The questions of extraterritoriality

Encountering the state

When does a refugee encounter the state? The straightforward answer to this question would be: when arriving at the border and surrendering him- or herself to the authorities, uttering the magic word, ‘asylum’. Reality, however, seldom fits this picture. First of all, a substantial number of asylum-seekers only make their claim some time after actually entering the country of prospective asylum. Second, and more importantly, the last decades have seen a number of policy developments to extend migration control well beyond the borders of the state.

A person seeking asylum in, for example, Europe or the United States may thus encounter the authorities of these countries before even departing. It could be at the consulate when attempting to obtain a visa, at the airport of key departure or transit countries where immigration officers are deployed to advise airlines and foreign authorities on whom to allow onwards passage. It could be during an attempt to cross the Mediterranean or the Caribbean seas or any one of the many other places where ships, aircraft and radar systems operate to intercept even the smallest vessel before it can reach the territorial waters of the prospective destination state.

Alternatively, the refugee may not encounter the state in persona, but rather through delegation. Under bilateral and European Union (EU) agreements, Libya and Morocco, for example, are expected to carry out exit border control in co-operation with EU member states.