1. Context and
scope of the report
1. This report is based on two motions for a resolution:
“Flights of shame in Europe” (
Doc.
12926) tabled by Ms Strik and others on 25 April 2012 and
“Effective and fair returns of irregular migrants and failed asylum seekers”
(
Doc. 12771) tabled by Mr Clappison and others on 22 September 2011.
Both motions highlight the need to evaluate the human rights dimension
of returning irregular migrants and failed asylum seekers to their countries
of origin.
2. Global geopolitical upheavals, economic instability, high
unemployment levels and the ever-increasing numbers of people attempting
to enter Europe, be it for asylum or employment purposes, pose a
big challenge for Europe. According to the European Agency for the
Management of Operational Co-operation at the External Borders of
the Member States of the European Union (Frontex), the number of
detected illegal border crossings rose from 104 000 in 2009 to 141 000
in 2011. The huge influx of migrants is testing States’ border control management
and prolongs the processing time for decisions of stay or return,
thus putting a strain on the effectiveness of the system.
3. In 2012, nearly 300 000
irregularly staying
third-country nationals were ordered to leave the territory of a
European Union member State.
159 490 people
were effectively returned. Of these, 82 630 people were forcibly
removed.
Unfortunately, it is very difficult
to obtain precise information as to the exact number as the European
Union member States are unwilling to disclose the relevant figures.
4. Removals take place either by sea, land or air and are the
responsibility of each member State and the authorities responsible
for enforcing them. The practice of carrying out returns varies
depending on the country in question. In most cases, returns are
organised and carried out by the police,
in other
cases by the border guards
or
by a private contractor, as in the United Kingdom. Since 2004, joint
enforced returns have been organised by Frontex, following a Council
Decision of 29 April 2004.
5. These returns, involving multiple countries, destinations
and returnees, pose a particular problem as it is very difficult
to establish which country is responsible for the removal and its
different stages. The general standards and provisions in force
regarding forced removals are currently deemed insufficient or too
unspecific for a process involving such serious risks. Despite some
recent co-operation efforts,
there
are no harmonised deportation procedures.
6. A multitude of incidents have shown that many of the removals
are conducted under unsatisfactory conditions and that deportees
have often suffered ill-treatment, which in some rare cases has
resulted in death.
7. The aim of this report is to look at the process of returning
irregular migrants and failed asylum seekers, and in particular
the existing human rights standards for carrying out returns. For
this purpose, I would like to examine the different stages of the
return process and the parties involved, as well as ways of ensuring
that member States’ human rights obligations are met. The final
aim is to identify common guidelines and standards in conformity
with the values of the Council of Europe which could serve as a
recommendation for guaranteeing a minimum level of protection of
returnees and the people involved in the removal procedure.
8. In order to have as full a picture as possible of the situation,
I conducted a fact-finding visit to the detention centre in Metsälä,
Helsinki (Finland), met representatives of public authorities and
non-governmental organisations (NGOs) and organised a hearing on
“Effective and fair returns of irregular migrants and failed asylum
seekers: protection of fundamental rights and dignity of returnees”
(Geneva, 26 November 2012). I also observed a forced return flight
from Helsinki (Finland) to Istanbul (Turkey), which gave me an insight
into how a forced removal is carried out.
2. Legal
and judicial scope
9. The removal procedure is governed by domestic legislation,
EU law and international law. The EU member States are bound by
the minimum guarantees set out in the EU Return Directive (No. 2008/115/EC) adopted
in June 2008, which came into force at the end of 2010. Human rights
standards also apply.
2.1. The EU Return Directive
10. The Amsterdam Treaty gave the European Community
the right to take measures to combat irregular immigration, including
repatriation.
Since
then the European Union has developed a policy under which the removal
of irregular migrants and failed asylum seekers is essential for
the credibility of a common migration and asylum law and policy.
In 2004,
the European Union adopted The Hague programme, which recommends
that the Commission develop “an effective removal and repatriation
policy based on common standards for people to be returned in a
humane manner and with full respect for their human rights and dignity”.
In 2008, the European Union adopted
the Return Directive. When adopted it was criticised by many, including
the United Nations Human Rights Council for allowing excessively
lengthy detention. At the same time, its aim of creating uniform
standards for the return procedure was welcomed.
11. The Return Directive states that “clear, transparent and fair
rules need to be fixed to provide for an effective return policy
as a necessary element of a well-managed migration policy”.
Coercive measures and the
limits to their use are defined in Articles 8.4 and 8.5. Detention
is justified only to prepare the return and/or carry out the removal
process (Article 15).
12. The removal process is addressed in Chapter II of the Directive,
where it is also referred to as “termination of illegal stay”. Member
States are obliged to issue a return decision to all third-country
nationals staying illegally on their territory. In this connection,
the Directive has been criticised for failing to explicitly mention
fundamental human rights obligations as laid down in the European
Convention on Human Rights (ETS No. 5).
13. Article 8.4 stipulates that removal may be enforced, but such
measures must be carried out in accordance with fundamental rights
and with due respect for the dignity and integrity of the returnee.
Before accepting the Directive, the European Parliament tried to
add additional binding standards to this provision, and reference
is made to Council Decision 2004/573/EC
on the organisation of joint flights
and the appended common guidelines on security provisions. Effective
monitoring is also called for, but there is no mention of what the
relevant mechanisms are or should be.
14. Several studies have been conducted on the EU return policy
and many of them have stressed that the focus is on effectiveness
and efficiency rather than on the human rights of the returnees.
2.2. The Council of
Europe
15. The Council of Europe has a large number of relevant
instruments. The first is Article 3 of the European Convention on
Human Rights, which prohibits torture and inhuman and degrading
treatment or punishment. The European Convention for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (ETS
No. 126) and its Articles 2 and 7 deal respectively with the right
of members of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) to visit
places of detention and the possibility for the committee to carry
out visits when circumstances so require.
16. The Parliamentary Assembly has adopted many texts on the issue,
including
Resolution
1788 (2011) “Preventing harm to refugees and migrants in extradition
and expulsion cases: Rule 39 indications by the European Court of
Human Rights”,
Resolution
1742 (2010) “Voluntary return programmes: an effective, humane and
cost-effective mechanism for returning irregular migrants”,
Resolution 1741 (2010) “Readmission agreements: a mechanism for returning irregular
migrants”,
Resolution
1707 (2010) on the detention of asylum seekers and irregular migrants
in Europe,
Recommendation
1645 (2004) on access to assistance and protection for asylum seekers
at European seaports and coastal areas and
Recommendation 1547 (2002) on expulsion procedures in conformity with human rights
and enforced with respect for safety and dignity.
17. In May 2005, the Committee of Ministers adopted Twenty Guidelines
on Forced Return
originating from Assembly
Recommendation 1547 (2002) cited above. The main purpose of this code of conduct
is to group together “the various guidelines developed by different
bodies within the Council of Europe in one pragmatic text to be
used by governments when developing national legislation and regulations
on the subject”. It should also be a “useful source of guidance
for those directly or indirectly involved in expulsion measures”. The
Guidelines apply to procedures leading to the expulsion of non-nationals
unlawfully present on the territory of one of the Council of Europe
member States. Refusals to enter national territory at a border
are not included in their scope.
18. The CPT has also developed guidelines
for this purpose, which, together
with the Twenty guidelines, will serve as a basis for the proposal
of common standards and guidelines to be made in this report.
2.3. Other international
law
19. In this context, I would also like to draw attention
to the Optional Protocol to the United Nations Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(OPCAT), adopted by the United Nations General Assembly in 2002
and in force since 2006, which institutes a system of unannounced
and unrestricted visits to places of detention, with the emphasis
more on prevention than reaction, as well as to the International
Labour Organization (ILO) conventions on migrant workers (Nos. 97 and
143) and the International Convention on the Protection of the Rights
of all Migrant Workers and Members of their Families.
20. Given the aim of this report, it is necessary to examine first
of all the role and involvement of the various parties in the removal
process, and the role and responsibility of the sending and receiving
States in the case of returns by air, land or sea, and to look at
the conformity with human rights of the treatment of returnees during the
removal process, in order to put forward proposals with a view to
harmonisation at European level. Such harmonisation might take the
form of regional standards covering the issue of protecting returnees
against inhuman and degrading treatment, thereby guaranteeing them
special protection as a vulnerable group.
3. The removal process
21. The removal of irregular migrants and failed asylum
seekers is an integral part of each State’s migration management
policy and border control. However, such repatriations must be balanced
by respect for universal human rights and returnees must be treated
in a humane and dignified manner.
22. People awaiting or in the process of removal are especially
vulnerable and are not always properly informed about their rights,
the legal process, the decision-making system and the culture, climate
and language of the country where they are being held. Some will
have experienced trauma in their own countries and undergone difficult
journeys from their countries of origin, during which they may have
lost loved ones and may have experienced exploitation, and long
periods of detention with uncertainty about their future. The removal
is usually divided into the pre-return, return and post-return phases.
The pre-return starts when a return decision is issued by the national
authorities. According to Article 7 of the Return Directive, the
returnee should have an “appropriate period” to leave the host country.
In member States outside the European Union, the practice varies
depending on national legislation. Bilateral agreements are the
most commonly used technique for regulating migration, such as,
for example, the agreements between France and Senegal. EU member
States may use their own bilateral agreements or may rely on EU
negotiated agreements.
3.1. Voluntary returns
23. The most dignified and humane way of removing migrants
is through voluntary returns. Acting of one’s own free will is basic
for the respect of human rights. This also reduces costs for the
enforcing State.
According to an Assembly report
on “Voluntary return programmes: an effective, humane and cost-effective mechanism
for returning irregular migrants” from 2010, a voluntary return,
including reintegration assistance, costs a third of a forced return.
The Return Directive stipulates
that the member State can give the returnee between 7 and 30 days
for voluntary departure after the removal decision has been made.
However, the Directive allows member States to refrain from this
procedure if the returnee is deemed to pose a threat to national
security.
24. In
Resolution 1742
(2010), the Assembly urges member States to make fuller use
of the practice of voluntary returns and to co-operate with the
International Organisation for Migration (IOM). In
Recommendation 1926 (2010), the Assembly recommends that the Committee of Ministers
invite one of its intergovernmental committees to prepare guidelines
on assisted voluntary returns which could usefully complement the
Twenty Guidelines on Forced Returns. This recommendation was unfortunately
not followed up by the Committee of Ministers.
25. The use of assisted voluntary return programmes varies depending
on the country. According to an EU study from 2011,
Germany
conducted 17 612 forced returns in 2009 but only 3 107 voluntary
returns. The number for Switzerland during that same period was
5 421 forced and 1 793 voluntary returns. In Finland, 2 411 return
decisions were made in 2011 but only 259 of these were voluntary.
26. In accordance with the Finnish Government’s 2011 programme
to speed up the return procedure for failed asylum seekers, the
Ministry of Interior has launched a project to consolidate the system
of voluntary returns and amended the legislation accordingly. The
aim is to offer failed asylum seekers or people whose asylum has
been revoked the chance to return voluntarily to their country of
origin or residence. The Finnish authorities have gained experience
of this process in a joint project between the IOM and the Finnish Immigration
Service.
27. The IOM assists with some 20 000 to 30 000 voluntary returns
annually through its Assisted Voluntary Return and Reintegration
programmes. The success of these programmes is dependent on the
co-operation of migrants, civil society and the governments in host
countries and countries of origin.
28. The Director of the Finnish Immigration Service said in an
interview in the Finnish Swedish-language daily
Hufvudstadsbladet on 30 October
2012
that
voluntary returns can be a safer option for irregular migrants.
When the police are involved in forced returns they will automatically
hand over the returnee to the authorities of the country of origin.
The current system does not provide for monitoring of the returnee
once returned. Improving and developing the practice of voluntary
returns is a very important step in respecting the human rights
of migrants and it should be used whenever possible.
3.2. Forced returns
29. Once it has been established that voluntary return
is not an option, the forced return procedure sets in. Article 9
of the Return Directive includes a provision allowing for member
States to postpone a removal, for example when there is a risk of
refoulement or when the returnee’s physical or mental state does
not permit his or her removal.
30. However, this is not without problems. In a report from 2011,
the European Union’s Fundamental Rights Agency (FRA) notes that
in cases where a person has been ordered to return but the removal
cannot be enforced, the Return Directive and other EU policy documents
do not provide for a mechanism to put an end to situations of legal
limbo deriving from protracted non-removability.
Amnesty International Finland also underlines
the risk of creating such a legal limbo in its comments on a government
proposal to amend the Finnish Aliens Act.
According to FRA, “following the evaluation
of the Return Directive planned for 2014, the European Commission
should propose amendments to the directive to ensure that the basic
rights of persons who are not removed are respected”.
31. The process of removal varies depending on the country. In
Finland, for example, the returnee is called to the police station
for an interview, where the police will make an assessment to determine
the procedure that best fits the purpose.
While
awaiting removal, the returnee is placed in the Metsälä Detention
Unit in Helsinki, or in police prison if the 40 places in that unit
are full.
The
CPT has criticised Finland for the lack of places.
In
the Netherlands, people awaiting removal are placed in much larger
units. In France, Belgium, Germany and Switzerland, the holding
unit is in the vicinity of the airport. However, facilities for
people awaiting removal are often unsuitable, such as those available
in Geneva (Switzerland) which do not have their own waiting and preparation
areas, so returnees cannot be separated from other passengers.
32. Removals can be organised either by the host country or, for
EU members, in the form of a joint flight, as provided for in Council
Decision 2004/573/EC. This sets out common guidelines for pre-return,
the flight itself, transit and arrival. It also includes provisions
for failed removal procedures.
The returnee is escorted from the
holding unit on board the vehicle of transportation and is the responsibility
of the host country until handed over to the authorities in the
country of origin. Transits are among the most critical phases of
the removal procedure and this is usually where cases of ill-treatment
may occur.
33. In addition, according to Amnesty International in Finland,
failed removals incur very risk-prone situations and the common
standards and guidelines for removals should include consideration
for these situations.
3.2.1. The use of force
and cases of ill-treatment
34. Coercive and restraining measures are only to be
used if the returnee constitutes a danger to him or herself or to
the people involved in the removal process. If properly trained,
the authorities and the escorting staff are aware that in difficult
situations they are always in a position of strength. According
to the CPT Guidelines, the force and the means of restraint used
should be no more than is reasonably necessary. For security reasons,
the removing authorities may also decide to separate family members.
35. Without going into detail, I would nevertheless like to outline
some of these cases. First that of Mr Samson Chukwu, a Nigerian
asylum seeker, who died in Switzerland from positional asphyxia.
No criminal proceedings were brought against the police officer
responsible. Mr Aamir Mohamed Ageeb, a Sudanese national, died in
Germany from asphyxiation. No charges were brought against the border
police. Mr Marcus Omofuma, a Nigerian national, died in Austria
from suffocation and, once again, no charges were brought against
the three police officers involved. Another Nigerian asylum seeker
died recently in Zurich in the course of a forced return procedure.
36. As for the other member States, it is worth pointing out that
the United Kingdom has no policy on the appropriate level of restraint
and no system for monitoring the use of restraint. In total, I was
informed about nine cases where death occurred during a forced return
procedure, in Austria, Belgium, France, Germany, Hungary, Switzerland
and the United Kingdom.
3.2.2. Monitoring forced
returns
37. Independent observers present during the entire removal
process is an important tool in preventing cases of ill-treatment
and in ensuring that the member States respect their human rights
obligations. As an independent body under the Council of Europe,
the CPT has already monitored one return flight and has since 2003
developed guidelines for the deportation of foreign nationals by
air.
38. In Denmark, the ombudsman has been responsible, since 1 April
2011, for monitoring the return of illegally staying refugees to
third countries.
Forced returns may be accompanied
or simply observed. In the latter case, it is the police who escort
the returnee. Monitoring covers the period from the return decision
up to arrival in the receiving country. The ombudsman endeavours
to ensure that the police respect the person’s rights as fully as
possible and only resort to force where absolutely necessary.
39. In the Netherlands, where, according to the Dutch Refugee
Council, incidents of excessive force being used on returnees are
rare, an independent commission oversees the entire forced return
process and guidelines are in place for the authorised use of force.
40. In France, monitoring only occurs during the pre-return stage
or if a return attempt fails, either because of a last-minute legal
intervention or because the pilot or crew on a commercial flight
refuse to take the returnee. In the latter case, the returnee is
sent back to a detention centre where one of the five NGOs contracted
by the Ministry of Interior is present. According to France Terre
d’Accueil, one of the approved NGOs, returnees regularly report
excessive use of force by police escorts during attempted removals.
41. In Belgium, monitoring is carried out by the Immigration Office
of the Home Affairs Federal Public Service, in co-operation with
the police, the social inspectorate and the Finance Federal Public
Service. Irregular migrants are usually held in closed centres where
the initial period of detention is two months. This period may be
extended by the minister or his or her representative. Belgium has
six closed centres, including a transit centre located in the transit
zone of Brussels airport. Irregular migrants who refuse to leave
of their own free will are escorted to the aircraft by the police.
The police only enter the aircraft when a person has refused more
than twice to go on board.
42. In Switzerland, according to a report by the National Commission
for the Prevention of Torture (CNPT), different forms of restraint
are used: wrist and ankle restraints, and sometimes even a boxing
helmet to ensure complete immobilisation and to prevent the detainee
harming himself or herself.
3.3. Readmission agreements
43. Forced returns are problematic in cases where the
country of origin refuses to accept the returnee.
In such
cases, the host country is obliged to take the returnee back. This
is usually the case when the identity and nationality of the returnee
have not been properly established, but refusal can also be based
on other arguments. To avoid this situation, the European Union
has signed readmission agreements.
44. Readmission agreements are signed between the European Union
and non-EU countries. They set out clear obligations and procedures
for the authorities of non-EU countries and of EU States as to when
and how to take back people who are irregularly residing in the
European Union.
These agreements, viewed as purely technical
in nature by the European Commission, do however have certain human
rights implications.
As a result, the Commission, after
a review of its readmission agreement policy in 2011, decided to
issue a set of recommendations to the member States reminding them
of their international human rights obligations.
However, in the review, the Commission
does not change its focus, which is on the effectiveness of returns.
45. The European Union has signed readmission agreements with
several non-EU Council of Europe member States.
However,
an article concerning the readmission agreement between the European
Union and Albania concludes that there is evidence that the readmission
agreements do not include sufficient provisions to protect the human
rights of returnees. In the case of Albania, returns are carried
out by member States despite the fact that Albania is not always
able to comply with the minimum standards set out in the agreement.
In a situation of this kind, the “safe third country” principle
overrides human rights considerations.
46. The human rights implications of readmission agreements are
an issue that needs to be looked at more specifically by the Assembly
in the future, in particular the practice.
4. Parties involved
in the removal process
47. The parties involved in the removal process include
publicly or privately contracted escorts, co-ordinators of joint
return flights (Frontex), border guards and police, accompanying
medical staff, flight captains, airport management, airline staff
and border police at arrival points. Added to these are lawyers
and NGOs that help with or take care of the appeal procedure against
the return decision.
4.1. The returnee
48. The removal process is very difficult for the returnee,
who may suffer from trauma connected to the reason for applying
for asylum in the first place or from the process of entering a
country illegally. If the asylum process has taken a long time,
the person might already have grown attached to the country of residence
and formed relationships. When a removal decision is taken, the
returnee may have to wait in the holding unit for a long time before
it is executed.
49. The returnee has several rights, one of the most important
being the right to appeal the return decision. This right could
delay or postpone the return, thus placing extra stress on the returnee,
who is already in a vulnerable situation. In order to respect the
returnee’s human rights and human dignity, it is important to ensure that
the appeals process is properly facilitated and not unnecessarily
prolonged.
50. Once the removal decision has been taken, the removing authorities
should notify the returnee of the time and date of removal. For
one reason or another, the authorities might decide to withhold
this information. The director of the Metsälä Detention Unit and
a member of the CPT have confirmed to me that returns where the
returnee knows the date of departure well in advance are usually
easier than those where the timing is not known. One suggestion
for a joint standard would be to introduce a time limit for notifying
returnees of the date of departure.
This allows for the necessary preparations
involved in repatriation.
51. Here it is also important to note that some returnees are
convicted criminals, for whose return criminal legislation is in
place. This legislation differs from the legislation concerning
the return of irregular migrants.
4.2. The role of escorting
staff
52. The removal process involves a lot of human suffering
and difficult aspects which may also become heavy burdens for escorting
staff. In rare cases, deportees may also act in a threatening manner,
resulting in risks for other parties involved in the return. There
are reported cases of injuries to escorting staff, and even deaths.
In this connection, it is important to emphasise the need for proper
training and support for people involved in removals. Belgium has
a system of coaching in place for new escorting staff and in the
Netherlands and in France, limits are set on the length of time
a person may work as an escort.
53. The United Kingdom has outsourced its removal process to a
private contractor, but many removals are organised by the police
and some by border guards.
54. According to my information, differences of attitude are noticeable
from one lead escort to another regarding the use of full restraint
or more flexible measures. This usually depends on their experience. Exchanges
of information and experience between lead escorts in different
countries should therefore be encouraged.
55. Some experts have criticised returns managed solely by the
police. It is important to ensure that different professionals are
involved in the removal process as a whole. Belgium, for example,
involves social workers and psychologists in removals. This could
be an example for other countries.
4.3. The role of other
staff (medical staff, captain of the aircraft, cabin crew)
56. All transport carriers are bound by their own safety
rules. For return flights, the safety of staff, passengers, the
escorts and the returnee is the responsibility of the captain. If
the captain considers a returnee to be potentially disruptive, the
return may be halted even before the plane is boarded. It is therefore
important to establish good co-operation with the airline and ensure
proper training for its staff to ensure an effective and fair return.
Any incident that further prolongs the removal causes stress for
the returnee as well as for the removing authorities.
4.4. The role of Frontex
57. Frontex is responsible for co-ordinating the activities
of border guards in maintaining the security of the European Union’s
external borders. States nevertheless retain their sovereign decision-making
powers in terms of asylum and removal and are responsible for the
part of the border on their own territory. The final decision is
a matter for the States themselves. Frontex’s main role is to help
ensure common standards and a high level of efficiency. Its role
stops at the border.
58. In this context, I would like to pay tribute to the excellent
report by Mr Mikael Cederbratt on “Frontex: human rights responsibilities”
(
Doc. 13161) in which he refers to the concerns expressed regarding
respect for human rights and the lack of transparency, and puts
forward proposals for measures to improve the democratic scrutiny
exercised by the European Parliament, and human rights training
for those taking part in Frontex operations.
59. Frontex is responsible for organising joint enforced return
flights. This means grouping together non-EU returnees from several
member States. The returnees are transported on a single flight
to the State in charge of organising the flight. There they board
an aircraft and travel together to the destination airport in a
third country.
The return flight can have multiple
stops along the way. Frontex acts as an intermediary, co-ordinating
with the national authorities taking part in a joint return flight.
However, Frontex does not have background information on individual
returnees. Personal data processed by the agency is limited to that required
for the purpose of a joint return operation and is deleted no later
than 10 days after the end of the operation.
4.5. The role of supervisory
bodies
60. The CPT has always recommended implementing a system
of independent national structures able to make regular visits to
places such as prisons or police stations. The entry into force
in June 2006 of the Optional Protocol to the UN Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(OPCAT) provided a fresh perspective on the supervision of places
of detention and the prevention of torture. This treaty set up the
Sub-Committee on the Prevention of Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (SPT), which has very similar
powers to those of the CPT. However, the treaty also invites States
acceding to the protocol to establish, at domestic level, National
Prevention Mechanisms (NPMs) with extensive supervisory powers in
places of detention.
61. There is very positive interaction between the CPT and the
NPMs, and hence with the SPT. The NPMs are often better placed to
continue monitoring removal procedures and the conditions in which
migrants and refugees live and how they are treated in detention
centres.
62. Since 2011, the NPMs have been authorised to accompany irregular
migrants during flights, which makes it possible to see whether
returnees are treated humanely. Within its mandate, the CPT has
had the opportunity to observe returns for longer, but the first
flight observation operation was only organised in 2012.
63. However, the work of the supervisory bodies stops once the
returnee has been handed over to the authorities of the country
of origin. At present, escort personnel and supervisory bodies have
no mandate beyond this point. This represents a legal vacuum to
be filled, particularly as the CPT and the NPMs have noted that
conditions on arrival may be worse for failed asylum seekers and
irregular migrants than for convicted prisoners. Returned failed
asylum seekers are often rejected by the local population and/or
their family, and live in total isolation.
64. NPM and Frontex representatives met in Belgrade in June 2012
under a joint European Union–Council of Europe venture known as
the European NPM Project to discuss the role to be played by each
party in combating ill-treatment and torture occurring during removals
by air, sea or land. This exchange of views highlighted the increasingly
important role conferred by member States on Frontex, even though
States retain sovereignty in these matters. The role played by Frontex
is becoming increasingly complex. With regard to joint flights,
a number of questions are raised, especially regarding the responsibility
for and monitoring of flights, including the sharing of responsibility
between Frontex and member States. It is admittedly very difficult,
when several States are involved in a return flight, to determine
who is responsible and which country is tasked with monitoring.
65. In view of the above, it was suggested at this exchange of
views that further consideration be given to the establishment and
improvement of communication between the different parties. It was
specifically proposed that an official responsible for communication
be appointed in order to keep the NPMs in the arrival country informed,
at all stages and at all times, of the prospective use and scheduling
of joint flights.
66. In conclusion, it is essential that the torture prevention
systems take charge at national level, particularly in the case
of recurrent or systematic ill-treatment, and that they be given
the authority to carry out ad hoc visits and to monitor joint flights
carried out and initiated by member States and Frontex.
4.6. The role of NGOs
67. The various NGOs also have an important role to play
in the return procedure. In many countries, they offer support to
the returnee in the form of counselling, interpretation and legal
assistance. NGOs often have regional offices in the countries of
origin and their role in helping during the post-return phase should
also be considered.
68. After receiving information from NGOs, lawyers and individuals
indicating that there might be problems with forced returns from
Finland, Amnesty International Finland decided to look into the
issue. As no external body was monitoring the practices and consistently
gathering information related to removals (although the Parliamentary
Ombudsman deals with individual complaints), Amnesty initiated a
project in order to gather information by interviewing deportees
after failed removals, as well as lawyers and key officials. As
a result, Amnesty has contributed to the establishment of a special
external monitoring body in Finland for removal practices and has
informed the Ministry of the Interior that there is an inadequate
internal monitoring system within the police authorities responsible
for removals.
5. Protection of returnees
against ill-treatment and torture during the removal process
69. The aim of this report is to find an appropriate
and proportionate balance between the use of security measures and
ensuring that returnees are treated humanely and with dignity. In
the current climate, the balance has unfortunately become skewed
in favour of security over dignity. This, coupled with the vulnerability of
returnees and a potential lack of accessible and effective legal
remedies against any ill-treatment during removal, makes the removal
process a period fraught with risk.
5.1. Scope and applicability
of standards in matters of removal
70. The geographical scope of regional standards covers
all Council of Europe States, and these standards should apply to
all stages of the removal process, namely from the time the returnee
is picked up at the detention centre, through the transfer to the
embarkation point, the time spent in the port or airport holding
area, the time of boarding the aircraft or ship and the flight or
crossing, right up to the time of handover, on arrival, to the authorities
of the country of destination.
71. The same applies to protection standards concerning transport,
which must cover removals by air, sea or land. In order to guarantee
and enhance the protection of returnees’ fundamental rights during
the procedure, it is essential to take two major lines of action:
first of all, lay down guidelines or common regional standards on
the removal procedure and the protection of returnees against risks
of ill-treatment or torture, and second, reinforce supervisory mechanisms,
particularly the national agencies tasked with monitoring the risk of
ill-treatment and torture of people deprived of their liberty during
the removal procedure.
5.2. Standards applicable
to all parties
72. The risk analysis conducted by the removing authorities
before the removal determines the way in which a person is removed.
Laying down guidelines or common regional standards on the forcible
return process and the protection of returnees against risks of
ill-treatment or torture would be useful to all parties involved
and to the bodies responsible for monitoring the removal process.
It would ensure transparency and coherence in a procedure which
is currently open to abuse. Furthermore, these standards would be
unique because they would cover both the deprivation of liberty,
from the time the person is taken to the holding centre until his
or her arrival in the country of origin, and the procedure and all
issues concerning removal.
73. These standards should cover all stages of single and joint
forced returns. First of all, efforts should be focused on standardising
risk levels and security measures, such as the use of force, the
carrying of weapons, etc. During my fact-finding visit, mention
was also made of the need to carry out medical examinations to check that
the person in question is fit to travel by plane, and to provide
adequate medical equipment in all transport and holding areas used
during the removal. I was also able to see that escort personnel
were systematically debriefed and submitted a written report on
the procedure. This presupposes appropriate conduct on the part of
escort personnel. To this end, it is essential that all the parties
concerned (escort personnel, airline staff, flight captains, border
guards, operational and monitoring teams) are given human rights
training, that the training they receive also alerts them to intercultural
aspects and that they are given the opportunity to attend language
classes.
74. Another factor to be taken into account and which must be
included in standards is the preparation of returnees for the return.
Here, it is imperative to ensure the systematic use of interpreters
and enable returnees to inform their family or friends of their
return. It is also important to pay special attention to vulnerable
groups such as children and women. Keeping children in detention
centres should be avoided at all costs and I welcome the preparation
of a report on this important issue in our Assembly.
75. In this connection, and following an exchange of views with
the CPT, I have prepared a list of procedures and steps to be complied
with during joint flights. The list is divided into four sections:
before the flight; in the holding centre; during the flight; and
upon arrival.
76. Before the flight, it is important for those accompanying
the returnee to have as much information as possible regarding the
flight, the person or persons concerned, whether it is a voluntary
or forced return, and the situation and background of the people
in question. To this end, there must be information meetings with all
the parties involved in order to obtain all the required information
on the person being returned.
77. When the parties concerned arrive at the holding centre, one
of the first steps to be taken is to find out whether the person
in question is aware that he or she is to be returned, and whether
the return is voluntary or not. The parties accompanying the person
must have full knowledge of his or her medical file and if no medical personnel
are available, steps must be taken to acquire the required information.
78. Returnees must be able to recover their personal effects and
checks must be made to ensure that they have been told of the possibility
of an appeal before the aircraft doors are finally closed.
79. Most criticism of these joint returns relates to the way in
which returnees are treated during the transfer between the holding
centre and the airport, or indeed during the flight. In the case
of a voluntary return, the returnee should be accompanied and unrestrained
during transfer or the flight. Unfortunately, we were informed of
a few cases in which returnees were restrained to such an extent
that they were almost unable to breathe, even though they had shown
themselves to be co-operative. Obviously, it is a different matter
when the returnee is being forcibly returned and is showing signs
of rebellion. Nonetheless, respect for human dignity presupposes
a civil attitude and respectful treatment in all cases.
80. Once on board, those accompanying the returnee should ensure
that his or her baggage is stored in the hold. Returnees should
not be handcuffed or restrained so as to allow a degree of freedom
of movement. Depending on the length of the flight, they should
be served a meal, making sure that they are not given hot water
or food that is too hot, if they are in an excessively nervous or
aggressive state.
81. On arrival, in order to avoid returnees being stared at and
to protect them as much as possible, it is recommended that they
should be the last to leave the plane. In some countries, the authorities
will board the plane to fetch them. It is important to ensure that
they are treated well when being handed over. Returnees must be
informed of the possibility of submitting a complaint on leaving
the aircraft if they so wish.
82. It must also be underlined that any recourse to force during
any part of the removal procedure amounts to an unsuccessful return.
There should be clear guidelines on the use of force and it should
be based on absolute necessity only. However, these instructions
cannot be satisfactorily applied unless the escort personnel and
the parties concerned have attended appropriate training to make
them aware of the risks and problems.
6. Putting in place
effective monitoring of the removal procedure
83. In accordance with international law, each member
State has an obligation to prevent inhumane or degrading treatment
of people through efficient legislation and other necessary measures.
One essential preventive measure is the monitoring of authorities
that have the right to deprive a person of their liberty. In this regard,
the CPT has stated that forced returns pose a serious threat to
the exercise of human rights.
84. It is essential to establish who is responsible for monitoring
in the case of joint returns with several stopovers and who is entitled
to intervene without breaking the law, particularly in the event
of blatant ill-treatment. Experience shows that situations vary
from State to State, particularly where the forcibly returned person
puts up resistance. In most cases, it is the police and the government
which intervene. These divergences have highlighted the need for
harmonisation, by way of a treaty, of the security measures to be taken
or authorised, particularly where force is used.
85. In order to prevent human rights violations during returns,
it is essential to involve independent, neutral and effective monitoring
procedures for the full duration of the removal process. A source
of concern is the absence of independent observers on charter flights,
where, according to some NGOs, the degree of restraint used is greater
than on commercial flights, because there are no witnesses.
6.1. Suggested standards
for the monitoring procedure
86. In a publication of 10 November 2011 entitled “Comparative
Study on Best Practices in the Field of Forced Return Monitoring”,
the International Centre for Migration
Policy Development (ICMPD), jointly with the Directorate-General
Justice, Freedom and Security of the European Commission, examines
best practices of forced return monitoring in EU-27 as well as Iceland,
Norway and Switzerland. On the basis of its findings it issues a
set of recommendations for the monitoring procedure. The study concludes
that “the system in place must comply with the minimum requirements”
and “must be effective and transparent in ensuring that returnees are
treated in a manner compliant with national and international human
rights standards (effective) and the accountability of the process
(transparent)”.
87. The study sets out a series of recommendations to help member
States develop a system that takes the above-mentioned principles
into consideration:
1) The monitoring organisation should be different from the
enforcement authorities.
2) Monitors should automatically be informed of impending
return operations.
3) Existing funding opportunities should be maximised.
4) Co-operation between all stakeholders should be facilitated
and encouraged.
5) Comprehensive forced return monitoring should encompass
all phases from pre-return to arrival/reception in the destination
country.
6) Monitors should be able to decide what cases to monitor
on the basis of agreed criteria.
7) Observation duties may go beyond monitoring the interaction
between officials and returnees to include additional tasks.
8) Team leaders of all stakeholder groups “on the ground”
should consistently liaise to identify, prevent and de-escalate
problems, especially but not exclusively where monitors have no
intervention powers.
9) Authorities should use monitoring reports as guidelines
for systematic improvement.
10) For joint returns:
- The
lead country (or those countries returning the biggest group of
people on the flight), should be responsible for nominating a monitor.
Joint return operations that cover a big group of returnees should be
monitored by several monitors.
- Monitors should draft a common monitoring report (per
return operation), addressed to Frontex, which should help the organisation
to further develop guidelines and standards for implementing joint
return operations against which future monitors should evaluate
the return operation. In the interest of transparency Frontex should
report annually to the European Parliament on the findings of monitors
and actions it has taken as a result of their findings.
- In the longer term, a pool of monitors across EU member
States should be established, trained especially to monitor joint
flights against the guidelines set up by Frontex and based on international human
rights law, EU fundamental rights etc.
88. According to a report by Amnesty International Finland,
national legislation should define the aim and scope of monitoring,
including why monitoring is organised and what kind of action monitors
should take based on the findings. The monitoring body should examine
the legality of the return and how the police respect their instructions.
These observations should be weighed together with existing international
standards, recommendations and best practices.
In this regard, Amnesty
International Finland also underlines the importance of paying attention
also to the States’ responsibility to establish effective internal
monitoring mechanisms in order to prevent torture. One of the external
monitoring bodies’ key tasks should be to monitor the effectiveness
of the internal monitoring mechanisms (for instance making sure
that reporting is properly conducted after each removal operation
and that regular analysis of the operation reports by superior officers and
monitoring bodies takes place).
6.2. Who should monitor?
89. National Prevention Mechanisms against torture, at
Council of Europe member State level, and the CPT, at regional level,
have both begun monitoring the question of returnee treatment during
the removal process for risks of ill-treatment or torture, in accordance
with their respective terms of reference.
However,
these agencies have an extensive mandate and a wide geographical
area to cover – namely all places where individuals are or might
be deprived of their liberty. The removal process is only one of
the many subjects for which these monitoring agencies are responsible.
In some States,
additional monitoring
bodies have been set up in this field under the Return Directive,
Article 8.6, while other States have opted to rely on their respective
NPMs to discharge this duty. It is imperative to consolidate the
NPMs and the preventive monitoring agencies working at regional
and international level, such as the CPT and the United Nations
Sub-Committee on the Prevention of Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment (which is also mandated to
conduct monitoring in Council of Europe member States which have
ratified OPCAT), supplying additional resources to enable them to
discharge this task efficiently
without
adversely affecting their other monitoring commitments.
90. It is necessary here to assess the relevant costs, taking
account of the requisite human and financial resources for ensuring
effective monitoring of the removal process. A number of NPMs and
other supervisory bodies are often prevented from carrying out their
mission because of the lack of such human and financial resources.
States should consider the possibility of remedying this situation.
91. For all returns, the onus should be on the returning State
(in the case of single returns) and/or Frontex (in the case of joint
returns) to systematically notify the NPMs in the relevant departure
and arrival States well in advance, so that they can monitor the
removal. Furthermore, in the case of joint flights, it is essential
for NPMs to be informed of any protection standards, security regimes
and implementation strategies pre-agreed by the member States and
Frontex early on in the planning stage, so that they can monitor
the removal.
7. Conclusions
92. The EU Return Directive puts the emphasis on effectiveness
of returns rather than consideration for the rights of the returnee.
This focus is a result of the migration management policy, where
the aim is to make it clear that those entering the European Union
illegally will be sent back. However, effectiveness cannot take precedence
over member States’ human rights obligations.
93. As monitoring systems vary greatly from one European country
to another, it appears essential to create common standards applicable
to all States and also to create harmonised rules for monitoring
and monitors
94. The content of common standards (for single and joint enforced
returns) could cover:
- standardisation
of risk levels related to forced return operations and the corresponding
security measures, such as the direct use of force;
- voluntary returns should always be preferred over forced
returns and the same standards should apply regardless of how a
person is returned;
- acceptable/unacceptable restraint techniques, including
use of chemical restraints and accompanying safeguards;
- acceptable behaviour of escorts, independent monitors
and other relevant stakeholders;
- the type of escort equipment allowed on board;
- common training curricula for the different stakeholders:
escorts, accompanying clinicians, airline staff/captain, border
guards, etc, and between the operational and monitoring teams;
- adequate preparation of deportees prior to removal, for
example: use of interpreters to explain the situation; use of cultural
mediators; notification of families; adequate detainee notification:
no “surprise tactics” used;
- appropriate and adequate selection of escort staff: transparent
and open selection procedures; mixed gender, multi-disciplinary
teams; interculturally aware escorts with language skills or accompanying interpreters;
adequate and clear discipline procedures for violations by stakeholders,
etc.;
- medical expertise: systematic independent medical “fit-to-fly”
examinations on an individual case basis before removal; medics
to accompany deportees; medical examinations after any failed removals
as a matter of course; medical records on all health aspects concerning
the deportation; adequate medical equipment in all transport and
holding areas used during the removal; subject to medical monitoring/oversight;
- clear policies for failed removals: systematic debriefing
of staff and detainees, written records, medical examination, etc;
- specific guidelines for removals of children and vulnerable
groups, in particular pregnant women and people suffering from serious
illnesses.
95. The CPT and the International Centre for Migration Policy
Development have created extensive lists of criteria for monitoring
returns. The lists serve as a good basis for harmonised procedures.
In this regard, I would like to underline the importance of ensuring
the same level of professionalism regardless of the country providing
the monitoring body. On joint flights, the monitors could, for example,
consist of ad hoc groups of monitors from different countries.
96. The content of harmonised rules for monitoring and monitors
could cover:
- the above-mentioned
criteria as defined by the International Centre for Migration Policy
Development;
- all parties should ensure total independence of the monitoring
bodies. In this regard it would be important to keep the monitoring
and the enforcing body separate;
- monitoring bodies and their observers should be informed
well in advance of the return and be allowed to monitor all stages
of the return, starting from the return decision;
- local embassies and/or NGOs with branches in the country
of origin could be tasked with monitoring the returnee upon arrival
in the country of origin;
- the monitoring bodies should also be given the right to
assess the quality of the internal monitoring of the returning authorities;
- the procedures to be followed upon completed return missions
and unsuccessful returns, including compulsory reporting.