Document - UK: Seeking Asylum is not a crime: detention of people who have sought asylum
Twenty guidelines on forced return(142)
Adopted by the Committee of Ministers of the Council of Europe in May 2005
The Committee of Ministers,
Recalling that, in accordance with Article 1 of the European Convention on Human Rights, member states shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention;
Recalling that everyone shall have the right to freedom of movement in accordance with Article 2 of Protocol No. 4 to the Convention;
Recalling that member states have the right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens on their territory;
Considering that, in exercising this right, member states may find it necessary to forcibly return illegal residents within their territory;
Concerned about the risk of violations of fundamental rights and freedoms which may arise in the context of forced return;
Believing that guidelines not only bringing together the Council of Europe's standards and guiding principles applicable in this context, but also identifying best possible practices, could serve as a practical tool for use by both governments in the drafting of national laws and regulations on the subject and all those directly or indirectly involved in forced return operations;
Recalling that every person seeking international protection has the right for his or her application to be treated in a fair procedure in line with international law, which includes access to an effective remedy before a decision on the removal order is issued or is executed,
1. Adopts the attached guidelines and invites member states to ensure that they are widely disseminated amongst the national authorities responsible for the return of aliens.
2. Considers that in applying or referring to those guidelines the following elements must receive due consideration:
a. none of the guidelines imply any new obligations for Council of Europe member states. When the guidelines make use of the verb "shall" this indicates only that the obligatory character of the norms corresponds to already existing obligations of member states. In certain cases however, the guidelines go beyond the simple reiteration of existing binding norms. This is indicated by the use of the verb "should" to indicate where the guidelines constitute recommendations addressed to the member states. The guidelines also identify certain good practices, which appear to represent innovative and promising ways to reconcile a return policy with full respect for human rights. States are then "encouraged" to seek inspiration from these practices, which have been considered by the Committee of Ministers to be desirable;
b. nothing in the guidelines shall affect any provisions in national or international law which are more conducive to the protection of human rights. In particular, in so far as these guidelines refer to rights which are contained in the European Convention on Human Rights, their interpretation must comply with the case-law of the European Court of Human Rights;
c. the guidelines are without prejudice to member states' reservations to international instruments.
Chapter I – Voluntary return
Guideline 1. Promotion of voluntary return
The host state should take measures to promote voluntary returns, which should be preferred to forced returns. It should regularly evaluate and improve, if necessary, the programmes which it has implemented to that effect.
Chapter II – The removal order
Guideline 2. Adoption of the removal order
Removal orders shall only be issued in pursuance of a decision reached in accordance with the law.
1. A removal order shall only be issued where the authorities of the host state have considered all relevant information that is readily available to them, and are satisfied, as far as can reasonably be expected, that compliance with, or enforcement of, the order, will not expose the person facing return to:
a. a real risk of being executed, or exposed to torture or inhuman or degrading treatment or punishment;
b. a real risk of being killed or subjected to inhuman or degrading treatment by non-state actors, if the authorities of the state of return, parties or organisations controlling the state or a substantial part of the territory of the state, including international organisations, are unable or unwilling to provide appropriate and effective protection; or
c. other situations which would, under international law or national legislation, justify the granting of international protection.
2. The removal order shall only be issued after the authorities of the host state, having considered all relevant information readily available to them, are satisfied that the possible interference with the returnee's right to respect for family and/or private life is, in particular, proportionate and in pursuance of a legitimate aim.
3. If the state of return is not the state of origin, the removal order should only be issued if the authorities of the host state are satisfied, as far as can reasonably be expected, that the state to which the person is returned will not expel him or her to a third state where he or she would be exposed to a real risk mentioned in paragraph 1, sub-paragraph a. and b. or other situations mentioned in paragraph 1, sub-paragraph c.
4. In making the above assessment with regard to the situation in the country of return, the authorities of the host state should consult available sources of information, including non-governmental sources of information, and they should consider any information provided by the United Nations High Commissioner for Refugees (UNHCR).
5. Before deciding to issue a removal order in respect of a separated child, assistance – in particular legal assistance – should be granted with due consideration given to the best interest of the child. Before removing such a child from its territory, the authorities of the host state should be satisfied that he/she will be returned to a member of his/her family, a nominated guardian or adequate reception facilities in the state of return.
6. The removal order should not be enforced if the authorities of the host state have determined that the state of return will refuse to readmit the returnee. If the returnee is not readmitted to the state of return, the host state should take him/her back.
Guideline 3. Prohibition of collective expulsion
A removal order shall only be issued on the basis of a reasonable and objective examination of the particular case of each individual person concerned, and it shall take into account the circumstances specific to each case. The collective expulsion of aliens is prohibited.
Guideline 4. Notification of the removal order
1. The removal order should be addressed in writing to the individual concerned either directly or through his/her authorised representative. If necessary, the addressee should be provided with an explanation of the order in a language he/she understands. The removal order shall indicate:
– the legal and factual grounds on which it is based;
– the remedies available, whether or not they have a suspensive effect, and the deadlines within which such remedies can be exercised.
2. Moreover, the authorities of the host state are encouraged to indicate:
– the bodies from whom further information may be obtained concerning the execution of the removal order; – the consequences of non-compliance with the removal order.
Guideline 5. Remedy against the removal order
1. In the removal order, or in the process leading to the removal order, the subject of the removal order shall be afforded an effective remedy before a competent authority or body composed of members who are impartial and who enjoy safeguards of independence. The competent authority or body shall have the power to review the removal order, including the possibility of temporarily suspending its execution.
2. The remedy shall offer the required procedural guarantees and present the following characteristics:
A legal guardian or adviser should be appointed for unaccompanied minors.
In addition, the Guidelines emphasize that asylum-seekers should undergo an initial screening at the outset of detention to identify trauma or torture victims for treatment and should have the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate. (Guideline 10)
Detained asylum-seekers should also have the right (v) to contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate. The right to communicate with these representatives in private, and the means to make such contact should be made available. (Guideline 5)