By Jorge Liboreiro

The European Union has taken the most decisive step yet towards outsourcing elements of its migration and asylum policy, entering uncharted territory that for decades was considered taboo.

Admittedly, Italy took the lead first in this trend when it signed a protocol with Albania to build two centres on its soil where migrants rescued at sea would be transferred to have their asylum claims processed. The hubs, which attracted enormous political interest (and no shortage of controversy), today lie empty after being paralysed by legal action.

Despite the setbacks that Rome has faced, Brussels has marched ahead and brought outsourcing fully and firmly into a European dimension.

The framework is laid out in a draft regulation that the European Commission presented this week with the aim of speeding up the deportation of migrants whose applications have been turned down and are, as a result, no longer allowed to remain inside the bloc. (The text still needs to be negotiated between the Council and the Parliament.)

Under current rules, member states can send rejected asylum seekers to their country of origin, a country of transit with a readmission agreement, or any other country if the migrant “voluntarily” decides to do so. In this third option, consent is essential.

But in the new regulation, consent disappears and the options are expanded to allow EU countries to strike deals with non-EU countries and build deportation centres, presumably in exchange for financial incentives. This means that, if approved, the law will enable national authorities to physically transfer migrants to faraway nations where they have, quite literally, never set foot.

The Commission will not spearhead the construction or management of these facilities, leaving it instead to member states to decide if they want to pursue the project. Italy, for example, is reportedly considering turning the Albania centres into so-called “return hubs.”

The regulation sets out minimum criteria that these overseas centres should meet, such as an independent body to monitor the “effective application” of the agreement, an exemption for unaccompanied minors and families with children, and a clear definition of obligations and responsibilities to tackle potential violations of human rights.

“We're creating the legal frame, we’re not creating the content,” said Magnus Brunner, the European Commissioner for Internal Affairs and Migration. “It’s an innovative new solution for member states, they’re free to take it.”

It’s an interesting approach that Brussels is taking.

On the one hand, it gives countries the permission to explore and install outsourcing. On the other, it distances itself from it, almost as if it was turning a blind eye on a project that is expected to be costly, challenging and highly contentious. Crucially, it is far from clear (in fact, it’s completely unclear) if outsourcing will deliver on its promise to help curb irregular migration. Regardless of where migrants are hosted, they will still be under the responsibility of member states. 

The potential for human suffering is immense, human organisations have warned. 

The “proposal lays the ground for states to send people to countries to which they have no connection, to languish in detention centres, with little credible guarantees that their rights will be upheld. Frankly, this is a new low for Europe,” said Amnesty International.

Human Rights Watch called the text “both cruel and unrealistic” and meant to simply “move people out of sight.” The Platform for International Cooperation on Undocumented Migrants (PICUM) was blunter, saying the regulation “ushers in a dystopian detention and deportation regime.”

NGOs have also criticised the Commission for rushing this legislation under political pressure and failing to conduct a proper impact assessment. The executive admits no such assessment was carried out due to the “urgency” of coming up with the proposal after EU leaders endorsed outsourcing in October, but insists the drafting was “informed” by data and consultations with stakeholders. 

This is a remarkable admission, given the inherent risks of sending migrants to faraway countries. The clash with international law is inevitable. Those who wish to experiment with “return hubs” are likely to meet the same fate as Italy: a back-and-forth of court cases that limits, or downright stops, outsourcing and makes governments look like they’re wasting public money on nothing.

For the Commission, it’s worth a try.

“Let's look into whether it works or not,” Magnus Brunner said. “Let’s be open-minded on those ideas as well. The ‘return hub’ possibility is something new, something different, which we can explore in the different member states.”