Panel Transcript: Safe Third Countries – The Future of Asylum and Immigration Control

Media

Panel Press Release

Panel Video

Event Summary

The primary challenge to the sovereignty of developed nations around the world is the mass use of asylum claims by illegal migrants as a means of avoiding deportation. Most claims are without merit, but the numbers overwhelm states’ ability to adjudicate them and to enforce negative rulings by sending people home. To address this challenge, many nations have explored various versions of a “safe third country” strategy, either to require illegal migrants to wait abroad while their claims are adjudicated (like the Remain in Mexico program of the U.S. and the U.K.’s Rwanda plan), or to require them to seek asylum in another country altogether (like the U.S. Asylum Cooperative Agreements and the new proposal of the European Commission). On June 26, 2025, the International Network for Immigration Research (INIR) held a virtual panel discussion addressing these issues, hosted by the Center for Immigration Studies, featuring researchers representing member organizations of the network.

Participants

Nicolas Pouvreau-Monti, Immigration and Demography Observatory, Paris

Yonatan Jakubowicz, Israeli Immigration Policy Center, Jerusalem

Viktor Marsai, Migration Research Institute, Budapest

Mark Krikorian, Center for Immigration Studies, Washington

Date and Location

June 26, 2025

---

MARK KRIKORIAN: Hello. My name is Mark Krikorian. I’m executive director of the Center for Immigration Studies in Washington, D.C.

We are hosting – the Center is hosting an event of the International Network for Immigration Research, INIR, which is a collaboration of independent research organizations and individual researchers on immigration whose focus is not the usual humanitarian approach to immigration but one based on national interest, taking into account the costs and benefits of immigration. And today’s panel is on the issue of safe third countries, and how that relates to immigration and to asylum.

I’ll introduce our speakers and then I’ll be the first presenter. But after I present, the second speaker is Yonatan Jakubowicz, who is the founder and head of the Israeli Immigration Policy Center in Jerusalem. He’ll be followed by Nicolas Pouvreau-Monti – I hope I said that correctly – who is the director and co-founder of the Immigration and Demography Observatory in Paris, known by its French initials OID. And our last presenter will be Viktor Marsai, the executive director of the Migration Research Institute in Budapest. And we’ll have Q&A – we’ll discuss among ourselves if we want to, and then Q&A from those of you who are watching. If you do have a question, you can email it in to – the address is media – M-E-D-I-A – [email protected].

Now, this issue of safe third countries is relevant because of asylum. It is a consequence of what’s happened with our asylum policy. Our current legal structure for asylum dates from 1951, the U.N. Convention – a U.N. treaty called the Convention Relating to the Status of Refugees. And it set out the criteria for who is considered a refugee, but it only applied retrospectively and to Europe; in other words, it was specifically designed to deal with the consequences of the displacement caused by World War II and the Soviet takeover of Eastern Europe. Those rules related to refugee status and asylum were then applied to the whole world prospectively in the 1967 corollary to that treaty called the Protocol Relating to the Status of Refugees.

These treaties set out the definition of who is a refugee, but for immigration purposes there’s an important difference between two groups of potential refugees based basically on geography. And the labels differ between some countries, but the concept is the same. And in U.S. immigration law, a refugee is someone whom the federal government has affirmatively chosen, selected, and resettled in the United States. Could be a good idea, bad idea, could be done well or poorly, but it is a sovereign act of the government. Asylum, on the other hand, mainly involves people who illegally enter the target nation and then claim a right to stay. In other words, it’s a kind of surrender of sovereignty to recognize asylum because, rather than purely a matter of the receiving state, the target state, deciding who can come there, the illegal immigrant himself is the one who posits a right to stay.

Now, until the end of the Cold War asylum was not a big concern for developed nations, for the kind of places that immigrants go to. But with the dissolution of the Soviet Union, the end of the European colonial empires, and the dramatic advances in communications and transportation that made cellphones, cheap airfares, what have you, asylum has become one of the, if not THE, driver of illegal immigration. It’s arguably the chief threat to the sovereignty of developed countries, of places that people want to move to, as migrants from developing world infiltrate across the borders of the United States, European countries, Israel, Australia, and then claim a right to stay.

And what’s happened is because of the changes of the past 30 years or so the numbers of people making these claims have become so large that the various national systems devoted to adjudicating those claims have been overwhelmed, meaning that migrants are able to stay for years before any decision is handed down, which means that they succeed in the goal of getting into the countries. In other words, in most cases the goal of migrants nowadays is not to receive asylum but to be able to apply for asylum, which then leads to very often access to the target country. And then once they’ve been there for years, they’ve had children, they’ve put down roots, it can become difficult to remove those who have – either their claims have no merit or they were just made up to begin with, which make up a majority of those people using asylum as a stratagem for entering developed countries.

And that’s where the discussion of today’s topic comes in. The point of safe third country arrangements is to, if you will, demagnetize asylum for economic migrants; in other words, take it away as a strategy for people who aren’t fleeing genuine persecution, who are using it as a way to get access to these target countries and to their job markets and their social welfare systems, their health-care systems, et cetera.

And as I see it, there’s two kinds of safe third country agreements. One is where the illegal migrants are still permitted to apply for asylum in the target nation but they have to wait outside in a third country until the adjudication is completed or until the date of their hearing arrives. There’s different ways to arrange it. That is what the Remain in Mexico program, which many people will have heard of, involved in the United States; Italy’s deal with Albania; the Rwanda plan of the United Kingdom. We’re going to hear more about some of those things. But the point of it is the illegal migrants are still permitted to apply for asylum; they just have to wait in the third country for a decision to be made. And the point is, if it’s negative then they’re already not in the country.

The other kind of safe third country arrangement is one where the migrants – or, illegal migrants are simply prohibited for applying for asylum in the target country altogether, and are instead sent to a third country to seek asylum in that country. That is what the U.S.-Canada Safe Third Country Agreement was about, formed more than 10 years ago; the so-called Asylum Cooperative Agreements that the U.S. reached with a number of Central American countries; and apparently, as we’ll hear shortly, a European Commission proposal has the same kind of concept.

Actually, in a sense there is a third kind of safe third country arrangement, but it’s not really directed to asylum, and that is deporting failed asylum seekers or just illegal immigrants in general to third countries. That has been in the news in the United States quite extensively, as there is a group of people – illegal immigrants, criminals, being – who have been deported but are cooling their heels in Djibouti. They were going to be sent to South Sudan. They might still be, but it’s tied up in the courts and it’s actually an issue of some contention.

And so I just want to briefly talk about a little more detail on the U.S. part of this picture before we welcome our other speakers. I mentioned Remain in Mexico. The formal name of that was the Migration Protection Protocols. And they were – they’re authorized in U.S. law, but there had never been an actual program to do that. And they were – the program was put together in response to a surge that took place during the first Trump administration in 2019.

And the point of it was to still preserve the ability of illegal border crossers to apply for asylum, but they had to wait on the other side of the border for their hearing dates. And when the hearing date arrived, they would be ushered in briefly, they’d have a hearing, and if they were rejected they’d be sent back.

Mexico has always rejected the second kind of safe third country agreement, at least with regard to them, which is where illegal immigrants would not even be allowed to apply for asylum in the United States but would be sent to Mexico, non-Mexicans, to apply there. And yet, it’s not clear why they should resist such a thing. The Remain in Mexico program was an important step and very useful, but was kind of a half-measure, whereas Mexico has its own asylum system. It has its own agency, the Mexican Commission for Refugee Assistance; COMAR are the Spanish initials. They even have a video on the COMAR website of how to apply for asylum in Mexico. And so it seems to me logic or common sense would suggest that Mexico should accept the idea of this second form of safe third country agreements, but they have not.

The United States, again, as I mentioned, had these asylum cooperative agreements, so-called, with the three northern countries of Central America. They were instituted right at the end of the first Trump term, and when President Biden took over they were abandoned. And they’re being renegotiated right now. I don’t know what the status of it is. There haven’t been any announcements, but I think there will be soon. And I do not know, and I think they probably are negotiating similar agreements with some other countries, but that hasn’t been reported yet.

Now, in some sense in the United States context we shouldn’t even really need safe third country agreements because the immigration law requires that people who infiltrate illegally across the border and claim asylum be detained during the entire course of their case, in which case it would serve almost the same purpose as a safe third country agreement because even though they’d be on the territory of the United States they would still not have access to the labor market and social services and what have you. The problem is that in 2009 the Obama administration decided to ignore federal law and simply let people go and not detain them if they claimed asylum, and that kicked off a process that reached its culmination under President Biden where millions of people entered the United States under this pretext of asylum.

That flow across the border has all but stopped. No one is released any longer into the United States. In fact, in May literally zero illegal border crossers were released into the United States. So in a sense we’ve already – in our country have already achieved the goal of demagnetizing asylum. But it’s important, I think, to reestablish Remain in Mexico – it has been restarted – and to have these asylum cooperative agreements because you never know what’s going to happen in the future. There could always be future surges, and we need to be prepared to limit the potential of illegal immigrant flows using asylum in the future as a stratagem to gain access to the United States.

So this is not just a problem we’ve faced. Obviously, Americans don’t follow news abroad all that much, quite frankly. This is maybe a parochialism of ours, but it is the case. We’re the big dog, and so we kind of don’t pay attention as much to the rest of the world as maybe we should. And yet, all developed countries are facing exactly the same problems and have explored many of the same solutions.

So what I want to – our next speaker I want to go to Yonatan Jakubowicz, as I said the founder and director of the Israeli Immigration Policy Center, to talk about Israel’s experience with exactly the same issue. And again, not – in this case you hear Israel borders, maybe you think of terrorism or what have you. This is actually the regular illegal immigration which Israel faces because it is in many ways a regular industrialized, developed country and faces many of the same challenges. So, Yonatan, if you could tell us about what Israel – your experience with the safe third country issue.

(Pause.)

We can’t – yeah, we can’t hear you, Yonatan.

YONATAN JAKUBOWICZ: Yeah. Can you hear me now?

MR. KRIKORIAN: There you go. Yes, we can hear you now. Go ahead.

MR. JAKUBOWICZ: Great. So thank you. Thank you for organizing this panel and for that very interesting opening presentation.

So, as you said, Israel has been dealing with a substantial rise of what we call illegal immigration or infiltration from the beginning of the 2000s, and the numbers started going up quite exponentially, the majority of the migrants coming from East Africa, mainly two countries, Eritrea and Sudan. Up to – there were a few years in 2011, ’10, 2012, Israel was actually the number-one destination country for migration from those two countries of origin, Eritrea and Sudan.

Israel’s experience can be outlined with a purpose of dealing with what you call magnetizing asylum, or sometimes it’s called the pull factor, but Israel has experience with both kinds of approaches. In the beginning, Israel used detention centers or reception centers, where migrants who came in would have to – would have to stay there mandatorily. And what we saw is that the number of illegal migrants coming in, mostly from the border from Egypt, went down in a matter of, like, two or three months from almost 2,000 a month – which, for Israel and even in European standards, is quite substantial – to close to zero once Israel enacted that mandatory stay in these reception or detention centers.

Another thing we saw is that once Israel started sending out mandatory invitations for migrants who were already in Israel to come stay in those centers, we saw a massive outflow, probably what in the U.S. is called self-deportation, of people who just asked to leave of their own volition. And the majority – and we’re talking about thousands every month, which also, at least on a European scale, is quite remarkable.

So what Israel’s experience has been is that the pull or the economic incentive and factors are very substantial, and also that their effects are faster than anybody thought would be possible in the beginning. I think what’s happening in the U.S. proves that to a fact, but that’s also Israel’s experience. People were very skeptical. They thought that the number of people entering or already in Israel would be much, much larger than the capacity of those centers. But what we saw is that the effects were very, very quick both in reducing the number of entries to almost zero and for a mass of people of leaving.

The issue is that the Israeli Supreme Court struck down those reception or detention centers three consecutive times, saying it’s unproportional and doesn’t go well with Israel’s human rights laws. And in 2017 – actually, by the end of 2013 Israel signed an agreement with a third country. Back then it was mainly Uganda. And afterwards, it signed another agreement with Rwanda. But in both cases, the agreement only included people who were willing to leave of their own volition. In 2017, after those reception centers were struck down by the Supreme Court, Israel tried another option of trying to detain people according to a different law, saying that they tried to – Israel tried to make the agreement with Rwanda public and forceful. Meaning – when we mean forceful, it doesn’t mean, like, forceful deportation, but it would just say that people would have to go even if it’s not from their own volition, and if not they would be detained according to a separate immigration law that’s been in effect and hasn’t been struck down by the Supreme Court.

But what we saw right away was a massive – I wouldn’t say public backlash because it wasn’t fueled by the majority of the public, but it was a plethora of pro-immigrant NGOs that put massive pressure both on the Israeli government and the government of Rwanda. It included protests in front of the embassy of Rwanda not only in Israel, but even in Beijing; calls for pilots to not comply and not fly planes sending people to Rwanda; and even all sorts of equivalencies to Israel’s history, claiming that people were being sent to their death. And this is even though Rwanda was categorized by UNHCR as a country with one of the most progressive asylum systems in the world. Both Uganda and – both Rwanda and Uganda have been categorized by UNHCR as safe countries that have a very – for sure in African criterias very liberal asylum policies. And even – and even thought that was a fact, they tried to portray it as Israel is forcefully sending people to a place of danger. And what happened at the end is that Rwanda backtracked from the agreement and wasn’t willing to do it, mainly also probably for political – for political reasons and tendencies. And since then, we haven’t had – and since then, we still have an agreement with the other country, but it’s only for people who are willing to leave of their own volition. It’s not forceful deportation.

I would also add that with the Rwanda plan that failed the government said that anybody who already had a pending asylum case would not be included, but anybody that hasn’t submitted an asylum request up to that point would not be allowed to submit one after that and he can submit it in Rwanda. So it’s kind of a middle way approach.

I have the understanding that many did not – did not try to apply for asylum because Israel, as it is, gave group protection to Eritreans and – to all the Eritreans and Sudanese, which gives a lower level of protection than asylum according to the Refugee Convention but still allowed them a quite significant amount of rights. And I have the understanding that once – that if they can apply now, then they would all – many would rush to do that in order to not have to go to Rwanda.

So that’s Israel’s experience. I would – I would like to say – there’s two points that I’d like to make in the short time that I have left.

First thing is the importance of, let’s say, global or international legitimacy for this kind of plan, because as we saw Rwanda felt that the pressure was too large. As we know, other countries have signed with Rwanda similar agreements later, and my colleagues will talk about that. But I think that in order for this to work it has to be displayed as the most practical and even humane policy possible, and the countries should be – should have no reason to try to hide it or fear public backlash. That’s very crucial in order for any kind of third country – third country plan to work.

And the second thing is it’s very important, when we’re talking about what kind of – what kind – if people should be able to apply for asylum or not, I’d say also from Israel’s experience but also in the world I think the main benefit of a third country plan is – or the main purpose and the reasoning would be the understanding that the RSD process – the process that is supposed to distinguish between refugees and economic migrants – is very, very flawed and very limited in its capacity. And I don’t think many people understand that. There’s some kind of – it’s sold as – by people who are dealing with this issue, be it judges or lawyers or human rights organizations, as if it’s a simple task to distinguish. And the fact of the matter is that on this issue there’s a lot of gray, and on the extremes you can sometimes know but at the end of the day it’s very limited in the capacity to really distinguish between those two categories. And what a third country plan would do is reduce the magnet, as you said, or the incentive for people who don’t have genuine refugee claim or fear for their life from applying, reduce the numbers who would – who would try to apply.

And the last point is that also here many people talk about burden sharing or why would it be fair to send so many people to the third country. But what we’ve learned is the effect of pull factors and push factors in Israel is that the actual numbers are much less than people would fear or display – would fear or think would happen for that – for that simple reason that the economic migrants stop, do not apply if they understand that there’s no prospect of getting rights in a developed country. So I would say that that would be the number-one point of it. I think there would be less of a – would be less effective if it would be, like, a kind of stay in Mexico until your asylum request is processed due to the very high – very high expenses of the process itself and the limited capacity. And I think the main goal in what we should be striving for are third countries that are totally safe like Rwanda, which by UNHCR standards is a – is a totally safe country, and then we wouldn’t need to go through that whole process. And then other options can open for burden sharing without the need for that RSD process, which as I said is very limited.

So that’s, in short, Israel’s experience and what we can learn from it. And of course, if there will be more questions I’ll be happy to elaborate more.

MR. KRIKORIAN: Thank you, Yonatan.

Now Nicolas is going to talk to us about what the various approaches have been in the past in European countries, including the U.K. which isn’t in the EU anymore but it faces all of the same problems. So, Nicolas?

.NICOLAS POUVREAU-MONTI: Absolutely. Many thanks, Mark. Many thanks to Bryan and the whole CIS team for setting up this event on a topic which is as crucial for all member think tanks of the network. That is that, of course, of the asylum regime and its implications as far as sustainability is concerned and as far as democratic concern is – consent, sorry, is concerned as well.

As an introduction or complement to Viktor’s approach, who will tell you about the proposals put forward by EU institutions, as Mark said, I’m going to talk to you shortly about three attempts that were made by European states in recent years for the implementation of safe third country systems. One is by the U.K., the second is by Denmark, and the third one is by Italy.

So I’ll probably start by the most well-known of it – well-known of them, sorry, which is the U.K.’s Rwanda plan. It was first announced in the spring of 2022 by then-Prime Minister Boris Johnson. The aim of this plan was pretty explicit: It was to deter, to discourage asylum seekers who were arriving illegally in the U.K., especially using small boat crossings coming from northern France. Like, these crossings they have become a significant and ongoing issue in recent years in the U.K. They are driven by a mix of humanitarian, political, and economic concerns. They are – they mostly concern migrants who are from Syria, from Sudan, Afghanistan, Iran, et cetera. And most of these migrants, actually, are planning to apply to the U.K. for asylum if they manage to reach the British soil. So the idea of this plan, of course, is to relocate – was to relocate these asylum seekers to Rwanda if they entered the U.K. illegally. And if granted asylum, they would have settled in Rwanda and not returned to the U.K.

So ever since it was first announced in 2022, this Rwanda plan suffered heavy fire, mostly, of challenges in court. First, it was the European Court of Human Rights in June 2022. As Mark reminded, the U.K. is not a member of the European Union anymore, but it is still part of the ECHR because ECHR is not related to the European Union; it is related to the Council of Europe – ECHR, which actually halted the first initial flight to Rwanda at the last minute. Then, from June 2023, the U.K. courts took their turn. U.K. Court of Appeal ruled Rwanda was not a safe third country, despite all the evidences Yonatan just brought. Then, in November 2023, the U.K. Supreme Court upheld this verdict unanimously, citing Rwanda’s so-called poor human rights record and risk of sending people back to danger.

So, in response to these obstacles in court, the Conservative majority introduced a special bill which was called the Safety of Rwanda bill to override these judicial concerns. But the plan was suspended just a few months after that, in July 2024, because there was a shift in Westminster. There was a Labour takeover of government, and the new prime minister Keir Starmer, he scrapped the plan. So, at the end, no deportation flights to Rwanda ever took place. There were only four asylum seekers that were sent voluntarily under a separate scheme. So that – the U.K. Rwanda plan can be deemed a failure without too much – too much work thinking.

The second example, within the EU this time, is that of Denmark’s own Rwanda plan. For years now, Denmark’s center-left government has been exploring various ways to limit the number of asylum seekers entering the country, responding to all the concerns we know about migration and the pressure it places on social services, housing, the labor market, et cetera. So the idea in Denmark of externalizing asylum processing has been part of this broader approach to reduce the number of people applying for asylum in Denmark, and especially to prevent another migration crisis of the kind that happened in 2015 when numerous asylum applicants from the Middle East especially rushed through Europe. Since 2021, the official policy of the Social Democratic prime minister, Mette Frederiksen, is even for the country to have zero asylum seekers, so that the official purpose to which this policy is related.

So Denmark’s interest in outsourcing this asylum process was first formalized in 2021, targeting Rwanda. Why Rwanda? Well, Yonatan already said the most important things about it. Rwanda’s government has been seen mostly as a willing cooperative state to deal with such issue. The country has a relatively stable political environment, despite concerns about human rights. Plus, Rwanda, as it was reminded, has already hosted refugees from neighboring countries such as the Democratic Republic of Congo and Burundi, so it has become some sort of regional hub for managing migration.

So, under the plan, asylum seekers who arrive in Denmark would be sent to Rwanda, where their asylum applications would be processed. So this would all take place, of course, outside of Denmark’s borders, meaning applicants would not be able to access Danish soil and to access especially the Danish labor market. If migrants are not found to be eligible for asylum in Denmark, they would be sent to their home countries or another country deemed safe.

The fact that has to be borne in mind is that plan so far has never come to fruition. It is not canceled; it is suspended, so far. It actually moved down a few preliminary steps, including the establishment – the building of a processing facility in Rwanda. However, in the early months of 2023 the Danish government suspended the project mostly because of legal uncertainties, especially relating to EU treaties and EU regulations, and also the need for further EU cooperation on asylum policies. At the time, the Danish government had entered discussion with the European Commission about a more integrated approach to migration, which may reduce the need for external processings.

So this approach mostly resulted in the recent EU Migration and Asylum Pact, which has good sides and flaws as well. However, the very fact that this plan was once considered is said to have added to the so-called negative reputation that the Danish government under the Social Democrats wanted to achieve among would-be asylum seekers in order to deter them to apply in Denmark and rather have their chance in a neighboring country. So this shows that even when not actually putting into place this kind of policy already works, actually, in deterring claims.

And, finally, I will talk briefly about Italy’s Albania plan. In the – in late 2023, the Italian government, led by Giorgia Meloni, who is a conservative, signed an agreement with Albania, which is neighboring to Italy of course, to externalize asylum processing for individuals which would be rescued at sea or arriving illegally in Italy. The idea was especially to move to Albania migrants and asylum seekers from a certain number of countries deemed as safe; that is to say, whose citizens are rarely granted asylum even when they apply for it. So they would be transferred to Rwanda-style processing centers in Albania, where their asylum claims would be reviewed in a rapid and accelerated process. And if they were granted asylum, these individuals could remain in Albania rather than being resettled in Italy.

So, of course, Italy’s context is quite specific because the country has been overwhelmed for many years by high numbers of irregular migrants arriving via the Mediterranean Sea. Italy is located, indeed, at a critical spot on the European Union’s southern external border. It is the main port – the main point, sorry, of irregular entry for what is known as the Central Mediterranean route, which is taken by migrants coming through Tunisia and Libya mostly.

However, to put things shortly, in Italy, as in the U.K., courts have been building strong obstacles. The first three groups of migrants that were transferred in last October, November, and January were sent back to Italy just a few hours or a few days after being – after having reached Albania, mostly because Italian magistrates refused to validate their detention in this non-EU country. There was basically a battle about the interpretation of the very concept of safe country, because according to some EU court judgments you cannot say that a country is safe if one specific area in the country is not. So in November the Italian government tried to adopt a new decree to respond to the magistrates’ refusals, especially by modifying this list of safe countries, but the transfers have remained blocked so far.

The latest development took place in March, when the Italian government approved yet a new decree that extended the use of these Albania-based centers not only to asylum processing, but also to return in line with a recent proposal from the European Commission which Viktor will talk about. So now these two centers in Albania will also receive migrants who arrived in Italy, who applied for asylum, and whose applications were rejected, and then who have been ordered deportations.

I’ll stop there, of course, and have Viktor talk about the newest EU Commission’s proposals. What I would like to say is that, of course, these three examples may sound depressing to some extent because none of them actually succeeded in the ways they were intended to work, however I would say that all these initiatives, they created some sort of momentum on the European scene which has contributed in shifting consensus among member states. In June of last year, 15 member states out of 27 from all political affiliations formally requested the European Commission to support and promote the outsourcing of asylum processing through agreements with safe third countries. And of course, I will leave the floor to Viktor to tell you about Brussels’ response to this request.

MR. KRIKORIAN: OK. Thank you, Nicolas.

Viktor, tell us about, so, prospectively now what may – what might we see coming out of the European Union.

VIKTOR MARSAI: Yeah. Thank you very much. Thank you, everybody. And very happy that I can be here.

I think it’s important to put in the European context the whole issue of safe third countries concept because the European understanding is a little bit unique, which, frankly speaking, doesn’t help the solution of the challenges of the irregular migration crisis in Europe. This whole safe third country concept is highly connected to whole repatriation and deportation topic, you know, because of human rights standards and because of different international treaties European member states and the EU can repatriate and deport people only to countries which can provide – which you can judge as safe countries.

And of course, it’s very important in this repatriation and deportation context not only to get rid of people who has no any legal base to stay in our territory, but it’s also important to ease the pressure on our asylum system because, you know, if it’s revealed that somebody’s coming from a safe third country – through a safe third country, it’s – his asylum request can be considered as inadmissible. So there’s no need for asylum procedure independently of his status or her status, but she or he can be sent back automatically to the safe third country where he or she crossed.

The problem in the EU context is that the concept of safe third countries was determined through different regulations which significantly narrowed the understanding which can be considered as safe. Because it’s not only about the meaning that there’s no persecution or severe war in the territory of the country, but it means also that, for example, it has the capacity to provide at least basic health care, education, and other welfare measures for the applicants.

So, in general, the safe third country concept was regulated by the asylum procedure directive in 2013. And besides this very high humanitarian social standard, it also established a framework which made very complicated to deport anybody back to these safe third countries, and it was the connection criteria, which was defined that somebody who we’re sending back to a safe third country show he needs some real connection to this country – which meant that, for example, he lived there, he worked there, or a family member live there. So it significantly narrowed down the possibility to send back anybody and completely made these safe third countries an empty toolbox, and it was very hard to find any safe third country with the except of certain, you know, countries – I don’t know, Japan or the United States. But if somebody doesn’t live – didn’t live there, you know, it was also the lack of connection criteria.

So even the last year there was a new asylum procedure regulation which tried to broaden the understanding of safe third countries. The most important rule is that the country which was considered a safe third country shouldn’t have been a part of the Geneva Convention, a signatory of the Geneva Convention, if through bilateral agreement it was clear that it safeguard the rights of the asylum seekers and refugees. And then other positive phenomenon was that it made possible for the member states to declare countries as safe with exception of some part of the territory. Just to bring some example, for example, countries could determine that, for example, Somalia is safe if the applicant was sent back to Mogadishu or Somaliland part of the country, while of course it was not safe to send back, let’s say, to the other parts.

But it was not enough, and there was a big revision supported by member states by definition, and the draft resolution was published last month. And actually, it found two areas which can be removed for the whole protocol and which can make possible to declare more countries in a European perspective as safe countries.

The first idea was that it’s high time to get rid of the connection criteria or at least broaden its understanding. The first suggestion is that any country where the applicant transform – sorry, transit, if she or he transited it, it can consider as a connection between the applicant and the country. So now this connection criteria can be broadened by the – transit countries.

The other suggestion by the Commission, which is also backed and suggested by some member state(s), is that even the applicant shouldn’t have to cross the country if there is a bilateral agreement between a certain EU member state and the certain country. And now we are in the Remain in Mongolia program, for example. So just as an example, if an applicant arrive to Hungary, let’s say, and there is – it seems that his oral application is inadmissible, and there is an agreement between Mongolia and Hungary and safeguarded by the human rights of the asylum seeker, then he or she can send to Mongolia for the processing. So it can be a very important change if it’s accepted by the parliament and the member state.

And the other issue is related not to the transit and the connection criteria, but the suspensive effect of an appeal from the applicant to the member state. Until this point, if anybody appeal for the decision to be send back to a safe third country, it led to almost automatic suspension of the send back and the actual repatriation of the applicant. So, according to the suggestion of the Commission, there will be no automatic suspension of the repatriation just before the applicant, you know, applied. You know, it’s very clear connection with the concept because, you know, even if there is an appeal but the country where he transited is considered safe, he or she can wait the decision in the safe third country as well.

So these seems reasoned suggestions by the Commission. The big question is that how it will be implemented, whether the member states and then the European Parliament will support it. So we are still waiting for a long legislation procedure taking months, perhaps years. And of course, we can see some challenges in this context besides the positive perspectives.

First is what I mentioned, that even if there’s no persecution and no war and other challenges in the safe third country, and even if we manage to forget this very strict connection criteria, the new Asylum and Migration Pact of the European Union determines very high standards – very high social and living standards which is necessary to be provided for the applicants: access for basic education; access for basic health care; access for food, shelter, and clothing. And just if we are looking around in the European neighborhood, actually, we can see a lot of countries and a lot of transit countries, a lot of countries of origin where we can see that these conditions are lacking even for the citizens of the certain countries. So it can narrow down, again, the understanding of or the determination which countries can consider as safe third countries.

And the other challenge is about this bilateral agreement between the certain member states and the third countries, because the Commission according to the proposal would have the possibility to evaluate the legal guarantees which are in the agreement, and of course if the Commission considers that legal guarantees are not enough to provide the necessary humanitarian protection for the refugees, they can nullify these agreements. So there is a lot of possibility, you know, how to jeopardize these agreement and, you know, make safe third countries again an empty toolbox for tackling illegal immigration.

So, in general, even we see positive developments, even we see huge pressure from the member states to change the current discourse and legal framework, as Nicolas mentioned, the real question, even if the current proposal will be authorized by the member states and the EU institutions, there are still, let’s say, traps which can, you know, jeopardize its effectiveness. Thank you very much.

MR. KRIKORIAN: Thank you, Viktor. I will remind listeners you can email questions to [email protected].

And there’s one question – I’ll kind of word it myself, summarize it – but the issue that somebody brought up was, actually, I think a potential weakness that the opponents of border enforcement will exploit, is the ability to apply pressure on the third countries themselves, as I think – I think it was Yonatan who said there were protests at the Rwandan embassy even in Beijing. And that kind of pressure by the human rights related groups that don’t want limits on asylum or on immigration at all can potentially be very effective because these countries don’t have the same resources. And so any thoughts on how target countries trying to take – trying to enter into these safe third country arrangements, how they can help inoculate the third countries from the kind of pressure of advocacy groups and others that they’re definitely going to face? Any thoughts on that?

MR. JAKUBOWICZ: Well, so I’ll start, I guess. I think we’re already seeing – I mean, if you take Israel’s example, Israel was the first one to sign with Rwanda. By the way, some of these organizations that were promoting protests were funded by the EU, but not long afterwards the EU itself signed an agreement with Rwanda that it would – it would accept migrants who were returned to Libya, who would be sent by the EU to Rwanda. I think that made the whole idea a little more legitimate. And of course, once the U.K. did it we saw that Rwanda was already willing to do the same agreement but on the table and make it public. With Israel, it was very important to keep it under wraps.

So I think that it’s – that’s also part of the importance of this debate and INIR, the coalition, and organizations talking about it. I think once – first of all, for sure once it works – until now, it hasn’t; there was no fruition. But once it does actually work, I think it will gain more legitimacy. I think the first country to do it can ask for better kinds of conditions from the target or asylum countries.

We have to also understand that they have a vested interest. There is a comparative advantage here. Western countries are willing to invest a lot of – a lot of money and resources into this issue, and these countries can also benefit greatly from these kinds of agreements where they’re offering some kind of service but it’s actually also a certain kind of burden sharing. So it’s very important to explain that this is – the upsides of these – of these kinds of agreements, why it’s also the main thing to do and the right thing to do.

And I think that once it actually starts happening and a number of countries do it, then it would work. And of course, if a few countries can get together and sign with a third country, be it Rwanda or Mongolia, that would also reduce the pressure. It wouldn’t look like something illegitimate. It would – it would gain more public support. And I think that that would be the way forward. So talking about it, explaining the upsides – the humanitarian upsides; the fact that we reduce the pull factor and reduce the number of migrant deaths, if it’s in the Mediterranean on the way or in Central America; we reduce human trafficking; we allow the safe third country who has a vested interest to gain many – a lot of funds and resources from the more developed countries which could promote development – there are a lot of upsides.

When Israel’s plan was – it wasn’t struck down, but when Rwanda backtracked there were reports about local communities who were saying that they were sorry it didn’t happen because some of these migrants were coming with resources from Israel, funds that they saved up, and also just a lot of these migrants are also very resourceful. So there could be very good, great benefits for the third countries, and the more we turn it – the more we talk about it and make it a legitimate plan I think there’s more chance that we won’t see countries backtracking in the future.

MR. KRIKORIAN: Yeah. Good point.

There’s another question about the judiciary, because, as – all of us have explained that one of the big obstacles is courts, whether this is in Israel – the United States is facing this. There’s the European Court of Human rights, the Italian courts. And this isn’t even just an issue in immigration policy; this is a broader issue about governance and democratic legitimacy. But in the immigration context, anybody has any thoughts on how to address this issue of the – of courts obstructing states’ abilities to control their own borders and defend their sovereignty?

MR. POUVREAU-MONTI: Well, of course, as you said, Mark, this issue of judges’ – immersion – judges’ interference in a democratic process, is not specific to immigration policy, yet it is for sure as far as immigration policy is concerned the field on which the judges have been obstacling the most, let’s say, the popular will. I do think this issue has to be addressed in every specific national framework because the institutional framework and the – and the ways to – sorry, and the depth of the judicial interference varies greatly from one country to the other.

But as far as the EU context is concerned, if judges have taken that power it’s basically because today’s EU treaties have given them that power. It’s because today’s EU treaties are getting more and more protective as far as individual rights are concerned, and more and more contempting as regards national interest and the issues of law and order.

And perhaps just to add on something Yonatan said about third countries and the way to deal with them, I would say that one point of concern in this policy – which, of course, is the policy that has to be privileged – is to choose third countries wisely, because in the – in the neighboring countries of the European Union there are, of course, regimes that are absolutely legitimate, there are regimes that are not trustworthy at all. And the point is that we will tend to choose the countries according to the stability of the regime because, you know, we have to – we have to count on them on the long term, but sometimes the fact that a regime is stable does not make it trustworthy.

Of course, I have one specific example in mind, which is that of Turkey. There has been a range of agreements between the EU and Turkey regarding the management of migration, especially in order for Turkey to keep millions of Syrian refugees on its soil and preventing them to cross irregularly into the EU. But since then, Turkey has been using these migrants and this agreement as some sort of blackmail instrument that is – that is in its hands. So, yeah, that would be my only thought about this: Choose wisely your third country.

MR. KRIKORIAN: And this is – yeah, go ahead. Yes.

MR. MARSAI: Yeah. Sorry, Mark, just very briefly. I think what you see now – and this is why these words are very important, “inadmissible.” And you know, the – to deleting the automatic suspensive effect of the – of the appeal issues to keep the asylum procedure out of the framework of the EU because it’s very clear that nobody can tame activists and activist courts. You know, it was very clear in the case of Italian-Albanian deal, which was very clear, the regulation was very clear, and even the whole issue more or less collapsed because of the court. So if there’s no real admission for the asylum procedure, if the people are sent back automatically because their request is inadmissible, if – the possibility for appeal doesn’t mean that it’s – that they are not deported back to the safe third countries and they have to wait there for the procedure during the appeal. So I think this is the solution, so to leave out the EU courts about the whole procedure.

MR. KRIKORIAN: Right. And, Yonatan, obviously, the whole issue of the Supreme Court in Israel was a – was a big deal. So is there anything happening there in sort of limiting the jurisdiction of the court in immigration matters or even just generally, or is that a sort of bigger societal question that is on hold for now?

MR. JAKUBOWICZ Yeah. Well, Israel, before the whole war broke out, the main issue was the power of the courts, and the parliament tried to promote judicial reform and change the power of basic laws, which are – the court decided is Israel’s constitution. The thing is that the court just decided that it is not obligated to basic laws. It developed a kind of idea of unconstitutional constitutional changes, saying that the court is above the constitution and there are constitutional amendments that you cannot apply. And it also even pretty much backtracked and canceled the constitutionality of the basic laws after 30 years telling the Israeli population that the – that the basic laws are Israel’s constitution. So, basically, our Supreme Court made up our constitution, and at the first chance that the parliament tried to change the constitution the Supreme Court just said, yeah, the basic laws don’t have a binding effect and the court is above the constitution.

So there is – parliament is trying to pass law, a basic law, now on immigration specifically. But as long as the court is above the basic laws in their constitutional authority, then I’m not sure how efficient or practical that will be.

But I will say this, that even courts, they’re not – they don’t have total power. They’re part of society. And it just – I mean, it makes the work harder. You have to explain harder. It takes more time. But they’re not totally – and that’s – and I think that’s right for all courts. They can tilt society. They can tilt the politics. It could take longer for the changes to happen. But at the end of the day, they are still part of the systems that they try to govern. And we can even see now on other issues that the court on security issues is more careful. So we can see that the court doesn’t – the court is affected by politics and is affected by public relations, and that just means that people on our side of this debate just have to do a better job and work harder.

But at the end of the day, it’s the same thing. We need to explain why these agreements are good, why they uphold human rights, why they’re the best way forward. And I think at the end of the day it’ll take – it’ll take time, but I believe that change will be possible and the courts will also move – at least the pendulum will move and the courts will also move towards – more towards the center. So I don’t think that we have to give up. The courts are definitely an obstacle, sometimes even a good obstacle, but in this case of course they have taken things radically to one side.

But we can – we can see that it is a pendulum. You can even see the court. I mean, in Israel 20 years ago the courts were much more conservative. The pendulum moved in the last 10 years. And now we’re seeing a slow move back to the center. So it could be very frustrating, and I understand it, but we do have to remember that it’s not some kind of totalitarian regime. They are part of the society, and that civil society organizations like ours can have an effect on public opinion, and later that will also move the courts with it towards the goal.

MR. KRIKORIAN: Well, on that optimistic note, I want to thank our participants: Nicolas Pouvreau-Monti from the Immigration and Demography Observatory in Paris, Yonatan Jakubowicz from the Israeli Immigration Policy Center in Jerusalem, Viktor Marsai from the Migration Research Institute in Budapest. And this is Mark Krikorian from the Center for Immigration Studies in Washington.

And we will have future events of the International Network for Immigration Research, INIR, and we hope to have, you know, productive exchange of ideas and learn from each other’s experiences. So, for now, thank you, gentlemen. And we will have similar events in the future.

MR. POUVREAU-MONTI: Thank you very much.

MR. JAKUBOWICZ: Thank you, Mark.

MR. MARSAI: Thank you. Thank you.

(END)