Keely Sullivan is a freelance journalist.
European conservatives’ go-to model for ending illegal immigration doesn’t look so solid anymore. For the first time in decades, a court in Australia has freed an inmate from the Pacific nation’s zero-tolerance immigrant detention system, calling into question the legal foundation of how it handles asylum seekers.
European migration hawks have long eyed Australia’s approach — because it worked. Though decried by human rights advocates, the system’s supporters note that Australia has had next to no illegal sea arrivals since 2013. Instead, migrants intercepted at sea have often been diverted to processing camps on the Pacific islands of Manus and Nauru, stranding them there with no guarantee of release.
A lawsuit filed by Ahmed Mahmoud, a 29-year-old Syrian national, calls that system into question. A former legal resident of Australia who had lost his visa after an assault conviction in 2011, Mahmoud was freed from the system after nearly six years, after a court ruled that his long-term detention was illegal. He had bounced between 11 different detention centers including Christmas Island, halfway between Australia and Indonesia in the Indian Ocean.
Opponents of Australia’s system say Mahmoud’s case — AJL20 vs. Commonwealth of Australia — sets a precedent with important implications for how long Australia can keep asylum seekers in detention.
“Any time that the court expresses limitations on the government’s power to detain people is so important,” said David Burke, legal director for Human Rights Law Centre. The case, he added, “was effectively a clarification of the limits of when the government can do that.” The case was decided in September. The Australian government is currently appealing the ruling.
The ruling is restricted to Australia, but critics of the country’s immigration policy say they hope it will cause Europeans looking to the country to reconsider.
The idea of stopping immigration by outsourcing responsibility to other countries has been gathering steam on the Continent. In a December 2016 interview with POLITICO, Austrian Chancellor Sebastian Kurz — then foreign minister — endorsed the Australian approach and called for the EU to impose a similar system. In the U.K., Home Secretary Priti Patel has also advocated for an Australia-style system that included offshoring illegal refugee arrivals to Britain.
And in 2018, citing the ongoing migrant boat traffic in the Mediterranean, the EU’s General Secretariat of the Council urged the European Council and Commission to study the feasibility of an offshore model similar to Australia’s.
The country that has taken the most practical steps so far to set up such a system is Denmark, where Immigration Minister Mattias Tesfaye signed an agreement with the Rwandan government widely-viewed as the first step toward opening an overseas asylum processing center there, 9,000 kilometers from European shores.
But while the system appeals to politicians hoping to look tough on migration, human rights advocates say it takes an unacceptable toll on those caught in the system.
Amnesty International has called Australia’s system a “deliberate abuse of cruelty” and a “nightmare” for asylum seekers, who have alleged physical abuse, sexual assault and insufficient medical care. “Harsh detention policies have some populist appeal, particularly around election time,” said Graham Thom, a refugee advocate with Amnesty International Australia.
A 2018 UNHCR finding noted a pervasive sense of “helplessness and hopelessness” among asylum seekers and refugees on Manus Island, citing declining mental health, insufficient assistance with bureaucracy, rough living conditions and uncertainty.
Copying Australia would be difficult in Europe, said Lina Vosyliute, a research fellow at Brussels-based Centre for European Policy Studies (CEPS). Where Australian law is not always adhered to in offshore locations under the Australian system, EU laws and jurisdiction would be under an EU offshore system, including due process and human rights protections.
“Wherever EU money is going, EU values and obligations are following,” Vosyliute said.
The Australian offshore model currently offers no path to residency for refugees, who are instructed to settle permanently in a third nation, seek asylum elsewhere or return to their home country. If they can’t or won’t, they are left indefinitely in internment. The average length of detention in Australia has risen from four months to nearly two years since 2013.
“I have met people in detention who haven’t got a lawyer for half a decade,” said Alison Battisson, the lawyer representing Mahmoud. It’s unlikely such a system would be ruled legal under EU law.
Opponents of the Australian system say they will use the Mahmoud decision to slow momentum for offshoring in Europe. “This wonderful system that you’re trying to promote does have cracks in it,” said Judith Sunderland, associate director for Human Rights Watch’s Europe and Central Asia division. “We would certainly try to use it to shift the debate.”
The decision “would set the precedent for maybe Danish officials, who are thinking to do something like Australia did,” said Vosyliute. “This could be a good indication that it’s a no go for policymakers.”