Return of Persons Not in Need of International Protection

I. INTRODUCTION

1. At it forty-sixth session, the Executive Committee emphasized the importance of addressing problems relating to the return of persons not in need of international protection, and encouraged UNHCR to cooperate with other international organizations in looking into ways in which the return process could be facilitated (A/AC.96/860/paragraph 19(l)). In response to this request, UNHCR prepared a succinct overview of the issue and, in particular, of the role which UNHCR might play in addressing it.¹ UNHCR concluded in this report that the Office, despite its limited mandate in this area, would be willing to support States in their efforts to return certain categories of rejected asylum-seekers. Such involvement would, however, need to be in line with UNHCR's humanitarian character and would require that the Office be satisfied with the refugee status determination process. At its forty-seventh session, the Executive Committee encouraged UNHCR to continue the consultative process initiated in 1995 (A/AC.96/878/paragraph 21(v)).

2. The purpose of the present report is to draw attention to legal considerations relevant to the return process in the context of persons not in need of international protection and to draw attention to the evolution of UNHCR's position on this important issue.

II. BACKGROUND

3. There is an obvious link between the issue of return of persons not in need of international protection and wider migration issues. Rejected asylum-seekers are often would-be migrants who move as a result of adverse economic conditions, fragile social structures, pressures from poverty, environmentally-driven factors or scarcity of natural resources. The very conditions of survival within some countries are so harsh as to affect the ability of people to live in full human dignity, fuelling movements to countries where work prospects are believed to be better. The Special Rapporteur on human rights and extreme poverty of the Commission on Human Rights has recently pointed out in his final report that international flows of migrants are among the most disturbing phenomena of our times; and that poverty, especially in its most extreme forms, is among the main causes and aggravating factors.² In some instances, countries may also view the emigration of their own citizens as a useful avenue for reducing demographic pressures, decreasing unemployment, or helping to stabilize local economies through remittances. Policy analysts have long promoted the view that development aid, trade policies and foreign investment should be more directly tailored to reduce emigration pressures, in particular by means of enhancing employment possibilities and increasing support for education and medical care in countries of origin. Bilateral or multilateral orderly migration programmes, if only on a short-term basis, may constitute useful additional measures in this field.

4. In terms of the broad legal framework, a number of core issues in this area are addressed by the United Nations Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, which has not yet come into force. The United Nations Human Rights Commission in April 1997 called upon States to accede to this international instrument, which lays down basic standards of treatment for all migrant workers, irrespective of their legal situation.

5. Article 67 of this Convention obliges States parties to cooperate in the adoption of measures concerning the orderly return of migrant workers in an irregular situation. Article 68 of this Convention requires States parties to "collaborate with a view to preventing and eliminating illegal or clandestine movements and employment of migrant workers in an irregular situation". More specifically, States parties are to take appropriate measures against the dissemination of misleading information relating to emigration and immigration; measures to detect and eradicate illegal or clandestine movements; and measures to impose effective sanctions on persons, groups or entities which organize, operate or assist illegal or clandestine migration, use violence, threats or intimidation against migrant workers in an irregular situation, or employ such workers. Under Article 69, States parties are required to take appropriate measures to ensure that an irregular situation does not persist.

6. These and related provisions, while not yet in force, reflect an important international standard and the development of general international law in this area.³ They provide a useful international framework of reference that could be made operational.

7. In a longer-term perspective, any broadly based approach to the question of return must address the problem of the causes of the original departure. This would require the forging of comprehensive policies and close partnerships between the countries of origin, receiving countries, agencies of the United Nations system and financial institutions, as well as international governmental and non-governmental organizations. The 1996 Note on International Protection (A/AC.96/863), emphasized the importance of comprehensive approaches for the prevention, the redress and the resolution of refugee situations. Elements of this Note as well as of the Conclusion on Comprehensive and Regional Approaches within a Protection Framework, adopted by the Executive Committee in 1996 (A/AC.96/878/paragraph 22), may provide useful components in the formulation of a preventive approach in a much broader non-refugee related context.

III. LEGAL CONSIDERATIONS

8. At the level of the individual, the right of everyone to return to his or her country of origin is fully recognized in international law.⁴ This individual human right is, however, unlikely to be invoked by persons who are unwilling to return. Sometimes the unwillingness of an individual to return has served as an argument for the country of origin not to facilitate the process.

9. If the authorities of the sending State have established that there are no obstacles under international law to the individual's return,⁵ the sending State has the right to expel and deport this person, provided certain procedural safeguards are met. At the inter-state level, the right to expel aliens, to be exercised in good faith, corresponds to the obligation under general international law of the country of origin to admit its own citizens. There is growing authority to suggest that this obligation also extends to stateless persons, insofar as they have been habitually resident in the country. Denial of readmission could, in some instances, amount to de facto expulsion of a national or a stateless person by his or her own country,⁶ which is prohibited under international law. Measures designed to evade these international obligations, including administrative and bureaucratic obstacles and unwarranted delays, are contrary to the general principles of international cooperation and good faith. They may also have adverse effects on the individuals concerned who, often detained, would benefit from expeditious return.

10. The CIS Conference,⁷ which in 1996 looked at problems of displacement, recalled that States are obliged to accept the return of their nationals, including those who are present illegally in other countries. The Conference, in its operational follow-up, considered specifically the subject of return of illegal migrants, acknowledging that the efficient return and readmission of such migrants is key to the prevention of illegal migration and trafficking of migrants. It was suggested that national, bilateral and multilateral mechanisms to facilitate the return of illegal migrants would provide a means to exchange information, to cooperate in organizing transport and to solve problems related to readmission practices.

11. Domestic legislation and administrative arrangements may need to be established or developed further in some countries of origin to enable prompt return, in particular by guaranteeing prompt issuance of travel and identity documents or by reducing evidentiary requirements for proof of citizenship. Greater international consultation, coupled with technical assistance and advisory services, may also be required in this area. Countries facing major difficulties in returning persons not in need of international protection may also consider concluding return or readmission agreements with countries of origin to improve the issuance of return documents and to expedite the actual return process.

IV. UNHCR'S ROLE

12. The conclusions of a major internal survey of UNHCR Branch Offices in Europe in 1996 showed that not all European countries regard the return of rejected cases as a difficulty, or as a process which requires additional outside assistance. In a number of countries, deportation is an active and smoothly running process, and existing arrangements with concerned non-governmental organizations (NGOs) and intergovernmental organizations, such as the International Organization for Migration (IOM), are adequate to meet the need.

13. The same survey did conclude, however, that a significant number of European countries face difficulties stemming from:

• logistical problems in enforcing return;

• financial costs of return, particularly extra-regional costs;

• obstacles established by countries of origin (non-issue of travel and identity documents denial or non-recognition or citizenship etc);

• disappearances before finalization of the asylum process;

• broader political issues.

Difficulties encountered in these areas are not conducive to any easing of reception obstacles or of restrictive asylum policies. The effective implementation of a coherent removal policy will depend largely on the ability of Governments to address these obstacles.

14. In terms of organizational responsibilities, rejected asylum-seekers do not, as a category, fall within UNHCR's competence, and UNHCR assistance to date with return programmes has been on a good offices basis, as outlined in the report on the subject to the third meeting of the Standing Committee (EC/46/SC/CRP.36). As that paper also acknowledged, however, a UNHCR involvement in return programmes can contribute positively to underpinning the institution of asylum against adverse consequences flowing from non-return of rejected cases. The overstay of persons not in need of international protection (and non-return of illegal migrants generally) have been linked to severe entry control régimes, defects in asylum procedures and inadequacies in the provision of international protection to all who need it. In this sense, overstay is also a problem for UNHCR, creating obstacles to the exercise of its protection mandate.

15. If UNHCR's involvement with return can be shown directly or indirectly to contribute to the fulfilment of its protection and solutions responsibilities stemming from UNHCR's Statute, there is no overriding mandate obstacle to involvement. Among the main criteria for involvement by UNHCR are the two following conditions which must be met:

(i) the involvement of the Office must be fully consistent with its humanitarian mandate to protect refugees;

(ii) return is recognized as being primarily a bilateral matter between the countries concerned and UNHCR's role is a supportive one, ideally as part of an inter-agency arrangement.

16. Furthermore, UNHCR's protection responsibilities require that the Office's involvement be preceded by its determination that there is no valid protection reason why a group of individuals should not be required to return, and that UNHCR involvement is beneficial to protecting individuals and the institution of asylum.

17. In its report to the third meeting of the Standing Committee (EC/46/SC/CRP.36), UNHCR set out its definition of the term "rejected asylum-seekers", which refers to "persons not in need of international protection". Rejected asylum-seekers may continue to be fully entitled to international protection if asylum is refused to persons who qualify as refugees;⁸ in addition, the fact that a person has been found by the competent authorities of a State not to qualify as a refugee will not always mean that he or she is not in need of international protection.⁹ If asylum-seekers are rejected in the asylum process, but cannot be returned due to armed conflict or general disturbance, acknowledgement of their continued need for protection will facilitate their continued presence in the country of refuge both legally and politically. The issue of return of rejected cases therefore needs to be related to the ongoing consultations on the provision of international protection to all who need it. The Office hopes that a clearer identification will be reached of those persons who, while not necessarily Convention refugees, would nevertheless be exposed to danger if returned.

18. UNHCR is currently refining its own policy on involvement in returns. Any decisions to participate, at the request of Governments, in a return operation would have to be preceded by a cost/benefit analysis for UNHCR, against strict criteria for involvement, and would be on an exceptional rather than routine basis. UNHCR would also not become involved where there is another agency already active or better suited and able to undertake the necessary activities.

19. Assuming, however, that it is deemed appropriate for UNHCR to assist in a return operation, activities the organization might undertake could include the exchange and the distribution of information on developments in the country of origin as they affect return. The Office would further consider more actively taking clear public positions on the acceptability of return of particular rejected groups. While the prime responsibility rests with the States concerned, the Office could act increasingly as a catalyst in this area by facilitating a dialogue between States, by counselling national entities; and by undertaking certain limited activities of a general nature in the country of origin, thus contributing to the longer term objective of successful reintegration of the returnees.

V. CONCLUSION

20. Any measures or strategies in this area must contain elements to deal humanely and effectively with rejected asylum-seekers, in accordance with relevant international standards and in a spirit of international cooperation. Proposed measures should be consistent with human rights requirements and without prejudice to protection needs of persons who are not covered by the application of the international refugee instruments but are nevertheless in need of international protection. More consideration should be given to addressing the root causes for departure and to the further development of integrated policies at both the national foreign policy level and the multilateral level.

21. Often statistical data on enforced removals of asylum-seekers is not available due to the fact that no distinction is made between rejected asylum-seekers and other foreigners. UNHCR encourages receiving States to develop improved methods of collecting such data to enable States to monitor better the rate of returns of rejected asylum-seekers to countries of origin.

22. UNHCR is prepared to explore with regional organizations whether harmonization efforts could be undertaken or improved to address the problem of return at the regional level. UNHCR is available to participate in any discussions on this broad issue, in cooperation with other relevant organizations. Consideration could be given to the creation of a mechanism where interested Governments of both host countries and of countries of origin can discuss return issues, including the readmission of rejected asylum-seekers, in a spirit of international cooperation.

1 Return of Persons not in need of International Protection (EC/46/SC/CRP.36 and Corr.1).

2 The Realization of Economic, Social and Cultural Rights (E/CN.4/Sub.2/1996/13, paragraph 5), Commission on Human Rights, forty-eighth session.

3 For instance, as regards measures of collective expulsion of migrants, irrespective of their legal situation, Article 22 of this Convention is generally held to be an accurate reflection of current international law in this domain.

4 The right to return has been enshrined in a number of human rights instruments, such as Article 13 (2) of the Universal Declaration of Human Rights; Article 12 (4) of the International Covenant on Civil and Political Rights; Article 5 (d) (ii) of the International Convention on the Elimination of All Forms of Racial Discrimination; and in regional human rights conventions as well as in the national legislation of various countries.

5 Relevant legal provisions are, for instance, Article 33 of the 1951 Convention, Article 3 of the Convention against Torture or, by interpretation, Article 7 of the Covenant on Civil and Political Rights or Article 3 of the European Human Rights Convention.

6 In the case of stateless persons, this refers to the country of habitual residence.

7 The Conference to address the problems of refugees, displaced persons, other forms of involuntary displacement and returnees in the countries of the Commonwealth of Independent States and relevant neighbouring States, held in Geneva on 30 and 31 May 1996 (see paragraph 11 of the Programme of Action).

8 Such refusals occur when recognition of refugee status and the granting of asylum are based on different criteria, for instance by application of "safe third country concepts", or, generally, when the refusal of asylum is related to reasons of national security. In the latter case, UNHCR is usually requested to assist in the resettlement of the person concerned in a third country; see, for example, Article II (4) and (5) of the 1969 OAU Refugee Convention.

9 That there are persons who are not covered by the application of the 1951 Convention and the 1967 Protocol but who are in need of international protection is widely recognized, including by the Executive Committee. This is, for example, the case when recognition of refugee status has been denied because of persecution by non-State agents, or because of an unreasonably high burden of proof.