraterritorially.

Despite the Government’s assertion to the contrary, Australia cannot escape its obligations under international law by acting outside its territorial borders. It has been well established under international law that a state’s jurisdiction extends to wherever the state exercises effective control. As such, as long as asylum seekers are under the effective control of Australian officials, they are under Australia’s jurisdiction. This includes Australia’s control of Papua New Guinea and Nauru detention centres, Australia’s involvement in disruption activities, and the extraterritorial interception of asylum seekers at sea.

As the UN High Commissioner for Refugees submitted as Amicus Curiae in the 157 Tamil case:

Where people are intercepted on the High Seas and put on board a vessel of the intercepting State, the intercepting State is exercising de jure as well as de facto jurisdiction and is subject to the obligation of non-refoulement.

Extraterritorial attempts to restrict the right to seek asylum are in breach of international law and are an affront to Australia’s commitment to uphold the Refugee Convention.

Instead of leading the world in the extra-territorialisation of migration control, we should seek to be an example of a humane response to asylum seekers.

Asher Hirsch is a Policy Officer with the Refugee Council of Australia, the national umbrella body representing 200 organisations and 900 individuals who work with refugees and asylum seekers.