Blog post written by Dr Izabella Majcher, a Senior Legal Officer at European Council on Refugees and Exiles (ECRE) and a Refugee Law Initiative Research Affiliate. The views expressed in this blog post are those of the author and do not necessarily reflect the position of ECRE. The author would like to thank Mariette Grange for her helpful comments on an earlier version of this blog post. Any errors and conclusions remain the author’s alone. This blog post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
1 Introduction
Negotiated over one and a half years, the Global Compact for Safe, Orderly and Regular Migration (GCM) triggered rarely seen interest among UN bodies, civil society organisations and academia. To support the implementation of the GCM, the UN Secretary General (UNSG) established the UN Network on Migration, which is coordinated and serviced by IOM and made up of around 40 UN entities; it works mainly via thematic and cross-cutting working groups. Now, over two years since the adoption of the GCM in December 2018, the focus is on its added value in practice. How do Member States implement the GCM? As discussed in my previous blog in this series, there are two mechanism to review Member States’ implementation of the GCM: the International Migration Review Forum, to be convened under the auspices of the UN General Assembly every four years starting from 2022, and regional reviews, alternating with discussions at global level.
This blog post discusses the regional review carried out by the UN Economic Commission for Europe (UNECE) in November 2020. The UNECE region includes 56 Member States, of which 48 countries are located in Europe, five countries in Central Asia, two countries in North America and one country in Western Asia. All five Member States which voted against the GCM at the UNGA in December 2018 belong to the UNECE region, notably the Czech Republic, Hungary, Israel, Poland and the US. Out of 12 abstaining Member States, seven were UNECE countries (Austria, Bulgaria, Italy, Latvia, Liechtenstein, Romania and Switzerland), and Slovakia did not attend this UNGA session. Out of 43 UNECE countries who were signatories of the GCM, 27 countries submitted reports for the regional review (63 percent). It is regrettable that the report of Turkmenistan was not translated into English by the secretariat, whereas such unofficial translation was undertaken for three reports submitted in Russian. The Turkmenistan report will, thus, not be included in the assessment of the reports submitted. The discussion also looks at the report submitted by the European Union (EU), which was involved in the negotiations of the GCM and shaped some of the its language.
The focus of this blog post is specifically the implementation of Objective 21, aiming at cooperation in “facilitating safe and dignified return and readmission, as well as sustainable reintegration.” As a preliminary remark, the term “return” is used in the GCM, mirroring the EU parlance, as a euphemism for expulsion, and is incorporated in this blog post for ease of reference. The starting point of the discussion on Objective 21 is international human rights law, as states have committed to implement the GCM in line with their human rights obligations (GCM, §41). Indeed, the sovereign power of states to expel non-citizens without a right to stay is circumvented by a dense net of human rights norms and standards. As asserted in the position paper drafted by the UN Network on Migration’s Working Group on Return and Readmission, all return, readmission and reintegration practices must comply international human rights law and standards. Objective 21 includes three sets of commitments: expulsion/return, readmission and reintegration. This triple commitment lays the structure of the discussion.
2 Human rights safeguards on return
“We commit to facilitate and cooperate for safe and dignified return and to guarantee due process, individual assessment and effective remedy, by upholding the prohibition of collective expulsion and of returning 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, in accordance with our obligations under international human rights law.” (Objective 21)
This first set of commitments under Objective 21 reflects international obligations which regulate the process of expulsion. International human rights law expands the absolute prohibition of refoulement, enshrined in Art.31 of the Refugee Convention, to cover not only people qualifying for the refugee status but any person risking serious hardship upon return. The principle of non-refoulement is enshrined in 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) and has attained the status of a customary law norm. Although not mentioned in Objective 21, international human rights law also provides for other human rights bars to expulsion, such as the right to family and private life (Art. 17 of the ICCPR). To ensure that the substantive return safeguards are respected, fair, effective and human rights-compliant procedures need to be in place. There needs to be an individual assessment of each case, which is also required under the prohibition of collective expulsion, enshrined in both treaty (Art.13 of the ICCPR) and customary international law. The procedures should enable the person to contest a negative decision and be protected from expulsion during the examination of the appeal (so-called suspensive effect of appeal), which flows from the right to an effective remedy (Art.2(3) of the ICCPR).
This set of commitments form the cornerstone of Objective 21 because, in contrast to readmission and reintegration components of Objective 21, it flows from international law obligations. Yet, only a minority of countries addressed this issue in their reports; solely four out of 26 reports looked at human rights-compliant return procedures (15 percent), of which one in a mere cursory manner.
Azerbaijan reported that in cooperation with international organisations, various projects are implemented to, among others, guarantee due process, individual assessment and effective remedy. The human rights-compliant return procedures are to be carried out by state’s judicial and/or administrative authorities; hence, it is unclear how cooperation with unnamed international organisations can foster it, unless it is a training for judges or administrative staff. However, no details were provided.
Three reports are more detailed. Croatia stressed that it has fully implemented the EU Return Directive, which contains standards related to return and protection mechanisms. The country highlighted that it applies these standards in return operations, specifically regarding the protection of migrants against expulsion and legal remedies. According to the report from Germany, the country ensures that the return of migrants in an irregular situation follows an individual assessment, provides for effective judicial remedies in compliance with due process guarantees and is carried out by competent authorities, in line with international and national law. Ireland noted that the process leading to the adoption of the deportation order includes an individual assessment of each case, including gender specific considerations of children and the integrity of the family and other humanitarian factors. A deportation order can only be made once it is ascertained that there is no risk to the person’s life or freedom when they return to their country of origin. Persons who receive deportation orders may take a judicial review of the decision to the High Court and request to have the order revoked in case of new or changed circumstances.
These three countries describe some important elements of human rights-compliant return procedures. However, without reports from non-governmental sources, this information is one-dimensional. As discussed in my previous blog on immigration detention, civil society organisations were not systematically involved in the preparation of states’ reports. In the case of Germany and Ireland, consultations with stakeholders were held; however, it is unclear whether their stance on the implementation of the GCM in their respective countries was included in the reports.
All the EU Member States have basic provisions in place for the conduct of return procedures, as these are regulated in the EU Return Directive. The implementation gives rise to questions, and this review could have shed light on the shortcomings. What is striking is the silence of the remaining EU Member States on their implementation of their commitments under Objective 21, relating to human rights compliant-return procedures. Most of them, yet, focus on readmission to be ensured by the non-EU countries or their priority for so-called voluntary return and financing reintegration programmes. Human rights framework is mainly absent from their interpretation of their commitments under Objective 21. This selective approach starts resembling the one of IOM, which focuses on the modalities of return (so-called voluntary return), without specifying substantive and procedural human rights safeguards underlying expulsion procedures.
The report from the EU is also silent on the return-related human rights safeguards, yet it expands on readmission and reintegration (see below). Oddly, it does not even refer to the EU Return Directive, which regulates return procedures in its Member States. The report omits to mention that the Directive is in the process of a recast, proposed by the European Commission (hereafter Commission) in September 2018. The amendments tabled by the Commission would significantly limit substantive and procedural return safeguards, including narrower assessment of the principle of non-refoulement with respect to rejected asylum seekers, short time period for appealing the return decision and limited scope of the suspensive effect of appeal. The EU report mentions that in September 2020, the Commission published the New Pact on Migration and Asylum, which is a multi-annual strategy in the area of asylum and migration. However, the report is silent on the Pact proposals relating to return, which will likely lead to human rights violations. The amended proposal for the Asylum Procedures Regulation provides for a border return procedure which, like the proposed recast of the Return Directive, restricts substantive and procedural human rights return safeguards. The proposal for the Asylum and Migration Management Regulation introduces a so-called return sponsorship, under which one EU Member State can assist another in the return process and, if these joint endeavours will not succeed during eight months, transfer the person to their own territory. This mechanism will blur the responsibility lines between the involved countries, decrease the transparency and clarity of the return process and unduly extend the procedure, when a prospect of return does not exist in the individual case. These measures demonstrate that return has become a key priority of the EU in the area of asylum and migration, which was labelled elsewhere as “return mania.”
3 Readmission cooperation
“We further commit to ensure that our nationals are duly received and readmitted, in full respect for the human right to return to one’s own country and the obligation of States to readmit their own nationals.” (Objective 21)
The language of this commitment does not reflect international law, as there is no undisputed obligation to readmit the country’s nationals who do not wish to return. Under Art.12(4) of the ICCPR, no one may be arbitrarily deprived of the right to enter her/his own country. This provision enshrines the right to return to one’s country; however, the concomitant obligation to accept the return of nationals applies only to voluntary return. Inclusion of this statement in the GCM should not be considered a step towards crystallisation of a customary law norm. In fact, as stressed by the Netherlands, the GCM does not create any new obligations. Precisely because there appears to be no obligation under international law for a country 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. In the case of the EU, readmission cooperation with non-EU countries has become a priority. In order to put pressure on non-EU countries, the EU has used an increasing range of incentives and threats, making visa facilitation schemes, preferential trade and financial assistance conditional upon non-EU states accepting readmission cooperation. As of late 2020, the EU had 18 formal readmission agreements and two dozens of practical arrangements on return and readmission; the EU strives to increase these numbers further.
Seventy-seven percent out of 26 reports addressed readmission. Indeed, only six reports did not delve into this commitment under the GCM (Croatia, Malta, Portugal, Spain, UK, Uzbekistan). This stands in stark contrast with accounts on the implementation of the human rights-relevant commitments under Objective 21 (see above). Out of the reports covering readmission, two focused only on this leg of Objective 21 (Kazakhstan and Russian Federation).
3.1 EU and EU and Schengen Associated countries
Some of the EU countries reported having agreements in place. For instance, Germany highlighted that is has readmission agreements with a large number of countries, and Ireland noted that it is part of a number of EU readmission agreements. These countries also discuss the human rights safeguards on return (see above).
Conversely, other EU and Schengen associated countries, while silent on the human rights safeguards, delved into readmission. Belgium highlighted that it relies on bilateral, multilateral and EU readmission agreements, and Finland acknowledged that developing and implementing readmission agreements and other cooperation frameworks is among its key objectives. More outspoken was Greece, which stressed that in order to achieve better results in the area of readmission, cooperation needs to be based on, among others, the principle of conditionality. The language of conditionality reflects the below-mentioned EU position.
Another batch of Member States consider themselves already in line with the GCM, and their key implementing actions relate to their funding or otherwise support for non-EU countries, with the readmission cooperation being an overriding objective. Sweden decided to focus its efforts to reach GCM objectives through extensive cooperation with non-EU countries, which included providing IOM with core funding. Similar focus on the funding, in particular of readmission-related projects, as a key way to implement the GCM transpires from other Nordic countries (Denmark and Norway).
A more forceful focus was taken by the reports of three countries, which did not (or not clearly) address any specific objective of the GCM. By contrast, the detailed information on readmission, including their requests towards non-EU countries, is disproportionate to the length of their reports and details provided on other objectives of the GCM.
Denmark’s three-page report, which focused only vaguely on seven GCM objectives, found that the country lives up to 23 commitments of the GCM. Accordingly, Denmark has not prepared a national implementation plan for the GCM. The country signed up to the GCM with a view to strengthen international cooperation for improving migration management and reducing irregular migration. It is of particular Danish priority to improve cooperation on return and readmission. Denmark has established readmission cooperation with a number of relevant countries of origin. Nevertheless, as the report noted, some countries of origin fail to comply with their obligation to cooperate in readmission of their own nationals, particularly with regards to forced returns. According to Denmark, lack of their readmission cooperation remains a major obstacle to achieve safe, orderly and regular migration. The one-and-half-page reports from the Netherlands and Norway resemble each other. Both countries consider themselves as already generally complying with the GCM and are adamant on their readmission requests towards non-EU countries. As Norway highlighted, there is no need for it to make changes to achieve conformity with the GCM. The country, in fact, takes part in the implementation of the GCM with a view to improve migration management and stem irregular migration. Both countries pointed that the GCM recognises the existing obligation of all states to duly receive and readmit their own nationals. With this in mind, Norway has approached a number of relevant countries of origin to gain acceptance for readmission arrangements. Nevertheless, some countries of origin fail to comply with their obligation to cooperate in readmission of their own nationals, particularly with regards to forced returns. Likewise, the Netherlands noted that since the adoption of the GCM, it has not noticed an increased recognition by states of the obligation to readmit their nationals. Both countries conclude that that lack of cooperation in readmission remains a major obstacle to further pursue the GCM objectives.
Similar to the approach of the EU Member States, the report from the EU, while silent on the human rights-compliant return procedures, focuses mainly on the readmission cooperation. The report stresses that the Pact on Migration and Asylum seeks to consolidate and reinforce cooperation with non-EU countries, based on (euphemistically titled) “the approach of tailor-made and mutually beneficial partnerships with countries and regions.” Improving cooperation on return and readmission is a key of these renewed partnerships with third countries. The Pact cements the approach of the EU, whereby an increasing number of areas of cooperation are used to increase the EU’s pressure on non-EU countries to cooperate. More recently, development assistance started being considered as an additional leverage for non-EU countries’ willingness to enhance readmission cooperation, by inserting migration-related conditionality in the recently approved Neighbourhood, Development and International Cooperation Instrument for the period of 2021–2027. The EU’s increasingly aggressive approach to readmission cooperation represents risks for individuals, as they fear being sent to countries that do not have necessarily strong rule of law and democratic system, without insurances that their safety will be guaranteed. This approach also implies that EU’s external policies are becoming increasingly driven by EU’s home affairs—as opposed to international affairs for which the promotion of human rights is a key aspect—which may ultimately endanger EU’s overall relations with specific non-EU countries.
3.2 Countries of origin and transit
Some countries described the state of play of their readmission agreements. Belarus explained that it has readmission agreements with the EU and Ukraine, Kazakhstan noted that it is in the process of concluding 36 readmission agreements and Serbia explained that it has the EU readmission agreement and 11 bilateral readmission agreements; negotiations are ongoing towards six more agreements, and an initiative for another six was launched (including with Afghanistan, Iran and Iraq).
Given the conditionality used by the EU to press non-EU countries to cooperate on readmission, it is unsurprising that most countries of origin or transit reported on their readmission commitments towards the EU, highlighting that they fulfil their obligations under the respective agreements. Moldova explained that it has 13 readmission agreements, including with the EU and Schengen associated countries, and is in the process of negotiating six more. It reported that it adequately implements readmission agreements with the EU, which has implications on maintaining visa free regimes for Moldova’s citizens. Albania wrote that it had signed readmission agreements with the EU, which it duly implements and examines with priority the readmission requests from EU Member States. According to the report from Armenia, the country’s readmission agreements with the EU and Russia are well implemented, and more readmission agreements are being negotiated. North Macedonia highlighted that it has readmission agreement with nearly all the EU Member States, and its readmission agreement with the EU is implemented smoothly. Azerbaijan noted that readmission agreements with the EU, Norway, Switzerland and Montenegro are adequately implemented, and it is in the process of conclusion of 13 additional agreements. Russian Federation stated that it has 17 readmission agreements, including with the EU and Schengen associated countries, and two informal readmission agreements; additionally, the readmission agreement with the EU is effectively implemented.
All the formal readmission agreements that the EU signed with the non-EU countries contain “third country clause,” which allows EU Member States to send back not only nationals of the signatory countries but also people who transited through their territories before reaching the EU. The readmission agreements do not ensure that the receiving country will effectively admit the readmitted person to its asylum procedure. This may result in chain refoulement and is a prime example of externalisation of refugee protection and migration management by the EU. Pointing to the readmission agreements with nearly all the EU Member States, North Macedonia noted the challenge to conclude readmission agreements with countries of origin, stressing that it is difficult to achieve, especially with countries affected by war or with unstable democracies. Similarly, Russia Federation has readmission agreements with the EU and Schengen associated countries, as well as with countries in Central Asia, and is preparing readmission agreements with countries from Asia and Pacific, Middle East (including Syria) and North Africa. Serbia has a readmission agreement with the EU and bilateral agreements with other Balkan countries (Bosnia and Herzegovina, North Macedonia and Montenegro). Readmission agreements or arrangements between neighbouring countries often lead to chain pushbacks, whereby a person is repetitively informally expelled from one country to another, without having access to asylum process in any of these countries. Such unlawful practice has been reported in the Balkans.
The disruptive effect of the EU’s push for readmission cooperation with countries of origin or transit transpires also from the rhetoric these latter countries have adopted from the sending states. Some of the receiving countries find that readmission agreements facilitate not only readmission but also safe return (Turkey) or safe and dignified return (Azerbaijan) and describe readmission mechanism as “the most humane method of removal” (Russian Federation).
4 Reintegration
“We also commit to create conducive conditions for personal safety, economic empowerment, inclusion and social cohesion in communities, in order to ensure that reintegration of migrants upon return to their countries of origin is sustainable.” (Objective 21)
Several reports from countries of origin describe their national policies and practices aimed at fostering sustainable reintegration of their nationals. Albania works on improving legal and institutional framework and increasing institutional capacities in that area; vulnerable returnees receive free information, transportation and food assistance. Since 2016, Azerbaijan has been working on a flexible solution for reintegration of readmitted persons into the society, including the provision of services such as accommodation, health care, employment, social security and education. North Macedonia put its efforts to swiftly grant rights that returnees had lost when they left, to help their integration in the system and to enable their access to social security, healthcare services, education, benefits for employment or registering with the employment agency. Many commendable practices can be identified in these reports. However, the accounts do not clarify whether the reintegration measures were adopted before or even as an implementation of the GCM.
Reports from some states describe reintegration measures that seem be have been adopted after the adoption of the GCM in December 2018. Armenia set up a specific reintegration service for its returned nationals in February 2018, and will launch an online information system for prospective returnees. In 2019, the Department of Return and Reintegration was established within the Migration Service and in March 2020, an assistance programme for reintegration was adopted, which includes a six-month housing subsidy and information and referral support. Special provisions are foreseen for unaccompanied children, the elderly and adults with disabilities. Moldova mentioned briefly that a mechanism for reintegration of returnees was piloted and institutionalised in 2018–2019 but did not explain the results of this project. The country stressed that it intends to develop reintegration services for returnees. Portugal launched a return program for its nationals in 2019, aimed to support them in their return to Portugal, including recognition of academic and professional certificates. Serbia stressed that next steps in the GCM implementation will be the reintegration support for its nationals. It is noteworthy that none of these countries acknowledge that these measures were prompted by the GCM.
A similar approach transpires from the report from Uzbekistan, which does not refer explicitly to Objective 21; rather, its analysis of the past years, showing the absence of reintegration programs for migrant workers who have returned from abroad, prompted changes in the regulatory framework since 2018. A September 2018 resolution provides for assistance in the employment of citizens who have returned from labour migration. In August 2019, a presidential decree was issued to set up a commission with a task of helping reintegration after returning to the country. A resolution from August 2019 provides for further measures to improve the efficiency of reintegration assistance, including free vocational training, re-training and state grants. These regulatory changes are welcome, yet no examples of the effective implementation are given. Above all, the country did not refer to Objective 21 nor did it explain that these changes were prompted by the GCM.
From the perspective of sending countries, reintegration assistance is defined by the EU European Migration Network as “support either cash, in kind or combined, provided by a host country to a returnee, with the aim of helping the returnee to lead an independent life after return.” Reintegration assistance is typically provided in the context of the so-called assisted voluntary return programmes, implemented by IOM for most of the EU Member States. Indeed, several country reports acknowledged support received from and cooperation by IOM relating to the assisted voluntary return and reintegration (AVRR) programs (Albania, Armenia, Belarus, Belgium, Croatia, Finland, Ireland, Malta, North Macedonia, Portugal, Serbia, Spain and Turkey). Conversely, other states highlighted their funding for IOM (Denmark, Ireland, Sweden and Norway).
While so-called voluntary departure is preferable to forced return for both the person concerned and the sending country, this measure is not genuinely voluntary. Since the alternative is frequently forced return, destitution, detention and re-entry ban, migrants and asylum seekers are often compelled to agree on the “voluntary return” offer from IOM. This was widely documented among asylum seekers stranded in appalling conditions, without access to adequate asylum procedure on the Greek Aegean Islands pursuant to the EU-Turkey statement. Hence, the expressions “voluntary departure” (as used in the EU Return Directive) or “voluntary return” (as used by IOM) are euphemisms, the more adequate term being, for instance, “mandatory return.” The way in which some countries describe their “voluntary” return programs demonstrates lack of voluntariness on the part of the person. For instance, in Malta and the UK, “voluntary” return can be carried out from detention; Turkey organises “voluntary” return for victims of human trafficking; in Belgium, the target groups of “voluntary” return include children and people with medical issues; and Sweden has a program on sustainable reintegration to Afghanistan.
The reintegration assistance is undoubtedly beneficial for the person concerned and can support receiving the state’s reintegration measures, as described above. Yet, this form of return is likewise beneficial for the sending state. In fact, the “voluntary” departure, when accompanied by reintegration element, increases the leverage that the host states can use to compel the person to leave their territory, as outright forced return is more expensive and cumbersome to organise. Several reports from sending states mentioned that they have reintegration support programs, frequently in cooperation with IOM; no details were provided. Beyond these cursory references, according to more detailed accounts in the reports, Turkey’s reintegration support incudes in-kind and cash assistance; Canada funds sustainable reintegration activities and takes account of need of host/return communities; in Belgium, the long-term reintegration approach is based on re-skilling and creating economic opportunities; Malta provides in-kind assistance including tailor-made reintegration programme, which sometimes embraces business start-up grants or grants for further education and assistance for the community. In Germany, federal programme supports reintegration in 13 partner countries, in five regions, linking pre-return counselling with post-return economic and social support measures and support for local population. In 12 partner countries, Germany established advice centres that offer information on local employment and training opportunities and provide vocational training and psychological support in the returnees’ reintegration.
The report from the EU stressed that the support for sustainable reintegration is an important additional element to foster readmission cooperation with non-EU countries. By linking reintegration assistance with readmission cooperation, which typically concerns forced returns, this statement confirms lack of a genuine consent on the part of the person to depart. The report also referred to the EU strategy on voluntary return and reintegration, subsequently published by the Commission. While the strategy proposes a number of welcome measures, such as fostering quality of reintegration programs, it is embedded in overriding the EU’s approach to increase the numbers of returns and cooperation on readmission by non-EU countries. Several elements of the strategy defeat any assertion that this measure is truly voluntary, including increasing the participation in “voluntary” departure programs, by imposing detention and the leading role of EU Border and Coast Guard Agency, also known as Frontex, in reintegration programs.
5 Conclusion
This blog post is aimed at assessing the UNECE states’ reports submitted for the regional review of the implementation of the GCM, with the focus on Objective 21. The assessment relied on the structure of Objective 21, which embraces three sets of commitments: human rights-compliant return procedures, readmission cooperation and reintegration. Given that the measures described by states mostly predate the GCM, the UNECE review offered an insight into interpretation of commitments under Objective 21 rather than their implementation. Implementation of Objective 21, as with many other GCM objectives, highlights a recurrent paradox. While many countries forcefully engaged in the drafting of the GCM, state reports studied in this blog post hardly make any reference to GCM’s influence in adoption of policies and practices, including in the rare occurrences when they report on safeguards and inclusion of human rights norms and standards in return procedures.
The key conclusion is the disproportionate and unjustified focus on the readmission-related commitments, compared to human rights-related leg of Objective 21. Objective 21 refers to “the obligation of States to readmit their own nationals,” without clarifying that under international law, this obligation refers to only nationals willing to return to their country of origin. Under international law, there is no undisputed obligation to readmit nationals, who do not wish to return, into their country of origin. Some reports from EU and Schengen states readily relied on this (unfortunate) language of the GCM and complained about non-EU countries lack of increased readmission cooperation after the GCM adoption. It is noteworthy that the same countries consider themselves as already complying with the GCM, which resulted in their reports being of just a few pages. Echoing the reports from the EU states, the submission from the EU also follows this selective logic of being silent on return-related human rights safeguards, while expanding on readmission cooperation expected from non-EU countries. In view of long-standing and increasing pressure by the EU, it is unsurprising that reports from non-EU countries explained that they adequately fulfil their readmission duties under the respective agreements. The UNECE review became a snapshot of the ongoing readmission asymmetrical horse-trading between parties of unequal power.
Further, reports from countries of origin offer some helpful reintegration measures adopted to support their nationals upon return. The reintegration programs described by the sending countries, while helpful in individual cases, ultimately serve their own interests. “Voluntary” return, accompanied by reintegration component, is cheaper and easier to organise than outright forced return. These measures are not genuinely voluntary, as the person is compelled to accept this form of return, alternatives being forced return, detention, destitution and entry ban. This was also confirmed in the report from the EU that linked reintegration assistance with readmission cooperation, which typically concerns forced returns.
Finally, merely four out of 26 reports addressed the GCM commitments relating to human rights-based expulsion procedures. Like most of the EU states, the report from the EU was also silent on this point; while currently, there are on-going negotiations on legislative proposals, which risk reducing substantive and procedural safeguards in return procedures regulated under EU law. This neglect of return-related human rights commitments is particularly striking because, in contrast to readmission and reintegration, this set of commitments under Objective 21 reflect the binding international human rights framework governing states’ expulsion measures. Return operation, in a form of AVRR project or forced return, and operationalised by means of readmission agreements, can only take place once the competent authorities concluded, within a procedure which respects relevant safeguards, that expulsion does not violate the principle of non-refoulement or other human rights bars to return.
The lack of questioning of this selective approach towards interpretation and implementation of the commitments under Objective 21 was ultimately possible because of the inherent nature of the process of the review of the GCM. As discussed elsewhere, the review process, both at the global and regional level, is intergovernmental and state-led, although participation of relevant stakeholders should be facilitated. In stark contrast with the Universal Periodic Review (UPR), which is also a state-led review process, the GCM review process is a self-review. During the roundtables, although UN bodies and independent stakeholders can also make a statement, there is no discussion or recommendations. Unless the GCM review process is modified along the lines of the UPR peer review process and includes recommendations by the UN human rights treaty bodies, the review and the implementation of Objective 21 will keep reflecting the position and interests of the more powerful UN Member States, who often appear to drift away from human rights norms and standards.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.