Africa, the new destination for the ‘illegals’?
Definitions, legal, historical and institutional frameworks.
Deportation to a third country
Deportation to a third country means removing a foreign national to a state of which that person is not a citizen. It differs from removal to the country of nationality. The third country must agree to admit the person; that acceptance may arise from a general arrangement, a bilateral agreement or a decision taken on a case-by-case basis.
The term applies to different legal situations. A person may be subject to a final removal order while challenging the country selected for the transfer. They may also claim that they face persecution, torture or another serious violation in the destination state. A country's agreement to receive them does not therefore extinguish the obligations of the state organising the deportation.
US transfers to African states brought the practice back to the centre of debate in 2026. The issue does not end with the flight. The receiving country must determine the person’s status after arrival, the conditions governing residence, possible access to asylum, work and freedom of movement, and whether any further removal may take place.
The third country is therefore not merely a point of arrival. It becomes responsible for decisions taken on its territory under its domestic law and international commitments.
Principle of non-refoulement
The principle of non-refoulement prohibits removing a person to a territory where they would face serious risks. Article 33 of the 1951 Convention relating to the Status of Refugees establishes this principle for refugees whose life or freedom would be threatened on specified grounds of persecution. International human rights law also prohibits a transfer where there are substantial grounds for believing that the person would face torture or other irreparable harm.
The principle extends beyond a simple return to the country of origin. A transfer to a third state may likewise be prohibited where that state itself presents the relevant risk or where there is a real risk of onward removal to another dangerous territory.
Asylum seekers raise a particular difficulty. Their refugee status has not yet been legally recognised, but their claim must be examinable before any measure exposes them to the risk against which they seek protection.
Non-refoulement does not mean that a foreign national has a general right to remain indefinitely in the country where they are present. It limits removal: the state retains its powers over migration, but it may not exercise them by sending a person into a situation prohibited by international law.
Diplomatic assurances
A diplomatic assurance is an undertaking given by the destination state to the state considering a transfer. It may concern the person’s treatment, access to a lawyer, protection from arbitrary detention, compliance with specified detention conditions, or the possibility of monitoring after arrival.
Such assurances arise particularly when the deporting state is aware of an alleged risk of ill-treatment. They do not automatically constitute proof of safety. Their credibility depends on the substance of the undertaking, the general situation in the destination country, that state’s previous practice, the existence of independent monitoring and the possibility of taking action if the undertaking is not honoured.
The United Nations Committee against Torture regularly recalls that diplomatic assurances must not be used to circumvent the prohibition of refoulement. Where there are substantial grounds for believing that a person would be at risk of torture, a diplomatic promise is not sufficient to eliminate that risk.
The assessment therefore remains individual. It concerns both the person being transferred and the receiving state's actual capacity to honour the undertaking it has given.
Externalisation of migration control
The externalisation of migration control consists in moving beyond a state’s territory some of the operations through which it prevents entry, organises removal or deals with certain consequences of its migration policy. It may take the form of readmission agreements, pre-departure controls, centres located abroad or transfers to third countries.
The legal border does not necessarily move. Some of its functions are exercised elsewhere or entrusted to another state. US transfers to African countries illustrate this logic when Washington decides on the removal and a third government subsequently receives the person.
Externalisation does not make responsibility disappear. The state organising the transfer remains bound by the obligations applicable to its decision; the receiving state must comply with its own law and international commitments. Difficulties arise when agreements are not sufficiently public, oversight procedures are weak, or people's status after arrival remains uncertain.
The issue therefore concerns not only where control is exercised, but also how responsibility is divided among the states involved.