Outsourcing Asylum? The Legal Limits of Sending Asylum Seekers to Third Countries

European asylum policy is undergoing a structural shift. Under domestic pressure to reduce backlogs and deter irregular arrivals, several governments have attempted to externalize international protection responsibilities to third countries outside the European Union. 

While presented as practical tools to disrupt irregular migration networks and reduce domestic burdens, these arrangements intersect directly with binding obligations under public international law, the European Convention on Human Rights (ECHR), and EU statutory asylum law, notably the Asylum Procedures Directive, the Asylum Procedure Regulation, and the Charter of Fundamental Rights. Assessing the viability of externalization requires examining the precise legal thresholds governing state jurisdiction, international protection standards, and emerging judicial limits.

What is the Externalization of Asylum?

Externalization does not represent a single, uniform policy, in practice, measures fall into three distinct operational models, each triggering different questions of jurisdiction and legal responsibility:

Full Transfer of Substantive Responsibility (The UK - Rwanda Model):

• The sending State transfers the individual to a third country that assumes exclusive jurisdiction over the asylum procedure under its domestic legal order. While the sending State attempts to terminate its jurisdiction by physically removing the applicant, it retains direct international liability under the doctrine of extraterritorial risk (Soering v. United Kingdom; M.S.S. v. Belgium and Greece). The legal violation crystallizes at the moment of removal if the transferring State exposes the applicant to a foreseeable risk of indirect refoulement caused by institutional deficiencies in the recipient State's asylum apparatus.

Extraterritorial Processing (The Italy - Albania Model):

• The destination State establishes processing hubs on third-country territory while explicitly retaining exclusive legal jurisdiction. The host country merely provides physical space. Because the sending State’s administrative authorities and judiciary exercise continuous legal authority, its jurisdiction is neither displaced nor interrupted under Article 1 ECHR. Consequently, the procedural safeguards of applicable EU asylum directives and regulations, the EU Charter of Fundamental Rights (CFR), and domestic constitutional law apply in full within the extraterritorial facilities, precluding lower human rights standards.

Pre-Border Containment and Interception:

Upstream operational and financial assistance designed to prevent individuals from departing or entering European territory. Here, the triggering of State responsibility depends entirely on the degree of control exercised:

• Where State authorities exercise direct, physical custody or control over persons or vessels on the high seas, extraterritorial jurisdiction is triggered under Article 1 ECHR, rendering summary returns unlawful as collective expulsions (Hirsi Jamaa and Others v. Italy, App. No. 27765/09 [GC], Judgment of 23 February 2012, as amended on 16 November 2016 under Rule 81 of the Rules of Court; Article 4 of Protocol No. 4).
• Conversely, where States restrict their involvement to capacity-building, funding, or surveillance support for third-country coastguards without exercising direct physical control, they operate within a contentious accountability gap, where international responsibility cannot be easily anchored to direct ECHR jurisdiction and must instead be evaluated under general international rules of State responsibility for complicity in wrongful acts (Article 16 of the ILC Articles on State Responsibility).

The Principle of Non-Refoulement: The Foundation of International protection

The primary substantive constraint on any externalization mechanism is the principle of non-refoulement, established under:

• Article 33(1) of the 1951 Geneva Convention Relating to the Status of Refugees;
• Article 3 ECHR (prohibition of torture and inhuman or degrading treatment); and
• Articles 18 and 19(2) of the Charter of Fundamental Rights of the European Union.

Under established ECtHR jurisprudence (Soering v. United Kingdom, App. No. 14038/88, 7 July 1989; M.S.S. v. Belgium and Greece, App. No. 30696/09 [GC], 21 January 2011), the prohibition under Article 3 ECHR is absolute and non-derogable under Article 15(2) ECHR.

Crucially, this protection encompasses indirect (chain) refoulement. A transferring State incurs direct international liability if it removes an asylum seeker to an intermediary third country where systemic deficiencies or flawed vetting procedures create a foreseeable risk that the recipient State will subsequently return that person to a territory of persecution without an effective examination of their protection needs.

Delineating Concepts: “Safe Country of origin” vs. “Safe Third Country”

To understand current judicial disputes, a clear technical distinction must be drawn between two statutory mechanisms under EU asylum law:

• Safe Country of Origin (SCO): Governed by Articles 36 and 37 of Directive 2013/32/EU and the Asylum Procedure Regulation, this concept applies strictly to an applicant’s country of nationality or former habitual residence. Designating a home state as an SCO establishes a rebuttable presumption that the applicant is not in need of international protection, enabling national authorities to channel the application into accelerated border procedures on the merits.
• Safe Third Country (STC): Governed by Article 38 of Directive 2013/32/EU and the revised Asylum Procedure Regulation, this concept applies to a non-EU transit or destination country other than the country of origin. Designating a jurisdiction as an STC allows authorities to dismiss an application as inadmissible without examining its substance, on the premise that the applicant could have found, or can find, international protection in that third jurisdiction.

Under the EU Pact on Migration and Asylum and the revised Asylum Procedure Regulation (amended in February 2026), both frameworks have been systematically restructured:

• Common Lists and Substantive Benchmarks: The regulation expands accelerated border procedures by establishing a common EU list of Safe Countries of Origin (adopted within the 2026 regulatory framework) alongside national lists and revised STC mechanisms.
• The Revised STC Connection Requirement: For Safe Third Countries, the rules establish three alternative statutory gateways to verify a link between the applicant and the destination State: (i) personal or family ties, (ii) documented prior transit, or (iii) formal bilateral agreements ensuring substantive examination of the claim (strictly inapplicable to unaccompanied minors).
• The Institutional Capacity Test: The receiving country must uphold non-refoulement and provide accessible refugee status determination procedures. However, as institutional assessments highlight, many candidate third countries lack basic domestic asylum legislation and independent administrative infrastructure, creating acute legal exposure to indirect refoulement.

How Far Can States Go in Transferring Asylum Seekers?

While States maintain sovereign competence to regulate border entry, sovereign authority is legally inseparable from international human rights obligations:

• Retention of Human Rights Oversight: A State cannot delegate, contract out, or bypass its core international obligations through bilateral treaties or administrative arrangements.
• Access to Effective Remedies: Under Article 47 CFR and Article 13 ECHR, any decision to transfer an individual to a third country must guarantee an individualized examination and an effective, suspensive judicial remedy  before an independent court prior to physical removal.
• Prohibition of Arbitrary Detention: Offshore reception conditions must strictly adhere to Article 5 ECHR, precluding prolonged, indefinite, or automatic administrative detention in third-country facilities. 

Judicial Benchmarks: Examining the UK and Italian Models

Recent domestic and European jurisprudence demonstrates how courts scrutinize the substantive mechanics of externalization:

The UK–Rwanda Arrangement (R (AAA and others) v. Secretary of State for the Home Department [2023] UKSC 42, 15 November 2023):

• The Judicial Finding: The UK Supreme Court unanimously ruled the scheme unlawful, establishing that diplomatic assurances cannot override an empirically substantiated risk of indirect refoulement. The Court identified structural deficiencies within the Rwandan asylum apparatus, including defective administrative procedures, systemic under-recognition of genuine claims from conflict zones, and past non-compliance with international obligations. The ruling establishes a binding evidentiary standard: recipient third countries must possess functioning, independent legal institutions capable of substantive protection in fact, not merely in bilateral texts.

The Italy–Albania Protocol: Safe Countries of Origin and Extraterritorial Detention:

• The CJEU Jurisprudential Standard: In Ministerstvo vnitra (Case C-406/22, Grand Chamber, 4 October 2024), the Court of Justice of the European Union established that a third country cannot be designated as a Safe Country of Origin if the assessment contains territorial exceptions. This principle was subsequently reinforced regarding exclusions for specific categories of persons and vulnerable groups in cases such as Alace (Case C-758/24) and Canpelli (Case C-759/24), confirming that statutory safety must be indivisible, absolute, and verified uniformly across the entire territory and population.
• Domestic Decisions and Preliminary References: The immigration chamber of the Court of Rome (Tribunale Ordinario di Roma, decisions of 18 October and 11 November 2024) refused to validate the detention of transferred asylum seekers and ordered their return to Italian territory, applying Ministerstvo vnitra due to documented persecutory risks for minorities in their countries of origin. When the Italian government enacted primary legislation (Decree-Law No. 158/2024) to elevate its national SCO list to statutory rank, Italian courts, including the Court of Bologna, the Court of Rome, and the Court of Cassation, stayed proceedings and referred urgent preliminary questions to the CJEU under Article 267 TFEU, affirming the primacy of EU law over domestic executive decrees. Following these judicial suspensions, the Italian government adjusted its strategy via Decree-Law No. 37/2025, attempting to repurpose the Albanian facilities into pre-removal detention centres (centri di permanenza per il rimpatrio), triggering further preliminary references regarding the extraterritorial applicability of the EU Return Directive.

Balancing Border Control and Fundamental Rights

The tension underlying externalization reflects a systemic clash between executive border control objectives and the integrity of human rights guarantees. Governments frequently invoke deterrence, administrative speed, and cost reduction to justify offshore mechanisms.

However, procedural efficiency cannot be achieved by contracting out non-derogable legal obligations. Bypassing individualized assessments, restricting access to legal representation, or transferring individuals to regimes with fragile judicial infrastructure creates substantial risks of arbitrary detention under Article 5 ECHR and violates the right to an effective judicial remedy guaranteed by Article 47 CFR and Article 13 ECHR. The legitimacy of state border management remains contingent upon compliance with the rule of law.

Legal and Systemic Implications for the Future of European Asylum Policy

The judicial scrutiny applied to externalization initiatives signals a profound structural dilemma for the future of European asylum policy. Rather than providing an operational shortcut, externalization exposes the growing friction between executive migration management and the constitutional framework of European public law.

First, the case law establishes that territorial detachment cannot avoid the rule of law. By confirming that human rights obligations follow state authority, whether through naval interdiction on the high seas, offshore jurisdictional enclaves, or transfer decisions exposing individuals to indirect refoulement, courts have rejected the premise that border control can be effectively stripped of judicial oversight. Sovereign prerogatives remain inseparable from treaty accountability.

Second, externalization shifts administrative strain rather than resolving it. Offshoring models do not eliminate procedural obligations; they displace domestic processing backlogs into protracted, high-stakes litigation before national supreme courts, the CJEU, and the ECtHR. For public authorities and private entities engaged in border infrastructure, relying on bilateral protocols without verifiable legal and procedural guarantees creates severe regulatory uncertainty, high operational friction, and continuous exposure to judicial injunctions.

Finally, the entry into force of the revised Asylum Procedure Regulation sets the stage for an acute institutional clash. As European policymakers seek to operationalize broader "Safe Third Country" gateways and common lists, national and European judiciaries will continue to measure secondary legislation against non-derogable primary norms: Article 3 ECHR, Article 19(2) of the EU Charter, and Geneva Convention standards. In the absence of third countries possessing robust, independent asylum infrastructures capable of guaranteeing protection on the ground, externalization is poised to remain a recurring legal flashpoint rather than a stable pillar of European governance.

At LVP Advogados, we work with clients facing complex immigration and cross-border legal matters, providing tailored guidance grounded in the applicable Portuguese, European and international framework. Where questions of jurisdiction, protection or international mobility arise, our team can help assess the legal position and the options available.