Expulsion, Readmission Agreements and ‘Non-Refoulement’

Return, readmission, expulsion… these notions are often used in the same context, lately also when referring to the EU/Turkey deal that has attracted the (well-deserved) attention of the media. But what do we mean with ‘readmission’, and why could it be problematic from the point of view of international human rights and refugee law?

Because of their territorial sovereignty, in principle states have the right to decide which aliens may enter and reside in their territory. Aliens whose right to reside under the domestic law of a sovereign state has expired, or those who never had the right to enter anyway, may thus be expelled. The right to expel is confirmed and regulated by international treaties, such as the ICCPR, Protocol 7 to the ECHR and the Pact of San Jose. In principle, again, sovereign states have a large discretionary power in matters of expulsion, subject to limitations under international law some of which are discussed below.

At the reverse side of expulsion by one state there is the acceptance of the expellee by another one. A state cannot execute the decision to expel an individual from its territory if there is no foreign state willing to accept the expellee. Therefore, in order for a state to exercise its sovereign right to control the movement of aliens within its territory, it would have to be able to count on the cooperation of other states. It is for this reason that states conclude agreements creating an obligation on the side of one state to accept individuals that the other state wants to expel. In readmission agreements, states explicitly agree to readmit (i.e. to take back) (1) their own nationals, (2) certain third-country nationals, or even (3) stateless persons, who have transited the territory of the state on their way to the expelling state. It is important to realize that readmission agreements themselves cannot provide a legal basis for the expulsion of aliens, but that they can only serve as a basis to establish procedures to enable an easy and rapid execution of a decision to expel an alien – whereas the decision to expel should be based on domestic law.

To give an example: The Netherlands may decide to expel an Afghan national that has applied for international protection (asylum) based on the domestic law that implemented the EU Qualifications Directive (the Dutch Aliens Act 2000), and execute this decision by returning the Afghan national to Georgia, through fast-track procedures that are based on the 2011 readmission agreement between the EU and Georgia, if the Afghan national has arrived in The Netherlands through Georgia.

Since readmission agreements cannot provide a basis for the expulsion of aliens, then why are they perceived by some as problematic?

Above we mentioned that international law recognizes the right of states to expel aliens in accordance with their national law. However, the right to expel has also become more and more subject to limitations under international law. In this respect, and with regard to the present refugee crisis, especially international human rights and refugee law are important. International refugee law, and in particular the 1951 Convention relating to the Status of Refugees (the Geneva Convention), does considerably limit the right of states to expel aliens.

The principle of non-refoulement, provided for in Article 33 of the Convention, prohibits the return (‘refoulement’) of refugees to States in which they would have reason to fear that their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group, or political opinion. Thus, in case a refugee is considered to have reason to fear persecution in his country of origin or any other country, a State party to the Convention must allow the refugee to stay. Though the prohibition of refoulement is applicable only to refugees, it covers refugees who are lawfully present in the territory of the State but also those who are unlawfully present. Furthermore, Article 33 protects also applicants for international protection waiting for the decision on the determination of their status under the Convention.

Next to that, other international legal instruments such as the Convention against Torture and the ECHR offer protection to persons that do not meet the Geneva Convention’s refugee definition, barring their return to another country if there is a real risk of torture or inhuman treatment there.

So, as long as no readmission agreements are concluded with countries in which a risk of torture or inhuman treatment exists, readmission agreements are in line with international law?

The answer is not that straightforward. First of all, in order to be able to enter into and rely on a readmission agreement, the potential expelling state should be reasonably convinced that returned aliens will not run the risk of torture or inhuman treatment, and that furthermore they will be able to lodge an application for asylum (as long as the readmitting state is not the home country). However, it seems that in their eagerness to be able to execute expulsion decisions, some (European) states are willing to conclude readmission agreements with countries whose human rights slate is far from clean.

The readmission agreement between the EU and Turkey is a typical example: whereas the European Union itself has expressed its concerns time and again – with regard to the protection of minority rights, freedom of expression and other human rights in Turkey – all of this did not seem to matter anymore when it came to the facilitation of the expulsion of aliens to Turkey. This practice does not only seriously mar the EU’s human rights policy, it also exposes readmitted aliens to a serious risk.

Moreover, countries that agree to readmit third-country nationals and stateless persons that only transited this country on their way to the expelling state are likely to conclude readmission agreements with transit countries further ‘upstream’ or countries of origin, to which the original expelling state was not willing or not able to expel; one of the reasons for that could be the prohibition of refoulement. Imagine a state returning an alien to another state, and the readmitting state in its turn removes the alien to yet another state in which a real risk of torture or inhuman treatment exists. Would the state that expelled first be responsible for this indirect refoulement? Or, is the prohibition of refoulement only applicable to primary expulsion: ‘out of sight, out of mind’?

Margarite Helena Zoeteweij
PostDoc, nccr – on the move, University of Fribourg