Today, for many of us, the mention of return, removal, or deportation, conjures up thoughts of dawn raids on people\’s homes and rushed midnight air flights. Swift enforced departures, with little or no forewarning, are accompanied by hasty packing, frequently under Garda surveillance, with no chance to communicate this unexpected turn-of-events to friends, neighbours, church or school, much less say good-bye. For some parents, it has meant family break-up where they have had to leave behind small children. Those of us who watched that RTE Prime Time programme which showed one such experience cannot but have been moved to see the grief of mothers and the trauma etched on the faces of their children. What-ever the arguments, it is difficult to believe that there is not a better alternative than a procedure which leaves parents on one continent and their young children on another, thousands of miles away.
In Search of Refuge
The majority of those returned to their country of birth are people who, originally, had come as seekers of asylum. We might well ask ourselves what intervening series of events can culminate in somebody who came in search of refuge being forcibly removed – in a word, deported – from the state. To deport, as defined in one standard dictionary, is to expel – e.g. “as an undesirable alien or foreigner”. Even while accepting, in principle, the right of a state to deport in certain circumstances, deportation has harsh resonances.
Much has been documented internationally about breaches of human rights due to inadequate processes preceding deportation, methods used to remove people and the fate of those returned to unsafe situations. Even if today we usually speak of return or removal rather than deportation, the reality, by whatever name, is often in sharp contrast to the ethos of protection which gave birth to the 1951 Convention Relating to the Status of Refugees (the Geneva Convention). Nor is the reality generally in accord with the call to offer hospitality to the stranger which permeates the Christian Scriptures and is at the heart of the teachings of all the great religions.
Right to Seek Asylum
It was in the aftermath of World War II, and the large-scale displacement and movements of peoples, that the Geneva Convention, a legally-binding treaty, was adopted by the United Nations. Under a Protocol adopted in 1967, the geographical and time restrictions of the Convention were removed so that it was no longer only people affected by events in pre-1951 Europe who were eligible for protection. The Convention defines who a refugee is, gives a person the right to seek asylum in another state which is a party to the Convention and imposes a duty on the state in question to accept and process each asylum application. Under the terms of the Convention, a refugee is a person who is not afforded protection by the forces of law and order of her or his state and is unable or unwilling to return to her or his country of origin due to a \’well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group\’.{mospagebreak }
The Convention explicitly states that persons fleeing their country of origin on any of the grounds which it specifies shall not be liable to penalties on account of irregular entry to another state which has become party to the Convention. Critically, it sets out the right of a person seeking asylum not to be removed to a state where her or his safety might be threatened. This right – the right of non-refoulement – is a crucial protection of which serious account must be taken in considering an application for recognition as a refugee and in deciding on return of persons whose application fails.
Ireland\’s Commitments
As a signatory to the Geneva Convention, and in accordance with the demands of domestic legislation contained in the Refugee Act, 1996 (as amended), Ireland is committed to operating an asylum system that respects due process and is transparent, fair, humane and prompt. Clear status and appropriate rights must be guaranteed to those admitted, whether as refugees or with other forms of leave to remain in the country. Equally, the rights of those who are judged not to have grounds on which to be allowed to remain must be fully respected.
In a 2002 publication, in a section entitled \’Grasping the Nettle of Expulsions\’, Trocaire and the Irish Commission for Justice and Peace stated:
A clear, fair and efficient adjudication procedure, with all the necessary attendant safeguards, will by definition admit not only those whose application is well-founded but also others whose applications will be rejected. … Deportation of some applicants (assuming there are adequate safeguards in the system) is an inescapable part of a fair and efficient process…1
Removal, then, following the final rejection of an asylum application, is an integral, albeit difficult, part of the asylum process. However, with a growing array of increasingly restrictive asylum-related policies and practices being put in place, serious concerns arise as to whether people seeking asylum can gain access to the country to make an application and, whether, if they do gain access, their application gets a full, fair and transparent hearing. Measures to prevent those seeking asylum from reaching the country, legislation which imposes penalties on those who transport asylum seekers without regular travel documents (Carriers\’ Liability), fast-tracking of applications and limited legal aid, interpretative and other supports cannot but impinge negatively on the right to apply for asylum and to have the application fully and fairly processed.
While reliable and accurate statistics are difficult to come by, it would seem that Ireland – in common with most EU countries – gives refugee status to less than 10 per cent of those people who apply for asylum. Countries have the option to grant \’leave to remain on humanitarian grounds\’ to people whose lives are in danger but whose application for asylum does not meet the stringent criteria of the Geneva Convention. However, Ireland, unlike the UK and many other EU member states, very rarely grants this lesser and more temporary form of protection. For example, in the six years from 1999 to 2004, only 518 people were granted \’leave to remain\’ in this country.
Given, then, that a large proportion of those who come to Ireland seeking asylum are refused permission to stay, it is inevitable that a significant number of people have no choice but to return to their home country or be returned there by the state.
Protection Concerns
In the light of the procedural lacunae in the asylum systems of most, if not all, European countries, including Ireland, as well as of the increasingly restrictive interpretations of the refugee definition, it cannot be assumed with any certainty that someone whose asylum claim has been rejected is, therefore, not in need of international protection. There are, in fact, many valid concerns regarding people who sought asylum and whose application was refused. These concerns arise as a result of evidence of poor decision-making, prolonged asylum procedures, inappropriate return of vulnerable people, return of people to unsafe countries and inadequate return procedures. The removal of Olunkunle Eluhanle to Nigeria, shortly before he was due to sit his Leaving Certificate, was, by the admission of the Minister for Justice, a wrong decision and grounds for the Minister\’s finally allowing him return to Ireland. However, not all questionable decisions regarding return gain the same public attention or have such a positive outcome. While return following a fair and prompt decision on an application can be justified, it is hard to condone returning someone who has been in the country for several years, has settled into life here, is actively involved in a local community and may have children attending school.
It is essential to recognise the problems which a majority of rejected asylum seekers face and to emphasise the potentially devastating consequences for the lives of individuals of asylum processes and return policies and practice which disregard the facts of each individual case. In general, removal procedures do not take account of the long-term fate of the people deported, with many being returned to unsafe situations where, on arrival, they are liable to face arrest, imprisonment, torture and even death. For this reason, suspensive effect of decisions must be available, so that a comprehensive legal review can be completed before a removal order is enforced.{mospagebreak }
A Complex Issue
The issue of return is complex, yet in public debate on it, as well as in the framing of policy and procedures, rarely is this complexity adequately recognised or considered. Instead, the hostile political climate towards refugees and asylum seekers has meant that the issue of return is often approached in a very simplistic and negative way.
In many instances, return enforcement measures are being developed without appropriate human rights safeguards. Most alarmingly, the focus in the EU has been on agreeing the logistics of removal procedures without member countries first having put in place comprehensive, just and transparent asylum policies and procedures. In this context, it should be noted that while international law prohibits collective expulsions, some EU member states jointly charter flights to return people to their country of origin. Any aspect of asylum policy or practice – from initial application for asylum to refugee recognition or eventual removal from the State – which would represent a dilution of legally binding obligations under international and European law must be vigorously opposed. Ireland, in common with its European partners, must take measures to ensure the quality and sustainability of return for those who can be returned to their country of birth or to the country in which they had lived before coming to Ireland, as well as fairer policies for those who cannot be returned.
Return – under Different Guises
There are three categories of return – voluntary, mandatory and forced. Some people who no longer have a legal basis for remaining in a country may consent to return. There are no comprehensive statistics to show the numbers of asylum applicants who, when their claims have been rejected, leave of their own accord. However, for return to be voluntary in any real sense, the person returning needs to have a legal basis for remaining in the country, yet chooses to leave.
It is increasingly common for European states to use methods to induce or coerce people to agree to return, making the return in fact mandatory. Forced return involves those who have not given their consent and who, on removal, may be subject to sanctions or the use of force.{mospagebreak }
Inherent Limitations
While there is no indication that a vigorous return system discourages asylum applicants, governments, for political gain, often tend to use returns to demonstrate a tough approach to asylum. However many the number of people returned to their country of birth, these always represent only a fraction of those whose asylum application has been rejected. Of almost 12,000 Deportation Orders signed by the Department of Justice, Equality and Law Reform, less than 2,500 have been effected.2
Even when it is recognised that an individual cannot be returned, many of those whose application has been rejected do not receive a legal status and find themselves in a limbo situation without the right to work in order to earn a living and with very limited and totally inadequate state support. As a consequence, there is always a significant group who remain as undocumented persons and for whom life is, therefore, vulnerable, poor and precarious.
Yves\’ Story:3 Very shortly, it will be five years since Yves fled his home on another continent and came to Ireland seeking a place of refuge. Yves sought asylum on grounds of active membership of a political party which was outlawed when a military government came to power. He is in no doubt but that return to his country would result in certain imprisonment and probable death. With his initial application and later appeal both rejected – in a process which in his particular case, and not just in general terms, raises serious questions regarding compliance with the Geneva Convention and domestic refugee law – Yves applied for judicial review. That was three years ago, and he is still waiting for his case to be heard. In the meantime, a long-standing health condition has worsened. Without leave to work, he has availed of a range of short courses and, wherever possible, helps as a volunteer. Informally, official sources have said that because of geographical location, Yves’ country is not one to which Ireland returns people.
Fair Return Policies
In its recent paper on the return to their countries of birth of people whose asylum application has been rejected, the European Committee on Refugees and Exiles (ECRE) makes a number of key recommendations:
· Fair and efficient asylum systems are a pre-requisite to return.
· States must not enforce returns prematurely.
· International cooperation, in a spirit of solidarity, with countries of origin at all stages of the return process is a pre-requisite to achieving sustainable return.
· For certain categories of persons, states should not enforce removals and legal status should be granted particularly to those who cannot be returned for reasons beyond their control.
· People seeking asylum whose applications have been rejected should be adequately supported by the government of the host country through the provision of basic socio-economic benefits until it is really possible for them to leave that country.
· In undertaking returns, states must ensure their actions do not breach any of their human rights obligations under international and European law.
· Detention should only be used as a last resort, and should be in full compliance with international human rights law.
· There should be follow-up and monitoring of returns to identify whether return policies are safe, effective and sustainable.4{mospagebreak }
Post-Return
It is important to recognise that returns can be efficient and, at the same time, be carried out in a manner that is safe, dignified and humane, with the persons concerned retaining a sense of self-worth and of control over their lives. The success of return policies – with the wellbeing of the persons returned being the key criterion – should be systematically evaluated.
Successful re-integration in the country of origin is a key factor in ensuring the sustainability of return. It is essential for states to assist in the reconstruction and development in countries of origin and to support the re-integration of returnees. Linkages to development policy are necessary so that returns are sustainable and do not breach human rights.
Portia\’s story:5 Portia, who came to Ireland as a separated child (an unaccompanied minor), lived here for two years. She was deported to Lagos early in 2005, a few days before her twentieth birthday. On arrival, she was taken into custody, and released on payment of a \’fine\’ (with money given to her by some Irish friends for possible emergencies.) To her knowledge, she has no remaining family in Nigeria. Irish officials gave her no contact number in case of emergencies. The Nigerian government provided no support. She had no shelter, no money, and very few belongings. Portia descended into deep depression and came under serious pressure to enter into prostitution in order to survive. Through the concern and intervention of her Irish friends, and with the assistance of an Irish missionary order, some small amount of funding has reached her. This has enabled her to rent a room and feed herself. Her Irish friends worry about her and wonder how long they can continue to provide emotional and financial support at this distance.
Learning from Experience
An in-built monitoring component in deportation procedures would:
· give feedback on the validity of decisions on asylum applications;
· provide a check on whether persons deported gained safe access to countries of origin;
· give information on how those returned have been able to re-integrate into their community.
In matters relating to all forms of return, cooperation and involvement should be sought from relevant NGOs, Churches and refugee representatives, including those working in countries of origin. Representatives of these groups can also be valuable participants in an independent body to monitor removals and to investigate complaints with regard to detention or removal procedures.
Return of Migrants
The issue of return does not affect only those whose asylum application has failed. Migrants who, for whatever reason, find themselves in an irregular situation may also be removed to their country of origin. In a system where, for example, renewal of work permits is in the hands of the employers and where right to residence is tied to right to work, employees often find themselves in an irregular situation when, because of procedures over which they have no control, their work permit has been allowed expire.
Similarly, students can for various reasons find themselves in an irregular situation if, for instance, they want to extend their stay either for further studies or to enter the workforce. Among the key factors to be taken into consideration in framing new immigration legislation is the streamlining of systems and procedures to ensure that immigrants do not unintentionally become irregular in relation either to work or to residence and, as a consequence, risk deportation through no fault of their own. The human rights of migrants whose situation becomes irregular, and who are liable to be returned, must be fully respected.
It is to be hoped that the consultation in relation to the discussion document, Immigration and Residence in Ireland,6 issued by the Department of Justice, Equality and Law Reform in April 2005, will lead to legislation which provides protection for migrant workers and their families, in line with international human rights standards. In particular, and as was strongly argued by the Churches\’ Asylum Network (CAN), in its submission in response to the discussion document, Ireland can give a lead to its EU partners by signing and ratifying the UN Convention on the Rights of All Migrant Workers and Members of their Families.{mospagebreak }
Human Rights Approach
It is vital to ensure that policies, procedures and practice in relation to return should fully respect the needs and the dignity of the people affected. The achievement of this presumes a human rights-centred approach to all aspects of asylum and immigration. In a joint response in September 2005 to the European Commission proposal for a Directive on Common Standards of Return, thirteen NGOs, including Jesuit Refugee Service- Europe and Caritas Europa, highlighted that at the heart of such an approach would be a commitment to ensuring that:
· Seekers of asylum whose applications were turned down, and who have been in the country for two years or more, and irregular migrants in the country for the same period, would have their status regularised.
· Removal would be the last resort in dealing with irregular migrants and seekers of asylum whose application has failed, as should detention.
· In all cases, family unity would be strictly respected.
· Particular importance would attach to the protection against removal of vulnerable persons such as children, the seriously ill or trafficked persons.
· Those facing detention and removal would enjoy the right of a comprehensive legal review of the decisions affecting them, with suspensive affect.
· Priority would be given to the establishment of independent institutions to monitor detention and removal and to deal with complaints regarding detention or removal operations.7
Conclusion
In a broader context, respecting the rights of asylum seekers and migrants who come to Ireland must be accompanied by a real commitment to work internationally to end the con
ditions and situations which force people to leave their countries in the first place. Unless and until the existing inequitable distribution of power and resources across the globe is addressed in radical ways, the flow of refugees and asylum seekers, as well as of economic migrants, will continue and, most likely, will grow.
Our international obligations can be honoured in different ways: through support for conflict prevention and resolution, through development co-operation, by advocating fairer trade policies, lobbying for just solutions to international debt and promoting human rights globally. The honouring of the State\’s commitment to ODA is not an option to be pursued only if domestic economic circumstances are favourable, but rather a requirement of social justice – in the words of Pope John Paul II:
Genuine and practical solidarity with those in need is not a favour conceded, it is a demand of our shared humanity and a recognition of the dignity of every human being.8
In no way should the granting of ODA or any other form of development support be dependent on the recipient country\’s adopting a particular asylum or immigration policy, nor should aid be linked with that country\’s agreement to re-admit its own nationals whom the donor country may wish to return.
In Ireland today, the way is open for us to welcome the stranger and to work together toward a global culture of justice and peace. We have the resources of imagination, creativity and knowledge, as well as the financial, technical and economic possibilities – have we the vision and the commitment? And if not…?
Joan Roddy DMJ
“Sr Joan Roddy DMJ is Director of the Refugee and Migrant Project of the Irish Bishops\’ Conference”
References
1. Trocaire and the Irish Commission for Justice and Peace, Refugees and Asylum Seekers – A Challenge to Solidarity (2nd edition), Dublin: 2002,
p. 40.
2. Statistics from the Department of Justice, Equality and Law Reform,
2 August 2005.
3. Name changed.
4. “The Return of Asylum Seekers whose Applications have been Rejected in Europe”, London: European Committee on Refugees and Exiles, June 2005 (see www.ecre.org).
5. “Leave to Remain for Aged-Out Minor Asylum Seekers”, P+L+U+S Appeal (Please Let Us Stay): statement of Dun Laoghaire Refugee Project and P+L+U+S Campaign, August 2005
([email protected]).
6. Department of Justice, Equality and Law Reform, Immigration and Residence in Ireland: Outline Policy Proposals for an Immigration and Residence Bill, A Discussion Document, Dublin: Stationery Office, 2005.
7. Joint Response of 13 NGOs to the European Commission proposal for a \’Directive on Common Standards on Return\’, Press Release, 1 September 2005 (www.Caritas-europe.org).
8. Pope John Paul II, address during a visit to a Palestinian Refugee Camp, March 2000, quoted in Mark Raper SJ and Amayo Valcarel, Refugees and Forcibly Displaced People, Dublin: Veritas, 2000, p. 68.
