Sept. 24 – Oct. 8, 2015: Undesirable and Unreturnable? Policy challenges around excluded asylum seekers and other migrants suspected of serious criminality

September 24 – October 8, 2015

The Refugee Law Initiative (School of Advanced Study, University of London) and the Center for International Criminal Justice (VU University Amsterdam, Netherlands) are interested in discussing how States respond to the issue of excluded asylum seekers and other migrants who are suspected of serious criminality but cannot be removed from a host state. This ‘unremovability’ may be due to practical obstacles such as the lack of means to send the person to their country of origin, or legal impediments such as where human rights standards prevent removal (attempts to extradite alleged Rwandan genocidaires and the long-running saga over the removal of Abu Qatada from the UK are cases in point). The range of measures adopted by different countries suggests that States do not know how to respond effectively to this issue.

Key questions we’re interested in discussing include:

  • What is the scale of the problem of unreturnable migrants/asylum seekers suspected of serious criminality? Which (new) groups of persons are likely to be most affected in the coming years?
  • How can States effectively address the need to ensure the integrity of the international refugee regime by not providing safe haven to the perpetrators of serious crimes, while adhering to their international human rights obligations? Are instruments such as Memoranda of Understanding or host-country prosecution effective ways to balance these competing objectives?
  • Can the ‘legal limbo’ in which such unreturnable persons find themselves be addressed and their situation resolved one way or the other? What approaches do or should States adopt when faced with (criminal) migrants and asylum seekers that cannot be removed for an indefinite period of time?
  • What are the human costs of the current lack of an effective response to the issue of unreturnable migrants? How can the human rights of those so at the edges of protection be ensured?

This discussion builds on a one-day preliminary workshop held at VU University Amsterdam in March 2015. Please click here for further details of the workshop and a selection of the papers that were presented.  An international Conference on this topic will be held at the School of Advanced Study, University of London, in January 2016. The Call for Papers is available here.

(The ‘Undesirable and Unreturnable?’ project is funded by the Arts and Humanities Research Council)


jennifer-bondJennifer Bond, Assistant Professor, co-director of the Refugee Assistance Project, Faculty Director of the Ottawa Refugee Hub and Refugee Law Research Team (RLRT) and member of the Public Law Group, Faculty of Law, University of OttawaIntroductory Comments
sarah-singerSarah Singer, Lecturer in International Human Rights Law, Director of the MA in Refugee Protection and Forced Migration Studies, Refugee Law Initiative, School of Advanced Study, University of London

JorisJoris van Wijk, Associate Professor of Criminology, Executive director Center for International Criminal Justice (CICJ), VU University Amsterdam

11 thoughts on “Sept. 24 – Oct. 8, 2015: Undesirable and Unreturnable? Policy challenges around excluded asylum seekers and other migrants suspected of serious criminality

  1. My research into the issue of ‘undesirable and unreturnable’ migrants has focused primarily on the UK country situation. One thing that’s struck me throughout is the very high media profile of this issue in the UK, as compared to other European States. One need only think of the long-running saga over the removal of Muslim cleric Abu Qatada, which dominated newspaper headlines for over a decade; the ‘catgate’ affair in which Home Secretary Theresa May (mistakenly) claimed that an ‘illegal immigrant’ could not be deported because he had a pet cat, or; the ‘Afghan hijackers’ incident in which nine Afghan nationals fleeing the Taliban regime hijacked an aircraft and directed it to land in London Stansted airport, but could not be removed from the UK as they were considered to be at risk if returned. All these incidents, and many more besides, have attracted furious reactions from the popular press and an extraordinary amount of political and legal attention. This has led me to question what makes the UK country situation unique to warrant the extraordinary amount of legal and political attention focused on the removal of criminal migrants, which seems to far outstrip that of neighbouring European States?

    • I agree Sarah, I noticed the same thing. There seems to be no other country in the world where the issue of ‘unreturnable foreign criminals’ is so high on the media agenda. My guess would be that any of the following reasons – or a combination of these – could possibly explain it. First of all, the media in the UK are relatively vocal and ‘activist’ in general. But more importantly, I noticed that most of the commentators argue that ‘the 1998 human rights act makes Britain unsafe’. If I am not mistaking, the UK installed the human rights act as a direct consequence of joining the EU. As far as I know, no other country in continental Europe installed a specific human rights act when joining the EU (no need, because no common law). While in other countries ‘human rights’ in general are regarded to be the reason why undesirables cannot be deported, in Britain this might be much more clearly linked to human rights ‘enforced upon by the EU’. Coupled with the already strong anti-EU sentiments in Britain, I think this makes the issue of unreturnable undesirables much more political in the UK. Critiquing the fact that the undesirables cannot be deported means critiquing UK’s EU membership.
      I myself by the way work primarily on unreturnable individuals who have been excluded on the basis of article 1F Refugee Convention in the Netherlands. Interestingly, unreturnable alleged war criminals are in the Netherlands typically framed as victims of a Kafkaesque immigration policy, rather than a possible treat. I wonder, does this perspective of the ‘victimized 1F-excluded individual’ also exist in other countries?

      • Greetings from Canada!

        I also agree that the profile of the challenges raised by individuals who are ‘unreturnable’ varies significantly across states. In Canada there has been a lot of media attention (sustained over many years) on our “famous five” security certificate cases, but there the public commentary has largely centred on the lack of procedural fairness (use of secret evidence, etc) and treatment within Canada (indefinite detention in special holding cells, etc). Several of these features have been successfully challenged in Court, which has of course increased public scrutiny.

        Significantly, the broader and fundamental underlying concerns around how a state should respond to an individual who is “undesirable” for reasons of criminality (or security) but cannot be removed (including whether it is appropriate to have human rights instruments creating impediments of this nature, as seems to be the case in the UK) have been left largely unexplored.

        It’s interesting to note too that in Canada risk of harm in the country of origin is only one of several reasons that an individual may be unreturnable – others include uncertainty around identity; statelessness; refusal of country of origin to repatriate; and refusal to sign certain key documentation (in very specific circumstances). Is the media in the UK (and elsewhere) preoccupied only with cases involving risk of harm or are other potential impediments to removal also part of the public discussion on these issues?

  2. Thanks everyone! Your posts develop an interesting issue that came up rather implicitly in our Amsterdam workshop earlier this year: how the public perception of what exactly the key ‘problem’ is with these cases may vary between countries.

    For someone like me coming from the UK, this is quite eye-catching! Here, the ‘unreturnability’ of immigrants suspected of serious criminality is framed as the central ‘problem’, with other issues being decidedly marginal. Ensuring an eventual expulsion thus remains the focus of government policy. However, in practice, this is a Catch-22 scenario: it’s a big political issue precisely because of the unreturnability of these ‘undesirables’; yet, despite extraordinary governmental effort and expense to expel, many remain unreturnable and thereby remain a big political issue.

    My question, then, for you and other participants is whether you know of approaches tried by other countries which might help governments such as the UK get out of the Catch-22 situation? Are other governments just more willing to concede the ‘unreturnability’ point in such cases and, if so, what are the political implications for them in terms of public opinion etc.? Does this open up space for more practical and sustainable approaches to such cases? How do such approaches still ensure justice not only for the individual involved but also for any crimes that they may have committed?

    Looking forward to discussing these points over the next week or two… !

  3. Thanks all for your thoughts on this.
    Joris you raise a very interesting point about the UK’s relationship with (European) human rights, and the Human Rights Act. You’re correct in noting that human rights are predominantly viewed with suspicion in the UK (a view bolstered to no small extent by the popular press!) and something very much ‘imposed’ by Europe. Discussions are again underway surrounding the Conservative government’s proposals to ‘scrap’ the Human Rights Act, and these in fact seem to be geared largely around the issue of the removal of foreign criminals.

    And to come in on Jennifer’s point, human rights are often held up as THE defining barrier to the removal of these ‘undesirables’, with very little attention given to practical barriers to removal. Yet a recent report of the National Audit Office found that up to a third of the UK’s failed removals were caused by institutional problems within the Home Department. That’s before other issues such as statelessness etc are taken into account. These factors are virtually never discussed in the public realm, the focus of successive Home Secretaries rather being on the ‘damage’ caused by human rights impediments to removal and ways in which these might be subverted or overcome.

    It’s quite amazing the lengths the UK will go to remove foreign criminals. Yesterday it was reported that the UK is funding a £25m 1,500 bed jail in Jamaica, to which Jamaican nationals will be deported to serve their sentences from 2020 onwards . This ‘cash for criminals’ agreement follows on from deals that have been struck with Albania, Nigeria, Somaliland, Rwanda and Libya (it also goes hand in hand with £300m UK aid to Jamaica, which no doubt added pressure to approve the deal).

    • A final note on the public perceptions of ‘undesirables’: in the UK Article 1F suspected war criminals or terrorists are certainly not held up as victimised individuals – again the focus is on having these people removed from the country as soon as possible, whether or not to face trial. Similarly, unlike Canada there has not been any sustained public commentary over issues of procedural fairness raised in security cases, which is surprising given the controversial use of secret evidence and special procedures employed by the UK’s Special Immigration Appeals Commission. Although there have been concerns over the expansion of the use of secret evidence to non-immigration cases, this has primarily come from legal professionals and human rights advocates rather than being a subject of general public commentary.

      As I write this I feel rather bleak about the UK’s public and political stance as regards immigration and human rights more generally. I should add that theres been some excellent initiatives in raising public awareness and perception of human rights, such as Adam Wagner’s Rights Info project

    • It is really interesting to consider why the ‘UaU’ problem is so public in some states and not others, and I think we are unpacking a dimension to all of this that is significant when relevant policy options are considered across jurisdictions.

      Based on the thread above, it seems that in the UK the UaU problem is being directly linked to a broader political discussion about the underlying human rights instruments that may be preventing removal. I would say that this isn’t really happening in Canada, which may partially explain the difference in public profile.

      Also significant is the fact that in Canada there is a bit of legal uncertainty surrounding whether our government could actually remove to harm: the Immigration and Refugee Protection Act (IRPA) seems to allow such a removal in certain circumstances – despite the fact that there is a Supreme Court of Canada precedent that is generally read (and in my view correctly read) to say that refoulement to significant harm is prohibited under the Canadian Charter. The relevant IRPA provision is rarely if ever used but I assume that if it were there would immediately be a constitutional challenge to the provision. Perhaps that would in turn prompt the kind of discussion that seems to be already happening in the UK.

      A question: are all (or most) UaU cases publicly scrutinized and in the media, or is it just a few high profile cases? There are entire pockets of UaUs in Canada that have been here for decades, reasonably unknown to the public. I wonder if this would be impossible in the UK system…?

      Signing off from Ottawa….

  4. This New Book on Deportation in Canada examines the historical production of ideas of undesireability bound to ideas or threats of an “undesireable alien”, a “untreatable mentally ill person”, and an “unrehabilitatable criminal” via the mental health, criminal justice and immigration systems and their corresponding legislative frameworks and practices. The practices and technologies of evaluation and decision making used by professionals, police, lawyers and experts are questioned for their participation in the perpetuation of historical forms of colonial violence through the enforcement of racial and eugenic policies and laws in Canada.

    • Attachment  Bolhuis_Middelkoop_vanWijk_Extradition_JICJ_2015.pdf

      A Monday-night blurb from Amsterdam; – thanks for the link to the book, seems a very interesting read!

      Indeed, the above shows just how different the perspectives in the different countries are. Just as another reminder of the quite different perspective in the Dutch media; last week a well-known news show – ‘Nieuwsuur’ – pictured one fo the first Syrians who has been excluded on the basis of article 1F. Again, not as much as a possible threat or a political problem, but rather as someone who too readily has been excluded. He claimed that where many Syrians lie about their background, is was victimized for being honest about his time in the Syrian army as a conscript.

      As a follow up to David’s question if any countries have developed strategies on how to deal with the Catch 22 situation, I have two points, both related to 1F excluded individuals. Firstly, it is interesting to note that in certain countries – e.g. Norway – a 1F exclusion does not necessarily lead to being considered undesirable as such. 1F excluded can, under circumstances, e.g. still obtain a residence permit through family reunification. The line of reasoning here would be that exclusion from refugee protection does not per se mean someone does not have the right to obtain another permit. Though not really a strategy, it does offer some sort of a solution. Another strategy – and this actually also been presented as such – was developed in the Netherlands. By investing in the rule of law in Rwanda, the Netherlands hopes to facilitate the deportation and extradition of genocide-suspects to Rwanda. More on this in the attached article.

      Back to Jennifer’s question – in Holland certainly not every UaU-case leads to media attention. 1F excluded make the headlines, but we have hardly any ‘common’ undeportable criminals who make the news…

      Looking forward to our chat tomorrow!

  5. Hello everyone,

    First of all, apologies to all who tried to access the ‘live’ discussion yesterday. I believe the RRN had some problems with their server, which meant the forum was not available. I hope we can nevertheless continue our conversations until the forum closes tomorrow.

    To follow up on Jennifer’s question, there are certainly a large number of UoU’s that don’t make the headlines. That being said, perhaps the biggest shake up of the UK immigration system in the last decade followed the revelation, in 2006, that some 1,013 foreign national prisoners had been released from prison without consideration being given to their deportation. This led to the resignation of the Home Secretary, Charles Clarke, and prompted the incoming Home Secretary John Reid to institute a review which went far beyond the issue of foreign national offenders and extended to reform of the entire system of UK immigration regulation. ‘Common’ criminals therefore have, and continue, to hit the media headlines in the UK.

    I find it quite interesting that in Canada the prospect of removing someone to face harm is even debatable. I guess this is because Canada doesn’t have the additional ‘safeguard’ of a regional body such as the European Court of Human Rights / European Convention on Human Rights, relying instead on the Charter as a source of protection.

    Joris I couldn’t seem to open your attachment – could you try and upload it again?

    Your comments on developing the rule of law in Rwanda seem to touch on a common thread re the UK’s desire to ‘export’ criminal migrants to countries of origin, even if this means investment in the legal framework or the provision of aid (see my link to the development of detention facilities in Jamaica, above). Indeed it’s a theme I believe we’ll see more and more in relation to the EU’s response to the current refugee influx …

  6. Thank you for the interesting discussion and commentary on the various issues related to “Undesirable and Unreturnable?” asylum claimants who have been excluded from Convention refugee status. The preliminary workshop last March at VU University explored a number of possibilities for those who were caught in the “legal limbo” of not being able to be expelled or returned to their country of nationality or former habitual residence or given any right to remain in their host country.

    We learned about the devastating toll that this condition leaves many of those who are caught in this “Catch 22” situation. We also considered a number of alternative options that States might wish to consider in how to resolve this legal and public policy dilemma. As I recall, there was a consensus of sorts that did emerge. States could possibly address this dilemma in a principled way that respected the human rights of those who are caught in the “horns of this dilemma” while at the same time addressing the concerns of their host societies. The appropriate response in each instance by the State authorities would vary with the particular circumstances of each excluded asylum claimant. In some instances, given the nature of the crime(s) and the likelihood of conviction, prosecution might be the most effective approach, for others it could be extradition to be prosecuted by an international or national court, and for still others it might counselling and community service for a number of years. In short, not everyone can be treated the same, given the nature of their alleged offence that led to their exclusion from Convention refugee status and/or subsidiary protection.

    Clearly, if they are an immediate or long term threat to the safety and security of their host society they could be either incarcerated or expelled to some third country, if one could be found. In other situations, where there is no ‘clear and present danger’ more humane alternatives ought to be considered that would allow the person an opportunity to demonstrate that they have been rehabilitated and can become contributing members of their host society. This would seek to address, at least to some degree, the elements of their “undesirability” and perhaps most importantly their debt to the criminal justice system, if not to the international community or even humanity. They may remain “unreturnable”, but, also, perhaps in time, they would become fully productive members of their society. This, in turn, could possibly lead eventually to naturalization and to permanent residence, if not citizenship.

    It is relevant and important to lay out the most fundamental principles for what might constitute the most appropriate response for the individuals involved that would not only honour and protect their own human rights but also satisfy the community that they are not a threat to society and, in fact, over time could become responsible and productive members of society. This would help to dissipate their “lack of desirability” and, hence, open the possibility of becoming fully functioning members of their host society.

    Secondly, what would be required is laying out the policy options in detail that States could pursue, given the range of possible circumstances involving those persons who have been excluded from Convention refugee status. This would certainly help to make it simpler, if not easier, for States to be able to deal effectively with this apparently growing phenomenon across State parties to the international and regional refugee rights instruments.

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