BERLIN — The Supreme Court this week allowed the Trump administration to move forward with a plan to bar most migrants, particularly Central Americans, from seeking asylum in the United States.
Under President Trump’s plan, migrants cannot apply for asylum unless they have already tried — and failed — to receive it in one of the countries they passed through on their way to the United States. Guatemalans would be sent back to Mexico, for example, while people from El Salvador and Honduras would be returned to Guatemala.
Given how unsafe those countries can be for their own citizens — much less for migrants — the move has been portrayed by critics as another deviation from global rights standards under Mr. Trump. It follows his frequent attempts to expand barriers along the United States-Mexico border, as well as a deterioration in the treatment of migrants after they reach America.
But Mr. Trump’s plan is also in keeping with a wider international trend of curtailing the right to asylum, as Western nations try to curb migration from the global south, where the overwhelming majority of displaced people live.
To stifle record levels of migration to Europe in 2015 and 2016, the continent’s big powers reached deals with neighboring countries like Turkey to keep migrants from European shores. Australia, determined to stop maritime migration from Indonesia, now deports asylum seekers to its neighbors in the Pacific Ocean. Israel tried to send African migrants to Rwanda.
“It is currently the objective of most countries of the global north to prevent migrants” from entering their territory, said François Crépeau, a former United Nations Special Rapporteur on migrant rights and an expert on international refugee law at McGill University.
“Probably the U.S. are taking actions a bit further from what the Europeans are doing,” said Mr. Crépeau. “But the Europeans have also been very good at getting neighboring countries to do their dirty work.”
Does the Trump plan violate international law?
The United Nations refugee convention of 1951 provides the basis for American asylum laws. Unlike the Trump plan, it does not prevent refugees from traveling through several countries before landing in the United States and seeking asylum.
But it does ban signatories to the convention, like the United States, from deporting asylum seekers to countries where their safety is at risk, a process formally known as “refoulement.”
Most Western countries have usually interpreted this in a broad sense — refusing to deport people to countries that may not be at war, but still do not provide refugees with most of the protections required by the 1951 convention. Countries like Guatemala and Mexico, where homicide rates are high and migrants are often especially vulnerable to extortion, kidnapping and violence, could fall into that category, some experts say.
“There’s a lot of evidence to suggest that the countries of the Northern Triangle and Mexico itself are not safe, and that the people passing through those countries are at risk of human rights violations,” said Jeff Crisp, an expert on migration at Chatham House, a London-based research group, referring to the Central American nations of Guatemala, El Salvador and Honduras.
“Returning people to those countries could be considered in violation of the non-refoulement principle,” Dr. Crisp added.
Even so, there is no international court or authority that can overrule Mr. Trump’s plan. The Supreme Court’s ruling is provisional, and it is expected to take up the case again. But that will take many months.
The Trump administration is also pushing Mexico and Central American countries to agree to accept migrants. Guatemala has, but the plan must still be ratified by the Guatemalan Congress.
Mexico, by contrast, has said it won’t sign a so-called safe third country agreement with the United States to accept asylum claims from migrants who arrive on its soil, even if they are hoping to reach the United States.
“The court’s decision is astonishing,” Mexico’s foreign minister, Marcelo Ebrard, said Thursday about the Supreme Court ruling.
CreditAshley Gilbertson for The New York Times
Mr. Trump’s plan has a close precedent, in Australia
Since 2012, most asylum seekers arriving in Australia by boat have been deported to processing centers in the nearby countries of Nauru and Papua New Guinea, where they are held while their asylum applications are assessed.
Rights groups like Amnesty International say that asylum seekers at these centers face severe abuse. And even if granted asylum, the migrants are still barred from resettlement in Australia. Instead, they must live in Nauru, Papua New Guinea or, in a few cases, Cambodia.
Last year, Israel was forced to cancel a comparable deal with Rwanda, in which African asylum seekers would be deported from Tel Aviv to Kigali, after a public backlash.
The concept was pioneered in 1990s by Presidents George Bush and his successor, President Clinton, who authorized American Coast Guard vessels to intercept boats loaded with Haitian refugees and take them to Guantánamo Bay for processing.
Europe tried to do something similar, but it didn’t work
European politicians have often spoken of sending migrants for processing in non-European countries, but the plan has never been successfully enacted.
In 2015 and 2016, more than one million migrants reached Greece from Turkey, most of them making their way to wealthier countries like Germany.
To stop this, the European Union pledged more than $6 billion to Turkey. In return, Turkey tightened up its border restrictions — and agreed to take back every migrant who subsequently landed in Greece.
Turkey did cut migration flows to Europe drastically, but only a small proportion of migrants who continued to land in Greece have been sent back. Migrants still have the opportunity to apply for asylum in Greece, or for relocation to other European countries, and many do so successfully. The Greek asylum system operates independently and is not beholden to the political agreement between the European Union and Turkey.
Meanwhile, migrants reaching Italy from Libya, another major gateway to Europe, are not returned because the country is still at war and does not recognize the 1951 convention.
People trying to reach Spain through its enclaves in North Africa are often forced back to Morocco without being given the chance to apply for asylum. But those who manage to cross the border into the enclaves undetected are usually allowed to lodge an asylum claim in Spain, though they are often sent back once their applications are rejected months later.
Within Europe itself, migrants must technically seek asylum in the first country they reach
In theory, migrants are supposed to lodge an asylum claim as soon as they reach one of the 28 member states of the European Union. Those who don’t are liable to be returned to the country where they first entered the bloc — usually Greece, Italy or Spain — because European Union members theoretically trust one another to uphold the 1951 convention and treat refugees fairly.
But again, the system doesn’t quite work like that in reality. Sometimes it’s hard to prove that applicants passed through Greece on their way to, say, Germany. And in recent years, countries like Germany and Sweden have suspended returns to some members of the European Union, like Hungary and Greece, because of concerns about the fairness of their asylum systems.
At Europe’s behest, migrants on their way to Europe are sometimes passed between African states
If migrants reach Europe from Libya, they are allowed to lodge an asylum claim on European soil. But some people who haven’t left Libya yet have been encouraged to fly instead to Niger, where they can apply for asylum in Europe from a country of relative safety. A similar arrangement was recently brokered with Rwanda, but has yet to formally begin.
The process is ostensibly a humanitarian one: It aims to help migrants escape war-torn Libya, where they are often prey to kidnapping, conscription, air raids, abuse and forced labor, without needing to brave the dangerous sea crossing to Italy.
But critics argue that few of them will in practice be ever resettled in Europe.
Europeans also build fences and keep migrants housed in poor conditions
Like Mr. Trump, European governments have also sought to curb migration by building physical barriers along their borders. Greece has a fence lining its border with Turkey. Spain has several on its enclaves’ borders with Morocco. And Hungary built one on its border with Serbia.
In addition to its deal with Turkey, the European Union and its members have often paid third parties with checkered rights records to stop migrants from reaching Europe. The bloc pays Niger to throttle migration. Spain has a deal with Morocco. And Italy enlisted Libyan militias to stifle migration across the Mediterranean.
Asylum seekers in Greece and Hungary are also mostly confined in squalid facilities. On the Greek island of Lesbos, over 10,000 people are housed in a camp built for 3,100. In Hungary, officials have repeatedly denied food for several days to dozens of asylum seekers, including children.
One notable difference between Mr. Trump and his European counterparts is the way they speak publicly about migrants. With the exception of Prime Minister Viktor Orban of Hungary and Matteo Salvini, Italy’s former interior minister, European government officials have largely avoided using provocative language to stir xenophobia — while still trying to block migrants from European territory.