The Externalisation of Asylum and the Erosion of Non-Refoulement: A Human Rights Critique of Third-Country Arrangements

In response to rising mixed migration flows, states are increasingly adopting policies that externalise border control and asylum processing to third countries. This article critically examines the human rights implications of such arrangements, focusing on their compatibility with the cardinal principle of non-refoulement. It analyses recent developments, including the European Union‘s proposed Returns Regulation and the expansion of the “safe third country” concept, alongside national litigation such as the landmark South African case of Scalabrini Centre v Minister of Home Affairs. The article argues that these externalisation mechanisms, often justified by the need to prevent perilous journeys and manage irregular migration, systematically circumvent procedural safeguards and create legal voids where accountability is diminished. Drawing on jurisprudence from the European Court of Human Rights including Hirsi Jamaa v Italy, M.S.S. v Belgium and Greece, and the recent B.F. v Greece and UNHCR data indicating large-scale but potentially unsustainable returns, this paper contends that the pursuit of migration control through extraterritorial means fundamentally undermines the international refugee protection regime. It concludes that without robust, legally binding human rights safeguards and independent oversight, third-country arrangements represent a dangerous erosion of state responsibility that threatens to return refugees to a chain of persecution.