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Things can only get worse

Liza Schuster
18 June 2008

On 18 June, in the middle of Refugee Week, the European Parliament will vote on the amended directive on common standards and procedures in member states for returning illegally staying third-country nationals, also known as the Returns Directive.

Broadly speaking, this directive harmonizes the regulations governing the detention and deportation of migrants attempting to enter, or present within, the territory of the European Union (EU) without the required documentation. The Directive is a development of provisions in the Schengen Acquis relating to border control, provisions in which Denmark, Ireland and the UK do not take part, although they may adopt some of the provisions unilaterally.

Clearly, there is a great deal wrong with the practices of detention and deportation across the EU, and certain minimum standards and protections for those liable to either are urgently needed. Across Europe, people are being held for months, and occasionally years in former prisons, without legal representation, or information on why or for how long they will be held. During attempts to deport people from EU states, men, women and children are abused, beaten and killed by border guards, police and immigration officers as they are forced on to aircraft, boats and buses. Others self-harm and attempt suicide - sometimes successfully - in order to avoid being sent back to the countries they have left.

This article forms part of MigrantVoice on refuge, a special project celebrating UK Refugee Week 2008.Have your say on our multiauthored blog, bringing unheard voices to the forefront of the debate. Also in openDemocracy:

Zrinka Bralo, "Asylum and health: insult and injury",

Philippe Legrain, "Open Britain",

Irshad Manji, "For a future bigger than our past"

Mamphela Ramphele, "The rainbow nation's lesson",

Hsiao-Hung Pai, "Chinese migrant workers: lives in shadow",

Brian K Murphy, "Open borders, global future".

The directive appears at first glance to offer certain guarantees, and to restrain some of the more repressive practices found across the Union. It rehearses certain obligations of member states, such as the prohibition on refoulement and collective deportations; and requires us to ‘take account of the best interest of the child', of ‘family life' and the state of mental and physical health of the person to be deported. These statements, however, offer no substantive protection from any of these practices. Far from protecting the rights of migrants, the directive seeks instead to streamline and harmonise conditions and practices sharply downwards. A brief outline of its provisions and their development through the different versions makes very clear that the Directive is designed to protect states rather than migrants, whatever their reasons for seeking entry and residence in Europe.

Detention

The Directive clearly states that detention serves only to facilitate deportation, and that where there is no reasonable expectation that someone will be removed, ‘detention ceases to be justified and the person concerned shall be released immediately'. In theory, individuals should therefore only be detained once they have exhausted all their appeals and it is clear that they have no right to remain in the member state. However, throughout the EU, many migrants are detained on arrival, before they are able to make asylum claims, should that be their intention. Given the physical isolation of these centres, and the difficulties of making and maintaining links with the outside world, detention severely handicaps a person's capacity to make an asylum claim, and to access the assistance necessary to making a ‘good' claim. The Directive specifies that detainees may be allowed upon request to establish contact with legal representatives, family members and consular authorities. In the case of someone newly arrived without already established links to family members, without the appropriate language skills, without funds, disorientated and possibly traumatised, it is unlikely that they will be able to request such contact at least in the first couple of weeks, by which time initial decisions may have already been taken on their cases. As a result, the likelihood that someone in need of protection will be fast-tracked back to persecution is heightened by detention.

In terms of length of detention, the Directive could have taken France as its model: a maximum of 32 days in detention and strict judicial oversight (though perhaps not in other respects: Cimade, the only NGO with access to detention centres in France, has noted an increase in the number of incidents of suicides, self-harm and hunger strikes in the last six months, and the use of a TASER at the centre in Vincennes, just outside Paris. On the other hand, the detention of a 16 month old baby for two weeks caused outrage in the press, while that would not cause a ripple in the UK.) Instead, the Directive will allow member states to detain migrants for a maximum of 18 months as is currently the case in Germany. In the case of Ireland, Italy and Spain, for example, this represents a significant deterioration of practice as the maximum limits on detention are currently 30, 60 and 40 days respectively. The UK is one of the few European countries where the Directive would represent an improvement, since it does not have a limit on detention. However, this is not one of the provisions that the UK will be signing up to.

Other protections that were introduced have been removed as the Directive has been amended over the last two years. An initial requirement for judicial review of the detention within 72 hours (currently 48 hours in France) was amended to ‘as speedily as possible'. A requirement that prolonged periods of detention be subject to ‘review by judicial authorities at least once a month' was deleted in favour of ‘at reasonable intervals'. Such dilution indicates the clear unwillingness of member states to extend the kind of protection they afford to their own citizens, accused or convicted of crimes, to migrants who have committed no crime, but who do not have permission to reside in, work in or enter Europe.

Deportation *

The Directive specifies that the principle of non-refoulement must be respected and that the application of the Directive is without prejudice to the obligations resulting from the Geneva Convention (1951). It also states that coercive measures should be a ‘last resort' and ‘shall not exceed reasonable force'. Member states must also respect the ‘dignity and physical integrity' of the person being deported. Moreover, they must provide for an effective forced returns monitoring system.

There are two kinds of concerns related to deportation, both equally disturbing. The first relates to the possibility that people will be returned to countries where they may be subject to persecution because of acknowledged flaws in the member states' asylum systems. Evidence gathered over a number of years by NGOs and refugee advocates has indicated that a significant number of people who have been directly or indirectly deported to their country of origin following the rejection of their asylum claim have been detained, tortured and or murdered.

While this is in part due to the poor quality of decision-making (in the UK 20% of decisions are overturned on appeal), political factors are clearly an issue. This is obvious when, with Commissioner Frattini (responsible for Justice, Freedom and Security), one notes "the great variances in recognition rates between Member States" (Europe 2006). Although the Qualifications Directive was intended to put an end to the Euro Asylum lottery, a study of five member states by UNHCR in 2007 found enormous disparities, for example in the recognition rates of Iraqi asylum seekers. "During the first quarter of 2007, the percentage recognised as refugees in Germany was 16.3 %, and those qualifying for subsidiary protection 1.1 %. In Sweden, 73.2 % of Iraqi applicants were granted subsidiary protection in the same period and 1.7 % were recognized as refugees. This contrasts sharply with the recognition rate for Iraqis of 0 % in Greece and in the Slovak Republic."

Liza Schuster is a Senior Lecturer in the Department of Sociology at City University, London. She is currently working on a study of migrants in transit, and also works on migration, asylum and racism in Europe.

It should be noted that in 2007, Sweden received 18,559 asylum applications from Iraqis, while Germany received 4,171. This means that whether or not one is returned to Iraq, for example, has little to do with whether one is going to be safe on return, and everything to do with where one claims asylum. Why would Sweden with a much larger number of Iraqi asylum seekers offer protection when other member states do not?

There is a clear need for an effective monitoring system, and this is recognised by the Directive (art.7(6)), though since this is to be provided by the member states rather than the EU or an independent body, it is difficult to see how the variations noted above will be overcome. There are of course enormous challenges involved in the creation of such an effective and independent monitoring system, but when consequences are so grave, and when the integrity of the system depends on assurances that no-one is returned to a country in which her or his life is endangered, some attempt must be made to create such a system.

The second concern relates to the manner in which deportations are carried out. There have been a number of reports of the brutality and humiliation inflicted on persons being deported by immigration officials, border police and employees of private security firms contracted to carry out the different stages of deportation. Complaints have been made by those who have successfully resisted deportation of physical and verbal abuse, leading in some cases to broken bones, though bringing such cases to court is extraordinarily difficult. That individuals, sometimes in front of their children, sometimes children themselves, sometimes in states of physical and psychological distress are subject to such treatment must be a cause of grave concern and monitoring is clearly required here. While it may be very difficult to ensure the safety of those returned to Iraqi, Somalia or Zimbabwe - it cannot be beyond the capacity of modern states to restrain those to whom the power over vulnerable people is given.

Vulnerable Persons

This year's Independent Asylum Commission (IAC) report noted that the UK system was "marred by inhumanity in its treatment of the vulnerable". The Directive defines 'vulnerable persons' as "minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence" (Art.3(j)). Such people are routinely detained in and deported from member states. And yet, the definition is not offered in order to specify those who should be exempt from detention or deportation. According to the Directive, all of the above may be detained, though only as a ‘last resort' and only for the ‘shortest appropriate time'.

Such terminology leaves a great deal of discretion to the authorities in each country. The UK Children's Commissioners were "very concerned at the duration of detention for children arising from both single and cumulative spells in detention. Contrary to international human rights standards, detention of children is often not used as a measure of last resort or for the shortest possible time and does not occur only in exceptional cases". They went on to note that "In Scotland, an asylum seeking child may only be detained for a maximum of 72 hours. Consequently, children are transferred and detained elsewhere in the UK". In response to the IAC report referred to above, the Medical Foundation for the Victims of Torture pointed out that in 2007, "more than 150 asylum seekers were released from detention after being assessed by the Medical Foundation following claims of torture in their country of origin..[but] many continue to be detained, despite disclosing a history of torture to staff in Immigration Removal Centres".

The UK is not alone is such appalling practices, though it is perhaps the best documented. Such abuses are standard across the EU, but the Directive contains nothing that will put an end to them. Vulnerable people will not be protected. Originally the Directive declared that deportation ‘shall be postponed' if:

a) the person is unable to travel "due to his or her physical state or mental incapacity",

b) "technical reasons...making it impossible to enforce the removal in a humane manner and with full respect for the third-country national's fundamental rights and dignity",

c) lack of assurance that unaccompanied minors can be handed over at the point of departure or upon arrival to a family member, an equivalent representative, a guardian of the minor or a competent official of the country of return.

In the version to be voted on next week, the deportation ‘may be postponed' on consideration of the person's physical state or mental capacity, or if there are technical difficulties due to transport or identification. Why the change in the wording? More worryingly, individuals, including separated children may also be returned to countries that they have merely transited, but with which they have no solid or established ties. Once deported, the welfare of the deportees is evidently no longer the concern of the EU member states.

Five Year Entry Ban

Those who have been deported will not be permitted to re-enter the territory of the Union for five years (although the UK is exempt from the Directive, it is adopting this piece of legislation, and extending it to 10 years in certain cases). Some member states already impose such bans, but these bans are a very blunt instrument, which may make it impossible for someone who is subsequently persecuted to seek asylum in the EU.

Why this matters

Tracking the amendments in this way offers a sharp (and distasteful) insight into the capacity of bureaucrats to privilege state interests over those of the individual - including those defined as vulnerable. The Directive is shameful because it so clearly strips away some of the protections afforded migrants in some member states, encouraging them to adopt the worst practices across the Union. Why? Why couldn't the EU raise, rather than lower the standards and conditions of detention and deportation?

Over the last few years, some of the more powerful member states such as France and the UK have decided to step up their efforts to deport ‘failed asylum seekers' and ‘undocumented migrants' and set targets to be achieved. This was a dangerous strategy given the difficulties and expense involved in deporting large numbers of people. It gave the electorate a criterion for measuring the effectiveness or otherwise of migration controls. Under pressure to meet these targets, it is not surprising that political masters put pressure on civil servants to strengthen controls rather than protection. And the stark reality is that the migrant and refugee advocates and campaigners, the human rights lawyers and progressive members of national and European parliaments and the civil servants who do understand the moral consequences of this shameful directive have failed after three years to impose the higher standards that should be expected of the European Union.

***

* A word on terminology

Officially, the use of the word ‘deportation', ‘expulsion' and ‘abschiebung' are now avoided by national governments and the EU, and less historically weighted, more neutral words such as removal, return, retorno, éloignment, rimpatrio, rückführung are preferred. Those who choose to call a spade a spade are routinely chastised in conferences. At different times, representatives of the UK Home Office and a number of EU civil servants have politely corrected my ‘mistaken' use of a word more appropriate to the Nazi period. (In the 1940s, Viktor Klemperer noted how words were like small doses of arsenic, swallowed unnoticed, apparently without harm, until one day their deadly effect becomes apparent.)

Having said that, while earlier versions of this Directive referred to ‘temporary custody', the European Parliament preferred the more explicit ‘detention' "given the deprivation of freedom it entails and its duration, up to six months, which is far from temporary" (European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Report on the proposal for a directive of the European parliament and the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, A6-0339/2007, 20.09.2007, Amendment 10).

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