28 March 2012
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report and analysis
EU: safe and dignified, voluntary or forced repatriation to safe third countries
The European Union's policy on repatriating rejected asylum-seekers and "illegal" residents is now openly based on "voluntary" and "forced" repatriation to be carried out in a "safe and dignified" manner.
This is to be backed up by two other moves. First, the Declaration
that asylum-seekers from the ten EU applicant countries will
automatically be refused and returned because they are "safe"
countries (Justice and Home Affairs Council, 14-15 October).
Second, the Conclusions of the Seville EU Summit in June which
threatened trade and aid sanctions against third world countries
who refuse to accept readmission agreements - with the automatic
repatriation of their own nationals, people who may have passed
through their country on the way to the EU and any stateless
people in similar situations.
Applicant states "safe" third countries
The decision of the Justice and Home Affairs Council on 14-15 October to declare the ten EU applicant countries "safe" to return asylum-seekers is highly questionable. The United Nations High Commission for Refugees says that no country can be declared 100 per cent safe and that each application should be considered individually.
In its report of 23 October the UK Joint Committee on human rights concluded that: "in view of the well authenticated threats to human rights which remain in the states seeking accession to the EU.. we consider that a presumption of safety is unacceptable on human rights grounds".
This position is given added weight by the European Commission's own updated reports on the accession countries. The latest, for 2002, include the following conclusions: Estonia (use of force by police, arbitrary detention); Czech Republic (widespread discrimination against Roma); Hungary (degrading treatment by police, especially of Roma); Latvia (bad conditions at asylum detention centres); Lithuania (degrading treatment by law enforcement officials); Slovakia (degrading police treatment of people, especially Roma) and Slovenia (instances of the use of excessive force by police against people in custody, particularly Roma).
Readmission agreements and sources of migration
When it comes to readmission agreements there is no pretence
that the countries to which people are to be returned are "safe",
it is simply an "obligation" to readmit people as determined
by the EU. Third world countries who refuse, or who are "non-cooperative",
will face "appropriate measures" which could include
a "review" of the "allocation" of funds to
combat poverty (Seville point 11).
The Seville Conclusions go beyond the imposition of readmission agreements. The EU is demanding that any country which is the "source" of a "migratory flow" adopt a whole series of measures to prevent people entering and leaving (the first named countries are: Albania, China, Morocco, Russia and Turkey).
The measures include "joint integrated border management programmes [and] comprehensive control measures". Where these plans "do not provide the expected result" the country will be "invited" to cooperate and adopt further measures or face political and economic sanctions.
The new EU's plans for the expulsion of "illegal residents" is based on the post-11 September assumption that such people are a potential terrorist (or criminal) threat to the internal security of the EU. This has been reinforced by the rise of rightwing and racist political parties in EU Member States who are now in government in a number of countries. In order to marginalise them, mainstream political parties have adopted many of the policies advocated by the parties of the extreme right - with the main target being refugees, asylum-seekers and "illegal" residents. Their motivation has not been based on principle but rather to remove challenges to their hold on power.
- EU: safe and dignified repatriation
With a comprehensive expulsion policy taking shape deportations from the EU are set to rise dramatically. This analysis examines the Commissions Communication and EU plans to implement it
In April 2002, the Commission released a Green Paper on an
EU policy on "return" (expulsion, deportation or repatriation)
from the EU. In line with the Council of the European Union (the
15 EU governments) it says that the EU has to develop a detailed
policy on expulsion of migrants who do not have documents authorising
them to enter and reside or whose documents authorising them
to reside have expired ("irregular migrants"). This
was the first time that the Commission had issued a Green Paper
on any aspect of EU immigration or asylum law. The purpose of
EU "Green Papers" is to launch a wide-ranging public
discussion on whether the EU should have a policy on a particular
subject at all and what the content of that policy should be.
Usually, the Commission leaves a year or more after the submission
of the Green Paper so that there is time for national parliaments,
the European Parliament, civil society, EU consultative bodies
and national executives to comment on the issues.
For this Green Paper, the Commission organised a public hearing on 16 July 2002, at which civil society groups who came to speak were allotted the princely period of five minutes each to respond to the Green Paper. The deadline for submissions was 31 July 2002.
With the ink hardly dry on the Green Paper the Council of the European Union adopted a list of third countries (and criteria) with whom re-admission agreements (accepting the return of people) should be negotiated. The EU Summit in Seville, under the Spanish EU Presidency, on 21-22 June endorsed the plan in the Green Paper and half-formulated policies on expulsion.
On 11 July the incoming Danish EU Presidency circulated a draft programme on expulsion including "forced and voluntary return". It set the deadline for the adoption of a "Return/Repatriation Programme" at the November meeting of the Justice and Home Affairs Council. In June the German government put forward a resurrected proposal for a Directive on transit by air and expulsions (see below). On 14 October the Commission issued a formal Communication based on the so-called consultations.
"Return policy on illegal residents"
The Commission's Communication advocates the "return" (expulsion/repatriation) of all "illegal residents", that is, those who do not "fulfil the conditions for entry to, presence in or residence" in the EU. The objective is the adoption of a:
"general policy on the return of illegal residents, valid for all regions or countries of origin or transit"
This extends to those who asylum claim has been rejected, those who overstay their visas or residence permits and resident third-country nationals who pose a threat to national security or public order. It should be noted that people coming from the "white list" of countries (eg: USA, Canada, Australia and Japan) who do not need visas to enter are quite unaffected by this plan.
The argument in the Communication is, at times, quite tortuous in self-justification. It quite openly recognises that:
"where voluntary return fails, the forced return of illegal residents becomes a necessity.. The possibility of forced return is essential to ensure that admission policy is not undermined and to enforce the rule of law.. A credible policy of forced returns helps to ensure public acceptance for more openness towards persons who are in real need of protection, and for.. labour-driven migration"
"Labour-driven migration" is a reference to the
emerging EU policy whereby people with skills needed to maintain
EU economies are encouraged to come for fixed terms as distinct
from people fleeing poverty and persecution.
The Commission, in line with the Council, argues that:
"Third countries must readmit their own nationals unlawfully present in a Member State and, under the same conditions, nationals of other countries who can be shown to have passed through their territories before arriving in the EU"
The "smooth and timely return of illegal residents" is hampered, according to the Commission, by the "lack of willingness to return voluntarily" and "resistance to return".
The main problem for the EU in operating an expulsion policy is partly because third world countries are highly reluctant to accept people back and create the complex infrastructure needed for reception, housing, employment etc. This is compounded by the fact that many "illegal residents" do not hold identification papers from their country of origin - so, in turn, third world countries refuse to accept undocumented people.
The EU's main device for getting round this problem is to issue its own travel documents, the EU's laissez-passer. To this will be added the European Visa Identification System. When in place this will include the storage of an "electronic photo or other biometric identifier combined with the scan of the travel document shown by the visa applicant" on a "central database". The objective is to: "identify people without the need for their cooperation".
The idea of "joint return operations" is gaining currency too by the bringing together of people to be deported to a country from different EU states. Small numbers of returnees may be placed on normal flights including escorted and restrained (ie: tied down by some means) returns - providing passengers and especially the air crew do not object. Some EU states "use small charter jets in cases of non-compliant forced returns". However, larger charter flights are increasingly being used "with the necessary escorts", but this is costly "when the capacity cannot be fully utilised". The Commission says this:
"often happens due to the unavailability of the returnee because of absconding, illness or major resistance of the returnee or legal action at a very late stage to avoid removal"
So instead of flight from individual countries "joint operations" with "voluntary and forced returns" are to be encouraged (see below).
Overall the Commission's Communication is so totally in step with decisions already made by the Council it is hard to see what the Commission's role is, except perhaps to find some of the money to finance the plan.
EU Ministers declare applicant countries "safe" to send back asylum-seekers
The meeting of the EU's Justice and Home Affairs Council in Luxembourg on 14-15 October took two steps to ensure that thousands of asylum-seekers arriving in EU countries from central and eastern Europe can be sent straight back without their claim for asylum being considered.
The Declaration by EU Ministers (see below) says that from the "day of signature of accession treaties" the ten central and eastern European states due to join the EU in January 2004 will be considered "safe" countries of origin and that applications for asylum from nationals from those countries will be considered as "manifestly unfounded". The applicant states are expected to sign the accession treaties next spring.
The ten countries are: Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia.
The Justice and Home Affairs Council argues that all the applicant countries are "safe" and "democratic" and are committed to the European Convention on Human Rights and introducing the full justice and home affairs acquis (including the Schengen provisions).
The presumption that all the applicant countries are "safe" to send back asylum-seekers to is highly questionable. There have been a number of cases where it has been judged that, for example, it cannot be considered "safe" to return Roma to certain of these countries. Moreover, the presumption that proper democratic and legal standards are already in place in all the applicant countries is not borne out by the evaluations carried out by the Commission which says that much progress is needed before the justice and home affairs acquis is being fully implemented. In the implementation of the Schengen acquis (which is now part of the overall EU acquis) it is reported that this will not be fully implemented for years to come.
The Austrian proposal
In a linked demand the Austrian government put forward a more far-reaching proposal which the JHA Council agreed should be considered by the European Commission and that it should "report back to the Council as soon as possible". The Austrian government proposal calls for a binding Regulation on all EU Member States for "a European list of safe third countries" to which people could automatically be returned to be adopted by the end of the year.
The list of countries proposed by Austria covers the ten applicant countries due to join the EU in January 2004 plus Norway, Switzerland, Iceland, Bulgaria and Romania.
Source: Common European list of safe third countries, Note from the Austrian delegation, doc no 12454/02.
The Declaration by the JHA Council reads as follows:
"We, the Ministers of Justice and Home Affairs of the Member States of the European Union, having met in Luxembourg on 15 October 2002,
The negotiations with the Candidate States with which negotiations on accession to the European Union have been initiated have made considerable progress, in particular in the field of justice and home affairs;
Upon accession, those Candidate States will become bound by the Protocol on asylum for nationals of Member States of the European Union, annexed by the Treaty of Amsterdam to the Treaty establishing the European Community;
In the meantime, the Member States are resolved, as from the day of signature of accession treaties, to deal with applications for asylum lodged by nationals of those Candidate States, on the basis of the presumption that they are manifestly unfounded;
The exercise of any decision-making power of each individual Member State in asylum matters will take place with due respect of obligations under international law, and in particular obligations under the Geneva Convention relating to the status of refugees and the European Convention for the Protection of Human Rights and Fundamental Freedoms;
Declare the following:
Given the level of protection of fundamental rights and freedoms by the Candidate States, Member States agree to the presumption that Candidate States with which an accession treaty is being negotiated are safe countries of origin for all legal and practical purposes in relation to asylum matters, as from the date of signature of such accession treaty.
Accordingly, any application for asylum of a national of any such Candidate State shall be dealt with on the basis of the presumption that it is manifestly unfounded, without affecting in any way, whatever the cases may be, the decision-making power of the Member State concerned."
EU seeking readmission (repatriation) agreements with 11 countries
The meeting of the EU's Justice and Home Affairs Council (JHA) on 14-15 October received a report from the European Commission on progress being made to get readmission agreements with seven countries (Morocco, Sri Lanka, Russia, Pakistan, Hong Kong, Macao and Ukraine) and the drafting of negotiating mandates for a further four countries (Albania, Algeria, China and Turkey). The purpose of readmission agreements is to introduce an obligation on the third country to automatically readmit its nationals and stateless people coming from or having lived in that country.
The EU brings to bear economic (trade and aid), diplomatic and political pressure on third countries to sign readmission agreements which are described as "an extremely useful and efficient instrument in the fight against illegal immigration" (JHA Council press release, 15.10.02). The JHA Council emphasised the importance of an expected report from the European Commission on the financial cost of:
"- the repatriation of illegal immigrants and rejected asylum-seekers,
- for the management of external borders,
- for asylum and migration projects in third countries... in particular in order to conclude readmission agreements"
Although still awaiting this report the JHA Council concluded that:
"A combined action of the European Community and of Member States in the fight against illegal immigration will be much more cost-effective than providing support to a growing number of illegal immigrants"
In simple terms the Council of the European Union is seeking to justify in terms of "cost-effective" measures, not of rights and obligations: the automatic return of asylum-seekers from third countries through readmission agreements or to EU applicant countries in central and eastern Europe (see: EU Ministers declare applicant countries "safe" to send back asylum-seekers) plus the tracing and repatriation of "illegal" immigrants living in the EU combined with effective external border controls. This is "much more cost effective" than having to entertain lengthy asylum procedures and the cost of housing and looking after people who have fled from persecution and poverty.
The report from the European Commission on: "Community readmission agreements - state of negotiations" (for text see below) dated 10 October shows that of the state of play with the seven selected countries as follows:
1. Morocco: although the EU's demand for a readmission agreement was formally sent in May 2001 there has been "no formal response" and after two informal meetings this year it is concluded that: "Morocco did not agree to launch formal negotiations".
2. Pakistan: although the EU's demand for a readmission agreement was formally sent in April 2001 there has been "no formal response" and no informal meetings.
3. Russia: although the EU's demand for a readmission agreement was formally sent in April 2001 there has been "no formal response" despite "repeated contact at diplomatic level".
4. Sri Lanka: a final text was "initialled" in Brussels in July 2002 and the Commission is starting "the two-step ratification procedure" (agreement by both sides).
5. Hong Kong: this is likely to be "the first ever Community readmission agreement". The agreement was initialled in November 2001 and on 23 September 2002 the Commission was authorised to sign on behalf of the EU.
6. Macao: agreement due to be "initialled" on 18 October 2002.
7. Ukraine: text sent in August 2002 and formal negotiations expected to start in Kiev in November.
Source: Readmission agreements, from the Commission to the Council: 12625/02, 10.10.02; Criteria for the identification of third countries with which new admission agreements need to be negotiated - draft Conclusions: 7990/02, 16.4.02.
Afghanistan "safe" for return
The EU Justice and Home Affairs Council on 28-29 November is expected to adopt an "EU repatriation plan for Afghanistan" which for Afghanistan":
"includes voluntary and forced return albeit with voluntary return as the preferred option"
The proposal is that the European Commission will chair a committee (ACRG, Afghanistan Coordination Return Group) to coordinate expulsions by EU Member States. The Commission will provide part of the funding at the Afghanistan end and, with Member States, arrange "joint flights" which may be contracted out to international organisations like the IOM (International Organisation on Migration).
The outstanding problem to be resolved by the November meeting is "how best to obtain the consent of the Transitional Government of Afghanistan" both to the repatriations and to the EU issuing its own Laissez-Passer travel documents.
The whole plan is based on "repatriation by air to Kabul" and (almost in holiday-like language) "onward travel to the intended destination".
The "Repatriation model" is defined as:
"The preferred model for return is by voluntary return. Afghans refusing to avail themselves of voluntary repatriation may after a passage of reasonable time be repatriated through forced return by those countries wishing to do so"
In abstract bureaucratic language the plan says that should take place "in safety and with dignity and in full knowledge of the facts", that is, about "their repatriation and reintegration in Afghanistan". After being air-lifted to Kabul there will be "appropriate reception facilities and "full board and lodging for up to X days after arrival" (the "X" is in the original and is a cost dependent factor). Then "appropriate onwards transport" will be arranged and "where relevant" the "escort of the returnees" (whether this is intended for their safety or to ensure that they go where they say they are going is not clear).
Finally, the EU is provide "Information for returnees" which will include:
"adequate counselling regarding risks of mines and unexploded ordinance"
Transit by air between EU states
Another proposal resurrected in the EU expulsion plans is one from the German government, put forward on 12 April 1999, for a Joint Action (now transposed into a Council Directive) on "Assistance in cases of transit for the purpose of expulsion by air" (doc: 7264/99).
A UK Home Office Explanatory Memorandum produced on 24 September 2002 says that the proposals on detention and "the use of legitimate force" are not covered by current laws. However, the UK government supports "delivering higher numbers of sustainable returns" through "safe, dignified removals" but is worried about the costs.
The 1999 proposal was cleared by the UK parliament in May (House of Lords) and June (House of Commons) 1999 and now, two and a half years later, no wider consultation is to take place with civil society as: "This is an operational matter".
There was no normal EU-wide consultation before the German proposal was drawn up.
The proposal requires any Member State to assist in the expulsion of a migrant whenever requested by another Member State. This will include detaining and:
"using legitimate force to prevent or end any attempt by the third-country alien to resist transit" (Article 4.3)
Each Member State will automatically have to accept the word of the Member State requesting assistance that there is no risk of torture, death or other inhuman or degrading treatment for the migrant in the state of destination. The requested state would not be obliged or even permitted to consider whether this was in fact the case, as long as the officials of the requesting state have ticked a box on a form asserting that there is no such risk.
There is no obligation on the requesting state to limit requests to certain situations, or to consider human rights issues before deciding to expel and requesting assistance of another Member State. Moreover, Article 6 of the proposal fails to mention that observation of the European Convention on Human Rights and other international human rights treaties (the UN Convention Against Torture and the UN Covenant on Civil and Political Rights) must also have higher priority than the Directive.
Joint EU expulsion flights for "group returns"
The French government is taking the lead on a project to:
"rationalise expulsion measures, in particular by means of group returns" (doc no: 11388/02)
The idea of moving migrants to be expelled around the EU for flight back to a particular country is not new but this proposal (backed by the Council and the Commission) is intended to "rationalise" this process.
France has opened talks with Germany and the UK on the possibility of joint "European charters". The French Ministry of the Interior with responsibility for expulsion (DLPAJ/DCPAF Directorate of Civil Liberties and Legal Affairs/Central Border Police Directorate) is to organise monthly meetings to work out the procedure - which has to include:
"legal framework; operational constraints (security rules during flights, composition of escort, requests to overfly third states etc); diplomatic constraints (issue of consular [EU] laissez-passer, reception by the authorities of country of destination etc)"
International Organisation on Migration (IOM)
Interestingly all references to the IOM in the Commission's Green Paper (April, 2002) are omitted from its final Communication (October, 2002) even though it carried out 87,628 voluntary returns from the EU in 2000. This may be because it has become the target of protests and some EU member states are reluctant to draw attention to the major role played in repatriation by an international organisation which is not accountable to the EU (see Statewatch vol 10 no 3/4).
The organisation was created in 1951 by the USA and Belgium as the "Provisional Intergovernmental Committee for the Movement of migrants from Europe". It is a product of the Cold War period helping refugees from Hungary in 1956 and Czechoslovakia in 1968. During this period it acquired a nickname as a "travel agency" and in 1989 with the fall of the Berlin Wall was renamed the IOM.
The IOM now has 93 member states and 36 Observer states with 14 EU states (all except Spain) and 8 of the 10 EU applicant states. It has 19 regional offices and over 100 field offices.
The IOM, under its "Assisted Returns Service", runs:
"a comprehensive migration management system for the benefit of all parties"
and in working with "migrants and governments" it:
"assists rejected asylum seekers, trafficked migrants, stranded students, labour migrants and qualified nationals to return home on a voluntary basis. IOM also works with other organisations helping repatriate refugees"
Its stated policy is that:
"the migrant's free will is expressed at least through the absence of refusal to return, eg: by not resisting to board transportation or not otherwise manifesting disagreement"
Where physical force has to be used on the migrant this is:
"the responsibility of national law enforcement agencies"
However, tests of "voluntariness" is open to question as far as the role of national governments are concerned. Evidence from the Netherlands presented to the EU earlier this year suggests there is a degree of pressure on asylum applicants (doc no: 6660/02). In the Netherlands the "alien" is told they do not have any future prospect in the country if their application fails. The first stage is "preparation and orientation" for return to the "country of origin" which is "initiated" when a negative decision is made in the first instance of the application - that is, before any appeal.
The second stage which follows:
"involves the actual return journey.. the IOM is the most appropriate partner to organise [it]."
In the UK the "Voluntary Assisted Returns Programme" (VARP) run by the Immigration and Nationality Department of the Home Office is "implemented by the IOM and supported by Refugee Action". Between September 2000 and August 2001 a total of 1,033 asylum-seekers were returned through VARP, the majority to Albania and Kosovo. An "independent evaluation by Deloitte and Touche" found "a high level of user-satisfaction" based on a sample of 65 migrants.
The IOM has been targeted by a number of activist groups - in Ukraine, Finland, France, Germany, Czech Republic and the UK - who view its role as implementing unacceptable EU policies. The Noborder camp in Strasbourg in July called for an international campaign against the IOM and a protest outside the IOM office in Helsinki on 11 October closed it down for the day (see: www.noborder.org/iom). In the Sangatte, France detention centre a IOM video was shown to dissuade people from coming to the UK, apparently 17 would-be asylum-seekers out of 17,500 were persuaded to return home (CARF, Autumn 2002).
How many are being expelled and what happens to them?
Hard figures are hard to come by. A set of figures produced in May 2000 (EU doc no: 7941/00) gives a total of 166,909 people expelled from EU countries and Norway. However, there is no breakdown between voluntary and forced expulsions and an indeterminate number were simply being re-cycled within the EU - returned to another EU country from which they arrived. The Commission's Communication (above) promises that figures will be provided in 2003.
The largest number were expelled from the UK, 45,100, followed by Germany (32,223), Austria (20,027), Netherlands (12,204) and Italy 12,036).
Astonishingly not a single public report is available on what happens to migrants when they arrive wherever they are taken. It appears that the EU collectively feels no responsibility for the lives and welfare of people it expels.
Defining the facilitation of entry, transit and residence
A proposal put forward by France under its Presidency of the EU in July 2000 finally went through the Justice and Home Affairs Council on 14-15 October 2002. The original proposal was roundly criticised by civil society and national parliaments. The European Parliament was "consulted" and on 15 February 2001 rejected the proposal. The proposal was effectively dead for 18 months but in the post-11 September plans to remove "illegal" migrants from the EU it was resurrected and adopted.
The reason civil society and the European Parliament called for the French proposal to be rejected is that it makes it an offence for:
"any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State..." (Art 1.1.a)
There is no test as to whether these acts are undertaken for financial gain. Thus help from relatives, extended families and friends and support networks are simply lumped together with "organised" networks who bring people into the EU in exchange for money.
Any person who "for financial gain, intentionally assists" a migrant to reside in the EU is also guilty of an offence. Thus a person who runs bed and breakfast or a family where the migrant(s) contribute to the household costs could be caught under this new offence.
The scope of Article 1 is extended by Article 2 to a person who is "the instigator.. accomplice or who attempts to commit" the offences in Article 1.
The only concession the Council has made is in Article 1.2 where it says that Member State "may decide" not to prosecute where the "aim of the behaviour is to offer humanitarian assistance" to enter and transit under Article 1.1.a (but not to 1.1.b on residence). This option for EU governments at national level may or may not be exercised and the interpretation of "humanitarian assistance" will be down to the courts.
The "sanctions" laid down in an accompanying Framework Decision are for "effective, proportionate and dissuasive sanctions" (Framework Directive on the penal framework to prevent the facilitation of unauthorised entry and residence, doc no: 10075/01).
Sources: Communication from the Commission, On a Community return policy on illegal residents, COM(2002) 564 final, 14.10.02; Presidency Note, Afghanistan return programme, doc no: 12605/1/02, 8.10.02; Assistance in cases of transit for the purposes of expulsion by air, German EU Presdiency, doc no: 7264/99, 12.4.99; Initiative of the Federal Republic of Germany for a Council Directive on assistance in cases of transit for the purpose of expulsion by air, doc nO: 10386/02, 27.6.02; Explanatory Memorandum on proposal for a Council Directive in cases of transit for the purposes of expulsion by air, UK Home Office, 24.10.02; Proposal for projects, French delegation, doc no: 11388/02, 29.7.02; Action Programme for Return/Repatriation based on the Commissions Green Paper on a Community return policy on illegal residents, ; Action Programme for Return/Repatriation based on the Commissions Green Paper on a Community return policy on
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