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 examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
Expulsion of migrants in an irregular situation is one of the most sensitive measures pertaining to migration regulation. It is premised upon states’ prerogative to control their borders and decide who can be admitted and reside. Yet, broad sovereign powers in this area are circumscribed by states’ international obligations, in particular under international refugee and human rights law. Further, in practice, host states need the cooperation of countries of origin to identify people slated for return and accept the returnees upon return. To secure such cooperation, using incentives and pressures, many host states have induced countries of origin and transit to sign a multitude of readmission agreements and less formal collaboration arrangements. These aspects of the return process are reflected in Objective 21 of the Global Compact for Safe, Orderly and Regular Migration (GCM).
Objective 21 enshrines three sets of commitments under the headings of return, readmission, and reintegration. Regarding the 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 the sustainable reintegration include personal safety, economic empowerment, inclusion, and social cohesion. Objective 21 (including implementing actions under §37(a)-(i)) places significantly more emphasis on the commitments relating to readmission and reintegration (and underlying return-related cooperation beneficial for host countries), which fall upon countries of origin, than on the commitments linked to return, which bind host countries.
This blog post addresses the implementation of Objective 21 in line with international human rights law. States pledge to fulfil the commitments laid down in the GCM in a manner consistent with their obligations under international law (§41). Further, the compact is based on international human rights law and ‘rests’ on the international human rights instruments. By implementing the GCM, states ensure effective protection and fulfilment of the human rights of all migrants, regardless of their migration status, across all stages of the migration cycle (§2 and 15(f)).
This post proposes six indicators, which can help assess the human rights compliant implementation of commitments under Objective 21 and streamline states’ reporting to the International Migration Review Forum, intended to discuss implementation of the GCM (§49). Some states have reportedly objected to any indicators, highlighting the non-binding character of the compact and state-let nature of the Review Forum. Yet, while the GCM is itself non-binding, several issues it addresses are tightly regulated under international human rights law. Protection of migrants in the context of the return is one of them.
The indicators proposed in this post draw from the provisions of binding international treaties, notably the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), International Covenant on Civil and Political Rights (ICCPR), and International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), as interpreted by their monitoring bodies. The indicators belong to three common categories of human rights indicators, notably outcome, process, and structural indicators. Because of the human rights law focus of this post, the indicators relate to those commitments under Objective 21 which are grounded on states’ international obligations or widely accepted human rights norms. Consequently, all indicators, but the last one, address commitments falling upon host states.
1. Commitment to uphold the prohibition of a return to a real risk of serious human rights violations: The principle of non-refoulement (including the prohibition of indirect refoulement) (CAT, art.3(1); ICCPR, arts.6-7)
Under Objective 21, states commit to uphold the prohibition of return to a foreseeable risk of death, torture, and other cruel, inhuman, and degrading treatment or punishment. Indeed, not all non-citizens who were refused a refugee status as per the Refugee Convention can be lawfully returned. Under human rights law, the prohibition of refoulement is of a wider personal scope than under refugee law and is not subject to any exclusion based on the person’s conduct. States are also prohibited from engaging in indirect refoulement, i.e. sending a person to an intermediary (typically transit) country, which may further return the person to a place where he faces a risk of serious violations of his fundamental rights. Indirect refoulement risks occurring in the course of return based on readmission agreements, which provide for readmission of people who transited the states parties’ territories. It is welcome that §37(a) of the GCM speaks of readmission agreements with respect to return to migrant’s own country. In line with Korban v. Sweden decided by the UN Committee against Torture (CAT Committee), when they consider sending a person to a country which is not the person’s country of origin, states should conduct a two-level assessment. First, they should assess whether there is a risk of ill-treatment in the person’s country of origin and, secondly, whether the receiving state may send the person to that country (§6-7).
Indicators to assess the implementation of this commitment may include:
- Do domestic legal provisions exist that prohibit in absolute terms any return to a risk of violation of the person’s fundamental rights?
- Is a two-level risk assessment procedure foreseen in law and applied to all returns to intermediary states?
2. Commitment to uphold the prohibition of collective expulsion: Individual assessment (including in the context of accelerated procedures) (ICCPR, art.13; ICRMW, art.22(1))
According to the General Comment No.15 of the UN Human Rights Committee (HRC), art.13 of the ICCPR entitles each migrant to a decision in his own case, hence collective expulsion would breach this article (§10). In line with the General Comment No.4 of the CAT Committee, collective expulsion, without an objective examination of the individual circumstances regarding risk of torture upon return, violates the principle of non-refoulement under art.3(1) of the CAT (§13). States are bound by the prohibition of collective expulsion also in the context of returns pursuant to readmission agreements. Such agreements often provide for accelerated return procedures based on standard return forms and simplified identification rules. If applied to migrants as a group, these measures may lead to collective expulsion. According to the UN Special Rapporteur on Torture’s 2018 recommendations, states should refrain from any collective return or summary rejection without individualised risk assessment, including through readmission agreements (§65(h)).
Indicators to assess the implementation of this commitment may include:
- Is an individual risk assessment procedure foreseen in law and applied to every person to be expelled as a group?
- Are identification and individual risk assessment procedures carried out in the context of return based on readmission arrangements?
3. Commitment to guarantee due process, individual assessment, and effective remedy: Procedural safeguards (ICCPR, art.2(3); ICRMW, art.22)
In line with the HRC’s General Comment No.31, art.2(3) of the ICCPR requires states to ensure that individuals have accessible and effective remedies to vindicate the ICCPR rights (§15). According to the CAT Committee’s findings in Agiza v. Sweden, the right to a remedy is enshrined in the very prohibition of refoulement under art.3(1) of the CAT and entails that non-citizens have an opportunity for effective, independent, and impartial review of the return decision (§13(7)). As the UN Special Rapporteur on the human rights of migrants (SRHRM) recommended in his 2018 Study on the return and reintegration of migrants, states should ensure that migrants are properly heard and have access to appropriate legal and linguistic assistance during return procedure (§92(b)). Both the SRHRM and UN Committee on Migrant Workers in its General Comment No.2 stress that appeal procedures should have suspensive effect, i.e. entail the right to stay pending review (§53).
Indicators to assess the implementation of this commitment may include:
- The length of time available to challenge the return decision.
- Is the appeal body independent from bodies enforcing the return?
- Is legal aid granted free of charge to non-citizens without means to afford it?
- Is linguistic assistance granted free of charge to non-citizens not speaking the host country’s language?
- Do review proceedings have suspensive effect?
4. Commitment to facilitate safe and dignified return: Priority to voluntary return (SRHRM’s Study on return, §87; ILC’s Draft articles, art.21(1))
So-called voluntary return refers to a measure whereby a non-citizen ordered to leave the host state’s territory is allowed to do it on his own, rather than being escorted. Such a return, including Assisted Voluntary Return Programmes carried out by the International Organization for Migration, is not genuinely voluntary but nevertheless is better suited than an enforced return to ensure safety and dignity of the individual. According to the 2018 SRHRM’s study on return, states should prioritise voluntary return and construe forced return as the last resort measure (§87). In line with the 2014 Draft articles on the expulsion of aliens adopted by the International Law Commission (ILC), states should take appropriate measures to facilitate the voluntary departure of non-citizens subject to return and give them a reasonable period of time to prepare for departure (art.21(1),(3)).
Indicators to assess the implementation of this commitment may include:
- Do domestic legal provisions define the voluntary return as a default option?
- Do domestic legal provisions exhaustively list the narrow circumstances justifying a forced return?
- The average length of time for leaving the host state.
- Percentage of voluntary returns in relation to all returns carried out annually.
5. Commitment to facilitate safe and dignified return: Regulation of forced return (ICCPR, art.6-7; CAT, art.16)
Forced return carries an inherent risk to the person’s safety and dignity. To reduce that risk, states should strictly comply with the rules governing permissible use of force under the relevant human rights instruments. The use of excessive force or disproportionate means of restraint during deportation violates states’ obligations arising from the right to life or the prohibition of ill-treatment. Under the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, the deployment of incapacitating measures should be carefully controlled and force may only be used if other means remain ineffective or without any promise of achieving the intended result (§3-4). The principle of strict proportionality applicable to the use of force by law enforcement personnel should be translated in a set of operational, removal-specific safeguards. They include independent monitoring of removals. The GCM reflects this, as under §37(f), states should have in place monitoring mechanisms, which provide independent recommendations to strengthen accountability.
Indicators to assess the implementation of this commitment may include:
- Does the domestic legal or administrative framework define the limited circumstances in which deportation personnel may use force and strictly regulate the permissible means of restraint?
- Are there in place annual training programmes for deportation personnel?
- Is monitoring carried out by an organisation independent of the authorities enforcing return and does it cover all phases of the deportation process?
- Are complaint procedures regarding ill-treatment during deportation accessible from abroad?
- In case the removal is carried out by a non-state actor (private company or international organisation, like EU’s border agency Frontex), which entity is accountable for violations of the deportees’ rights?
6. Commitment to duly receive returning nationals: Prohibition of penalisation of ‘irregular emigration’ (ICCPR, art.12)
This commitment directly expresses the right of everyone to enter his own country under art.12(4) of the ICCPR. However, to duly receive its returning nationals also implies a duty to ensure their safety upon return. Yet, several countries of origin or transit of migrants irregularly arriving for instance to the EU impose conditions on exit and consider breaching these rules or attempting to enter other countries without proper documents to be an offence. Upon their return, nationals of these countries face criminal penalties, including imprisonment, for committing these offences. As scholars have observed, Algeria, Cameroon, Morocco, and Tunisia began penalising ‘irregular emigration’ just a few years after having signed cooperation agreements with European countries. These measures tend to breach the right of everyone to leave any country, including his own, under art.12(2) of the ICCPR. As the HRC’s General Comment No.27 explains, the restrictions on this right under art.12(3) of the ICCPR are justifiable only in exceptional circumstances (§11). To be permissible, limitations should be provided for in law, imposed for one of the legitimate grounds (protection of national security, public order, public health or morals or the rights and freedoms of others), and necessary to achieve those objectives. Restrictions on the freedom to leave any country with the intention to migrate in an irregular manner to another one do not serve any of these legitimate aims. In particular, breaching destination countries’ conditions on entry or residence cannot be said to threaten public order or national security of the countries of departure.
Indicators to assess the implementation of this commitment may include:
- Are there any legal or practical restrictions on exit?
- Is the returnee’s safety upon return (including enforced return) guaranteed?
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