Getting Them "Out of the Way": Consent and Forcible Transfer in the US-Australia Refugee Swap Deal of 2016

On the US side, consent was already on shaky ground with regard to the 50 Central American refugees who, prior to being ‘swapped’, were already subject to an agreement that afforded them little say in their futures. Before the swap deal, a Protection Transfer Agreement (PTA) was brokered by Costa Rica, the US, and the UNHCR. Under the PTA, civil society groups in El Salvador, Guatemala and Honduras were to identify individuals who were at risk of persecution and had not left their country of origin, as candidates for resettlement in the US. Cases were then referred to the US for review.

 

Even though the program was designed to house 200 immigrants in the US for six months, only one Salvadoran family had been relocated as of 2016, due to the PTA’s strict eligibility requirements and long wait times. The International Organization of Migration and UNHCR developed an arrangement with Costa Rica to temporarily host pending applicants in camps while they were pre-screened and vetted. By the time several migrants had already been successfully pre-screened to be resettled in the US, they were abruptly transferred to Australia. It is not clear what they consented to if their consent was asked at all. 

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Political expediency also drives forcible transfers as preferred tools of migrant management. For several years, Australia’s offshore border regime had largely gone under the global radar due to legally sanctioned censorship. In addition to making it prohibitively difficult for journalists and researchers to get visas to document detention conditions, the government passed the Border Force Act in 2015, which made it a crime for an “entrusted person,” (anyone working in detention centres), to document or make a record of its conditions. Nevertheless, as the truth of migrant lives on Manus and Nauru was revealed through the writings and video recordings of migrants themselves, it became more difficult for the government to hide the faces, names, and stories, of the real people ‘behind the wire’ (Gleeson 2016).

 

The Nauru Files published by The Guardian revealed over 2,000 documented reports of child abuse on the island’s detention centre. Such revelations prompted a movement led by advocates, activists, and former refugees throughout Australia to 'bring them [the refugees] here,’ and to end the offshore detention apparatus once and for all. Despite or perhaps because of such public resistance, the Turnbull government found any way it could to absolve itself of responsibility. It is no coincidence, for instance, that the refugee swap deal was brokered shortly after the PNG Supreme Court ruled that the detention of migrants in Manus was illegal under the PNG Constitution’s personal liberty clause. The Court then ordered the centre’s closure. During this period (2016-2017), refugees had also been increasingly protesting inhumane conditions. The 2014 death of Reza Barati, an Iranian asylum seeker in Manus, triggered a wave of uprisings and hunger strikes. Nevertheless, lawyers for the Australian government noted in response to the Court ruling that the refugees were PNG’s responsibility. 

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Back in the US, while the political incentives for former President Obama to broker the deal are still not entirely clear, it is speculated that the deal was an attempt to placate both Republicans who demanded a hardline stance on immigration and Democrats who wanted to at least give the appearance that the US was invested in finding refuge for prospective migrants at its southern border. The deal could function to pacify both groups, especially since the US’s actual intake of refugees from Manus and Nauru would not happen until Obama had left office. Others noted that the administration was motivated by more virtuous intentions to accept refugees on the condition that Australia change its policies toward asylum seekers (Remeikis 2017).

 

The François-Xavier Bagnoud Center for Health and Human Rights at Harvard University opines that the deal allowed both countries “to maintain their tough border enforcement policies, while meeting international treaty obligations to provide refuge to those held in detention centers determined to have refugee status.” I would posit that the deal also represented the continuation of a long-held tactic of using bilateral and multilateral agreements to get a group of migrants the state has deemed politically “problematic” out of the way. 

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The swap deal is not the first time that multilateral agreements between prospective host countries determine refugee resettlement. The Indo-Chinese Comprehensive Plan of Action (CPA) brokered in 1989 was a three-way agreement between the Socialist Republic of Vietnam, the first countries of asylum of Vietnamese migrants (namely in southeast Asia and Hong Kong), and resettlement countries (the US, Europe, and Australia). However, the CPA was mediated by the UNHCR in Geneva, and distributed responsibility for refugees across multiple states. Comparatively, the refugee swap deal represented a less mediated way of removing irregular migrants from the concern of the state. And even when the deal was critiqued by US government officials, it was not refugees’ consent that was seen as being violated, but the consent of the US Congress. For example, Senator Chuck Grassley and Rep. Bob Goodlatte noted: “Your departments negotiated an international agreement regarding refugees without consulting or notifying Congress” (Davidson 2016). 

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I put forth that the process of waiting and then being completely surprised with a new resettlement country violates individual consent. Even before the start of their treacherous journeys, people fleeing untenable life conditions are hardly making fully consensual choices. It is often a matter of determining which choice (leaving or staying) is less dangerous than another. And from there, border enforcement regimes often produce situations that violate migrant consent around what happens to their bodies, where and how they can move, and what stories they should or should not tell about their struggles. . While agency and coercion are not experienced in the same way by all migrants in every context, it is worth recognizing how the non-consenting subject is foundational to the functionality of forcible transfer agreements. 

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As of 2024, around 1,106 refugees have been resettled in the US. Resettlement has provided much needed relief to formerly detained refugees and a sense that a new future was possible. But life after detention has not been without its challenges. Being resettled in a place which refugees had not even entertained as possible introduced unanticipated stresses. In the US, many continue to face financial and employment challenges. Resettled families, for example, are expected to repay the cost of their transfer to the US within four years. According to the Guardian, an Australian diaspora refugee advocacy group based in the US, Ads-Up, noted that one family’s debt was US$12,000 (Davidson 2019). And for many, resettlement does not negate the complex trauma of detention, which refers to the effects of repeated and chronic exposure to multiple traumatic events (Richard 2019).  

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Addressing irregular migration in a world of externalized border enforcement is increasingly about getting people “out of the way.” In the wake of calls for mass deportations and deterrence-based policies, it is imperative to pay attention to how migrants will be constructed as non-consenting, “in the way,” and movable, in order to justify inhumane policies toward them.