The Readmission of Asylum Seekers under International Law

Mariagiulia Giuffré

• Publisher: Hart Publishing
• Year: 2020
• Print ISBN: 9781509954759
• eBook ISBN: 9781509902521
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This monograph could not be more timely, as discourses relating to refugees' access to territory, rescue at sea, push-back, and push-back by proxy dominate political debate. Looking at the questions which lie at the junction of migration control and refugee law standards, it explores the extent to which readmission can hamper refugees' access to protection. Though it draws mainly on European law, notably the European Convention on Human Rights, it also examines other international frameworks, including those employed by the United Nations and instruments such as the Refugee Convention. Therefore, this book is of importance to readers of international law, refugee law, human rights and migration studies at the global level. It offers an analysis of both the legal and policy questions at play, and engages fully with widely-disputed cases concerning readmission agreements, deportation with assurances and interception at sea. By so doing, this book seeks to clarify a complex field which has at times suffered from partiality in both its terminology and substance.

1

Introduction

I.REFUGEE ENCOUNTERS WITH THE STATE

This book lies at the junction of migration control and refugee protection. As asylum is a migration-related matter, it can be difficult for some States to dissociate it from the struggle against irregular immigration. Asylum, as a measure for protecting refugees and other persons in need of international protection, may therefore easily come into conflict with policies and practices derived from strict border-control considerations.¹ This work explores the way that this conflict is managed, and investigates – primarily within the European geographical context – whether the implementation of bilateral agreements linked to the readmission of irregular migrants can hamper refugees’ access to protection,² understood here as the combination of the right to non-refoulement and an individual’s right to access asylum procedures and effective remedies prior to removal.

Fleeing persecution and gross human rights violations in their home country, refugees represent the most vulnerable category of people crossing international borders during the phases of both entry into and removal from the destination country. They frequently travel alongside economic migrants and are often unable to obtain identity and travel documents. As such, they are at a particularly high risk of being assimilated with those more commonly undocumented migrants who may be violating formal immigration control requirements.

As uninvited aliens, refugees are in principio ‘outside the field of loyalty.’³ Perceived as a menace to the peace and internal security of the host State, they have no community protecting them, and no linkage with their home country; as such, they are treated as outsiders whose claims must first be carefully assessed in order to decide whether they are legitimate. States’ endeavours to impose ever more robust barriers against those who seek to enter their national territories continue to accelerate, and have therefore led to a ‘tension between generosity towards those at home and wariness of those from abroad.’⁴

Whilst immigration to Europe from other continents and countries was modest during the first half of the twentieth century, more than 35 million people emigrated from Europe to extra-European destinations within the same period.⁵ Only between 1950 and 1970 did European States begin to assume increased responsibilities with respect to the huge number of post-war refugees.⁶ Moreover, since the early 1990s, a sharp increase in asylum applications has progressively been recorded across Western countries, in particular, Western Europe.⁷ In terms of the present day, by the end of 2018, 70.8 million individuals were forcibly displaced worldwide because of persecution, conflict, or generalised violence, leading to 2.8 million new refugees and new asylum seekers.⁸ As a result of the long-standing war in Syria, 362,000 refugees and migrants tried to reach Europe by sea in 2016, with this number significantly decreasing in 2018 due to the cooperation of European countries with third States of origin or transit to forestall departures and prevent arrivals by means of maritime interceptions.⁹ The closure of Italian ports to NGO-operated ships carrying migrants has also caused humanitarian emergencies on board vessels left adrift for several days with no European State allowing them to dock. This will have severe consequences for the building of long-term solidarity in the management of such maritime migrations.¹⁰ With many perishing en route, the Mediterranean has become the most dangerous sea in the world, and a deadly abyss for thousands of people, including children.¹¹ The question of ‘who is responsible for refugees?’ has never been more pressing.

To find a cooperative approach aimed at enhancing the overall benefits of migration (while still addressing its risks and challenges for individuals and communities in countries of origin, transit and destination), UN Member States finalised the text for the Global Compact for Safe, Orderly and Regular Migration on 13 July 2018. Although not legally binding, the Global Compact for Migration is the first UN inter-governmental agreement on a common approach to international migration in terms of all of its aspects.¹² The Global Compact on Refugees aims instead to strengthen the international response to large movements of refugees and protracted refugee situations via four different objectives: ‘eas[ing] the pressures on host countries; enhanc[ing] refugee self-reliance; expand[ing] access to third-country solutions; support[ing] conditions in countries of origin for return in safety and dignity.’¹³

Where European States have attempted to offer harmonised solutions to the migration challenge, (such as the progressive creation of the Common European Asylum System (CEAS)),¹⁴ they have also employed a new logic of reinforcing their territorial and maritime border controls, criminalising migrants,¹⁵ and accelerating the procedures for removing unauthorised aliens to the countries they originated from, or transited through. Such a proactive management of irregular migratory flows – especially by both seeking readmission of unwanted foreigners and intercepting them on the high seas, far away from territorial borders – has been criticised at national, regional, and international levels, alerting, inter alia, legal scholars and human rights organisations.

With a view to stopping irregular migration – by both preventing the arrival of unauthorised flows of migrants and readmitting those individuals who do not have the status to stay within the territory of the host country – the cooperation of third countries outside Europe becomes necessary. And within such a ‘globalization of migration control’,¹⁶ the opportunity to conduct research on the international human rights and refugee law obligations binding States in territorial and extraterritorial operative contexts is even more imperative. In Henkin’s words, ‘how [a State] behaves even in its own territory, [is] no longer … its own business: it has become a matter of international concern, of international politics, and of international law.’¹⁷

Likewise, readmission – whether performed before or after arrival at the border of the host, or would-be host country – lies at the intersection of distinct, often discrete disciplines, such as international law and international relations. In this respect, it has been argued that

the readmission system is not only built on obligations which would be defined in international customary law. Nor is it only a system based on incentives, costs, and benefits. It is also a system contingent on predominant schemes of understanding, paradigms and a hegemonic lexicon shaping policy perceptions and hierarchies of priorities.¹⁸

This monograph does not, however, delve into international relations theory. Rather, it aims to provide a legal analysis of the implications of readmission schemes for the rights and safety of those seeking protection in Europe. Examining State practices on migration control against the backdrop of refugee rights assumed increasing relevance after 11 September 2001, when the new ‘war on terror’ exacerbated the tendency to perceive refugees as a threat to international peace and security.¹⁹ In this interplay between human rights and State prerogatives, the refugee often ends up occupying

a legal space characterised, on the one hand, by the principle of State sovereignty and the related principles of territorial supremacy and self-preservation; and, on the other hand, by competing humanitarian principles deriving from general international law … and from treaty.²⁰

Therefore, the debate on agreements linked to readmission and refugee rights reflects a political debate involving national identities and security concerns, further confirmed by the European trend of seeking to deflect responsibility for migrants and refugees as far as possible from European borders. As next section will show, this would entrench uncertain and fluid national security interests to the detriment of the protection of migrants and the fundamental rights of refugees.

II.OBJECTIVES AND STRUCTURE

In 2011, following the socio-political upheavals in North Africa, masses of undocumented migrants and refugees began landing in Italy in total disarray. A significant number of these individuals, especially Tunisians and Egyptians, were confined for long periods of time either in overcrowded detention centres or on-board ships, and subjected to summary identification procedures by their consular officials, or rapidly expelled back to their countries of origin, all in the name of the efficiency required by the implementation of the readmission agreements between Italy and the two North-African countries.²¹

From 2005 to 2013, the UK government attempted to deport Mr Omar Othman (Abu Qatada) – a radical Muslim cleric who was granted refugee status in the UK – by seeking diplomatic assurances from Jordan as to his fair and humane treatment following removal. Abu Qatada is the first person to challenge, before the European Court of Human Rights (ECtHR), a deportation order issued on the basis of a Memorandum of Understanding (MoU), a framework agreement that can be used in cases of removal of an individual deemed to be a threat to public security.²²

In May 2009, Italy embarked on a forcible and indiscriminate removal policy, deflecting hundreds of people to Libya before they could enter the territorial waters of a European State. This push-back campaign was carried out on the basis of bilateral agreements for technical and police cooperation. However, despite the dismal human rights conditions in Libya, deflections to this country continue to this day in differing forms, with Italy undertaking (or coordinating) overall search and rescue (SAR) at sea and delegating push-backs (pull-backs) to the Libyan authorities.²³

The ‘red thread’ that runs through all these cases is that of removal; not least of the layered distances placed between the refugee and the State, and of the borders built and reinforced to sever, at the earliest point in time, the jurisdictional bridges between those-who-seek-protection and those-who-provide-protection. Under such logic, and in the wake of the pro-active management of European borders, diverse and bilateral cooperative strategies have been devised to firmly keep migrants and refugees well away from the doors of Europe.

This work primarily aims to investigate whether the implementation of bilateral agreements linked to readmission can hamper access to protection, meaning here the combination of refugees’ right to non-refoulement and the right to access asylum procedures and effective remedies before removal. In answering this question, three sub-questions are addressed: firstly, what is the content and scope of the right to non-refoulement, as well as the right to access asylum procedures and effective remedies before removal?; secondly, what is the relationship between agreements linked to the readmission of unauthorised migrants and the decision to remove refugees to countries of origin or transit?; and, thirdly, to what extent is the text of bilateral agreements linked to readmission compatible with core refugee protection standards, as enshrined in the main international refugee and human rights law treaties?

Chapter two explores the content and scope of the relevant international refugee and human rights protection standards, which are binding on European States when dealing with questions relating to the admission or readmission of refugees. Therefore, the legal content of the principle of non-refoulement as well as an individual’s right to have access to asylum procedures and effective remedies before removal are examined, with a focus on the main international refugee and human rights treaties, in primis the 1951 Convention relating to the Status ...

Table of contents

• Cover
• Dedication
• Title Page
• Foreword
• Preface
• Acknowledgements
• Contents
• List of Abbreviations
• Table of Cases
• 1. Introduction
• 2. Refugees’ Admission and Readmission: International and European Protection Obligations
• AGREEMENTS LINKED TO READMISSION AND REFUGEE RIGHTS: INTRODUCTION TO CHAPTERS 3, 4, AND 5
• 6. Conclusion
• Bibliography
• Index
• Copyright Page