Blog post written by Dr Izabella Majcher, a Refugee Law Initiative Research Affiliate specialised in EU immigration and asylum policy. Izabella is a researcher at the Global Detention Project and a volunteer visitor to immigration detainees with the Ligue Suisse des Droits de l’Homme. She holds a PhD in international law from the Graduate Institute of International and Development Studies (IHEID) in Geneva. This blog forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3(1): No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
Objective 21 of the Final Draft of the Global Compact for Safe, Orderly and Regular Migration (GCM) addresses the process of expulsion, which, in the GCM, comprises three measures, notably return, readmission, and reintegration. Regarding return, states commit to facilitate safe and dignified return and to guarantee due process, individual assessment, and effective remedy by upholding the prohibition of collective expulsion and of return to a risk of serious human rights violations. Under the readmission component, states commit to duly receive and readmit their nationals. Finally, the measures aimed at sustainable reintegration include personal safety, economic empowerment, inclusion, and social cohesion. In order to realise this triple commitment, Objective 21 proposes nine sets of actions, detailed in para.37(a)-(i). Overall, Objective 21 places significantly more emphasis on the tasks relating to readmission and reintegration, which fall upon countries of origin, than on the obligations linked to return, which bind sending states. The implementing actions contain several laudable provisions, including emphasis on gender-responsive and child-sensitive features of return, the mention of the rights of the child, the principle of the child’s best interests, and the right to family life and family unity (in the context of return of children) and procedural guarantees. Yet, the actions fail to include a number of norms which are fundamental in the process of expulsion, such as the principle of non-refoulement, prohibition of collective expulsion, and the right to life and prohibition of ill-treatment during forcible return.
Throughout the negotiation process, several changes were made in successive drafts of both the commitments and the implementing actions of Objective 21. The obligations of expulsing states have been widened in some areas while reduced in other ones, the readmission component has been expanded, while duties aimed at sustainable reintegration have been slightly broadened. This commentary discusses the most significant changes.
The principle of non-refoulement
In Objective 21, states commit not to return migrants when there is a real and foreseeable risk of death, torture and other cruel, inhuman, and degrading treatment or punishment, or other irreparable harm. This commitment is crucial in the context of return as it reflects the absolute prohibition of refoulement, enshrined both in customary and treaty law (art.6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) and art.3 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). However, to emphasise the binding nature of this norm, it would have been desirable to explicitly name it as the principle of non-refoulement, as was done in Revision 2. The actions needed to realise this commitment are set out in para.(e). This paragraph refers to a number of procedural safeguards (such as individual assessment, legal remedies, and due process guarantees), yet is silent as regards the substantive protection from refoulement. Given the essential role of the principle of non-refoulement, it would have been welcome to include the non-refoulement obligation among the implementing actions under para.(e).
Unlike all previous drafts, the final version of para.(e) provides that return is to be carried out through “prompt and effective cooperation between countries of origin and destination.” This paragraph should be read alongside para.(c), under which countries (of origin) should cooperate on identification of their nationals and issuance of travel documents for their return. The involvement of countries of origin in return proceedings may undermine the very protection from refoulement. It should never be sought promptly, as required in para.(e), or simultaneously or even before the person has exhausted legal remedies against his expulsion, as the language of this paragraph suggests. Consular or other authorities of countries of origin must never have access to people or information about the identity of people who may need international protection. The host state may request the country of origin to confirm the nationality of the potential returnee and to issue the necessary travel documents only after any risk upon return has been thoroughly assessed and excluded and the person had access to an effective appeal to challenge his expulsion (see here a recent case where authorities of the country of origin were involved in identification of their nationals who had valid protection claims).
Return of children
The final version of para.(g), which addresses return of children, sets forth general principles in a stronger language than the previous drafts. Accordingly, states should ensure that return of children is carried out only after a determination of the best interests of the child (also provided in art.3 of the Convention on the Rights of the Child (CRC)) and takes into account the right to family life and family unity. Yet, the final draft fails to require that states return a child to his family. Instead, all it demands is that there are appropriate reception, care, and reintegration arrangements for children upon return. According to the Committee on the Rights of the Child (para.80-81), family tracing is essential in searching for a durable solution and should have priority except where it is not in the child’s best interests. To comply with the obligation under art.9 of the CRC to ensure that a child is not separated from his parents against his will, states should make all efforts to return an unaccompanied child to his parents except where further separation is necessary for the child’s best interests.
Two main questions which induced most of the revisions concerned the body accompanying the child through the return process and the place of return. Regarding the first issue, while the original draft foresaw that the child had to be accompanied by a guardian, pursuant to the final version of para.(g), the child is to be accompanied either by a parent, legal guardian, or “specialised officer.” In practice, a “specialised officer” may be a police or migration agency officer, lacking a child-protection mandate. Despite the weakened terms of para.(g), the principle of the child’s best interests and the right of children deprived of their family environment to special protection and assistance (art.20(1) of the CRC) entail that before returning a child, the host state appoints a guardian. The guardian should have the necessary expertise in childcare and represent the child’s rights. Hence, according to the Committee on the Rights of the Child and the Committee on Migrant Workers (para.32), agencies whose interests could potentially be in conflict with those of the child, including migration authorities, should not be eligible for guardianship. In terms of the place to where states may expel the child, the initial and three subsequent drafts spoke of “countries to which [the children] are being returned” or “the country of return,” suggesting that the destination country is not necessarily the child’s country of origin. In contrast, the final wording of para.(g) refers to countries of origin, which complies with the child’s best interests.
Voluntary vs. forced return
The requirements regarding the form of return have been gradually diluted during the process of negotiations. Up to Revision 2, Objective 21 prioritised voluntary return over forced. As a result of successive modifications, the final draft is silent in this regard. Under para.(b), states should promote voluntary programmes, yet they are not bound to opt for voluntary return before forcibly returning the person. That notwithstanding, pursuant to international standards (para.87), return should be primarily voluntary. The priority to voluntary return can be implied from the principle of proportionality, which requires that limitations of the individual’s freedom of action are the least restrictive possible. More generally, voluntary return is better suited to be “safe and dignified,” which is what Objective 21 seeks to promote.
Cooperation on readmission
The readmission duties of countries of origin have a prominent place in Objective 21 and have been widened in the course of the negotiations. In the first four versions of Objective 21, countries committed to duly receive their “returning nationals,” what suggests voluntary form of returns in that regard. The final draft of this commitment is couched in slightly different terms, namely, countries commit to duly receive and readmit their nationals. Under the current formulation, this commitment appears to extend to people being forcibly expelled. Also, a second part has been added to this sentence. Accordingly, countries commit to receive and readmit their nationals, in full respect for the human right to return to one’s own country and the obligation of states to readmit their own nationals. Indeed, under art.12(4) of the ICCPR, no one may be arbitrarily deprived of the right to enter his own country. Sending countries frequently rely on this provision to induce countries of origin to readmit their nationals. Yet, since it enshrines the right to return to one’s country, the concomitant obligation to accept the return of nationals applies only to voluntary return. Precisely because there appears to be no obligation under international law to readmit its nationals who are forcibly returned, sending countries use various incentives to persuade countries of origin to sign readmission agreements and swiftly readmit their nationals. These agreements are addressed in para.(a).
The scope of readmission cooperation has been widened during the negotiations, to include more flexible arrangements. Pursuant to the final version of para.(a), countries should develop and implement bilateral, regional, and multilateral cooperation frameworks and agreements, including readmission agreements, for return and readmission. The onus of implementation, added in the course of negotiations, is obviously upon countries of origin. Agreements with a readmission clause commonly intertwine countries’ of origin readmission and border control duties with financial and in-kind assistance in border management offered by host countries. They give more leverage to sending countries to convince countries of origin to cooperate on readmission. Cooperation frameworks on readmission, currently in focus of the European Union, commonly refer to flexible arrangements, which may easily escape parliamentary scrutiny. Bilateral forms of agreements, added during the negotiations, also offer more flexibility to states. In particular, non-standard bilateral arrangements, such as memoranda of understanding or police cooperation arrangements, are typically opaque, with human rights obligations being more easily side-lined. Overwhelmingly flexible readmission arrangements foreseen in para.(a) may impede democratic and judicial oversight, dilute responsibility of the involved countries, and ultimately increase the risk of human rights violations. While seeking cooperation of countries of origin, host countries remain bound by their international human rights obligations not to send anyone to a risk of serious violations of the person’s fundamental rights.
Alongside Objective 13 addressing immigration detention, Objective 21 deals with one of the most sensitive elements of migration management. Expulsion of non-citizens in irregular situation is associated with traditional sovereign prerogatives. Yet, these prerogatives should be exercised in accordance with states’ international human rights obligations. The formulation of Objective 21 overall appears inadequate since it aims at merely safe and dignified return rather than return which is also human rights-based. Yet, Objective 21, like all the remaining objectives, is fully rooted in international human rights law, as repeated in the GCM (para.11, 15, and 41) and the New York Declaration for Refugees and Migrants (para.5, 11, 22, and 41), and states should implement it in compliance with their international obligations. Protective provisions enshrined in Objective 21 are not an expression of states’ good will or moral duties towards migrants but reflect a set of human rights norms and standards governing expulsion measures.
The triple commitment in Objective 21 (return, readmission, and reintegration) and actions needed to realise it reaffirm a number of relevant norms, such as the prohibition on return to a risk of serious violations of the person’s fundamental rights, the prohibition of collective expulsion, the principle of the child’s best interests, and due process guarantees. On the other hand, Objective 21 is silent about the right to family and private life, set forth in art.17 of the ICCPR, which may operate as a human rights obstacle to return. On a few occasions, Objective 21 lays down lower protection standards than required by the UN human rights monitoring bodies, including the lack of requirement that unaccompanied children are to be always represented by a qualified guardian or that voluntary returns should be prioritised over forcible ones. Other potential challenges that may arise when Objective 21 is implemented relate to cooperation between sending and destination countries. It provides for prompt involvement of countries of origin in identification procedures and, more broadly, foresees a wide range of cooperation schemes, overwhelmingly characterised by flexibility and potential lack of oversight and accountability. The protection gaps in Objective 21 and challenges resulting from its implementation should not divert states from their international human rights obligations relating to expulsion.
Finally, any return policy should be accompanied by adequate regularisation measures. Not all people who were refused refugee or other protection status can leave the host state. Usually, countries tolerate non-deportable people’s stay, without offering them any permit. Left in a semi-legal limbo situation without access to adequate socio-economic rights, non-deportable migrants risk becoming destitute. Besides breaching their obligations under the International Covenant on Economic, Social and Cultural Rights to ensure basic means of subsistence to anyone under their jurisdiction, by failing to regularise non-deportable people, states fall short of achieving orderly and regular migration. Objective 21 speaks of the “return of migrants who do not have the legal right to stay” (para.(e)), implying that the lack of legal status should trigger return. According to the UN High Commissioner for Human Rights, the GCM should commit states to develop appropriate mechanisms to grant legal status to migrants who cannot return. Regularisation measures are addressed in Objective 5 dealing with pathways for regular migration, to which Objective 21 omits to refer. In Objective 5, states commit to adapt options for regular migration in a manner reflecting the needs of migrants in vulnerable situations. Among the implementing actions, Objective 5 foresees humanitarian visas and temporary work permits for people whose return to their countries of origin is not possible, based on compassionate, humanitarian, and other considerations (para.21(g)). States expressed this commitment already in the New York Declaration, as they welcomed granting temporary protection against return to migrants who do not qualify for refugee status but are unable to return to their home countries (para.53) and enumerated regularisation policies among the elements that the GCM should include (Annex II, para.8(p)). Return addressed in Objective 21 should be complemented by regularisation schemes under Objective 5.
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