By Tatiana Brofft, Ana Macouzet y Marcela Valdivia
July 2019

This article first appeared in Foreign Affairs Latino America (in Spanish)

The political rise of Donald Trump has rocked the relationship between the United States and Mexico. President Trump’s efforts to severely limit immigration to the U.S. is one of the main sources of tension. For over a year, his attempts to reach a safe third-country agreement has been the white elephant in the bilateral relation. The governments of both Enrique Peña Nieto and Andrés Manuel López Obrador kept secret the conversations on this topic, but alleged leaks to Politico and The Washington Post in May and July 2018 placed it on the public agenda. The news stories unleashed opposition from opinion leaders, as well as from human rights and migrant rights organizations.

In the face of recent U.S. threats to impose tariffs on Mexican imports, Mexico agreed that in 90 days it would reduce immigration by strengthening its immigration control. If it failed, Mexico committed to consider a safe third-country agreement, revealing that it had been coerced into what up to that point it had defined as unacceptable.

Notwithstanding, the Trump administration has continued pressuring Mexico and other countries, first looking for a safe third-country agreement with Guatemala (which has failed thus far, thanks to prohibition by Guatemala’s highest court)¹ and then by announcing new measures to limit access to asylum in the United States. The Mexican Secretary of Foreign Affairs Marcelo Ebrard has insisted that, while a safe third-country agreement is the only option from the U.S. perspective, Mexico would present, as an alternative, a regional cooperation proposal.

Since the possibility of the United States signing this type of agreement with Mexico, Guatemala, or any other country in the region was made public, we have heard officials, legislators, judges, journalists, activists, and academics question its legality, desirability, and possible implications for asylum seekers and for the refugee systems in each country. Questions have been raised regarding sovereignty and national dignity, human rights, undocumented immigration, immigration and humanitarian crisis, international cooperation, and countries’ capacity to process asylum requests and their will to receive immigrants.

But what exactly is a safe third country? Why does it generate so much opposition? How does it differ from policies such as Remain in Mexico (Quédate en México) or the new limits to asylum announced by the United States? What would a regional cooperation scheme entail? What advantages would regional cooperation have over a safe third country agreement? How are both options connected to Mexico’s relationship with the United States, its main trading partner? What is the feasibility of any of these schemes? And, most importantly, what would their humanitarian and protection consequences be?

The right to seek asylum and safe third country agreements

According to President Trump, the U.S. asylum system is riddled with legal loopholes that a growing number of people are taking advantage of to evade immigration legislation and get into the country. Without doubt, the U.S. asylum system could be built up to be more effective and efficient, as recommended by officials, organizations, and experts. However, the U.S. president seems to ignore the fact that the United Nations High Commissioner for Refugees (UNHCR) has identified that a significant number of people on the move in the region are indeed in need of international protection.

In 1948, in the face of Nazism’s devastating effects, the Universal Declaration of Human Rights established the right to seek asylum in order to protect those people who are at risk in their country of origin or residence. In 1951, the Convention Relating to the Status of Refugees further established that a State should not expel a person to a place where there are substantial reasons to believe that his or her life and fundamental liberties are at risk. The principle of non-refoulement is the cornerstone of refugee protection.

Another key principle of the international refugee regime is international cooperation; that is, the acknowledgment that all countries must contribute to solving a common challenge of political and humanitarian nature. Regretfully, the responsibility to offer asylum has been less shared and more elusive over time. Safe third country agreements are part of the complicated dynamic in the search between just schemes that allow the distribution of costs associated with granting asylum (responsibility or burden sharing) and efforts by some countries to subcontract their responsibilities or force other countries in their region of influence to fulfill them (burden dumping). This last dynamic is one of the strategies followed by high-income countries to prevent the arrival of asylum seekers and refugees to their territories.

A safe third country is that in which a person could have found international protection. In practical terms, it is the country through which the asylum seeker transited (in this case, Mexico) before arriving to the country where he or she presented his or her claim (in this case, the United States). It is worth highlighting that no international law instrument or U.S. or Mexican legislation dictates that a person must seek asylum in the first safe country that he or she transits. In fact, UNHCR has established that cooperation mechanisms among States must take into account the asylum seeker’s intentions.

The concept of safe third country is usually associated with specific agreements in which the States concerned have comparable asylum systems and, as such, a true responsibility sharing exists, and thus, responsibility is not just being transferred. This is a key point, given that under international law, before moving an asylum seeker to a safe third country, it is necessary to assess whether that country will be able to grant a just and efficient procedure. In Mexico’s case, the challenges currently faced by the Mexican Commission for Assistance to Refugees (COMAR) bars the possibility of effective and substantive protection for all asylum seekers.

There has been some confusion in the Mexican media regarding the difference between a potential safe third country agreement and measures such as the Migrant Protection Protocols, also known as the Remain in Mexico policy. A safe third country agreement would require Mexico to process all asylum seekers and grant protection in all the cases that require it. (This entails, in addition to asylum provision, access to services and the integration of refugees in Mexican territory.) The United States would elude its responsibilities toward refugees by not receiving, processing, or granting any kind of protection to asylum seekers, while Mexico would acquire permanent responsibilities. Meanwhile, under Remain in Mexico, Mexico is only responsible to temporarily shelter people while the United States processes their cases and decides on possible protection or deportation. This program is nonetheless problematic because it has resulted in family separation and it denies asylum seekers due process, as it is practically impossible for them to access legal counsel and receive notices on their cases while in Mexico. It also forces asylum seekers to stay in some of the most dangerous areas in Mexico, where they have already been victims of Mexican criminal organizations and where it is easier for their persecutors to find them.

On July 15, 2019, Washington announced a new regulation to deny asylum in the United States to any person who transited through any country that is part of the Refugee Convention, which includes Mexico and all of Central America. Even though it is probable that American courts will stop the implementation of this regulation, it would help the Trump government deny protection in the United States to almost all asylum seekers without having reached a safe third-country agreement with Mexico or any Central American country. With this measure, it is crystal clear that President Trump’s objective is to limit to a minimum or practically dismantle the right to asylum in the United States, without caring about the capabilities or will of other countries to guarantee protection to those people who need it. UNHCR was clear in stating that this regulation restricts access to asylum, violates the non-refoulement principle, and goes against the spirit of regional cooperation.

In rhetorical terms, we can say that the United States is de facto turning Mexico into a safe third country. Without doubt, all measures announced and implemented so far help the United States to offshore its responsibilities toward refugees. Notwithstanding, it is important to understand the subtle ways in which these policies vary, the different ways in which they undermine the right to asylum and due process, the different degrees of cooperation that they present to Mexico, and the different risks and vulnerabilities to which they subject asylum seekers. Also, it is useful to examine the problems posed by the options so far to use as starting point for designing better policies to address the migration phenomenon.

The Mexican alternative

In the light of its (sensible) refusal to accept a safe third country agreement, Mexico has declared an interest in finding an alternative to manage and distribute migrant and refugee flows at a regional level. Secretary Ebrard has referred to this alternative as a “regional system of migration management” that would include the participation of Central and South American countries. In principle, the urge to find regional answers to a phenomenon that transcends borders, such as migration, is very positive. However, to date, the Mexican alternative has not been presented with full clarity and precision and has borrowed elements from mechanisms that exist in other regions without considering their results and the lessons taught.

According to the details that have been released by the media, the “regional system of migration management” proposal seems to be at least in part inspired by the European Union’s Dublin regulation, which after several reforms is currently known as Dublin III. The regulation assigns the responsibility to process asylum claims to the first country member of the European Union through which the immigrant crosses; for example, if a person without a visa is registered or seeks asylum in Spain and then continues his or her journey to Germany, under Dublin III the German government would return that person to Spain, where his or her claim will be processed, and if it is the case, where he or she would receive protection. It is a complex system that has the same premise as safe third country agreements and that has two fundamental objectives: to grant protection to asylum seekers in a more expeditious manner (in their first country of arrival, hence they are also known as safe first country) and to improve the efficiency of asylum management in the region by preventing migrants from claiming asylum in more than one European Union country.

In practice, Dublin III has not worked, mainly for two reasons. First, some countries receive a disproportionately large number of immigrants and refugees due to their geographic location, and some of these countries lack proper management, reception, and integration infrastructure. This generates an unreasonable pressure on these countries, reducing the efficiency and effectiveness of the process overall. In fact, Dublin III worsened the situation faced by the European Union in 2015 and 2016 in light of the arrival of hundreds of thousands of immigrants and refugees from Syria and other countries, precisely because Greece, for instance, had neither a functional asylum system nor the capacity to respond to the emergency in accordance with international standards and obligations. This led to human rights violations and deaths, as well as to the perception that the European Union could not respond to the “crisis,” feeding anti-immigrant feelings and agendas. In consequence, the efforts to distribute responsibilities in a more balanced manner ―for instance, through the relocation of asylum seekers from Greece to other countries in the European Union― have not gone well.

A second element that has hindered Dublin III has to do with political and logistic difficulties. Lack of coordination and disagreements among member states of the European Union regarding their responsibilities, together with logistical challenges to returning people to the first country of arrival, have led to a very low return rate and to an increase in subsequent migration to diverse countries in the region (known as secondary movements). This means that Dublin III has not achieved either of its two objectives; on the contrary, it has pushed asylum seekers to look for riskier alternatives, in many cases with support from traffickers, and has generated more inefficiencies within the asylum system. The process has also eroded member states’ confidence and political will to reach consensus.

If we look for a similar mechanism in our region, it would face the same problems on a larger scale. To start, neither Mexico nor the Central American countries have functional asylum systems, even in comparison to countries such as Greece (COMAR has a budget slightly over 20 million pesos, and, in 2018, 73% of asylum claims were pending). But even if they did, there are no clear incentives for countries in the region to participate or properly implement a migration management system such as Dublin III. Dublin III is part of a broader and more fundamental reason for the existence of the European Union―free transit and common regulation―and has a legal basis and multimillion-euro resources for its implementation. If the European Union is not able to implement this mechanism even with these incentives, it is difficult to imagine how Mexico or the Central American countries would do it in a context where the United States wants to turn its back on the humanitarian needs of the region. For any scheme to succeed it is necessary to work with the United States and for it to fulfill its legal obligation toward immigrants and refugees, in addition to taking the responsibility granted by its geographic and economic position. On the other side, involving South American countries such as Brazil, Chile, Colombia, or Peru without a clear incentive would not be easy because these countries have generously received hundreds of thousands of Venezuelans over the last year.

This does not mean that regional collaboration systems are inherently a bad idea, but to import dysfunctional systems that fall into safe first- or third-country assumptions, like Dublin III, would not provide a solution for Mexico. Taking into account the lessons from the European case, there are less complex regional collaboration efforts that Mexico could attempt. None provide an exclusive, simple, or immediate solution, but they are a good starting point.

In the first place, Mexico could use existing mechanisms in the region in which it has already invested and where it has a leadership role. For example, Mexico is president pro tempore of the Comprehensive Regional Framework for Protection and Solutions (MIRPS), which is the regional implementation of the Comprehensive Refugee Response Framework of the New York Declaration for Refugees and Migrants. Rooted in schemes of solidarity and joint responsibility, MIRPS seeks to support the implementation of specific commitments at a national and regional level related to asylum systems, reception and integration of immigrants and refugees, with the support of the United Nations. On this basis, Mexico could build confidence and seek alliances with other sectors to drive a comprehensive response to immigration that works, addresses national and regional interests, and is consistent with international humanitarian and protection principles. In order to do so, Mexico must make this agenda a priority.

In addition, Mexico could expand relocation and resettlement programs of particularly vulnerable people with protection needs. These programs exist in a very limited way worldwide and should be expanded. Additionally, with the necessary safeguards to avoid replacing the right to seek asylum or to force people to stay in dangerous situations, measures could be taken that allow for processing international protection claims in the country of origin, like the Central American Minors Program (CAM) that, between 2014 and 2017, allowed 1,500 eligible minors and family members to receive protection in the United States. Also, protection transfer agreements (PTA) could be strengthened; even though they also have complications and deficiencies, they offer solutions and protection to people at high risk. Both Mexico and the United States governments state a desire for migration to take place in an orderly way. This is a commendable wish, but the reality is that there is practically no path for an asylum seeker’s journey to follow regular immigration routes. Resettlement, asylum claim processing in countries of origin, and protection transfer programs would reduce the need for people to take dangerous and irregular routes.

Finally, Mexico must strengthen and give substance to the efforts it has undertaken to respond to the structural causes of migration. In particular, Mexico must redouble efforts to attract investment for governance and development strategic projects in southeast Mexico, El Salvador, Guatemala, and Honduras, thus helping to mitigate in the long term the causes of migration. Meanwhile, it will be crucial to strengthen the Mexican asylum system (starting by giving resources to COMAR) and to create opportunities for both immigrants and refugees to have real options to live, work, and contribute to Mexico. Otherwise, undocumented immigration of those who cannot sustain their lives in their countries of origin due to poverty, persecution, or violence will continue to rise. Mexico’s example and leadership are essential to drive with legitimacy and seriousness any migration management system or alternative at a regional level. As was rightly said by President López Obrador, a good judge first puts his or her house in order.

Conclusion

In the face of the rising number of people forced to flee Central America and the obsession of President Trump with reducing immigration to the United States to historic lows, there are no simple answers for the Mexican government. In this complex juncture it is necessary for officials, legislators, civil society, academics, journalists and representatives of international organizations to speak openly and frankly about the challenges posed by the migration phenomenon and the existing options to address it with a pragmatic approach that respects human rights. A wrong strategy may result in important political, financial and social costs, including more deaths, greater regional instability, xenophobia and the empowerment of criminal networks that abuse people in mobility contexts. It is clear that there is not going to be a perfect option, but Mexico must resist the American onslaught and strengthen its position in a proactive and decisive way with a coherent alternative.

TATIANA BROFFT (@ktbrofft), consultant for the Women’s Refugee Commission, co-authored this article with ANA MACOUZET and MARCELA VALDIVIA. The three of them are El Colegio de México alumni.