Airport Casualties: Non-Admission and Return Risks at Times of Internalized/Externalized Border Controls (2015)
Amnesty International found that deportees to Eritrea are routinely subjected to severe human rights such as arbitrary detention and torture. Many are arrested immediately upon arrival, and are questioned as to what they said about Eritrea in their asylum interviews: ‘Under torture, or threat of torture, returnees have been forced to state that they have committed treason by falsely claiming persecution in asylum applications. Leaving the country is itself considered by the authorities as an act of treason’ (2009, 4).
Blondel, Conciatori, Preiss, Sayos Monras, Seiller, Uhlmannsiek (Sciences Po Paris)
Post-deportation risks: Criminalized departure and risks for returnees in countries of origin (2015)
This country catalogue provides an overview of available sources documenting post-deportation risks. With deportations, the catalogue refers to both returns after a removal order and a decision of non-admission. Risks can include monetary extortions, detention, imprisonment, physical violence or torture. The catalogue focuses in particular on risks that returnees face in the hands of state agents upon their return from Schengen countries to their countries of origin. Some of these return risks are connected to the criminalization of irregular departure projects in countries of origin. Which emigration countries prosecute their own nationals for failed attempts to emigrate illegally? In which countries can i) deportees, ii) rejected asylum seekers and/or ii) non-admitted travellers face a) monetary extortions, b) detention/imprisonment and/or c) physical violence upon arrival at the airport in their country of nationality? The findings in the country catalogue are based on a review of human rights reports and on keyword searches in country of origin reports. The research has revealed evidence about the criminalization of irregular departure projects in Algeria, Cameroon, Cuba, Egypt Iran, Macedonia, Morocco, North Korea, Pakistan, Senegal and Tunisia. Returned migrants may face fines and/or monetary extortions in Albania, Cameroon, Congo, Cuba, Egypt, Eritrea, Haiti, Iran, Morocco, Pakistan, Senegal and Tunisia. Moreover, returned migrants may encounter detention and/or imprisonment in Albania, Algeria, Cameroon, Cuba, Congo, Egypt, Eritrea, Haiti, Iran, Morocco, North Korea, Pakistan, Senegal, Sri Lanka and Tunisia. Finally, returned migrants may have to endure physical violence in Albania, Congo, Cuba, Egypt, Eritrea, Iran, North Korea and Pakistan.
No direction home begins by analysing the contradiction in policy between the designation of countries as unsafe for return, and the level of support for those who cannot, consequently, be returned. It goes on to look at the context within which the government categorises countries as ‘safe’ to return; despite overwhelming arguments to the contrary. In doing so, attention turns to the use of memorandums of understanding between the UK and particular states in order to legitimise removal policies. It finally considers the role of the International Organization for Migration (IOM) in returns policies; placing emphasis upon both the role of the organisation in administering removals, and its role in ensuring that support is granted to those who cannot leave the country.
‘The present article revisits international criminal law as a tool for sanctioning the most patent abuses against migrants. Although deportation is traditionally considered as an attribute of the state inherent to its territorial sovereignty, this prerogative may degenerate into an international crime. The prohibition of deportation has been a well-established feature of international criminal law since the Nuremberg trials following the Second World War. This prohibition has been further refined over the past 15 years by an extensive jurisprudence of the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court. Against such a background, this article demonstrates that, in some circumstances, deport- ation may amount to a war crime, a crime against humanity or even a crime of genocide, depending on the factual elements of the case and the specific requirements of the relevant crime. This article accordingly reviews the constitutive elements of each crime and transposes them into the context of migration control. It highlights in turn that, although its potential has been neglected by scholars and practitioners, international criminal law has an important role to play for domesticating the state’s prerogative of deportation and infusing the rule of law into the field of migration. The article concludes that there are reasonable grounds for asserting that a crime against humanity would have been committed in the Dominican Republic and Australia with regard to their deportation policy.’
In 2004, David Corlett, a freelance writer and journalist met rejected asylum seekers whom Australia had returned to Iran, Pakistan and Afghanistan.
Deportation and the Micropolitics of Exclusion: The Rise of Removals from the UK to Sri Lanka (2012)
The forced removal of foreign nationals has been a relatively uncommon occurrence in liberal democracies, at least since the 2nd World War. This can be explained by both the inherent violence of this process, which raises widespread public opposition, and by the geopolitical difficulties it raises, as there must be agreement of both countries concerned. In recent years these problems appear to have been partially overcome and since 2005 a ‘deportation turn’ is evident across the European Union as deportations increase. This paper focuses on the international dimension to this increase, following work investigating deportation as an essentially biopolitical process of international governance of populations. This approach is developed in an analysis of the geopolitical impacts of that management process. The paper uses empirical research with Sri Lankan migrants who left the UK either as a result of force or voluntary returns policies to explain this development. It identifies the changing strategy of the deportation process, particularly recent attention to the negotiation of bilateral and multilateral readmission agreements and the role of international organisations as mediators as key contributions to an explanation for the rise in deportations.
Costello, C. & M. Mouzourakis
In the wake of the NS/ME judgment of the CJEU legal uncertainty prevailed as to the significance of the reference to ‘systemic breaches’, and what sorts of evidence was required to rebut the presumption of safety accorded to Dublin states. The Tarakhel judgment of the ECtHR has put an end to that uncertainty. The ECtHR holds that there is no additional requirement of ‘systemic breaches’. Instead, Costello and Mouzourakis find reasserted the duty to do ‘thorough and individualised’ assessment, and to suspend removal if the relevant risk of inhuman and degrading treatment is arguable. In addition, the authors argue that a fundamental rethink of the Dublin regulation is required.
Danish Refugee Council
Recommendations for the Return Reintegration of Rejected Asylum Seekers: Lessons Learned from Kosovo (2008)
Based on various activities aimed at facilitating and assessing sustainable return to Kosovo, this report describes valuable lessons learned and outlines a set of best practices for NGO-assisted mandatory return.
Debono, D. et al.
Humane and Dignified? Migrants’ Experiences of Living in a ‘State of Deportability’ in Sweden (2015)
By analysing migrant experiences of living in Sweden under the threat of deportation, this book contributes to our understanding of the effects of deportation,or forced return, on people. Deportation is increasingly being discussed from a social and global justice point of view, as well as from a human rights point of view. But what is a ‘humane and dignified’ deportation? This book does not claim to answer this question, but merely contributes to the debate through an analysis of migrant narratives.
Dolan, C., Schuster, L., and Merefield, M.
In this paper, the authors outline UK law on deoportation before considering some limited data on deportations from the UK to Uganda. Finally, they suggest some of the costs that should taken into account. This is a special report written on behalf of the Refugee Law Project at Makerere University.
Edmund Rice Center
After hearing stories about the death, disappearence, and torture of failed asylum seekers deported from Australia, the Edmund Rice Centre and several partners set out to investigate. The results of their rigerous research been ‘disturbing’. They found evidence of deported asylum seekers being given false travel documents and being returned to environments. Often those who face danger on return are persecuted for the very reseaons their refugee claim was based. This suggests that refugees are being refouled. The reports conclude by exploring whether Australia’s pratices have been consistent with their international legal obligations and traditional values. The answer, unfortunately, seems to be no.
European Court of Human Rights
In its two Chamber judgments, in the cases of A.A. v. France (application no. 18039/11) and A.F. v. France (application no. 80086/13), the European Court of Human Rights held, unanimously, that there would be a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the European Convention on Human Rights if the applicants were deported to Sudan. The cases concerned proceedings to deport to Sudan two Sudanese nationals – A.A., from a non- Arab tribe in Darfur, and A.F., from South Darfur and of Tunjur ethnicity – who had arrived in France in 2010. With regard to the general context, the Court had recently observed that the human-rights situation in Sudan was alarming, in particular where political opponents were concerned, and that merely belonging to a non-Arab ethnic group in Darfur gave rise to a risk of persecution. The Court noted that the situation had deteriorated further since the beginning of 2014. The Court found in both cases that were the orders to deport the applicants to Sudan to be enforced, the applicants would, on account of their individual circumstances, run a serious risk of incurring treatment contrary to Article 3 of the Convention.
European Court of Human Rights
The European Court of Human Rights held unanimously that the applicant’s forcible return to China would give rise to a violation of Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights; andvthat there had been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention in a detention centre for aliens and on account of the conditions of his detention at a police station. The case concerned, in particular, the complaint by a man residing in Russia and wanted as a criminal suspect in China that if forcibly returned to China, he would be at risk of being convicted and sentenced to death.
Forced Migration Review, Mini feature on post deportation risks and monitoring (2017)
Alpes, Jill; Blondel, Charlotte; Preiss, Nausicaa; Meritxell Sayos Monras
What happens to people who are deported after their asylum applications have failed? Many who are deported are at risk of harm when they return to their country of origin but there is little monitoring done of deportation outcomes.
New research has documented the outcomes for young asylum seekers forcibly removed from the UK to Afghanistan. Its conclusions highlight both the difficulties facing the returnees and the need for sustained monitoring.
Onyoin, Charity Ahumuza
Neither the UK nor Uganda monitors what happens during and after deportation by the UK of failed Ugandan asylum seekers, despite evidence of violence and grave abuses of individuals’ human rights.
Tunaboylu, Sevda and Alpes, Jill
People who return to Turkey under the EU-Turkey deal are detained and many risk onward deportation without access to legal aid and international protection.
This paper reviews existing norms and best practice in removals procedures and asylum/appeals procedures relevant to the removal process in chosen countries. It is informed by regional and international standards and refers to the particular situation in the 15 pre-enlargement EU member states, Norway, Switzerland and Australia and with some references to law and practice in New Zealand and Canada. It concentrates on standards that impact the removal process, in binding international and regional treaties, regional directives and recommendations, UNHCR Excom conclusions and other guidelines.
Gibney, M. J.
In this article I explore why, despite the fact that it seems to represent the epitome of forced migration, deportation (the quotidian practice of lawful expulsion) is generally ignored by forced migration scholars. My key claim is that deportation is implicitly deemed a legitimate form of forced migration. Forced migration is not simply a descriptive term; it is also typically an evaluative one. Deportation is treated differently because it does not violate the key principles of a liberal-statist world order. I begin this piece by explaining why deportation is a phenomenon of such significance as to warrant attention. I then examine the normative framework (liberal-statism) underlying (most) studies of forced migration. I conclude by arguing that, even if one accepts the moral validity of this framework, the boundaries between deportation and other types of forced migration are often blurred, challenging the assumption that deportation can safely be ignored by scholars.
Gladwell, C. and Elwyn, H.
Broken Futures: Young Afghan Asylum Seekers in the UK and on Return to Their Country of Origin (2012)
The authors work for the London-based Refugee Support Network. In this article they interview Afghan youth who entered the UK as unaccompanied minors many of whom were returned to the Afghanistan. They argue that despite the UK’s assement that Afghanistan is now ‘safe’ to return to, many of these youth’s experience would suggest otherwise.
This article, covering the period 2003–2010, is concerned with those Iraqis whose asylum claims in the UK have been rejected in recent years and who have found ‘nowhere to run’. A deterrence-based UK immigration regime has undermined many of their basic rights since the start of the war. And despite wide public knowledge about the dangers of return to Iraq, failed Iraqi asylum seekers are being made destitute, detained and even forcibly deported back to Iraq. From 2007 onwards, deportations on commercial and military flights increased, with deportees facing torture, disappearance and threats of violence upon their return. ‘Deterrence’ claims casualties in the UK, too, with Iraqis dying from homelessness, suicide, medical neglect and despair. Iraqi refugee organisations, the UNHCR and the European Court all call for an end to deportations to Iraq, yet the UK government refuses to listen.
This report discusses the fate of refused Sri Lankan asylum seekers detained and removed from Australia. The process of detention and removal draw attention to individual returnees and can lead to arrest, interrogation, possible torture and harassment upon return to Sri Lanka.
Human Rights Watch
United Kingdom: Halt Deportation Flight to Sri Lanka. Urgently review Tamil Allegations of Torture (2012)
Human Rights Watch (HRW) has published a document on the situation of rejected asylum seekers in Sri Lanka. The document gives an account of Ethnic Tamils being subjected to arbitrary arrest, torture and other ill-treatment by local authorities after their arrival in Sri Lanka. Having submitted the document to the UK Immigration minister HRW urges the UK government to impose a moratorium on returns, to review relevant UK policies and to introduce new risk assessment guidelines. Although the UK Border Agency acknowledges reports of torture being a widespread practice in Sri Lanka, a blind eye is turned to evidence that Tamils deported to Sri Lanka risk torture on arrival, according to HRW.
Independent Asylum Commission
The Independent Asylum Commission found ‘that there is no monitoring of those returned once they have left the UK’ (Finding 4.4, 2008, 27). They argue that such monitoring would help improve decision-making in the refugee status determination process and should inform Country of Origin information. The Commission thus encourages that a system be developed ‘which enables some record to be maintained of the subsequent history of refused asylum seekers after return to their country of origin. … Where there has been persecution on return, knowledge of such persecution would contribute towards better decision-making in the future’ (2008, 27-28).
Bernadette Iyodu, formerly a senior legal advisor at the Refugee Law Project in Uganda asserts that deportees are often handed over to the security organisations upon arrival. Suspected political dissidents are detained and questioned but political ideology is not always the instigator for mistreatment. Anyone who has claimed asylum in the West is immediately regarded as a threat. Detention can last months and a number of people have disappeared from custody. Iyodu has also called for an ‘independent monitoring body’ to be established.
Based on research in the UK and the DRC between 2006 and 2011, Justice First compiled a report detailing the human rights violations faced by 17 Congolese asylum seekers after they had been removed from the United Kingdom. Justice First found that they had been harassed, imprisoned and tortured by state authorities upon return. Two returnees disappeared altogether. Justice First calls for ‘[a] system to monitor the post return experience of Congolese returnees to be established in order to inform policy’ (2011, 10).
Karamanidou, L. and Schuster, L.
This paper offers an overview of the international legal instruments governing deportation, before then looking at the tension between these and instruments that have developed at a regional level – specifically Europe. It concludes by pointing out some gaps in these instruments. This is a special report written on behalf of the Refugee Law Project at Makerere University. National Preventive Mechanism.
The article of John Thomas Leveille reveals that Canadian authorities deport Burundian refugees even if there is ample evidence that they will get persecuted once returned to their home-country. Especially high-profile refugees such as journalist and members of the Burundian opposition party MSD are at risk of serious human right violations and persecution.
Migration Law Clinic VU Amsterdam
Bes, D., De Lange, J., Sedilekova,Z., et al., “Assessment of the risk of refoulement under Article 3 ECHR in cases of persons returning to Somalia” (2014)
This expert opinion addresses the following topics: assessment of the risk of refoulement in Somalian asylum cases, the internal flight alternative in the context of Article 3 ECHR, internally displaced persons camps in the context of Article 3 ECHR and assessment of the risk of refoulement upon return to al-Shabaab territory.
Migration Law Clinic VU Amsterdam
Indirect-Refoulement of J.W. to Somalia and the Admissibility of Canada as a Safe Third Country (2015)
J.W. is a Somali national seeking refuge in the Netherlands who faces a potential risk of chain refoulement from Canada to Somalia. A particularity of J.W.’s case is that Canada already once attempted to send him to Somalia, thereby ignoring the view of the UN Human Rights Committee on his case. This Committee found that J.W. may, due to his personal circumstances, face torture and inhuman, cruel or degrading treatment upon return to Somalia. J.W. complains before the European Court of Human Rights that his expulsion to Canada would (indirectly) lead to a violation of Article 3 of the European Convention on Human Rights. This expert opinion deals with the issue whether Canada is a safe third country to return J.W. to. The expert opinion addresses the following three sub-aspects in the particular case, which the European Court will need to engage with in order to decide in the case pending before it: The current situation in Somalia and whether a return of J.W. to Somalia would constitute a violation of the non-refoulement obligation inherent in Article 3 ECHR; The guarantees that Canada needs to provide in order to be considered safe to return J.W. to; and whether and if so, in how far the European Court of Human Rights could and should take the Human Rights Committee´s views into account in its present judgment.
Ministry of Justice
This annual report 2012-13 raises concerns about the treatment of migrants in the UK during the removal phase, stating that the use of force and restraint is disproportionate. The report also cites examples of unprofessional behaviour by escorts who used very offensive language in front of migrants detained. The monitoring body also shows concern about the fact that there are no recognised safe procedures for the use of restraint in an aircraft when a migrant is being removed from a country. According to the report, the UK Border Agency should ensure that escorting staff receive full accredited training on the use of force and on child protection.
The report also states that there are cases of migrants experiencing aggressive behaviour on arrival by officials in their destination country. There are also cases of a lack of information on the migrants’ home country to help prepare for return. According to the report, there has been a 4% increase in the number of people entering immigration detention centres when compared to the previous year. Of those leaving the immigration detention centres, 60% were removed from the UK.The UK’s National Preventive Mechanism was established to monitor the UK’s obligations under the UN Optional Protocol to the Convention against Torture. The report covers the period April 2012 to March 2013 and examines other places of detention, not only immigration detention.
Mole, N. and Meredith, C.
There are many individuals whose situation falls outside the scope of the 1951 Geneva Convention, of the UNCAT and of the EU measures, but who are protected by the ECHR. This handbook is divided into three parts. First, the handbook looks at the extraterritorial application of the Convention in connection with the risks faced on expulsion to the pro-posed country of destination. This section explores the possible future extraterritorial application of those Convention articles on which no ruling has as yet been made. Second, the handbook examines the application of the Convention to asylum issues other than the extraterritorial application of the Convention’s provisions. Third, the handbook concerns the subsidiary protection of the Convention organs. In many European countries a right of individual petition to an international tribunal exists only under the ECHR. The protection which the Convention organs offer to asylum seekers and refugees is consequently the most important safeguard against the interests of the state eclipsing the human rights of individuals.
One of the earliest pieces written on the issue of returning failed asylum seekers. Noll examines the problems involved in the returns process–that is the physical removal of an asylum seeker from the deporting state to the country of origin. Often problems include asylum seekers who are unwilling to return voluntarily, sending states engaging in brutal removal tactics, and receiving states refusing to accept returned asylum seekers. Noll concludes by making a number of recommendations to improve the removal process, one of which includes monitoring of all stages of the process from the actual act of return by the returning state and behavior of the receiving state once an asylum seeker is under their authority: “Voluntary compliance by all three actors would be enhanced, if a consistent monitoring of current practices by neutral and impartial actors took place. With regard to returning states, monitoring would range from the scope of protection offered under national law, the quality of decision making, the duration and conditions of detention to actual expulsion practices. With regard to countries of origin, monitoring would embrace the exercise of the right to return as well as the actual reception of the individual concerned. For reasons of credibility, such monitoring could be carried out by international organisations and non-governmental organisations (NGOs) in cooperation. The transparency attained by monitoring would benefit states as legitimising devices, while individuals would be able to put greater trust in the actual legality of state practice” (1999:50).
A legal analysis of standards for post-deportation monitoring.
Podeszfa, L. and Manicom, C.
Although the fate of deported asylum seekers remains largely undocumented, a number of organisations have compiled evidence that the human rights of refused asylum seekers are being violated upon return. Deportees are often arrested, put in prison, and tortured. Some are charged with treason; some disappear altogether. Using the example of the United Kingdom, this article argues that such deportations amount to refoulement, and must therefore be monitored. Importantly, more and better documentation of these cases may help influence asylum policies.
Podeszfa, L. and Vetter, F.
Violating the Rights of Deportees: Why Some Deportations to African States Amount to Refoulement (2012)
The authors argue that UK cuts to legal aid can lead to refoulement.
Schneider, A. et al.
The report includes contributions from Journalist, advocates and medical practitioners that examine the effects of the German Asylum law. The report also illuminates the situation of Roma in Macedonia in general and of deported Roma or those living in a state of deportability, in specific. The researchers investigated the Romas situation by conducting personal interviews with deported people and NGO employees that work for an improvement of the Romas Human Rights situation and for the improvement of the Romas situation in the medical care system in Macedonia and Germany.
In 2014, The German Government classified Serbia, Macedonia, and Bosnia- Herzegovina as secure countries of Origin. As a consequence, the protection quote for Romas originating from those countries decreased remarkably thought the evaluation of the country as secure lowered the political credibility of the asylum claims of those people. Hence more Romas get deported from Germany back to Macedonia, were they experience serious human rights violations, extreme discrimination in the labour-market, in the health and education system as well as direct offences by the police. In Macedonia the great majority of the Romas live in un-registered housing, territorially marginalized under very poor sanitary conditions. Summarized, the report gives evidence about the liminal situation of many members of the Roma community, deprived of the possibility to stay and belong anywhere.
Schuster, L. and Bloch, A.
Deportation, detention and dispersal have formed an occasional part of Britain’s migration regime throughout the twentieth century, though they tended to be used in response to particular events or “crises”. By the end of the twentieth century, however, deportation, detention and, most recently, dispersal have become “normalized”, “essential” instruments in the ongoing attempt to control or manage immigration to Britain. This article outlines the use of detention, deportation and dispersal in the twentieth century exploring how they have evolved and then become an integral part of the migration regime into the twenty-first century. Where appropriate, British practices are compared with those of its European neighbours, where to differing degrees, deportation, detention and dispersal have also become everyday practices. In examining these practices in Britain, we consider the rationale and stated aims of their employment, as well as describing some of the consequences, where known, of detention, deportation and dispersal.
Schuster, L. and Majidi, N.
Deportation, understood as the physical removal of someone against their will from the territory of one state to that of another, has moved to the forefront of academic and policy agendas. Although there is a growing literature on legislation and policy, there is very little in-depth data on what happens post-deportation. In this article, we examine possible post-deportation outcomes. We argue that, whatever reasons existed for people to migrate in the first place, deportation adds to these and creates at least three additional reasons that make adjustment, integration, or reintegration difficult, if not impossible. These include the impossibility of repaying debts incurred by migration, the existence of transnational and local ties, the shame of failure, and the perceptions of ‘contamination’. We draw on a mixture of quantitative and qualitative data gathered in Europe and Afghanistan to argue that many deported Afghans attempt and succeed in re-migrating.
Simpson, Gerry (Human Rights Watch)
‘This report—based on 115 interviews with refugee returnees in Afghanistan and Afghan refugees and undocumented Afghans in Pakistan, and further corroborated by UN reports that present the reasons thousands of Afghans gave for coming home—documents how Pakistan’s pressure on Afghan refugees left many of them with no choice but to leave Pakistan in 2016.’
The return of persons found not to be in need of international protection to their countries of origin: UNHCR’s role (2010)
Guidance Note on: Safeguards Against Unlawful Or Irregular Removal Of Refugees And Asylum-Seekers (2014)
This Guidance Note, published by the United Nations High Commissioner for Refugees in January 2014, is a response to the recent increase of instances of ‘unlawful or irregular removal of refugees and asylum seekers’; particularly the removal of refugees and asylum seekers from host States in Europe, Central Asia and parts of Africa to their country of origin. Seeking to prevent States’ refoulement of refugees, this note reminds States of their principle obligations as signatories to the 1951 Convention and 1967 Protocol to ensure refugees and asylum seekers are protected against unlawful or irregular deportation.
The guidance note defines the measures host States should take to prevent unlawful removal and their responsibility to respond in the instance of unlawful deportation of asylum seekers and refugees. The note proclaims that where an asylum seeker or refugee has already been removed the host State is obliged to remain responsible for the individual once they have been removed and should take immediate actions to locate the deportee and to put an end to the violation and allow the individual to return to the host State if they are able and wish to do so.
A short update on Waging Peace’s previous reports, listed below, on the risks of forced return to Sudan. This report consists of several testimonies from returned asylum seekers who experience ill-treatment and torture upon their return to Sudan.
Waging Peace and Article 1
The long arm of the Sudanese regime: How the Sudanese National Intelligence and Security Service monitors and threatens Sudanese nationals who leave Sudan (2014)
Compiled over the last year and a half, this research provides a new assessment of the risk of returning to Sudan for those who are forcibly sent back. It looks at the surveillance by the NISS on nationals outside Sudan and the impact such activity has on Sudanese who return to their country, building on Waging Peace’s September 2012 report ‘The Danger of Returning Home’. In this it was predicted that further cases of intimidation and human rights abuses by the Sudanese security services would emerge. This report includes testimonies from eleven individuals that sadly confirm that prediction. They testify that Sudanese in the UK are being monitored by the Sudanese government and that they have been asked about their activities in Europe while being interrogated in Sudan.