Returns from Europe – An issue for African refugee advocates?

Refugee Rights News
Volume 2, Issue 3
September 2005

At the end of June a new policy paper on the return of rejected asylum seekers was issued by the London and Brussels based network of refugee assisting organizations, the EuropeanCouncil on Refugees and Exiles (ECRE).

ECRE’s report entitled, The Return of Asylum Seekers whose Applications have been rejected in Europe, comes at time when European governments continue to attempt to redefine the international refugee regime.

Emphasis on the removal of “failed” asylum seekers is increasingly the approach taken by European governments determined to make a show of “getting tough” on asylum. With the institution of effective return regimes being presented as essential to the credibility of the asylum system itself, states appear to view removing those who have failed the refugee test as critical to deterring migrants in general from entering the European space—despite the lack of accurate and comparable statistics to back up such claims.

Just earlier this month the European Commission announced the agreement of a Proposal for a Directive on Common Standards on return. The Proposal document constitutes the blueprint for debate by European lawmakers over the next months around harmonizing polices on return, law and practice that differ widely across the continent. The Proposal sets out a framework for dealing with the return of all persons who are illegally present in Europe, whether they entered illegally, overstayed their visa or residence permit or exhausted avenues for asylum.

The vulnerability of asylum seekers, however, requires that the potential differential impact of the Directive is carefully assessed. Due to the variety of standards pertaining in Europe, many persons defined as “failed asylum seekers” under national law may indeed qualify as “persons in need of international protection” when examined in the light of international law. As ECRE puts it:

…we cannot at present confidently assume that if someone’s asylum claim has been rejected by a European country they are necessarily a person not in need of international protection in view of procedural deficiencies in European asylum systems or restrictive interpretations of the refugee definition.

ECRE’s report concludes, “asylum seekers whose applications have been rejected form a growing segment of vulnerable, poor and marginalized people in European societies.” Current policies have resulted in prolonged detention, destitution, and leave persons for whom return is impossible languishing in legal and social limbo.

ECRE’s timely report provides a starting point for advocates to engage in the discussions which are being generated in the wake of the launch of the Proposed Directive. These discussions will have an impact, not just on the operation of asylum policy in Europe, but also ultimately, in the long term, on African refugee policy.

Recommendations

ECRE’s report identifies the key issues, misconceptions, and challenges which underpin Europe’s policies on return of rejected asylum seekers, and presents an overview of current law and practice. In identifying the human rights framework which must circumscribe the operation of any returns regime, the foundations are laid for the development of a series of concrete policy recommendations and suggestions for further research and exploration.

Underpinning the entire report is the message that the conduct of fair and efficient asylum procedures is the first and most foundational step in ensuring safe returns. ECRE goes on to formulate seven additional core principles:

1) States must not enforce returns prematurely.

2) States should not enforce removals and should grant a legal status to certain categories of persons, especially those who cannot be returned for reasons beyond their control.

3) States must ensure their actions do not breach any of their human rights obligations under international and European law.

4) The denial of human rights and the withdrawal of support as means of forcing asylum seekers whose applications have been rejected to cooperate with return procedures or compel them to leave of their own accord are unacceptable.

5) Detention should only be used as a last resort, and should be in full compliance with international human rights law.

6) International cooperation with countries of origin in a spirit of solidarity at all stages of the return process is a prerequisite to achieving sustainable return.

7) Sending states should set procedures in place to check that returnees have reached their destination safely. There should also be follow-up and monitoring of returns to identify whether return policies are safe, effective and sustainable.

Implications for African refugee policy

Consideration of the return of rejected asylum seekers from Europe might, at first blush, not seem an urgent priority for African advocates. There is, however, potential that the operation of policies surrounding return from Europe may have an impact on the quality of protection available to refugees in Africa. In April 2004, local and international NGOs at a conference on the Great Lakes region identified the issue of return of rejected asylum seekers from Europe as one of a complex of European policy developments which could have direct and indirect effects in Africa.

First, European refugee policy models are often looked to by African states seeking to amend their refugee and migration policy—the safe third country concept born in Europe has been adopted to the detriment of protection by some states in Africa. \

Second, return of rejected asylum seekers to countries of origin is not the only policy being pursued. There have been attempts to set up procedures whereby rejected asylum seekers can be returned to a third state—whether on the basis of a special agreement or because the person has transited that country prior to arrival in Europe. There have even been proposals that would have seen the transfer of rejected asylum seekers of various nationalities to a “holding” centre, the authorities of which would then be charged with identification and nomination of countries of ultimate destination.

Third, European states have in the past offered financial inducement to African states in return for cooperation around returns. In 2004, for example, Tanzania was offered four million British pounds in additional development aid if it would operate a transit centre for asylum seekers from Africa whose refugee status applications had been rejected in the United Kingdom. Although that initiative ultimately failed, it serves as an indication of the prevailing approach.

Proposals to institute such extraordinary regimes raise critical questions for the African refugee protection legal framework. Most African states are signatory, for example, to the African Refugee Convention, which extends the protection of refugee status to a much broader category of persons than does the UN Refugee Convention. The return of persons rejected under European refugee definitions (in some respects even narrower than that enshrined in the UN Convention) to third states in Africa is likely to trigger protection obligations under the national law of the receiving state. Making explicit such divergences between the Global North and South in levels of assumed responsibility may indeed invite reasonable questions as to whether indeed there should be harmonization of policies to the lowest common denominator.

Finally, there is a very strong ideological component to the discussion of returns in Europe—the majority of the more extreme measures being explored by states are directed towards African states and nationals of countries in Africa despite the fact that the majority of asylum seekers in Europe are from Europe and elsewhere.

How can the views of African advocates be heard in the debate?  

The recommendations in ECRE’s report provide a starting point for the identification of ways in which states and civil society in Africa might be able to be heard in the debate on returns in Europe. IRRI suggests that NGOs working in countries of origin and in countries of first asylum might wish to consider the following:  

Understanding the framework : It is vital that African NGO advocates and researchers have an opportunity to undertake an assessment of the potential impact of proposed developments on both the legal framework and policy making around protection in Africa.

Monitoring policy developments : There needs to be greater vigilance and exchange of information on national level efforts in Africa to agree bilateral accords with European States—around any measures which have an underlying rationale of burden shifting, rather than burden sharing. Bilateral accords are often negotiated at an intergovernmental level, far from the scrutiny of the public and not endorsed by parliaments. African NGOs can work fruitfully with European counterparts as part of the monitoring effort. A highly successful partnership between NGOs in Switzerland and Senegal in 2003 headed off an effort to set up a detention and transit centre for rejected asylum seekers from across Africa in Senegal (see “Senegalese, Swiss Defeat Delicate Accord,” in Africa Refugee Rights NewsVolume 1, Issue 1, April 2003).

Presenting country of origin perspectives : The ECRE report recognizes that non-cooperation of counties of origin can be a factor preventing return. There has been little written from the perspective of countries of origin about the politics and economics of return—and the views of local civil society need to be heard. The report recognizes that the high cost of instituting return regimes from Europe to Africa can be contrasted with the resources outlaid by states in Africa in hosting much larger numbers of refugees for prolonged periods. ECRE suggests that “political financial and economic support” for “reconstruction and development” should be offered to countries of origin, in addition to support to the individual returnee. It opposes, however the offering of, “inducements to third countries, whether in the form of development aid or otherwise to take asylum seekers whose applications have been rejected.” Finally, ECRE suggests that a deeper understanding of the motivations of those who continue to have concerns about return are also essential for the development of safe and effective return policies.

Monitoring returns : One of the findings of ECRE’s report is that there has been little engagement with counties of origin on what has happened to returnees—let alone any systematic monitoring of the impact and outcome of European return polices as a whole. Return policies that do not include consideration of the sustainability of return to the country of origin do not contribute in the long term to reducing the reasons why persons feel compelled to flee. One of ECRE’s recommendations is that sending states should establish procedures to check that returns have safely reached their destination and that NGOs in the regions of origin could be engaged in this effort. In particular, ECRE calls for “evaluation of the true success of returns policies – in terms of sustainability of return and the protection of the rights of returnees.” Finally, ECRE suggests that sending states should seek the participation of NGOs from the country of origin in the design of assisted return programs.