Isabelle Mihoubi Deputy Regional Representative UNHCR RR Kyiv Return/Readmission

Return may be Voluntary or Forced The preferable option for return is voluntariness of return Return implies the presence of three actors at least:  Individual concerned (migrant worker, illegal migrant, rejected a/s, refugee)  Authorities of the country of current stay of the person  Authorities of country of return of the person  In case of voluntary repatriation operation, the local population Return/Readmission. Overview of concepts

Under international law, right to return to one’s country and subsequent obligation of the State concerned to readmit its own nationals without formalities, delays or obstacles, and cooperate with the host state in determining the nationality of the returnee in order to permit his/her return Readmission is the mechanism through which a person is admitted on the territory of the country of origin or of third country Readmission can take place on a ad hoc basis (implicit/explicit) or within the framework of an agreement (bilateral/multilateral) Return/Readmission. Overview of concepts (continued)

Preferred Option  Safeguards the dignity of the persons and less traumatic  Ensures participation of the returnee to the return process, including planning  Facilitates the re-integration process Categories of persons  Irregular migrantsIOM Assisted programs (cf.IOM’s presentation)  Rejected Asylum SeekersUNHCR/IOM  Recognized RefugeesUNHCR/IOM Voluntary Repatriation of Refugees   Voluntary Return

Respect for the right to return; Receive refugees back within a framework of physical, legal and material safety; Foster reconciliation and dialogue, particularly with refugee communities; Ensure respect for the rule of law; Implement measures to encourage repatriation, reintegration and reconciliation; Voluntary Repatriation of Refugees

Promote voluntary repatriation (tri-partite agreements in particular, go-and-see-visits etc); Identify gender and age-related issues and ensure that both men and women are given an opportunity to make a free and fully informed decision on return. Voluntary Repatriation of Refugees - continued

Categories of Persons Protected against Forced Return under international and European Law Return of asylum-seekers and Refugees to a first country of asylum/stay/transit – concept of ‘Effective Protection” Conditions under which forced return shall be carried out Forced Return Overview

 Refugees Art Convention, customary international Law  Asylum seekers Art Convention, customary international Law ExceptionsArt 33 para.2, Art 32  Other protected cat.Art 3 ECHR, UN CAT NO Exception to the prohibition  NB: Includes persons with regard to whom an extradition request has been presented, in case they fall under the above- mentioned categories Categories of Persons Protected against Forced Return under international and European Law - Overview

BACKGROUND Concern over irregular movement of refugees and Asylum-seekers is not new and has been increasingly discussed and addressed by the international community and UNHCR. Main Principles developed in EXCOM Conclusion 58, 1989 Further developed, in particular Agenda for Protection – Goal 2 “Protection Refugees within Broader Agenda Migration Movements”, Objective 4 “Reduction of Irregular or Secondary Movements.” Lisbon Expert Roundtable Dec 2002 Identification of a Set of practical and holistic principles and parameters, taking into account physical, material and legal safety consideration. The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers

FRAMEWORK CONSIDERATIONS Core framework is 1951 Convention and 1967 Protocol Importance of other sources (HR Law, Treaty obligations, customary international obligations, EXCOM Conclusions etc) There is no obligation under international law for a person to seek international protection at the first effective opportunity The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers - Continued

FRAMEWORK CONSIDERATIONS - Continued Asylum-seekers and refugees do not have an unfettered right to choose the country of asylum States should craft bi- or multilateral arrangements, consistent with international refugee and HR law standards, encouraging and enabling asylum-seekers to seek international protection at the first available opportunity The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers - Continued

CRITICAL FACTOR FOR THE APPRECIATION OF “EFFECTIVE PROTECTION”IN THE CONTEXT OF RETURN TO THIRD STATES 1.The person has no well-founded fear of persecution in the third State on any of the 1951 grounds; 2.Respect for fundamental human rights in line with international standards in the third State, in particular: a. No risk to be subjected to torture or to cruel, inhuman or degrading treatment or punishment; b. No real risk to the life of the person there; c. No risk that the person would be deprived of liberty without due process The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers - Continued

CRITICAL FACTOR FOR THE APPRECIATION OF “EFFECTIVE PROTECTION” IN THE CONTEXT OF RETURN TO THIRD STATES – continued 3.No risk that the person would be sent by the third State to another State in which he/she would not receive effective protection or would be at risk of being sent from there on to another State where such protection would not be available; 4.Explicit agreement by the third State to readmit the person as an a/s or a refugee; 5.Accession to and compliance with international refugee instruments and HR instruments are essential; The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers - Continued

CRITICAL FACTOR FOR THE APPRECIATION OF “EFFECTIVE PROTECTION”IN THE CONTEXT OF RETURN TO THIRD STATES –cont-d 6.The person is granted access by the third State to fair and efficient RSD procedures; 7.Access to means of subsistence sufficient to maintain an adequate standard of living; 8.The special vulnerability of the person concerned are taken into account and the privacy interests of the person and his/her family are maintained; 9.If the person is recognized as a refugee, effective protection will remain available until a durable solution can be found. The Concept of ‘Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers - Continued

Voluntary Return is the best option - States should take measures to promote voluntary returnns International Community expressed concern over the risk of violations of fundamental rights and freedoms which may arise in the context of forced return; Forced return shall in particular be carried out:  In a humane manner  In full respect for the human rights and dignity of the persons concerned  Without resort to excessive force  In the case of children, taking due account of their best interests European and International Standards relating to the implementation of Forced Return

“Codification” of international norms and standards pertaining to the issue: COE 20 Guidelines on Return, May 2005 Proposal of the European Parliament and the Council for a Directive of common standards and procedures in Member States for returning illegally staying third-country nationals. European and International Standards relating to the implementation of Forced Return continued

Return/Readmission Questions ?

Question ! Ms Xeno is an asylum-seeker from country A, who moved in an irregular manner from a Country B to a country C Both country B and C are Parties to the 1951 Convention on Refugees and its 1967 Protocol. Both country B and C have ratified the main human rights instruments. Both country B and C are Member States of the Council of Europe Would the forced removal of Ms Xeno by country C to country B constitute a violation of international standards relating to refugee protection ?

Thank you!