Protection regimes for non-recognised refugees

The issue of non-return of rejected international protection applicants does not enjoy a high political profile on its own, but has been discussed as part of a global debate on asylum. Significant efforts are required when considering the wide spectrum of possible reasons of non-return, some reasons depending on the countries of destination, others on the returnee himself/herself. In this respect, reasons of non return range from the non-respect of deadlines, the issuance of travel documents, postponement of removal for external reasons to the returnee, for medical reasons, the resistance of the third-country national and the lack of diplomatic representation of Luxembourg, to name but a few. In regards to the procedure, in Luxembourg the rejection of the international protection application includes the return decision. The Minister in charge of Immigration, through the Directorate of Immigration, issues this decision. The return decision only becomes enforceable when all appeals are exhausted and the final negative decision of rejection of the competent judicial authority enters into force, as appeals have suspensive effects. This decision also sets out the timeframe during which the rejected international protection applicant has to leave the country. In case the applicant does not opt for a voluntary return, the decision will also include the country to which s/he will be sent. In general, the decision provides for a period of 30 days during which the applicant has the option to leave voluntarily and to benefit from financial support in case of assisted voluntary return through the International Organization for Migration (IOM). There are two exceptions to this rule: the applicant who is considered a threat to national security, public safety or homeland security and the applicant who has already been issued a return decision before. The declaration and documentation provided during the procedure of international protection can be used to facilitate return. Subsequent applications are possible, in particular if new evidence of facts appears resulting in an increased likelihood of the applicant to qualify for international protection. For rejected international protection applicants who did not opt for voluntary return and did not receive any postponement of removals, a certain (limited) support is available while waiting for the execution of the enforceable return decision. As such, they continue to stay in reception facilities and to receive certain social benefits unless they transgress any internal rules. If an urgent need exists, rejected applicants may be granted a humanitarian social aid. However, they are not entitled to access the labour market or to receive ‘pocket money’ or the free use of transport facilities. They benefit from an access to education and training, however this access cannot constitute a possible reason for non-return. These benefits are available to rejected applicants until the moment of their removal. In order to enforce the return decision and prevent absconding, the Minister may place the rejected international applicant in the detention centre, especially if s/he is deemed to be obstructing their own return. Other possible measures include house arrest, regular reporting surrendering her/his passport or depositing a financial guarantee of 5000€. Most of these alternatives to detention were introduced with the Law of 18 December 2015 which entered into force on 1st January 2016. As a consequence, detention remains the main measure used to enforce return decisions. A number of challenges to return and measures to curb them are detailed in this study. A part of these measures have been set up to minimize the resistance to return from the returnee. First and foremost is the advocacy of the AVRR programme and the dissemination of information relating to this programme but also the establishment of a specific return programme to West Balkan countries not subject to visa requirements. Other measures aim at facilitating the execution of forced returns, such as police escorts or the placement in the detention centre. Finally, significant efforts are directed towards increasing bilateral cooperation and a constant commitment to the conclusion of readmission agreements. No special measures were introduced after 2014 in response to the exceptional flows of international protection applicants arriving in the EU. While the Return service within the Directorate of Immigration has continued to expand its participation to European Networks and in various transnational projects in matters of return, this participation was already set into motion prior to the exceptional flows of 2014. As for effective measures curbing challenges to return, this study brings to light the AVRR programme but especially the separate return programme for returnees from West Balkan countries exempt of visa requirements. The dissemination of information on voluntary return is also considered an effective policy measure, the information being made available from the very start of the international protection application. Among the cases where return is not immediately possible, a considerable distinction has to be made in regards to the reasons for the non-return. Indeed, in cases where the delay is due to the medical condition of the returnee or to material and technical reasons that are external to the returnee, a postponement of removal will be granted. This postponement allows for the rejected applicant to remain on the territory on a temporary basis, without being authorized to reside and may be accompanied by a measure of house arrest or other. In cases of postponement for medical reasons and of subsequent renewals bringing the total length of postponement over two years, the rejected applicant may apply for a residence permit for private reasons based on humanitarian grounds of exceptional seriousness. Nevertheless, apart from this exception, no official status is granted to individuals who cannot immediately be returned. Several measures of support are available to beneficiaries of postponement to removal: they have access to accommodation in the reception centres they were housed in during their procedure, they may be attributed humanitarian aid, they continue to be affiliated at the National Health Fund, they continue to have access to education and professional training and they are allowed to work through a temporary work authorization. The temporary work authorization is only valid for a single profession and a single employer for the duration of the postponement to removal, although this is an extremely rare occurrence in practice. OLAI may allocate a humanitarian aid might be allocated if the individual was already assisted by OLAI during the procedure of her/his international protection application. All of these measures apply until the moment of return. The study also puts forth a number of best practices such as the Croix-Rouge’s involvement in police trainings, their offer of punctual support to vulnerable people through international networking or the socio-psychological support given to vulnerable people placed in the detention centre among others. A special regard has to be given to AVRR programmes and their pre-departure information and counselling, the dissemination of information and the post-arrival support and reintegration assistance. Indeed, stakeholders singled the AVRR programme out as a best practice and the Luxembourgish government has made voluntary return a policy priority for a long time. However, this increased interest in voluntary returns has to be put into perspective as research shows that sustainable success of voluntary return and reintegration measures is only achieved for a very restricted number of beneficiaries (namely for young, autonomous and dynamic returnees with sizeable social networks and who were granted substantial social capital upon return). Hence, returning women remains a sensitive issue, especially if they were fleeing abusive relationships. Another factor contributing to hardship set forth by research is the difficult reintegration of returnees that have lived outside of their country of return for a prolonged period of time and are therefore unable to rely on social networks for support or for a sense of belonging. Based on these considerations, NGOs and academia cast doubts on the ‘voluntary’ nature of these return programmes, their criticism targeting the misleading labelling of these policy measures.

"The project explores protest against the deportation of rejected asylum seekers in Austria, Switzerland and Germany. Deportation has become a central element of immigration control, particularly of asylum seekers whose application has been rejected. At the same time, it can be seen as contradicting the intention of human rights obligations for individuals in need of protection, which raises normative questions related to justice and universal norms vis-à-vis state sovereignty and policy implementation adopted by lawful means. This tension is reflected by the fact that certain sections of the population and the public have become sensitive towards the forcible expulsion of non-citizens from the state territory. Such feelings of unease and moral outrage manifest themselves in various forms of protest that are directed against the most coercive measure a sovereign state can take. The central aim of the project is to explore and explain the goals, form and degree of diverse anti-deportation protest activities across countries and time (1995-2010). In particular, the project seeks to answer the following research questions: 1.What shapes the trajectories of protest against the deportation of asylum seekers and what is characteristic and even distinct about anti-deportation protest? 2. How can we explain variation in the goals, forms, and degree of anti-deportation protest, both across countries and over time? The project develops an innovative and integrated perspective by combining different theoretical approaches (political opportunity structure approach and resource mobilization perspective) and considering emotional processes into the analysis. Empirically, the study will be based on newspaper articles about deportation, protest material produced by protest groups and interviews with protesters. In methodological terms, the project combines quantitative and qualitative text analysis with a series of in-depth case studies on individual deportation cases that triggered protest. The project will make an important contribution to the literature on migration and social movements. More specifically, we will assess (a) the role of structural factors vis-à-vis agency and resources and (b) the motivational and strategic functions that emotions play in protest. "

The current economic crisis occurs at a turning point of the EU asylum policy. After a frenetic phase leading up to the adoption of numerous EU directives and regulations, the Common European Asylum System (CEAS) has now entered a second phase of consolidation of the asylum acquis. This new impulse paves the way for a re-assessment of the whole CEAS with a view to ensuring a genuine common asylum policy. Against such a background, it is timely to consider whether the EU has developed the appropriate means to achieving harmonization. Indeed, all stakeholders are aware that the CEAS is losing edge, revealing its limits, not only in terms of refugee protection, but also as regards its capacity for properly fulfilling its main objective: the establishment of a truly common asylum system. However, the recurrent temptation to tighten migration controls in times of recession inevitably begs the question of its impact on the current consolidating phase of the EU asylum policy. In the midst of this reflective period, the present Report aims at reassessing the CEAS through a critical overview of its four main strategic pillars: preventing access to EU territory;  combating ‘asylum-shopping’;  criminalizing failed asylum-seekers and enforcing their return;  promoting the integration of refugees duly recognized as such. This four-pronged strategy has proved instrumental in alleviating asylum pressure in the last decade and will probably be even more in the wake of the current recession. The most pressing challenge is that of preventing the economic crisis from transforming into a protection crisis at the expense of refugee rights.

Asielzoekers die de EU op irreguliere wijze inreizen, blijven vaak niet in de lidstaat waar zij aankomen. Doormigratie van asielzoekers in de EU is niet helemaal te voorkomen, maar kan wel beter worden aangepakt. De Adviescommissie voor Vreemdelingenzaken adviseert daarom een bredere aanpak in EU-verband. Het aantal asielzoekers dat na aankomst in de EU doorreist naar een andere lidstaat is de laatste jaren sterk toegenomen, terwijl het aantal asielaanvragen in de EU sinds 2016 weer op het niveau van 2014 ligt. Tijdens de ‘vluchtelingencrisis’ in 2015 reisden de meeste asielzoekers door van Zuid- naar Noord- en van Oost- naar West-Europa. Sinds 2016 vindt er juist meer ‘secundaire migratie’ van asielzoekers plaats tussen de Noordwest-Europese lidstaten. Doormigratie van asielzoekers in de EU zet de asiel- en opvangstelsels van de lidstaten onder druk, tast de solidariteit tussen lidstaten aan, ondermijnt het maatschappelijk draagvlak voor migratie, houdt mensensmokkelnetwerken in stand en kan tot langdurige verblijfsonzekerheid en verdere uitzichtloosheid voor asielmigranten leiden. Lidstaten proberen het doorreizen van asielzoekers onder meer tegen te gaan door: 1) Het herinvoeren of intensiveren van grenscontroles; 2) Meer toezicht op vreemdelingen; 3) Het versoberen van de opvang; 4) het invoeren van verblijfsrechtelijke beperkingen; 5) Het toepassen van vreemdelingenbewaring (waar mogelijk). Nationale beleidsaanscherpingen kunnen asielzoekers afschrikken, maar dat leidt tot meer doormigratie naar andere lidstaten. Voor de EU als geheel is dat dus geen oplossing. De implementatie van de EU-Turkije verklaring en het sluiten van de Balkanroute hebben geleid tot een vermindering van het aantal asielzoekers dat direct na aankomst in de EU doorreist. Tegenwoordig reizen vooral asielzoekers door die ergens nog een asielaanvraag hebben openstaan of van wie de aanvraag is afgewezen. Het Dublin-systeem, dat is ingevoerd om te bepalen welke lidstaat verantwoordelijk is voor het behandelen van een asielaanvraag, werkt niet goed om het doorreizen van asielzoekers tegen te gaan. Met name de omgang met evident kansarme aanvragen van asielzoekers uit veilige landen van herkomst vormt een probleem. Ook lukt het niet goed om afgewezen asielzoekers terug te sturen naar hun land van herkomst. Doormigratie van asielzoekers in de EU kan effectiever worden tegengegaan door: 1) een overtuigende aanpak van de grondoorzaken van asielmigratie, zowel buiten als binnen de EU; 2) Positieve prikkels te introduceren voor zowel asielzoekers als lidstaten om zich aan de regels te houden. Zorg voor een verschillende behandeling van asielzoekers die al sociale, economische of culturele banden met lidstaten hebben, die afkomstig zijn uit veilige landen van herkomst en die evident kansarme aanvragen indienen en die niet onder de eerste twee groepen vallen; 3) Door onder meer in de relaties met landen van herkomst niet eenzijdig te focussen op het tegengaan van irreguliere migratie.

Denne studien belyser hvilke forhold som motiverer personer med utreiseplikt til å velge frivillig retur framfor å bli i Norge uten lovlig opphold. Retur av personer med endelig avslag på asylsøknad eller som av andre grunner ikke har lovlig opphold, er et uttalt politisk mål i Norge og mange EU-land. Vi utdyper hvor kompleks beslutningsprosessen med hensyn til å velge frivillig retur er. Ordningen med frivillig retur opplevdes som obligatorisk av respondentene, mens den kalles frivillig av myndighetene. Å dra med program for frivillig retur eller å avvente tvangsretur ble sett på som de eneste mulige alternativene til det å leve utenfor samfunnet, og uten formelle rettigheter som irregulær migrant i Norge. «Frivillig retur» ble derfor lite beskrivende for deres opplevelse av situasjonen. For dem vi intervjuet, handlet beslutningsprosessen om å foreta det valget som var best for dem selv og eventuelt for deres barn.

Luxembourg has integrated in the protection system the European legal framework on protection. However, besides the international protection (refugee status and subsidiary protection status) and the temporary protection statuses, the Luxembourgish legal system foresees two humanitarian statuses which are: a) residence permit for private reasons based on serious humanitarian grounds; b) the postponement of removal based on medical reasons. In regard to the latter, there are the following steps: 1) the postponement of removal can be granted and renewed for up to 24 months; 2) after 2 years, if the medical condition persists, an authorisation of stay for medical reasons may be granted and a residence permit for private reasons may be issued. However, it is important to stress at this point that the Luxembourgish authorities do not consider the two aforementioned residence permits issued according to articles 78 (3) and 131 (2) of the Immigration Law as “protection statuses” as such, but precisely as residence permits issued to the applicant. The granting of these two “protection statuses” are based on the discretionary power of the Minister in charge of Immigration and Asylum. The residence permit for private reasons based on humanitarian grounds (Status A of this report) allows for the Minister to grant an authorisation to stay in the country to an irregular migrant if s/he is in in need to stay based on humanitarian reasons of exceptional circumstances. There is not an exhaustive list of reasons on which the Minister can base his/her decision. However, there is an exhaustive analysis of the reasons advance by the applicant. Any third country national irregularly staying on the territory can apply for this residence permit. However, in the case of rejected asylum seekers, the application will be rejected if the applicant advances the same reasons that s/he advanced during the international protection procedure. On the contrary, the residence permit for medical reasons requires that, in the first stage, the applicant had received a return decision and an order to leave the territory. In order to obtain the residence permit, he/she has to obtain first a decision for a postponement of removal for medical reasons that has to be renewed for two years before the applicant can file the application for the residence permit based on medical reasons. This residence permit is not granted automatically and if the applicant does not file his/her application after expiration of the postponement of removal for medical reasons after two years, s/he will be precluded and the return decision will be executed, except if s/he proves that s/he cannot be returned for medical reasons. In this case, the entire procedure will have to start again.

Egypt hosts thousands of foreign nationals, a small percentage of whom are considered regular migrants or recognized refugees. This paper will outline the different legal tools that bind non-Egyptians and explore the problems that irregular migrant, including failed asylum-seekers face. It will also explain how the Minister of the Interior has absolute powers with regards to naturalization and deportations and propose an alternative mechanism that is fairer and more compliant with modern human rights standards.

Britain is not an obvious country to which Algerians migrate, although the crisis of the Algerian civil war in the 1990s was to make it an alternative to continental Europe, especially France. From 45 in 1991, asylum applications peaked in 1995 at 1,865 persons and then ran at a consistently high level up to 2002. They are now in steep decline. Return of Algerian asylum-seekers has not followed a similar pattern, however, and many Algerians in Britain are illegally here. In fact, they have ranged between 85 (1998) and 220 (2005) a year, with no figures being available for 1999 and 2000. The British government admits that the efficacy of its return policy has been very limited, although domestic pressure has led to a much more concerted effort to return failed asylum seekers in recent years. However, the bare statistics must be seen against the growth of British security policies since 2001 and particularly since 2005. Fears of terrorism in Britain linked to the Algerian community here have led to a disproportionate arrest rate amongst Algerians, particularly in the ricin trial, the indefinite detention of Algerians on suspicion of involvement in terrorism without trial, agreements about mutual extradition, memoranda of understanding over the return of Algerians allegedly involved in terrorist activities and much closer cooperation between British and Algerian security services. This securitisation process has made the return of Algerians to Algeria much more problematic and has brought into question the British government’s commitment to its obligations within the European Union.

In Luxembourgish legislation the term “international protection” includes both refugee status and subsidiary protection status. Integration of beneficiaries of international protection into the Luxembourgish labour market might appear quite unproblematic at first glance. From a legal point of view, the access is indeed very much open to both beneficiaries of international protection as well as beneficiaries of subsidiary protection. As from 2006 onwards, the legislator proceeded with an approximation of both statuses, providing the same rights to both types of beneficiaries of international protection. As soon as the applicants are granted international protection they are authorised to engage in employed or self-employed activities under the same conditions as Luxembourgish nationals, with the exceptionof civil servant jobs. This is also true for most of the support measures that aim to advance or enhance the access to employment, whether on the level of education, vocational training, language learning, recognition of diploma, counselling, social aid or access to housing. In each of those areas, the beneficiaries of international may in principle benefit from equivalent access as provided to other migrants, third-countrynationals or Luxembourgish nationals. Yet, the reality on the ground seldom matches the aims of the legislative framework. Effective access to the labour market remains a significant challenge for beneficiaries of international protection in order to fully integrate in Luxembourgish society. The linguistic regime as well as the high demands in terms of language requirements constitute a first major hurdle, both at the level of education/vocational training and the labour market. Rather than being able to immediately access the regular education system, respectively the labour market, refugees must first engage in a learning process sometimes coupled with administrative procedures (i.e. recognition of diplomas) that may significantly slow down the integration process. The transition period that begins once the applicant is granted international protection status appears to be particularly challenging. Indeed, several measures from which the applicants for international protection benefited during the procedure will no longer be available once they are granted the status. Thus, social aid, including housing, provided to international protection seekers will no longer be applicable to refugees. Even though national authorities have implemented several specific targeted measures in order to facilitate the transition period (i.e. progressive financial contribution to accommodation costs), it remains a phase of instability and uncertainty for the refugees and their families. This also stresses the need for employment-related support measures, which in Luxembourg are implemented in a more general integration framework. Thus, most of the support measures that exist for beneficiaries of international protection are not tailored to them in particular, but they are also open to other types of migrants or foreigners living in Luxembourg.

The return of illegally-staying third-country nationals is one of the main pillars of the EU’s policy on migration and asylum. However, recent Eurostat data show that return rates at EU level have not improved despite the important increase in the number of rejected asylum applications and in the number of return decisions issued since 2014. In its 2015 EU Action Plan on Return and subsequently in its 2017 Communication on a more effective return policy and the accompanying Recommendation, the Commission emphasised the need for a stronger enforcement of EU rules on return in order to increase the overall effectiveness of the EU’s return policy. The EMN conducted this study with the purpose of investigating good practices and challenges in Member States’ application of EU rules on return and equivalent standards.

'This research project will examine the recent phenomenon of secondary movements from the Netherlands to the United Kingdom among a differentiated group of Somali refugees and (rejected) asylum seekers. Researching the various reasons legal as well as illegal Somalis may have for this specific secondary movement will tell us something about contemporary asylum migration in Europe. The different migration systems in the UK and the Netherlands will also be analysed. The project will shed light on how people who have moved within Europe relate back to their first country of arrival. The fact that Somalis have moved onwards in such high numbers makes it an interesting case to study. Sussex University will be an excellent environment to conduct this research, because they have long research experience on asylum, they host researchers who work specifically on Somalis and a pilot research on secondary movements of Danish Somalis to the UK has been conducted there. The research method of 'life stories' will be applied in order to be able to research the decision making process of secondary movements in depth. The ones who have made an illegal secondary movement might be reluctant to talk about this secondary movement. But, as the Fellow will hark back to some of the Somali immigrants she has interviewed for her PhD research who were smuggled into the Netherlands but have left for Britain access will be relatively easy. The Fellow has built up some experience in conducting research in difficult settings and with vulnerable people, but this project will allow her to further develop these methodological skills.'