Wars, conflict and persecution have forced more people to flee their homes and seek refuge and safety elsewhere than at any time since the end of World War II. As displaced people and other migrants increasingly move out of the conflict-ridden and less developed regions of their displacement and into relatively rich and stable regions of the world, the countries of destination are increasingly working to contain and even stem the migration flow before it reaches their shores. Perversely, countries that have developed generally rights-sensitive standards and procedures for assessing protection claims of asylum-seekers within their jurisdictions have simultaneously established barriers that prevent migrants, including asylum-seekers, from setting foot on their territories or otherwise triggering protection obligations. Consequently, those who would otherwise have been able to avail themselves of asylum procedures, social support, and decent reception conditions are often rebuffed to countries of first arrival or transit that have comparatively less capacity to ensure protection of human rights in accordance with international standards.
This paper seeks to develop a working definition of the externalization of migration controls and how such externalization of the border implicates the human rights of migrants, and asylum-seekers in particular. Although the majority of those migrants seeking legal protections stay in countries neighboring their own, hundreds of thousands continue their journeys in search of protection and stability in the European Union, the United States, and Australia. In response to the significant increase in asylum seekers arriving at their borders, all three entities have significantly increased deterrence measures with the hopes of keeping new arrivals from entering. This paper will thus highlight a number of the most troubling externalization strategies used by these States. Finally, because rights-threatening externalization law, policies and practices implicate the international legal responsibility of the destination States pursuing them, the paper will conclude by presenting recommendations that could strengthen protection of human rights in the context of seeking to manage migration.
As displaced people and other migrants increasingly move out of the conflict-ridden and less-developed regions of their displacement and into relatively rich and stable regions of the world, the countries of destination are increasingly working to contain and even stem the migration flow before the tide of those migrating reaches their shores. One of the cruel ironies in recent years is that countries that have developed rights-sensitive standards and procedures for assessing protection claims of asylum-seekers within their jurisdictions have simultaneously established barriers that prevent asylum-seekers from setting foot on their territories or otherwise triggering protection obligations. Consequently, asylum-seekers who would otherwise have been able to avail themselves of asylum procedurals, social support, and decent reception conditions are often consigned to countries of first arrival or transit that have comparatively less capacity to ensure rights and process claims in accordance with international standards.
Humans migrate for a host of reasons –risk of harm or death; family reunification; or in search of new opportunities – and these factors can evolve en route. Recent estimates place the total number of migrants world-wide at an all-time high and rising – with the latest estimates above 244 million (UNFPA 2002). The number of the forcibly displaced – refugees, asylum-seekers, and internally-displaced persons – are also at historical highs. The overwhelming majority of the approximately 63.5 million people “of concern” to the United Nations High Commissioner for Refugees (UNHCR) at the close of 2015 have remained close to their places of original displacement (more than 38 million of them remain internally displaced in their home countries; 86 percent of the world’s refugees, 13.9 million, are staying in the developing world) (UNHCR 2016c). But hundreds of thousands have moved or are seeking to move beyond nearby countries of first arrival and knocking on the doors—and sometimes pushing them open or climbing over and around them—of industrialized countries, principally member states of the European Union and the United States, as well as Australia, though its deterrent measures have very effectively kept new arrivals from entering in recent years.
The world’s attention has recently been seized by the drama of asylum-seekers and migrants on overcrowded boats and at newly erected fences on the frontiers that divide the world’s “haves” from the “have-nots.” From London to Canberra, political leaders have suggested that people smugglers were responsible for enticing migrants to make their journey or, worse, that human traffickers were forcing or tricking them to board boats or take dangerous overland routes (Frelick 2015). Politicians argued that the “tide” could be “stemmed” by cracking down on smuggling and trafficking crime syndicates and increasing deterrence to dissuade people from migrating. Some gave voice to the worst fears—that terrorists might pose as refugees. Others suggested that many of those at the gates were seeking jobs rather than asylum and were not in need or deserving of rights protections at all. Finally, particularly in Europe, many said that even refugees fleeing conflict and persecution could and should have found asylum in countries closer to home, and were moving onward not to seek protection but rather only in search of a higher quality of life.
This essay acknowledges that key industrialized destination States, and at least the United States and most of the EU member states, have generally been providing protection to the people on their territories with legitimate claims for international protection, but a parallel development has been the development of their toolbox for preventing migrants and asylum seekers from reaching their territories and triggering the state’s international obligations or for removing them quickly without properly examining their refugee claims.
Part I of this article will suggest a working definition of externalization of migration controls and describe some of the ways that this phenomenon works in practice. Part II will briefly discuss the human rights of migrants, and asylum-seekers in particular, and how the externalization of migrant controls affects these rights in practice, including the specific issue of the international responsibility of destination States that pursue migration-control externalization. Part III will highlight a number of the most troubling externalization strategies used by Australia, the European Union, and the United States. Part IV will present some recommendations that could strengthen protection of human rights in the context of externalization of migration management.
Part I: What is Externalization of Migration Controls?
Externalization of migration controls describes extraterritorial State actions to prevent migrants, including asylum-seekers, from entering the legal jurisdictions or territories of destination countries or regions or of making them legally inadmissible without individually considering the merits of their protection claims. These actions include unilateral, bilateral, and multilateral State engagement (see Gammeltoft-Hansen 2011; see also, Crépeau 2013), as well as the enlistment of private actors. These can include direct interdiction and preventive policies, as well as more indirect actions, such as the provision of support for or assistance to security or migration management practices in and by third countries.
As migration policy has become an increasingly politicized issue, externalization is often deceptively framed as either or both a security imperative and a life-saving humanitarian endeavor rather than simply as a strategy of migration containment and control. Control of migration flows is cast as an effort to prevent “illegal” (or irregular) immigration or to protect migrants from the dangers of the journey. Extraterritorial actions to manage migration flows are also increasingly linked to the ineffectiveness (and politicization) of national or regional migration policies. Over time, the phenomenon has expanded to commonly include the systematic enlistment of third countries in preventing migrants, including asylum-seekers, from entering destination states. Third, States enlisted in the prevention of onward movement of migrants and asylum-seekers are—at least implicitly—encouraged to prevent migrants and asylum-seekers from entering their territories or to apprehend and return them (Haddad 2008, 199). Much of this public engagement takes place in the context of transnational crime-control efforts by States that is directed at seeking to counter human trafficking or people smuggling (and often conflates the two) (Plaut, 2015). A prominent example is law enforcement or military assistance designed to stop the flow of illicit materials, such as weapons and drugs, which may have the additional effect of sealing borders (both for exit and entry), encouraging push-backs, increasing apprehensions and/or reducing access to protection mechanisms in the context of apprehension and deportation practices.
Externalization occurs through formalized migration policies and visa regimes, through bilateral and multilateral policy initiatives between States, as well as through ad hoc policies and practices. Externalization policies and practices may explicitly seek to prevent the entry of migrants into a destination State or have only an indirect impact on migration.
The rhetoric that provides the humanitarian rationale for externalization focuses not only on preventing migrants and asylum seekers from embarking on what is characterized as a dangerous journey, but is also framed as an exercise in capacity-building for countries of origin, countries of first arrival, and transit countries (IFRC, 2015). While it may be questionable whether such capacity-building actions seek to improve rights protections in countries of origin as a humanitarian end in itself or rather to address the “root causes” of international migration as a means of containing irregular migration flows, the building of capacity for developing rule of law, respect for human rights, conflict resolution, good governance, and humane quality of life all represent positive aspects of externalization (see Ogata 1995; see also, Haddad 2005, 202-02. 204). While recognizing that successfully addressing root causes should enable more people to choose to remain in their homes or in countries of first arrival, capacity-building policies and practices can have the additional effect, even if only indirectly, of advancing, strengthening, or rationalizing migration-control externalization.
Externalization policies are often also pursued with the stated goal of assisting third countries with migration control and management. Examples of these schemes include policies and practices that encourage both third countries and countries of origin to prevent would-be migrants from migrating through incentives for individuals to remain in place and also through physical or legal barriers (Plaut, 2015); policies and practices encouraging migrant apprehensions (interdictions, interceptions, or “turn-backs” – including on the high seas) through logistical, financial, or political support, or directly in exchange for aid; the development of readmission and incentive structures between third countries and countries of origin (Hyndman and Mountz 2008, 253);  financial and political support of migrant detention or interdiction practices by third countries or off-shore (ibid.); or partnerships to combat “illegal” (or irregular) migration or to build capacity of immigration or asylum systems in third countries (Haddad 2008, 196). They can also include measures implemented entirely through requirements imposed on the private sector, such as carrier sanctions, and which have the effect of preventing departure or transit of migrants to destination States. In the context of forced migration, externalization efforts may also extend to efforts aimed at diverting asylum-seekers to third countries, such as to third-country processing centers or “protected areas” near countries of origin (Andrijasevic 2010, 266).
In conjunction with and often as part of the externalization of migration controls, States have pursued a two-pronged strategy to reduce access to asylum. One way is to push, prod, and sometimes pay a country of first arrival or a transit State to seek to curb the migration flow through its own enforcement measures. The second line is to deem the transit or first arrival state a “safe third country” or “first country of asylum” that has or could have provided protection to a refugee, and to which the person can be returned after only a cursory admissibility determination.
Of course, international refugee law has incorporated the principle of "safe third country" as a limited basis for asylum denial in countries of destination (UNHCR Executive Committee 1999), so what is at issue in this context is not the principle per se, but whether the country of first arrival or transit is, in fact, safe. This requires a factual assessment whether if provides effective protection, which is based on the following criteria:
- no risk of persecution within the meaning of the 1951 Convention or serious harm in the previous state;
- no risk of onward refoulement from the previous state;
- compliance, in law and practice, of the previous state with relevant international refugee and human rights standards, including adequate standards of living, work rights, health care and education;
- access to a right of legal stay;
- assistance of persons with specific needs; and
- timely access to a durable solution (UNHCR 2002).
In the rush to render asylum claims inadmissible on the basis of the safe third country concept, nominal adherence to these criteria has often been deemed sufficient even when there are evident gaps between formal acceptance of principles and their realization in practice. In effect, asserting that a person should be denied asylum because he or she could have sought an ineffective form of protection in a country of first arrival or transit operationalizes the externalization of migration control – and provides perhaps the starkest illustration of the serious threat that externalization poses to the protection of the rights of migrants, and of asylum-seekers in particular.
Part II: The Impact of Border Externalization on the Right of Migrants
Border externalization policies and practices can directly affect the human rights of migrants—and the international obligations of States to protect them—in significant ways.
First, and perhaps most importantly, by directing migrant flows to third countries, externalization influences the nature and duration of State legal obligations, as well as which States are charged under international law with the protection of the rights of migrants. For example, border externalization may prevent migrants from ever coming under the jurisdiction of destination States in an attempt to limit formal legal obligations, including the right to seek and enjoy asylum.
Such externalization policies and practices can then place significant and unequal burdens on third countries; often states with fewer resources are forced (in practice and by law) to seek to ensure the protection of migrants’ rights, including rights in the context of asylum.
When the rights of asylum seekers and migrants are then violated in such third countries as a result of a destination State’s externalization efforts, this can raise complicated issues of State responsibility for both destination states and third countries. Simply put, it is a violation of international law for States to directly support the internationally wrongful acts of another State. States may not knowingly “aid or assist” another State in the commission of an internationally wrongful act if the underlying act would be internationally wrongful if committed by the former state (International Law Commission 2001). Indeed, destination States pursuing border externalization strategies may come to be responsible (as a matter of international law) for rights violations outside of their own territory, including at a minimum, if they exert control over the acts of third countries.
Second, externalization may actually trigger, directly or indirectly, one or more categories of rights violations. Regardless of their status or location, migrants have a range of fundamental rights that can be implicated by migration-control externalization practices and which protect migrants against abuse throughout the migration process. These include rights that are implicated during transit, including while on the high seas and over land, if and when detained as well as during the expulsion or deportation process (see, e.g., UN GA 1948; UN GA 1966a; UN GA 1966b).
In addition to this core set of rights, some migrants may be covered by specific bodies of law that provide a higher standard of protection than is available to other migrants. For example, child migrants are recognized to have a special status under international law, as are those fleeing rights abuses in their countries of citizenship of habitual residence, such as refugees and asylum-seekers or stateless people (see UN GA 1951; UN GA 1990a). At times, migrants also encounter situations during transit that increase their vulnerability or trigger the attachment of additional rights, such as the rights of victims of trafficking or other crimes.
The perilous journey undertaken by many migrants, including on the high seas, as well as clandestine efforts by some to cross increasingly militarized (and sometimes closed) borders, can expose them to violations of the right to life and the right to seek and enjoy asylum and can also implicate their rights as victims of crime and abuse (such as by traffickers) (see UNOHCHR 2014, 1-2). Externalization can also increase demand for both third country resources for and interest in apprehension of migrants, and this, in turn, can increase the likelihood of apprehension and both the likelihood and the duration of detention. Yet, throughout this entire process, migrants maintain fundamental rights, including to liberty and security of person (including a presumption against detention on the basis of migration status) and, if deprived of liberty and otherwise, rights against torture and ill-treatment (See, e.g. UN GA 1966a, articles 7, 9; UN GA 1984).
In addition to being associated with increased enforcement practices (and detention of migrants), externalization can implicate asylum rights and prohibitions against refoulement. All migrants have the right to leave any country, including their own; refugees and asylum seekers also have rights to seek and enjoy asylum and not to be punished for illegally entering a country to do so (See UN GA 1948, article 13; UN GA 1951, article 31(1)). Perhaps the most important obligation, that of non-refoulement, prohibits States from returning a refugee to territories where her or his life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion or anyone to a state in which they would be exposed to the danger of torture or cruel, inhuman or degrading treatment of punishment (UN GA 1951, article 33; 1966a, article 7; UN GA 1984, article 3; UN HRC 1992).
In some regions and circumstances, those fearing mistreatment are also protected under human rights law from return to a broader set of harms, including generalized violence or serious deprivation of a range of human rights (see, e.g., UNHCR 1984, part III(3)) These obligations require that States provide migrants access to screening and examination of any refugee or asylum claims, including in situations of mixed migratory flows (where not all migrants may merit or require international protection) (see UNHCR 2016b).
Enforcement pressures on third countries can increase the difficulty of crossing borders for asylum seekers and refugees as well as the ability to seek or access procedures for determining refugee status. Given that states are forbidden to practice “indirect” or “chain” refoulement—in which refugees are returned to a third territory where they face persecution, harm, or the serious threat of being returned to their home country or another territory to face persecution or torture—migration-control externalization can implicate the very cornerstone of the human rights regime.
Part III: Regional Case Studies
The United States, Australia, and the European Union are the primary destination States or regions that have engaged in specific externalization strategies aimed at preventing migrants and asylum seekers from irregularly reaching their shores.
The United States
U.S. efforts to externalize migration controls go back at least to the Reagan Administration.  The 1981 Interdiction Agreement between the United States and Haiti authorized the U.S. Coast Guard to interdict Haitian vessels on the high seas, detain the passengers, and return them to Haiti. Despite the inclusion of assurances in Reagan’s Executive Order that the United States would respect the principle of nonrefoulement, U.S. officials brought fewer than one dozen of the 22,651 Haitians interdicted at sea to the United States to pursue asylum claims during the highly repressive Duvalier dictatorships between 1981 and 1990 (Taft-Morales and Sullivan 1993, 9).
A September 30, 1990 coup that overthrew Haiti’s first democratically elected president, Jean-Bertrand Aristide, caused the number of Haitians taking to boats to spike. U.S. President George H.W. Bush attempted to continue the Reagan policy of shipboard screening, but ran into legal challenges that the screening was inadequate. On May 23, 1992, he issued the Kennebunkport Order, which threw out Reagan’s nod to the principle of non-refoulement, and authorized summary returns of interdicted Haitians with no refugee screening whatsoever.In Sale v. Haitian Centers Council, the U.S. Supreme Court countenanced the Kennebunkport Order policy of summary return of refugees interdicted on the high seas. The UN High Commissioner for Refugees called the Sale ruling “a setback to modern international refugee law” (UN High Commissioner for Refugees Responds 1993).
As widespread human rights violations continued in Haiti and Haitians continued to seek protection in the United States, the Clinton Administration briefly tried shipboard screening, but decided in July 1994 to detain interdicted Haitians temporarily at the U.S. naval base in Guantánamo, Cuba rather than summarily return them to Haiti (Wasem 2011, 5). They were not screened for refugee status but held pending their return to Haiti (ibid., 4). It was clearly conveyed to the Haitians at Guantanamo that they would never be resettled in the United States (Gordon 1994).
President Clinton extended this externalization of migration control to Cuban boat and raft migrants as well. After a decades-long U.S. policy of welcoming all rescued or irregularly-arriving Cubans to the United States and automatically granting them residency status, President Clinton, in August 1994, announced that boat people and rafters fleeing Cuba would, like the Haitians, be interdicted and taken to Guantánamo. This new U.S. policy toward Cuban rafters was confirmed in a “Joint Communique on Migration” issued by the Cuban and U.S. governments on September 9, 1994. The communique stated that Cubans “rescued at sea attempting to enter the United States will not be permitted to enter the United States, but instead will be taken to safe haven facilities outside the United States.” In addition, the communique stated that the Cuban government would “take effective measures in every way it possibly can to prevent unsafe departures using mainly persuasive methods” (U.S. Department of State 1994).
President George W. Bush reverted to the policy of interdicting and summarily returning Haitian boat people, including possible refugees, to Haiti. When a wave of political violence in late February 2004 resulted in a second ouster of President Aristide, and Haitians once again took to boats, President George W. Bush announced, “I have made it abundantly clear to the Coast Guard that we will turn back any refugee that attempts to reach our shore” (Seper 2004).
The Obama Administration has continued high seas interdictions and cursory shipboard screening. Those found to have “credible fears” are brought to Guantánamo where they undergo a refugee status determination without the benefit of legal representation. The few who are recognized as refugees are held at Guantánamo pending third country resettlement; they are not considered for resettlement to the United States.
U.S. externalization of migration controls has a long history on land as well. In 1989, an internal U.S. Immigration and Naturalization Service (INS) memo called on the INS liaison in Mexico “to secure the assistance of Mexico and Central American countries to slow down the flow of illegal aliens into the United States” (Frelick 1991, 2). In June 1989, the INS newsletter, Commissioner’s Communique, reported on “cooperation with the Government of Mexico to stem the flow of Central Americans through that country, including the establishment of checkpoints along the transit corridors and the deportation of intercepted Central Americans” (Jones and Roney 1989). While cooperation between U.S. immigration officials and their Mexican counterparts has ebbed and flowed over the years, the idea of pressuring and supporting Mexico to control Central American migration across its remote 500-mile southern border with Guatemala has had a lasting appeal for U.S. policymakers faced with the challenges of policing the nearly 2,000-mile U.S. border with Mexico.
Through the Mérida Initiative, a cooperative bilateral security agreement between the United States and Mexico that dates from 2008, the U.S. Congress has appropriated about $2.5 billion in assistance to Mexico, of which more than $1.3 billion in equipment and training has been delivered to Mexico, as of April 2015 (Seelke and Finklea 2015). One of the “four pillars” of U.S. security assistance to Mexico through the Mérida Initiative is support to “create a 21st century border” (pillar 3). This assistance is to “[fa]cilitate legitimate commerce and movement of people while curtailing the illicit flow of drugs, people, arms, and cash” (U.S. Embassy-Mexico 2014). While Mérida Initiative funding involves far more than migration control, “curtailing the illicit flow of…people” has remained an important priority for the United States (ibid.).
This became an even higher priority in the summer of 2014 when extreme gang violence and poverty in the Central American countries of Honduras, Guatemala, and El Salvador caused tens of thousands of people, many of them unaccompanied minors, to flee to the U.S. and Mexico.
President Obama committed his administration to meeting the surge “with an aggressive, unified, and coordinated Federal response on both sides of the border.” He told Congressional leaders that he intended “surging law enforcement task forces in cooperation with our international partners, with a focus on stepped-up interdiction and prosecution.” A week later, he asked Congress for an emergency supplemental appropriation of $3.7 billion “to comprehensively address this urgent humanitarian situation.” The highest levels of U.S. diplomacy were engaged to persuade Mexico and the three Central American source countries, El Salvador, Honduras, and Guatemala, to create “concrete ways that we can work together to stem the flow of migrants taking the dangerous trip to the United States.”
In direct response to the summer 2014 surge in unaccompanied Central Americans arriving at the U.S. border, the U.S. Department of Homeland Security (DHS) launched Operation Coyote, which it said was “designed to stem the flow of illegal Central American migration” (Kubiak 2015, 7-8). The operation involved the deployment of DHS investigators to Mexico and Central America “to share criminal intelligence with foreign partners and build capacity in human smuggling and human trafficking enforcement” (Human Rights Watch 2016b, 52). By the end of May 2015, this effort had resulted in 1,037 criminal arrests in Mexico and the region (Kubiak 2015, 7-8).
The Congressional Research Service estimated that U.S. State Department funding for equipment and training to support immigration enforcement on Mexico’s southern border would exceed $86.6 million prior to the enactment of the FY 2015 appropriation (Seelke and Finklea 2015, 16). The U.S. Congress increased the President’s $115 million request for FY2015 Mérida Initiative by another $79 million, and specified that it was to be used “for helping Mexico secure its southern border” and implement justice sector reforms (ibid., 7). Significant funding for Mexican Mérida Initiative programs continued in the Obama Administration’s FY 2016 request. Additional funds also flowed to Mexico’s military from the U.S. Department of Defense’s counter-narcotics budget to bolster its capacity to control Mexico’s southern border.
The combination of funding and technical support as well as diplomatic and other pressures from the United States, spurred the Mexican government to action. The same day as Obama’s emergency supplemental budget request, July 8, 2014, Mexican President Enrique Peña Nieto announced the start of the Programa Frontera Sur (Southern Border Program). Although a detailed program was never presented publicly, the Mexican government established a new administrative body within the Ministry of Interior, the Office of Coordination for Comprehensive Migration Assistance at the Southern Border, to coordinate border control and migration management, and federal officials were designated to manage migration policy in the southern Mexican states of Campeche, Chiapas, Quintana Roo, and Tabasco (Poder Ejecutivo 2014, 1, 2; Monroy 2015). Moreover, in September 2014, the New York Times reported that “under pressure from the United States . . . Mexico in recent weeks has taken a rare step toward stemming the flow of migrants, sweeping [Central American migrants] off trains, setting up more roadway checkpoints and raiding hotels and flophouses where they congregate on their journey north” (Villegas and Archibold 2014).
Apprehensions of non-Mexican migrants along the southwestern border fell by 57 percent between October 2014 and April 2015 compared to the same months the previous year, from 162,700 to 70,400 (Central America's 2015). As early as September 2014, when the number of Central Americans appearing at the U.S. border decreased, U.S. Secretary of Homeland Security Jeh Johnson issued a press release showing the statistical drop and saying that the U.S. government is “pleased that the Mexican government has itself taken a number of important steps to interdict the flow of illegal migrants from Central America bound for the United States” (Johnson 2014).
In parallel, apprehensions of Central American migrants in Mexico rose significantly – by 75 percent, from 53,078 to 92,889 (Secretaria de Gobernacion 2013, 117; Secretaria de Gobernacion 2014, 117; Central America’s Unresolved Migrant Crisis 2015). Mexico’s National Immigration Institute (INM) reported a 79 percent increase in the number of Central Americans deported from Mexico in the first four months of 2015 (Stillman 2015).
The U.S. government has characterized the efforts to stem the flow of Central American migrants to the U.S. border as a success, and has given much of the credit for this success to Mexico for its enhanced enforcement efforts. As President Obama said at a joint White House press conference with Mexican President Peña Nieto on January 5, 2015:
I very much appreciate Mexico’s efforts in addressing the unaccompanied children who we saw spiking during the summer. In part because of strong efforts by Mexico, including at its southern border, we’ve seen those numbers reduced back to much more manageable levels.
U.S. externalization efforts extended to the Central American source countries as well. In June of 2014, Honduran law enforcement units which had received funding and training from the U.S. State Department’s Bureau of International Narcotics and Law Enforcement (INL) “launched an operation to intercept children and families attempting to cross the border from Honduras into Guatemala” (Jesuit Conference 2014, 2). These Special Forces apparently units collaborated on two tactical operations, Operation Rescue Angel and Operation Coyote (ibid.). According to reports, all three units received equipment and special training from U.S. Border Patrol, U.S. Immigration and Customs Enforcement or other U.S. migration control and law enforcement entities (see ibid.; Honduras amuralla 2014; Carcamo 2014a; Carcamo 2014b).
Australia’s migration-control externalization policy, called the “Pacific Solution,” dates from August 2001 when the Australian navy began interdicting migrants on the high seas (Hathaway 2002; Magner 2004). That month, a Norwegian freighter, the Tampa, rescued migrants from an overcrowded vessel and sought to bring them to Australia’s Christmas Island, as the next “place of safety,”—the proper place, according to international maritime law, to disembark people rescued from vessels in distress.After the Norwegian ship captain defied Australia’s order and entered its territorial waters, the Australian military blocked the Tampa off the coast of Christmas Island, prevented its passengers from disembarking, and transferred them to an Australian military vessel.
During the weeks-long stand-off at sea, the Australian Parliament passed legislation with the explicit objective of stemming the unauthorized maritime arrival of asylum seekers (HRW 2002, 12-13). Among other provisions, the legislation, which came into effect in late September 2001, excised Christmas Island and other outlying territories from Australian immigration law, thus prohibiting asylum seekers in these erstwhile Australian territories from lodging asylum claims in Australia (HRW 2002, 12-13).
While there is evidence to suggest that Australian officials examined the U.S. playbook in devising the Pacific Solution and in many respects “followed in the footsteps of the United States in its restrictive policies on asylum seekers who arrive by sea,” they also added some new variations (Magner 2004, 58). Australia’s new twist on externalization excised Australian territories, for immigration law purposes, by a stroke of the pen rather than through any extraterritorial actions, creating the sort of “rights free zone” that had proved so convenient for the United States at Guantánamo (HRW 2002, 63).
During September and early October 2001, Australia detained irregular maritime arrivals on Christmas Island or on board Australian naval ships and then transferred them to the Pacific-island country, Nauru, or to Papua New Guinea, where they were confined in camps. (HRW 2002, 12-13). At the time, Nauru was not a party to the 1951 Refugee Convention and Papua New Guinea, though a party to the Convention, had attached numerous reservations to their accession and did not have in place adequate laws and structures to provide effective protection to refugees and asylum-seekers (UNHCR 2010). Australian immigration officials conducted refugee status determinations in Nauru and Papua New Guinea but not for the purpose of granting asylum under Australian law, but rather—as the United States was doing at Guantánamo—to consider recognized refugees for discretionary resettlement; the asylum seekers in Nauru and Papua New Guinea had no recourse under any national law to challenge the refugee status determinations (HRW 2002, 62-65).
In late October 2001, Australia also began interdicting migrant boats and forcibly returned them to Indonesian waters. Indonesia was notified, but no specific reception arrangements were made and no agreement was in place guaranteeing the protection of the intercepted refugees from refoulement (HRW 2002, 12-13).
Refugee processing was closed at Manus Island in 2004 and at Nauru in 2008. Nauru became a party to the Refugee Convention in 2011, but lacked the capacity to provide effective asylum procedures and refugee protection (UNHCR 2012b, 38).
In July 2011 Australia announced an “arrangement” to transfer irregular maritime asylum seekers to Malaysia, but Australia’s High Court halted that plan, finding it to be procedurally invalid because of Malaysia’s poor refugee protections and the risk of refoulement (Phillips 2014). The High Court ruling ended the Malaysia deal, but the Parliament scrapped the provision of the Migration Act upon which the High Court had based its ruling, and switched its offshore processing scheme away from Malaysia, not a party to the Refugee Convention, and back to Nauru and Papua New Guinea, both nominally parties to the Convention.
In August 2012, the Offshore Processing and Other Measures Bill authorized the government to transfer irregular migrants arriving by sea to Nauru or to Manus Island, Papua New Guinea, where they would be held indefinitely while their refugee claims were processed (HRW 2012). The legislation only targeted asylum seekers who arrived irregularly by boat. (ibid) The claims of asylum seekers who arrived by air, even with improper documents, would continue to be processed while they remained in Australia under the law. (ibid) On July 19, 2013 Prime Minister Kevin Rudd announced that all irregular maritime asylum seekers would be sent to Manus and Nauru for processing and that none found to be refugees would be resettled to Australia (Parliament of Australia 2014).
In December 2014, the Australian Parliament passed legislation that removed most references to the Refugee Convention from Australia’s Migration Act of 1958, instead creating a “new, independent and self-contained statutory framework” to allow Australia to pursue its own interpretation of its obligations under the Convention (KCIRL 2014). Among other things, the legislation also gave the Minister of Immigration and Border Protection extraordinary powers to detain people on the high seas and to transfer them to any country chosen by the minister and with very limited possibilities for judicial review (ibid). The new law added that “the designation of a country to be an offshore processing country need not be determined by reference to the international obligations or domestic law of that country” (ibid). Prime Minister Tony Abbott promoted his “stop the boats” policies as a model for other countries confronting the challenge of irregular migration, including European countries (see Norman 2015).
Australia has continued and expanded the Pacific Solution under the Abbott Government (ASRC 2015). This expansion includes a regional plan by Australia, Indonesia, Sri Lanka, and Malaysia to deter migration by sharing intelligence and information about the identities of migrants, cooperating on naval patrols and border security, launching media campaigns to dissuade migration, and increasing the speed at which migrants are deported (The Coalition 2014). The Abbott and Turnbull Governments’ part in this plan has been directed by the military-led Operation Sovereign Borders, which includes a joint agency task force aimed at preventing “people smuggling” (KCIRL 2015). Under Operation Sovereign Borders, migrants who are not returned to their “sending” country continue to be detained for offshore processing in substandard conditions (Australia asylum 2016; Ostrand 2014).
The guiding principle of Australia’s Pacific Solution has been the “no advantage” test, to ensure that “no benefit is gained through circumventing regular migration arrangements.” As a consequence of this approach, Australia has refused the option of resettlement in Australia to any refugees from Nauru or Papua New Guinea. Its search for third countries willing to resettle refugees from its outsourcing centers led it to conclude a deal with Cambodia in 2014 to accept refugees from Nauru. The resettlement agreement, coupled with $40 million in development aid, ignored concerns about safety and the lack of capacity of the Cambodian government (Human Rights Watch 2015). The first group of four refugees arrived in Phnom Penh in June 2015 at a cost to Australia of another $15 million, but by March 2016 three of the original four had chosen to go back to their home countries rather than remain in Cambodia (Hasham 2016). With two additional refugees resettled from Nauru, there were only three refugees still in Cambodia, as of March 2016 (ibid).
In April 2016, the Supreme Court of Papua New Guinea ruled that detention of asylum seekers and refugees on Manus Island violated PNG’s constitution and the PNG prime minister then called on the Australian government to find alternative arrangements of its detainees on Manus Island and to relocate refugees not wanting to stay there (HRW 2016d).
The European Union
In 2003, British Prime Minister Tony Blair’s cabinet and Home Office circulated a policy paper called “A New Vision for Refugees,” which proposed that the European Union establish Regional Protection Areas (RPAs) near refugee-producing countries, which would have the purpose both to contain refugees in countries of first arrival and to serve as places to which asylum seekers that had arrived in Europe could be deported (Noll 2015). As proposed, returned asylum seekers as well as refugees arriving from their home countries would be processed in Transit Processing Centers (TPCs) for possible resettlement in the European Union (ibid). Finding insufficient support for the proposal, the UK withdrew it prior to the June 2003 European Council meeting in Thessaloniki, and it was never formally considered (HRW 2006, 5). But the New Vision has persisted through the years and echoes loudly in the 2016 EU-Turkey Action Plan for stemming the irregular flow of migrants and asylum seekers into the European Union.
In September 2005, the European Commission proposed Regional Protection Programmes (RPPs), a variation on the New Vision’s RPA, which purportedly would strengthen protection capacity in the regions close to refugee flows (European Commission 2005). Human Rights Watch noted at the time that while “the RPPs’ goals of strengthening the protection capacity and improving access to durable solutions in the target countries are laudable, [t]he RPPs concept raises concerns . . . that the EU will use the existence of such programs as a pretext to declare the target countries ‘safe third countries.’ The EU could then return asylum seekers and migrants who transited through these countries even though effective protection could not be guaranteed” (Human Rights Watch 2006, 4).
During the next ten years, the EU continued its efforts to put externalization into practice through cooperation with key migration transit countries. In Ukraine, at the time an important transit country for migrants and asylum seekers, the EU and its member states bordering Ukraine provided resources, signed readmission agreements to facilitate summary returns, and conditioned closer ties on Kiev’s cooperation with migration-control efforts that led to asylum seekers being warehoused in the country (HRW 2010). In Libya, EU member state Italy led the way in encouraging the Gaddafi government to prevent migrants from departing its shores by boat for Italy and Malta and to accept the summary return of those who did depart, despite the abuses against migrants and asylum seekers and lack of effective protection in that country (HRW 2009).
The EU has also pursued a series of EU-wide readmission agreements with third countries to facilitate not only the return of rejected asylum seekers and other migrants who are nationals of those countries but in the case of transit counties, the nationals of other countries, a move designed in part to overcome the practical difficulties of deporting rejected asylum seekers to some countries (Rais 2016).
The “safe third country” concept was codified in Europe in the Asylum Procedures Directive (APD), one of the key elements of the EU’s Common European Asylum System, in 2005. After the Asylum Procedures Directive passed, UNHCR said that it “may lead to breaches of international refugee law if no additional safeguards are introduced, and make it harder for refugees to have their asylum claims properly heard in Europe.” After the European Commission proposed a recast of the APD in 2009, the UN refugee agency in January 2012 said:
“UNHCR continues to question the utility and consistency with international refugee law of the European safe third country concept. No minimum principles and guarantees appear to govern the procedure under Article 39 of the Amended Proposal. The implication is that access to territory and to an asylum procedure may be denied altogether to asylum seekers who may have protection needs. Such a denial could be at variance with international refugee law” (UNHCR 2012a).
The political impact refugee crisis in Europe in 2015, with the arrival of more than 1 million people by sea, 84 percent of whom came from the world’s top ten refugee-producing countries, gave fresh impetus to the EU’s interest in externalization (UNHCR 2016e). The EU first sought to shift responsibility towards the non-EU states on the Western Balkan migration route and then ultimately to Turkey, the main transit country for the 850,000 arrivals in Greece in 2015. At the same time, it renewed its efforts to create migration partnerships with African countries, establishing an emergency trust fund for Africa in November 2015 with the explicit aim of reducing migration to Europe (EC 2015).
In March 2016, the EU and its member states used inducements of future visa-free travel for Turkish nationals, a renewed path toward EU membership, and billions of euros in aid to seek Turkey’s assistance in preventing Syrian refugees from crossing into the EU (EC 2016a). On March 18, 2016 the EU and Turkey came to a formal agreement to return “all new irregular migrants crossing from Turkey into Greek islands” back to Turkey (ibid). The agreement states that such returns will take place “in full accordance with EU and international law.” The agreement cites the APD, and suggests that asylum requests from Syrians, Iraqis, Afghans, and others arriving irregularly by boat from Turkey will be ruled inadmissible because Turkey will be identified as a “safe third country” or as a “first country of asylum” to which asylum seekers can be returned with less than full examination of their asylum claim (ibid.).
At this writing the EU-Turkey migration agreement is still in its infancy, but Turkey in any case falls short of the APD’s criteria for either “safe third country” or “country of first asylum.” Importantly, any Syrian, Iraqi, or Afghan returned to Turkey would not be allowed to request refugee status there because Turkey excludes non-Europeans from qualifying for refugee status (Kirişci 2005). Syrians have access to temporary protection in Turkey offering some access to assistance and more recently to the labor market, though, in practice significant barriers remain (HRW 2016e). But Iraqis, Afghans, and other nationalities of asylum seekers are not even eligible for temporary protection. The directive also requires the safe third country to respect the principle of non-refoulement, the prohibition on the forced return of refugees. That principle not only forbids governments from deporting refugees to places where their lives or freedom would be threatened but also from rejecting asylum seekers at their borders who would face such threats. At the very time the EU was announcing its migration control deal, Turkey had closed its border to tens of thousands of Syrians fleeing a military offensive in the northern Syrian city of Aleppo (HRW 2016a).
As of this writing, the deal’s deterrent effect coupled with the closure of the Western Balkan migration route appears to be working; the number crossing the Aegean has dropped dramatically (UNHCR 2016a). But if no Syrians reach Greece by boat and the war in Syria drags on, Turkey will be left with an ever-growing refugee population. And while the deal envisions voluntary resettlement of Syrians from Turkey to the EU in exchange for the return of Syrians from Greece to Turkey, the fate of non-Syrians is far more uncertain.
Whatever the outcome of the EU-Turkey deal, it is clear that externalization is now the main plank of EU migration policy. This was emphasized in June 2016, when the European Commission announced a new Migration Partnership Framework (EC 2016b). While there are positive elements in the framework, including the possibility of greater resettlement and other legal routes for migration, the overall approach is consistent with the EU’s efforts during the refugee crisis to deflect responsibility and legal obligations away from EU member states and onto transit and origin countries, including through the EU-Turkey deal. The short-term objectives of the framework are to “save lives in the Mediterranean Sea; increase the rate of returns to countries of origin and transit; and “enable migrants and refugees to stay close to home and to avoid taking dangerous journeys.” (ibid.)
While much of the framework restates long-standing policy approaches, the emphasis on economic development as the main tool to tackle root causes of migration, the choice of potential partners including governments, like Sudan and Eritrea, with poor records when it comes to protecting human rights, and the effort to condition general EU aid explicitly on migration cooperation are worrying elements that will require close scrutiny in the months and years to come.
Part IV: Recommendations for Promoting Government Migration Policies Protective of Human Rights
Laws, policies and practices that externalize migration controls are rights-threatening when they have the intention or effect of blocking access to territory in ways that frustrate the right of any person to leave their country of nationality or any other country, or the right of anyone to seek asylum outside their country. They are also rights-threatening when they have the effect (or the intention) of causing or making more likely violations of other human rights of migrants, including asylum-seekers. There is ample scope for destination or transit countries to engage in capacity building and to assist with migration management, including as part of supporting security screening and law enforcement, in ways that are consistent with international human rights law and standards. Such laws, policies and practices should be reformed to systematically and directly incorporate rights protections into migration management (including through increasing the protective capacity of authorities involved in migration control in third countries) as well as to condition destination- and transit-State funding, training and other assistance to third countries on the implementation of a minimum set of human rights protections in law and in practice.
Rather than promoting the externalization of migration controls, States and other donors could also pursue increased support to regional and international organizations that provide or promote the protection of migrants’ rights, including the rights of asylum seekers, in third countries and countries of origin. Such parallel resources could be directed to enhancing the capacity of all States along migration routes, including through robust training of immigration and border security officials in human rights and refugee protections. These could in particular include advocacy and training efforts to ensure that officials without a human rights or refugee protection mandate, but whose work triggers or follows apprehension and processing of migrants, such as border guards and law enforcement officials, understand and respect the rights of all of the migrants they encounter.
Finally, States and other donors could provide increased support to civil society actors whose work directly or indirectly supports protection of the basic needs and rights of migrants, refugees, and asylum seekers, including to humanitarian protection. These efforts could be targeted to civil society actors well-positioned to advocate for migrants’ and asylum seekers’ rights. It is particularly important that international human rights organizations and civil society actors monitor the externalization of border control. There are several ways in which this can be done. To begin, civil society groups should educate each other on government practices in their regions. Civil society can seek and disseminate information about government practices and regional dynamics, including through civil society platforms and networks, and organize and engage with international and regional human rights bodies that monitor States’ compliance with human rights laws. Civil society groups can also directly engage with law enforcement efforts and seek to ensure migrants’ and asylum seekers’ rights are not violated in the context of the prosecution of alleged criminals. Civil society groups can also engage in documentation and monitoring of compliance with international law and standards, promoting the incorporation of international human rights law into domestic law and efforts to promote accountability for those migration-control externalization policies and practices that violate human rights – and can bring legal challenges to border externalization in domestic courts and international and regional human rights bodies whenever it contravenes international or national law.
The following are specific policy recommendations targeted to States and corresponding to the Regional Case Studies in Section III above:
To the United States
- Stop the high seas interdiction, shipboard screening, and summary returns of irregular maritime migrants and asylum-seekers in the Caribbean or elsewhere. Do not outsource screening and refugee processing to the US Naval Base at Guantánamo Bay, Cuba, but rather bring all individuals expressing a need for international protection to the territorial United States to have their claims assessed.
- Redirect funding and support for Mexico’s Southern Border Program away from interception of Central American migrants and asylum seekers and to improving Mexico’s capacity to protect, receive and process asylum seekers, including by improving its capacity to provide them social support while their claims for refugee status or other forms of protection are pending, and to integrate recognized refugees.
- Condition any US funding of third countries engaged in immigration and border control on their demonstrated compliance with national and international human rights standards as well as anti-corruption measures.
- Do not use US aid money to increase border militarization aimed at stopping migrants from leaving their home countries in search of international protection.
- End the policy of offshore detention and processing of asylum seekers in Nauru, Manus Island, or in any other sites that unable or unwilling to provide effective rights protections to asylum seekers.
- Stop the policy of turning back migrants and asylum seekers arriving by boat to countries of origin or countries of transit, such as Indonesia, Sri Lanka, and Vietnam, after cursory screening.
- Allow irregularly arriving maritime asylum seekers to have their claims for protection heard in Australia and provide asylum in Australia for those found to be deserving of international protection.
- Offer the possibility of settlement in Australia to all refugees currently in Nauru and Manus Island.
To The European Union
- Do not designate or otherwise treat Turkey (or any other country) as a safe third country or as a first country of asylum for the return of asylum seekers unless it meets the following principles:
- The country in law and practice provides for refugee status or a status that is equivalent to that required by the 1951 Refugee Convention or its 1967 Protocol to people of all nationalities deserving of international protection;
- The country provides a legal regime, such as a temporary protection regime, to ensure that migrants are not returned to a country experiencing armed conflict and indiscriminate violence where they face a risk of serious harm and that carries with it the possibility of refugee status, including for situations that become protracted;
- The country protects labor rights of lawfully present refugees and in particular the right to work, such as by providing work authorization and access to the labor market for recognized refugees as well as beneficiaries of temporary protection;
- The country protects the rights to health and to education for recognized refugees as well as beneficiaries of temporary protection, or provide access to social services;
- The country protects the rights of liberty and security of recognized refugees as well as beneficiaries of temporary protection and refrains from detaining asylum seekers, particularly children, on the grounds of illegal entry or stay.
- The country demonstrates respect for the principle of non-refoulement, including prohibiting any practice that could have the effect of returning an asylum seeker or refugee to places where they would face serious risk of violation of fundamental human rights, where their lives or freedom would be threatened, or where they would be at risk of persecution, torture, or cruel, inhuman or degrading treatment or punishment, including through interception, rejection at the frontier, or indirect refoulement.
- Do not use the Turkish or Libyan or other third country coastguards or border guards to prevent would-be asylum seekers from exercising their rights to leave any country or to seek asylum.
- Do not make assistance through the EU-Africa Trust Fund, the Khartoum Process or any other migration compact under the EU Partnership Framework conditional on African or other countries preventing individuals from leaving their countries of nationality or habitual residence, but rather fund their need to build capacity to respect and protect human rights and to address development needs.
Abrogate the the unfair and unworkable Dublin Regulation system for determining EU Member State responsibility for examining asylum claims based on the country of first arrival and in its place institute a mechanism for assigning responsibility for examining asylum claims to Member States according to each state’s assessed capacity, while taking into consideration the dignity, autonomy, and wishes of asylum seekers and rights to family unity and reunification.
 In this essay, the term migrant is used broadly to include any person who is outside of their country of citizenship or, in the case of stateless migrants, their habitual residence. This term encompasses those who are displaced by conflict, natural disaster or other causes, and also includes those who qualify under relevant international, regional, or national definitions of refugee. In lieu of refugee, the term asylum-seeker is used throughout to broadly describe those migrants who are seeking and merit humanitarian protections, whether under international, regional or national law protecting refugees or other forms of legal protections based on risk, vulnerability or legal status (and also to emphasize, as does refugee law generally, that migrants who are deserving of those protections as a matter of law have a right to them whether or not they have yet been formally recognized or declared to be a refugee).
 See discussion of Australia in Section  below.
 “Smuggling of migrants” is defined as “the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident;” and, “Trafficking in persons” is defined as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation” (UNODC 2004)
 Some of the most direct mechanisms have been referred to as “non-entrée” policies, particularly in the refugee and asylum context. (see Gammeltoft-Hansen 2011; Hathaway 2005).
 In the context of migration and border externalization, it can be helpful to consider the distinctions between a migrant’s country of origin (the country or State from which a migrant departs though not always the state of which the migrant is a national or citizen), destination states (the migrant’s intended destination State) and third countries or countries of transit (those States through which a migrant will or intends to transit en route).
 As politicization of migration has occurred, it has become more common to refer to migration policies as forms of migration “control,” which presumes an inherent security risk stemming from migration. Contemporary migration “controls” frequently also criminalize migration, which reinforces states’ goals of preventing “illegal” immigration by emphasizing these presumed security concerns. (Crépeau 2013; see also, Spijkerboer 2013).
 The term “illegal immigrant” is sometimes used by government officials or others in an effort to distinguish between economic migrants and migrants seeking asylum or those with refugee status, therefore implying that economic migrants are all illegal. However, migration flows are generally mixed, and migrants themselves travel with mixed motives, making such simple characterizations generally inaccurate and unhelpful. (see Mattila 2000). The UN system uses the term irregular migrant to underscore that migrants have rights regardless of their legal status. G.A. Res. 3449 (XXX), U.N. GAOR, 30th Sess., U.N. Doc. A/RES/3449 (Dec. 9, 1975). Migrants’ rights are implicated in key human rights laws and treaties, including the Universal Declaration of Human Rights, pmbl. ¶ 1 (hereinafter, “UDHR”), International Covenant on Civil and Political Rights pmbl. ¶ 2, (hereinafter, “ICCPR”), International Covenant on Economic, Social and Cultural Rights pmbl. ¶ 2 (hereinafter, “ICESR”), International Convention on the Elimination of All Forms of Racial Discrimination pmbl. ¶ 2 (hereinafter,”, “ICERD”), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment pmbl. ¶ 2 (hereinafter “CAT”), Convention on the Rights of the Child pmbl. ¶ 1 (hereinafter, “CRC”), Convention Relating to the Status of Refugees art. 1A (hereinafter “Refugee Convention”), The International Convention of the Protection of the Rights of All Migrant Workers and of Their Families (hereinafter “ICRMW”) (UN GA 1948; 1951; 1965; 1966a; 1966b; 1984; 1990a; 1990b), amongst others, including regional human rights declarations and treaties.
 Contending that border externalization encourages apprehension and return, rather than resettlement, assuming that most migrants can be deported). (See also, Crépeau 2013 ¶ 59, highlighting a trend in European migration policy as more focused on stopping irregular migrants than protecting migrants’ rights).
 For example, the U.S. has recently given $112 million in technological assistance to Mexico for border security. This support is being allocated to three security lines north of Mexico’s border with Guatemala and Belize. The stated goal is to counter “human trafficking and drug running from the region.” Under the Merida Initiative, Pillar III, the Department of State focuses support on Mexico’s efforts to establish a secure southern border, with the stated goal of permitting free flow of licit goods and people while deterring illicit flows. For FY2016, the DOS requested $39 million for Mexico under Merida to address security threats from drug trafficking and violent crime. Additional funding comes from the DOD counter-drug budget. (see U.S. Department of State, Bureau of Int’l.International Narcotics and Law Enforcement Affairs 2012); see also, Isaacson, Meyer and Morales 2014).
 Examples of European border externalization include an 8.5 billion Euro program through which the European Union signs agreements with countries which agree to readmission of nationals who are illegally present on the territory of a member state (Hyndman and Mountz 2008, 266).
 The right to seek and enjoy asylum is enshrined in the Universal Declaration of Human Rights and is affirmed both by refugee law and general human rights law. See UNGA 1948, article 14. There are at least some circumstances in which state practice suggests a deliberate effort to limit rights protections available to migrants through the way in which border externalization efforts are pursued. For example, states may direct migration to third countries which are not parties to the 1951 Refugee Convention, and thus migrants benefit from fewer formal legal protections, particularly regarding refoulement (Hyndman and Mountz 2008, 266).
 This can result in unfair ‘burden sharing’ with only limited political or financial support. (see Atger 2013, 7).
 The rights of all international migrants are derived from many bodies of law, including general human rights law; human rights law protecting specific categories of people (e.g., children) and which thus protect specific categories of migrants; international labor law; international humanitarian law; and international refugee law, among others. For a codification of rights and commentaries which source their origins to various international treaties and the regional conventions see International Migrants Bill of Rights 2014.
 Migrants may also not fall into any specific category of vulnerable group recognized by existing international law, but there is growing recognition of various categories of “survival migrants,” or those who are forced to leave their countries of origin as a result of impacts of climate change, environmental degradation, natural disaster or serious economic and social distress. (See Betts 2010, 11; see also, International Migrants Bill of Rights 2014, the IMBR Article 4 recognizes and protects the rights of vulnerable migrants).
 Commenting on Article 7 of the 1966 International Covenant on Civil and Political Rights. Also noting that the CAT does not have a nexus requirement; thus, the CAT applies to all migrants, not just asylum seeker (UN GA 1984, Article 1).
 Some migrants who leave their country for reasons that fall outside of refugee protection but they can still become refugees while abroad if circumstances in their country of origin change that create a well-founded fear of persecution for a discriminatory reason (UNHCR 2007a, 5).
 The right to seek and enjoy asylum and the refugee protection regime also provides the right to due process in the context of status determinations (a right which is also independently guaranteed under human rights law) and prohibits the use of detention as a deterrent to potential asylum-seekers.
 States’ non-refoulement obligations apply to their actions within and beyond their own territory. (see UNHCR 2007b; von Sternberg 2014).
 Executive Order No 12,324, 46 Fed. Reg. 48, 109, (1981), reprinted in 8 U.S.C. §1182 (Supp. V. 1981).
 Interdiction Agreement Between the United States of America and Haiti, Sept. 23, 1981, U.S.-Haiti, 33 U.S.T. 3559, 3559-60
Haitian Refugee Center v. Baker, 789 F. Supp. 1552 (S.D. Fla. 1991), rev'd, 949 F.2d 1109 (11 th Cir. 1991), cert. denied, 112 S. Ct. 1245 (1992).
 Executive Order No 12,807, 57 Fed. Reg. 23, 133 (1992).
Sale v. Hatian Centers Council, 807 F. Supp. 928 (E.D.N.Y. 1992), cert. granted, 113 S. Ct. 52 (1992).
 Remarkably, neither the White House nor the State Department issued any correction to his use of the term “refugee” (Frelick 2005).
 Information in this paragraph from Meeting on Interdiction in the Caribbean, U.S. Department of State, October 29, 2015, attended by Bill Frelick.
 In December 2008, Mexico and the United states signed the first Letter of Agreement for the Merida Initiative, a bilateral security agreement centered on four “pillars:” (1) disrupting capacity of organized crime to operate, (2) institutionalizing capacity to sustain rule of law, (3) creating a “21st Century Border Structure,” and (4) building strong and resilient communities.
 The White House, Office of the Press Secretary, The Obama Administration’s Government-Wide Response to Influx of Central American Migrants at the Southwest Border, August 1, 2015 (https://www.whitehouse.gov/the-press-office/2014/08/01/obama-administrat... (accessed June 28, 2015). President Obama, Vice President Biden, and Secretary of State Kerry all met with highest level government officials in Mexico and Central America on this issue.
 The State Department’s FY2016 budget request included $39 million for the Mexico Economic Support Fund to support the continued U.S.-Mexico partnership under the Merida Initiative “to address security threats stemming from drug trafficking and violent crime;” $81.5 million for Central American Regional Security Initiative (CARSI) and $26 million for the Caribbean Basin Regional Security Initiative (CBSI); $80 million for International Narcotics Control and Law Enforcement (INL) Mexico funds for the purposes of “institutionalizing the rule of law, disrupting and dismantling criminal organizations, creating a 21st Century border, including Mexico’s southern border, and building strong and resilient communities through the Mérida Initiative;” $225 million for INL for CARSI activities such as land border and maritime interdiction programs (and “support[ing] civil society through access to justice[ and] protection of human rights . . .”); and $20 million for INL’s support to CBSI “to continue efforts to combat illicit trafficking and organized crime, increase port and border security, and strengthen the rule of law through training and technical assistance” See(see U.S. Department of State Foreign Operations and Related Programs 2016, 90-109).
 In FY2011, the Department of Defense (DOD) provided Mexico $50 million “to improve security along the Mexico-Guatemala-Belize border” out of $84.7 million in DOD counter-narcotics support funding to Mexico that year. DOD’s Mexico-Guatemala-Belize border initiative provides training to troops patrolling Mexico’s southern border, communications equipment, and support for development of Mexico’s surveillance capacity. DOD counter-narcotics funding for Mexico continued thereafter with $83.5 million in FY2012, $68.8 million in FY 2013, and $50.8 million in FY 2014. (see Seelke and Finklea 2015,17, 24.; Seelke and Finklea 2013, 29).
“Guidelines on the Treatment of Persons Rescued at Sea,” International Maritime Organization (IMO) Doc. Resolution MSC. 167(78), Annex 34, adopted by the Maritime Safety Committee on May 20, 2004, at 6.12-6.17.
 “[T]here are…no experienced refugee status determination decision makers in the Government of Nauru [and] no pool of persons identified to do the independent reviews on the tribunals envisaged by the recently enacted Refugee Convention Act of 2012.”
Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144.
 Language that appears in the preambles of both the MOU with Nauru and with PNG. Memorandum of Understanding between the Government of the Independent State of Papua New Guinea and the Government of Australia relating to the Transfer to and Assessment of Persons in Papua New Guinea, and Related Issues and Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia relating to the Transfer to and Assessment of Persons in Nauru, and Related Issues.
 EU Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status.
 EU Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), articles 35 and 38.
 The directive also says a “first country of asylum” is a country where the applicant has already been recognized as a refugee or “otherwise enjoys sufficient protection.” As Turkey does not recognize non-Europeans as refugees, the only remaining question is whether it provides de facto refugees sufficient protection. According to UNHCR, which said in its comments on the APD that, “[t]he wording ‘sufficient protection’. . . does not represent an adequate safeguard when determining whether an asylum seeker may be returned to the first country of asylum.” EU Directive 2013/32/EU of 26 June 2013 on common procedures for granting and withdrawing international protection (recast), articles 35 and 38
In the Freezer
Abusive Conditions for Women and Children in US Immigration Holding Cells
Co-ordinated by Maggie Carey & Shona Russell
This article was first published in The International Journal of Narrative Therapy and Community Work, 2002 No.2, and can be found in the book Narrative therapy: Responding to your questions, compiled by Shona Russell & Maggie Carey (Adelaide: Dulwich Centre Publications, 2004).
The following questions and answers about ‘externalising’ have been created in response to regular requests from practitioners. We’ve tried here to respond to some of the questions we are most commonly asked in training contexts. We’ve enjoyed the collaborative process of coming up with these questions and answers. A wide range of people have been involved and we’ve really appreciated this. We hope this document will be of assistance to those engaging with narrative ideas. We look forward to receiving your feedback!
1) What is externalising?
‘Externalising’ is a concept that was first introduced to the field of family therapy in the early 1980s.1 Initially developed from work with children, externalising has to some extent always been associated with good humour and playfulness (as well as thoughtful and careful practice). There are many ways of understanding externalising, but perhaps it is best summed up in the phrase, ‘the person is not the problem, the problem is the problem’.
By the time people turn to us as therapists for assistance, they have often got to a point where they believe there is something wrong with them, that they or something about them is problematic. The problem has become ‘internalised’. As we’re sure you’re aware, it is very common for problems to be understood as ‘internal’ to people, as if they represent something about the nature, or ‘inner-self’ of the person concerned. Externalising practices are an alternative to internalising practices. Externalising locates problems not within individuals, but as products of culture and history. Problems are understood to have been socially constructed and created over time. The aim of externalising practices is therefore to enable people to realise that they and the problem are not the same thing. As therapists, there are many ways in which this is approached. One way is through asking questions in which we change the adjectives that people use to describe themselves, (‘I am a depressed person’) into nouns, (‘How long has this depression been influencing you?’ or ‘What does the depression tell you about yourself?’). Another practice of externalising involves asking questions in a way that invites people to personify problems. For instance, when working with a young child who wants to stop getting into so much trouble, an externalising question might be: ‘how does that Mr Mischief manage to trick you?’ or ‘when is Mr Mischief most likely to visit?’.2 Through these sorts of questions, some space is created between the person and the problem, and this enables the person to begin to revise their relationship with the problem. It’s not only problems that are externalised. Personal qualities, such as ‘strengths’, ‘confidence’ and ‘self-esteem’ which are commonly internalised (viewed as if they are inherent or internal to individuals) are also externalised in narrative therapy conversations. We’ll describe more about this later on. It’s also important to note that externalising involves much more than ‘linguistic techniques’. Externalising is linked to a particular way of understanding, a particular tradition of thought, called poststructuralism. This way of understanding places a considerable emphasis on language, questions of power, and the ways in which meaning and identities are constructed. (For more information about this see Thomas, ‘Poststructuralism and therapy – what’s it all about’, International Journal of Narrative Therapy and Community Work, 2002 no. 2).
2) What are externalising conversations?
Externalising conversations focus on problems that may once have been internalised and externalise them (as we showed in the examples in relation to ‘the depression’ and ‘Mr Mischief’). But this is just the beginning. Once problems are externalised (i.e.. viewed as if they don’t simply exist as an inherent aspect of a person) they can then be put into story-lines. For instance, it is possible for us as therapists to ask questions about how long the depression has been an influence in someone’s life, when it came into their life, if there were factors that contributed to its entry, what the real effects of the depression are (on the person, their relationships and others), when these effects have been strongest and weakest, what sustains the depression and what acts as remedies in certain situations. These sorts of questions, and many others, begin to place the existence of the problem into a story-line.
Placing problems, like the depression and Mr Mischief, into story-lines can begin to shed more light on how they’ve come to have such a big influence on someone’s life. It can also begin to provide people with a lot of information and richer understandings of how they might be able to reclaim their lives from the influence of problems. One of the most significant aspects of externalising conversations, is that within them, broader considerations can also be taken into account. When it is understood that people’s relationships with problems are shaped by history and culture, it is possible to explore how gender, race, culture, sexuality, class and other relations of power have influenced the construction of the problem. By giving consideration to the politics involved in the shaping of identity, it becomes possible to enable new understandings of life that are influenced less by self-blame and more by an awareness of how our lives are shaped by broader cultural stories. In this way, we see externalising conversations as small ‘p’ political action. They put back into the realm of culture and history what was created in culture and history. This opens up a range of possibilities for action that are not available when problems are located within individuals.
3) How do you know what to externalise?
The process of externalising happens in collaboration with those who consult us. We enter therapy conversations believing that the problems people are consulting us about are not located within them but instead have been shaped by the broader stories of the particular culture in which they live. This then shapes the questions we ask and the conversations we share.
When someone describes themselves in ways that are very negative (e.g. ‘I am a worthless person’) then these are opportunities for externalisation. We see these as opportunities to ask some questions that will lead to externalised conversations around these identity descriptions. Similarly, when one is working with the alternative stories of people’s lives, if someone mentions a particular character trait as if it is inherent to them (‘It’s my bravery that gets me through’) then this is an opportunity for an externalising conversation to lead to a richer description of this trait. It’s possible for us through externalising to ‘unpack’ this trait, to learn about it’s history and how it is linked to certain problem solving skills and knowledges that might be helpful at this time. In our work, we’ve found that it’s really important that what gets externalised is named in a way that fits well for the person concerned. Generally, the metaphors that become externalised (e.g. blame, bickering, guilt, worry, fear, jealousy) are those that are articulated by the person consulting the therapist. Sometimes, the process of establishing what to externalise takes a little time. For example, when people begin by saying that the problem is ‘an anxiety disorder’ it is not likely that this is a description that the person has come up with themselves and therefore it is not likely to be the most fitting description. After some discussion, the person might come up with their own description which might be, ‘the fear that comes’ or ‘the shakes’ or the ‘wobbles’. Whatever it is, it is important that it fits closely with the experience of the person concerned. This is because once a name is found for the problem that is close to the person’s experience, it means that the skills and ideas of the person concerned become more available. For instance, it is very hard for a kid to think they have anything to offer in dealing with all the trouble that seems to be surrounding them – but dealing with Mr Mischief is another matter! Similarly, coming up with ideas and ways of dealing with ‘the fear that comes’ might be more likely than ways of dealing with ‘an anxiety disorder’ [it might be thought that dealing with anxiety disorders is the exclusive domain of professionals]. When the externalised definition of the problem fits very well for the person concerned, this enables the person’s own problem-solving strategies, skills and ideas (which have been generated over the course of their lives) to become more relevant to addressing their current predicament. In our experience, what gets externalised can shift and change over time. People’s relationships with problems change during the time they attend therapy and so, as the person’s experiences change, so do the externalisations. Externalising conversations can be flexible and creative! They are also ongoing. We do not use externalising language one week and then use internalising language the next. We sustain externalising conversations throughout the therapy process. It may also be relevant to mention that there doesn’t have to be only one externalised definition of the problem. In fact, when working with more than one person, it is quite likely that there will be more than one definition. In talking with a family, there might be five definitions of the problem and this is just fine! Even if individuals have different definitions of the problem, usually they can agree to join together in addressing one particular externalised problem at a time.
4) What sort of things get externalised?
Well … to us, externalising is not a technique that we choose to use at certain times and then not at others, so it’s not really a matter of choosing what can and what can’t be externalised. Every conceivable issue that is brought to therapy rooms can be engaged with in externalising conversations. As care is taken to ensure that externalisations fit the experience of particular individuals, the range of externalisations can be as varied as the experiences, descriptions and imaginations of those who consult therapists.
Externalising conversations also happen outside the therapy room. Groups, workplaces and even communities have engaged in externalising conversations for various reasons. One of the more well-known examples of a community externalisation have taken place during education projects in Malawi in south-eastern Africa. There, externalising has been used as a response to the HIV/AIDS crisis.3 Problems such as Stigma and Silence surrounding HIV/AIDS, that have contributed to division within the community, have been externalised and AIDS itself has been personified (Mr/Ms AIDS). Enabling communities to have conversations with characters playing the role of Mr/Ms AIDS in which the strategies, hopes and dreams of AIDS are articulated and exposed has contributed to communities pulling together in response. The identification and personification of an externalised counter-plot, Mrs Care, has also galvanised collective action.
5) What are some of the effects of externalising conversations?
The most common response from those we’ve worked with has been a sense of relief – relief that they are not the problem and that there are ways of getting more in touch with other stories about themselves, other aspects to their lives that the effects of the problem have been obscuring from view.
Externalising conversations ‘de-centre’ the problem in people’s lives. This means that space is created between people and whatever is troubling them. Where a person has understood themselves as ‘worthless’, now instead they understand that ‘the worthlessness’ has come to dominate their lives, and that there is a history to this and the chance to reclaim their life from its effects. When a problem is externalised, it also becomes possible to identify the particular practices that sustain this problem (as well as particular practices that might diminish its influence). For instance, if ‘the worthlessness’ has come to significantly affect a person’s life, there is a good chance that particular practices of judgment, critique and perhaps abuse have made this possible. Externalising conversations about these particular practices can lead to increased understanding about their operation. We can also collaboratively develop increased options for avoiding their negative effects. Once the problem and the practices that support it have been externalised, it becomes possible to ask the person to take a position in relation to the problem. This is not a simple matter of being ‘for’ or ‘against’ the problem, as there are always graduations and complexities of experience. For instance, in an externalising conversation about ‘the worthlessness’ the person might explain that they wish to do away with ‘worthlessness’, but wish to retain the ability ‘to be self-reflective about how their actions might affect others’. Inviting people to take a position in relation to the problem creates further space for people to begin to reclaim their lives from the problem’s effects, but it needs to take into account the complexities of experience. As people step back and separate from the problem and then consider its history and negative effects, they can find themselves standing in a different territory than the one they have become used to. This different territory is often a place free from practices such as self-blame and judgment. As the problem is de-centred, what becomes centred in the conversation are people’s knowledges of life and skills of living that are relevant to addressing the problem. These become the focus of exploration. Also, once the problem is understood as separate from the identity of the person concerned, it becomes more possible to identify family and friends who can form a team to support and sustain their efforts in reducing the problem’s influence. With shame reduced, and problems no longer internalised, collective action becomes more possible. There are a whole lot of effects that externalising conversations have on our experiences as therapists too. We’ll talk about some of these towards the end of this document!
6) How does externalising fit with other narrative therapy practices?
Basically, externalising conversations are the doorway to preferred stories and all the delightful skills, ideas and knowledges that people have. When problems are externalised, when the person no longer believes that they are the problem, this opens the door to exploring their knowledges and skills and ways of addressing the effects of the problem.
During externalising conversations, as therapists, we are on the lookout for what we call ‘unique outcomes’. These are moments when the influence of the problem has not been so strong. When we notice one of these, this is an opportunity to begin to explore what made this possible. While we won’t go into detail about it here, there are a whole range of ways that we try to place these ‘unique outcomes’ into alternative story-lines. Take, for example, the person who came into the therapy room believing she was worthless. Let’s call her Judy. After externalising ‘the worthlessness’ and exploring its history and influence, we might discover that there are certain times when worthlessness is less influential in Judy’s life. These times (unique outcomes) might be associated with a particular time or place or friend. Or these unique outcomes might be associated with certain things that Judy does at this time, certain thoughts she has, or physical activity she is engaged in etc. Over time, these unique outcomes might be placed into an alternative story-line. For the sake of this example, let’s say Judy decided to name this alternative story of her life ‘competence’. Through externalising conversations we would then engage in lots of explorations about this ‘competence’. We would explore its history and ask questions about all those events and people that have contributed to this ‘competence.’ Externalising conversations don’t just focus on problems. As narrative therapists we also use externalising conversations in relation to positive internalised qualities (like competence). Because we understand that ‘competence’ is also a product of history and culture, it is possible for us to ask questions about how this ‘sense of competence’ was created in Judy’s life, who else helped to create it, who the people are who’d be least surprised to hear about it, what sustains it, what it makes possible, what it means to her, and what particular problem-solving skills it may be linked to. This process can make these qualities (like competence) more meaningful and relevant to people in addressing the effects of problems in their lives
At this point in our conversations with Judy, externalising will have provided the opportunity for us to now engage with other narrative practices. Once the problem is externalised and we have begun to generate, through unique outcomes, an alternative story, then other narrative practices such as re-membering conversations, outsider-witness processes, the use of therapeutic letters, documents, rituals and celebrations all become more relevant. All these other narrative practices are used to generate ‘rich descriptions’ of the alternative stories of people’s lives.4 It is through generating rich descriptions of these alternative stories of people’s lives that, we believe, leads to people being able to make significant changes in their lives.
7) As practitioners first begin to engage in externalising conversations, are there any particular aspects which people struggle with?
Like any new way of working, it takes time, practice and rigour to become adept at externalising conversations! Initially, some practitioners feel awkward with the different way of using language that externalising involves. It can feel clumsy at first and even as if the therapist is centred in the conversation in an uncomfortable way. It can take some time, and much practice (both within and outside the therapy room) for the different language practices to become a seamless part of one’s work.
What’s more, it also takes time to fully engage with the different ways of thinking that externalising conversations represent. Externalising involves questioning the internalising practices that are such a pervasive part of everyday life. Externalising therefore represents more than simply a therapy ‘technique’. Those consulting us are having to routinely contend with internalising practices that seek to locate the problem within them. As narrative therapists, we see it as our role to provide some frameworks for alternative understandings and alternative actions. When we first begin to engage with externalising conversations, the implications of these new ways of thinking can take a bit of getting used to. For many of us it has represented a very different way of looking at our own lives as well as the lives of those with whom we work.5 On a practical note, there is one specific aspect of externalising conversations that practitioners sometimes struggle with early on. This relates to the dilemma of which metaphors to privilege in externalising conversations. Sometimes, when a problem is externalised, families consulting us might use metaphors of ‘combat’ in relation to the problem. They might mention how they’d like to ‘beat’, ‘war against’, ‘fight’ or ‘vanquish’ the problem. As practitioners, this can be a bit confusing. Metaphors of combat and competition are very common. Are these metaphors that we as therapists should engage with? Sometimes, engaging in metaphors of combat and competition can contribute to stress and tension and can mean that subtleties of experience can be missed. Engaging in metaphors of conflict and combat might also replicate ways of being in the world that we do not wish to be associated with. In other circumstances, however, where people may literally be struggling for their lives (in relation to life-threatening eating disorders, or the voices of self-hate for example) people may believe that combat metaphors are the most accurate and fitting descriptions for what they are going through. What seems important is that as therapists we don’t introduce metaphors of conflict or combat, and that we are aware of the wide range of other metaphors about how problems can become less centred in people’s lives. These include metaphors of reclaiming one’s life from the effects of the problem, escaping the effects of the problem, revising one’s relationship with the problem, educating the problem, negotiating with the problem, organising a truce with the problem, taming the problem, undermining the problem. Further metaphors can involve people deciding which invitations from the problem they wish to take up and which they are declining. There are countless non-violent, non-adversarial and non-competitive ways in which people go about reducing the influence of problems in their lives. Very little of the literature about narrative therapy has ever emphasised combat metaphors, or attempts to vanquish problems from people’s lives. Most of our work as narrative therapists involves engaging with people around an enormously wide range of alternative metaphors.
8) What about when someone is acting badly to others – bullying, teasing or using violence? Can you use externalising conversations in situations like this?
That’s a good question. When working with people who may have used bullying, teasing, violence or abuse against others, it’s so important that as therapists we in no way excuse people of responsibility for their actions. There are ways of using externalising conversations that can make it much more possible for people to take responsibility for addressing and preventing the effects of the problem. As therapists we must take care with how we go about this.
Externalising is not about separating people from their actions, or the real effects of their actions. A key element of externalising conversations involves exploring in detail the real effects of the externalised problem on the person’s life and also all others who are being affected by the problem. By thoroughly detailing these effects, externalising conversations are used to enable people to take a position in relation to the externalised problem and then to engage with others in addressing its effects and reducing its influence. In working with people who have used violence, it is not simply a matter of externalising ‘violence’ or ‘abuse’ and thinking that this will encourage responsibility and reduce the effects of the problem. A key element of externalising conversations involves exploring the particular ideas, beliefs and practices that sustain a problem. The particular practices of ‘violence’ might include ‘judgement of others’, ‘acts of diminishment’, ‘acts of power’, ‘being care-less’, ‘acts of control’, ‘detaching’, ‘stinking thinking’, ‘acts of cruelty’, ‘notions of superiority’ and many others. It is important for conversations to carefully articulate the real effects of these practices and ways of thinking. In doing so, this can enable the person to become more aware of their origins and consequences in their life. When the real effects of these ideas and practices on this person’s life and relationships are traced, when the history of these ideas and practices in their life is articulated, and when links are made as to how these practices may be supported and sustained by broader constructions of gender, power etc, it can become more possible for the person to take a position in relation to these ideas and practices of power and control and to take responsible action. During this process, unique outcomes can be identified in which the person concerned has been less under the influence of the ideas and practices that support violence, power and control and these unique outcomes can be openings to alternative stories of responsible actions of redress, care and compassion. Engaging with people in conversations about deconstructing privilege and taking responsibility for issues of violence or other acts of harm towards others involves certain therapist responsibilities (whether one is engaging in externalising conversations or not). These include considerations of safety for victims of violence, power, accountability (ways of checking out that people are safe), transparency, etc. There is not room here to go into these in any detail, but at the end of this piece we have provided further reading in relation to this.
9) Do you have any handy hints about the use of externalising conversations?
Well, like with anything else, there are always going to be places where we slip up, and things that we need to work on in order to fully understand! Some of the most common confusions about externalising come about when externalising is confused with ideas from other psychological models. Students who have been trained in other psychological approaches have told us that it can take some time to work out how different externalising conversations are from the sorts of conversations we are used to. We’ve tried to clarify some of the most common confusions and provide what we hope are handy hints!
Sometimes when students have come from working in other psychological or therapeutic models in which they were used to coming up with a diagnosis of the problem, they can get so determined to find ‘the right’ externalisation and to stick with this ‘one right’ externalisation that it can interfere with the ways in which they collaborate with the person who has come to consult with them.
Handy hint #1: Try to remember that it’s not like a medical diagnosis, there’s no single ‘correct’ externalisation. What gets externalised needs to fit closely the experience of the person consulting us but it may well change over time.
Sometimes we might think that if we simply externalise the ‘bad things’ then the ‘innate’ or ‘inherent’ goodness of the person concerned will be able to shine through. This idea comes from a very different tradition of thought (humanism) than the ideas which inform narrative therapy (poststructuralism). In our experience, believing that externalising the problem will automatically result in people being somehow magically liberated from it, is a bit of a pitfall because it means that as therapists we might not do the work to richly describe the alternative stories of a person’s life.
Handy hint #2: Try to remember that externalising the problem is just the start. The next steps involve richly describing the alternative story.
Externalising is sometimes confused with ideas from other psychological traditions in which you may separate out and examine certain elements of ‘the self’ before re-integrating these into the ‘whole’. Again, these ideas come from a very different tradition of thought (humanism) than that which informs narrative therapy (poststructuralism). Narrative therapy doesn’t believe in a ‘whole self’ which needs to be integrated but rather that our identities are made up of many stories, and that these stories are constantly changing.
Handy hint #3: Don’t aim to re-integrate what has been externalised. Instead, try to remember that even the good things can be externalised and in this way we can help develop richly described alternative, preferred stories of people’s lives.
Some models of psychology imply that there is ‘good and bad’ in everything and that people ought not to want to free themselves entirely of the influence of any problem. But this can get pretty confusing for those people who consult us who are very clear, for example, that they would prefer to be without the ‘voice of self-hate’ in their lives.
Handy Hint #4: We find it helpful to remind ourselves that it’s our role as the therapist to keep checking out with all those involved exactly what the effects of the problem are, and what the person(s) concerned see as desirable in terms of future action.6
10) Is it that we externalise the bad things and internalise the good things?
It can be tempting sometimes just to internalise the good things. When someone says, ‘I have good self esteem’ and they are proud of this, sometimes it’s tempting just to leave this alone. But, in our experience, externalising ‘the good things’ means that these can become ‘more richly described’. For instance, if ‘strength’ is externalised (if it’s not understood as something innate or internal but instead something that has been created), then we can ask questions to articulate the particular skills and knowledges that make up this ‘strength’, that trace the history of this ‘strength’ and that explore which treasured people in the person’s life have contributed to its existence. It also means that we are more likely to ask questions about what other things this ‘strength’ stands for in the person’s life, what it means. Externalising conversations about this strength might enquire as to the values and commitments that are linked to this ‘strength’ and the histories of these values and commitments.
As narrative therapists, we believe that it is the rich description of the alternative stories of people’s lives that provides people with more options for action and therefore enables significant changes to occur. Life is not only about problems and difficulties, or for that matter ‘strengths’. It is also about hopes, dreams, passions, principles, achievements, skills, abilities and more. All of these aspects of our lives are up for exploration and rich description!
11) What do you find most helpful about externalising conversations?
Here are some of the things we, as therapists, find most helpful about externalising conversations.
- Within externalising conversations I don’t have to adopt a position of expertise in relation to the problems that people are experiencing. Instead, I can be really curious about how these problems operate and together we can explore new ways of relating to them.
- Importantly, externalising allows me not to blame people for the problems they are experiencing and this is a relief. Instead, we can collaborate and explore the effects and tactics of these problems and find ways to reduce their influence.
- For me, externalising is all about power and politics. So much of psychology and therapy has enabled what are social issues to be located only within individuals. Through externalising practices, it becomes more possible for us to trace how problems have been shaped by broader relations of power. This in turn can help people to separate their identities from these problems. To me this is about putting back into culture and history what has come from culture and history and this is small ‘p’ political work.
Externalising conversations enable me to take different positions in my questioning – sometimes investigative reporter, sometimes historian, sometimes detective. This is fun!
I appreciate that we’re not just talking about individuals and their faults or their individual solutions. Instead we’re talking about history and relationships and we’re finding audiences to witness the steps that people are taking.
In working with men who are violent, I found the emphasis within externalising conversations on creating opportunities for men to articulate alternative ways of being men very helpful. This work is complex and requires a lot of care, but enabling men to take responsibility for their actions and to begin to move towards alternative non-violent ways of being seems really important.
- Externalising means that I often get to hear about the beautiful relationships in people’s lives that assist them in overcoming the effects of problems. This can be so hopeful. I hear lovely stories and I treasure them. I think of them when I’m at home.
- Externalising conversations enable me to be a part of the process of people reclaiming their lives from the effects of problems.
Well … that’s all for now. We hope you’ve found these questions and answers helpful. If you have further key questions, please send them into us and perhaps we’ll compile a sequel at some stage! Thanks.
About these questions and answers
We have compiled these answers to commonly-asked questions about externalising in response to regular requests. Maggie Carey and Shona Russell, with assistance from other people working at Dulwich Centre Publications, generated the questions and sent them out to a range of practitioners. A number of conversations were also held here at Dulwich Centre. The responses were combined and a draft document was then circulated widely for further discussion and refinement.
We’d like to acknowledge the following people who were involved in the generation of this piece: Gene Combs, Jane Speedy, Stephen Madigan, Yvonne Sliep, Michael White, Carolyn Markey, Mark Hayward, Amanda Redstone, Patrick O’Leary, Jill Freedman, Jeff Zimmerman, Sue Mann, Iain Lupton, Dean Lobovits, & Mary Pekin. We’d like to especially acknowledge the role that David Denborough played in drawing together the contributions.
1. Externalising was first introduced to the field by Michael White and has since been engaged with and developed by a wide range of practitioners.
2. A personification for an older people is described later in this paper in relation to Mr/Ms AIDS which is an externalisation that has been used in community projects in Malawi, Africa.
3. For more information about this work in Malawi see Sliep & CARE Counsellors (1998), or write to Yvonne Sliep c/o[email protected]
4. To read more about these other narrative practices, see Morgan (2000).
5. For more information about the different way of thinking that externalising is associated with, see Thomas (2002).
6. Where acts of violence are concerned, this ‘checking out’ requires care and processes of accountability whereby the voices and views of those most affected by the violence are privileged.
Further reading about externalising
Companions on a Journey: an exploration of an alternative community mental health project 1997: Dulwich Centre Newsletter No.1. Republished in White, C. & Denborough, D. 1998: Introducing narrative therapy: A collection of practice-based writings. Adelaide, South Australia: Dulwich Centre Publications.
Morgan, A. 2000: What is narrative therapy?: An easy-to-read introduction. Adelaide, South Australia: Dulwich Centre Publications Epston, D. 1998: Catching up with David Epston: A collection of narrative practice-based papers. Adelaide, South Australia: Dulwich Centre Publications. Freeman, J., Epston, D. & Lobovits, D. 1997: Playful approaches to serious problems: Narrative therapy with children and their families. New York. W.W. Norton. Freedman, J. & Combs, G. 1996: Narrative therapy: The social construction of preferred realities. New York. W.W. Norton. Payne, M. 2000: Narrative therapy: An introduction for counsellors. London: SAGE Publications. Sliep, Y. & CARE Counsellors, 1996: ‘Pang’ono pang’ono ndi mtolo – Little by little we make a bundle.’ Dulwich Centre Newsletter, No.3. Republished in White C. & Denborough D 1998: Introducing Narrative Therapy: A collection of practice-based writings. Adelaide, South Australia: Dulwich Centre Publications. Thomas, L. 2002: ‘Poststructuralism and therapy – what’s it all about?’ International Journal of Narrative Therapy and Community Work, No.2. White, M. & Epston, D. 1990: Narrative means to therapeutic ends. New York: W.W.Norton. Further reading in relation to working with men who use violence: McLean, C., Carey, M. & White, C. (eds) 1996: Men’s ways of being. Boulder, Colorado: Westview Press. Jenkins, A. 1990: Invitations to responsibility: The therapeutic engagement of men who are violent and abusive. Adelaide, South Australia: Dulwich Centre Publications. Jenkins, A., Joy, M. & Hall, R. 2002: ‘Forgiveness and child sexual abuse: A matrix of meanings.’ International Journal of Narrative Therapy and Community Work, No 1. Slattery, G. 2000: Working with young men: Taking a stand against sexual abuse and sexual harassment. Dulwich Centre Journal, Nos. 1& 2. White, M. 1995: ‘A conversation about accountability.’ In White, M. Re-authoring lives: Interviews and essays. Adelaide, South Australia: Dulwich Centre Publications.
Copyright © 2002 Dulwich Centre Publications
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