Recommendation N° R (99) 12 of the Committee of Ministers to Member States on the Return of Rejected Asylum-Seekers (and Explanatory Memorandum)

The Committee of Ministers under the terms of Article 15.b of the Statute of the Council of Europe

Recalling the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms and the 1951 Convention and its 1967 Protocol Relating to the Status of Refugees;

Anxious to preserve the institution of asylum and to ensure that persons who are in need of international protection have the possibility to seek and enjoy it;

Stressing that everyone shall be free to leave any country including one's own and that no one shall be deprived of the right to enter the territory of the country of nationality;

Conscious of the need to avoid cases of statelessness;

Bearing in mind that persons who, after due consideration of their asylum claim in a fair and full procedure, are found by the competent authorities not to qualify for refugee status, or not to be in need of other forms of protection, have no right, unless authorised on other grounds, to stay on the territory of the host country and are therefore expected to co-operate with the respective authorities to facilitate return;

Considering that the competent authorities of the host country may take appropriate measures to ensure the return of such persons to their countries of nationality or former habitual residence, as the case may be;

Underlining that such measures shall be implemented under the conditions as prescribed by law and in conformity with applicable international obligations of the state, in particular as provided for by the European Convention on Human Rights;

Being aware of Parliamentary Assembly Recommendation 1237 (1994) on the situation of asylum-seekers whose asylum applications have been rejected;

Desiring to ensure that national legislation and practice concerning the return of rejected asylum seekers be in conformity with the principles indicated above and that the states concerned co-operate to that effect,

Recommends that

1.     the country hosting the person to be returned ensures that

- whereas voluntary return is preferable, when nevertheless the resorting to mandatory return is necessary, it takes place in a humane manner with full respect for fundamental human rights and without the use of excessive force,

- the principle of family unity be taken into account;

2.     the country of origin of the person to be returned (country of which such person is a national or a non-national former habitual resident):

- respects its obligation under international law to readmit its own nationals without formalities, delays or obstacles,

- refrains from applying sanctions against returnees on account of their having filed asylum applications or sought other forms of protection in another country,

- takes into account the principle of family unity, in particular as it concerns the admission of such family members of the persons to be returned who do not possess its nationality,

- does not arbitrarily deprive the person concerned of its nationality, in particular, to avoid statelessness,

- does not permit the renunciation of nationality when it may lead to statelessness as a means to prevent the return of the rejected asylum seeker;

3.     host countries and countries of origin

- co-operate in order to facilitate the return of rejected asylum-seekers, in particular through conclusion of readmission agreements,

- co-operate, through their respective competent authorities, in determining nationality or place of habitual residence, in order to permit the return of rejected asylum seekers;

4.       member States share their experiences concerning their respective national return programmes and their co-operation with countries of origin and competent international agencies in the context of voluntary return.

Explanatory Memorandum

Introduction

1.     The Committee of Ministers, in establishing the Specific terms of reference of the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR), stated that one of the Committee's tasks is « to make proposals for the solution of practical and legal problems facing States in the field of territorial asylum, refugees and stateless persons, particularly by drawing up appropriate legal instruments (conventions and recommendations) in the liberal and humanitarian spirit of the member States of the Council of Europe aiming at among others to settle the question of the countries of first asylum and of territorial asylum and to look into specific situations in the new host countries ».

2.     Acting upon these terms of reference, the expert Committee identified that one of the main challenges facing the national authorities entrusted with asylum procedures is to maintain the credibility of the institution of asylum. These authorities are increasingly faced with the problem that persons who went through a full and fair asylum procedure and are found not to be in need of protection do not return to their country of origin (country whose nationality they posses or country of their former habitual residence). This is, in some cases, due to these persons, in other cases due to the reluctance of the country of origin to take these persons back. The CAHAR, therefore, decided to draft a recommendation to member States on this issue.

3.     The CAHAR, when drafting this recommendation, was bearing in mind the 1951 Convention and 1967 Protocol, the European Convention on Human Rights and its relevant case law, other recommendations of the Council of Europe which are relevant in this field, in particular, Recommendation No. R (81) 16 on the harmonisation of national procedures relating to asylum and Recommendation No. R (98) 13 on the right to effective remedy by rejected asylum seekers against decisions on expulsion in the context of article 3 of the European Convention on Human Rights. Relevant conclusions of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees were also taken into account.

4.     The draft finalised by the ad hoc committee was forwarded to the Committee of Ministers and was adopted by it on 18 May 1999 at the 670th meeting of the Ministers' Deputies.

General considerations

5.     The aim of the recommendation is to facilitate return and to provide States with certain guidelines when they return rejected asylum seekers from their territory to the country of origin. These guidelines relate to the treatment of the rejected asylum seeker by the host country and by the country of origin as well as to the co-operation between the two countries and among member States of the Council of Europe.

6.     In the context of this recommendation, the return of rejected asylum seekers is understood as the return of persons to their country of origin who, after due consideration of their asylum claim in a full and fair procedure are found by the competent authorities not to qualify for refugee status or not to be in need of other forms of international protection, and who are not being authorised on other grounds to stay in the host country.

7.     Situations where some member States consider that asylum seekers should apply for asylum in the first or subsequent country in which they had an opportunity to do so and such asylum seekers are to be removed to that country or sent to another country without the asylum application being examined in substance are not within the scope of this recommendation. Recommendation No. R (97) 22 containing guidelines on the application of the safe third country concept is dealing with such situations.

Comments on the principles set out in the Recommendation

8.     The preamble recalls the 1951 Convention and the 1967 Protocol and the European Convention on Human Rights as key instruments for persons who are in need of international protection and seeking such protection in member States. Preserving the institution of asylum and allowing persons who are in need of international protection to seek and enjoy it are elements which are linked to the effective implementation of return of persons who have sought international protection but were found by the competent authorities not to be in need of it.

9.     The preamble stresses that everyone shall be free to leave any country including one's own and to return to the country of nationality, and that there is a need to avoid cases of statelessness.

10.  Rejected asylum seekers who have not right to stay in the host country are expected to co-operate with the respective authorities to facilitate return.

11.  The competent authorities of the host country may take appropriate measures to ensure the return of rejected asylum seekers. If rejected asylum seekers deliberately hamper the implementation of return, reduction of social benefits according to law may be applied by the host country. Nevertheless, fundamental human rights of rejected asylum seekers must be fully observed in such situations also.

12.  Furthermore, specific measures (such as detention) may be applied by the host country if the rejected asylum seeker deliberately hampers the implementation of return. If detention is resorted to, it should not be applied as a sanction but as a specific, temporary and non-arbitrary administrative measure, it shall be implemented under conditions which are in accordance with law and correspond to standards established by the relevant international instruments and by the case law of the European Court of Human Rights.

13.  The operative part of the recommendation contains four points :

a.     Firstly, it deals with the country hosting the person to be returned which should fulfil certain conditions. In case of return of rejected asylum seekers, voluntary return is the preferred option. Some Member States facilitate such return through organised return programmes which under certain conditions include material assistance to the person returning voluntarily.

When the rejected asylum seeker is not willing to return voluntarily, States may resort to mandatory return. In such cases, the return should be implemented in a humane manner and with full respect for fundamental human rights of the person to be returned during all stages of the return process and without the use of excessive force. The host country should be also taking into consideration the principle of family unity.

b.     Secondly, the country of origin should respect its obligation under international law to readmit its own nationals without formalities, delays or obstacles which hinder or hamper the implementation of return measures by the host country. The country of origin should refrain from applying sanctions against returning persons on account of their having applied for asylum or having sought other forms of protection in another country and should take into consideration the admission of such family members of the persons to be returned who do not possess its nationality. The country of origin, if it is the State of nationality as well, should not arbitrarily deprive the person concerned its nationality, in particular to avoid statelessness and also should not permit the renunciation of national when it may lead to statelessness as a means to prevent the return of the rejected asylum seeker.

c.     Thirdly, host countries and countries of origin should co-operate in order to facilitate the return of rejected asylum seekers in particular, readmission agreements can provide with a useful framework to facilitate such co-operation. In case of doubt about the nationality or former habitual residence of the rejected asylum seeker, international co-operation through the respective competent authorities in determining nationality or former habitual residence is also a useful tool to facilitate return.

d.     Finally, Member States should share their experiences concerning their respective national return programmes and their co-operation with countries of origin and competent international agencies in the context of voluntary return.