Report of the Special Rapporteur on the human rights of migrants, Gehad Madi on Externalization of migration governance and its effect on the human rights of migrants

60. The Special Rapporteur expresses concern regarding the growing use of externalization measures by States in the governance of migration and responses to refugees and mixed movements. Rather than upholding their international human rights obligations and recognizing the positive contributions of migrants and refugees to their societies, many States continue to allocate substantial resources to shifting responsibility for migration and asylum management to third States. This outsourcing often occurs without adequate safeguards, in particular when third States lack the capacity or political will to ensure protection of rights. As a result, the rights of migrants and refugees are placed at serious risk.

61. In this context, the Special Rapporteur identifies several human rights as being particularly vulnerable to violation, including the right to leave any country, including one’s own; the principle of non-refoulement; the prohibition of collective expulsion; the right to due process and an effective remedy; the prohibition of arbitrary detention, torture and ill-treatment; the right to life; the prohibition of enforced disappearance; economic, social and cultural rights; and prohibition of racial discrimination.

62. Externalization arrangements are often characterized by a lack of transparency and limited accountability mechanisms. While certain practices and procedures aimed at ensuring democratic oversight and human rights monitoring have shown promise, they remain the exception rather than the norm. The extraterritorial nature of externalization measures, coupled with the involvement of multiple actors, presents significant challenges in establishing legal responsibility for human rights violations. Nonetheless, States cannot circumvent their international obligations by delegating their migration control practices to other States or non-State actors beyond their territory. Depending on the involvement of externalizing and third States, violations may be attributed to both the externalizing State and the third State or non-State actor, or one party may be complicit in violations attributed to another.

63. In order to ensure that States uphold their obligations under the human rights treaties, the Special Rapporteur calls upon States to end arrangements that prevent arrival, outsource asylum processing or allow for readmission or expulsion to countries different from the country of nationality, which effectively shift responsibility for migrants and refugees to third States and, in practice, lead to violations of their human rights. Until such arrangements have been ended, in order to ensure respect for the human rights of migrants and refugees in the context of migration cooperation, the Special Rapporteur recommends that States:

(a) Ensure that migration governance measures respect, protect and fulfil human rights, are gender-responsive and do not create new situations of vulnerability or exacerbate existing ones;
(b) Comply with international human rights norms and standards and the principle of good faith when engaging in migration and asylum-related cooperation;
(c) Encourage and strengthen the participation of civil society in developing and implementing policies and projects related to migration and asylum, acknowledge their role in addressing and monitoring border control and surveillance measures and ensure that civil society organizations do not face legal and practical obstacles in carrying out their work;
(d) Discontinue existing externalization agreements with countries that unable or unwilling to uphold their human rights obligations;
(e) Abide at all times with the principles of non-refoulement and prohibition of collective expulsion, including at borders and on the high seas;
(f) Refrain from any measure that would amount to or lead to arbitrary detention, torture and ill-treatment, arbitrary deprivation of life, enforced disappearance and racial discrimination, and ensure that people are able to enjoy socioeconomic rights and the right to leave any country, including one’s own;
(g) Refrain from the transfer, including through pullbacks, or readmission of migrants to third States without individualized assessment;
(h) Ensure that any arrangement for the transfer of migrants, refugees or asylum-seekers contains legally binding guarantees of adequate treatment, a fair and effective asylum procedure and international protection and solutions, where relevant, as well as safeguards to ensure dignity and sustainability in line with international human rights and refugee law;
(i) Uphold due process guarantees, including by ensuring access to an individualized examination and the right to an effective remedy with suspensive effect ensuring protection from removal during the time when the appeal body considers the case;
(j) Ensure that all cooperation arrangements uphold and strengthen the effectiveness of the search and rescue regime, including with respect to disembarkation in a place of safety, in accordance with international human rights and refugee law and the international law of the sea;
(k) Stop all forms of support, in particular financial and technical support, including the provision of equipment and surveillance and other technology, to States and other actors engaging in human rights violations;
(l) Suspend all cooperation arrangements facilitating technology transfer and technical assistance for digital border governance purposes in which human rights are not explicitly guaranteed;
(m) Ensure that all agreements include provisions for effective human-rights-based support for migrants and refugees in third States, including integration assistance, as well as resettlement opportunities and access to legal pathways from third States;
(n) Assess systematically whether project activities implemented by international organizations and NGOs comply with human rights standards;
(o) Before entering into agreements, ensure that partners, including non-State actors, such as international organizations, NGOs and private actors, have a demonstrated human rights record and a commitment to due diligence and the “do no harm” principle, and systematically assess compliance with these principles throughout contract implementation by exercising adequate oversight;
(p) Enter only into agreements that are made publicly available and subject to parliamentary scrutiny, and publish all agreements that are currently in effect, including informal ones;
(q) Ensure that human rights impact assessments are conducted in advance and in systematic manner, including the identification of mitigating measures, and make such assessments public;
(r) Ensure that agreements provide for independent human rights monitoring, including at the border, that involve national human rights bodies and NGOs from both countries involved;
(s) Ensure that the independent human rights monitoring mechanism includes accessible and adequate complaint mechanisms that are accessible from abroad and open to any person alleging violations of their rights in the context of externalization;
(t) Conduct prompt, impartial and effective investigations into allegations of human rights violations committed by their law enforcement bodies, sanction perpetrators and offer redress to victims or their relatives;
(u) Admit to their territory migrants and refugees affected by externalization arrangements where credible allegations indicate that they have been subjected to human rights violations in the third State.

64. The Special Rapporteur urges international organizations and NGOs that implement projects in the framework of externalization arrangements to comply with the due diligence principle and codes of conduct and to fulfil their human rights commitments.