In recent years, there has been an increased focus on the return of migrants to the detriment of other migration policy options, such as regularization, social inclusion or the expansion of regular pathways. In general, the political sensitivity of irregular migration and the increasing securitization and criminalization of cross-border movements of people outweigh the actual scope and impact of irregular migration.
In this context, the proliferation of readmission agreements is an issue of concern. Under the broad auspices of more efficient and effective migration management, States increasingly conduct push and pull-back operations and adopt bilateral and regional readmission agreements. Furthermore, countries of origin and third countries with weak rule of law and poor asylum systems continue to turn back migrants, counter to international human rights norms and standards, which include the prohibition of collective expulsions and the principle of non-refoulement.
Returns are often not desirable or even feasible options for migration management. Return efforts are expensive, difficult to implement and problematic to carry out in accordance with human rights law. Moreover, if return programmes are not coupled with robust reintegration programmes, and where root causes for irregular migration persist, migrants, including those previously returned, would still undertake perilous journeys (A/72/643, para. 39).
In his 2035 agenda for facilitating human mobility, the previous mandate holder proposed eight mobility goals, inter alia, goal 3, on ensuring respect for human rights at border controls, including return, readmission and post-return monitoring, and establishing accountability mechanisms (A/72/643, para. 40).
In his study, the Special Rapporteur examines current return and reintegration practices, their compliance with international human rights norms and standards, and their impact on the human rights of migrants, including migrants with particular protection needs. He also makes recommendations on ensuring that returns are conducted in safety, with regard to dignity and respect for human rights, on the basis of the primacy of voluntary returns, cooperation between countries of origin and reception, and enhanced reception and sustainable reintegration assistance for those who are returned.
The study was informed by submissions from international organizations and nongovernmental organizations, and contributions from international experts. The Special Rapporteur also participated, on 6 March 2018, in an expert meeting on protecting the 2 Platform for International Cooperation on Undocumented Migrants (PICUM), submission to the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, April 2013. A/HRC/38/41 5 human rights of migrants in the context of return, organized by OHCHR and held in Geneva. It is also based on observations made during the Special Rapporteur’s country visits, communications received from individuals and non-governmental organizations, and research conducted by lawyers of the Diego Portales University. B. Concepts and terminology .
There is no international definition of “return” in the context of migration. The most recent definition was proposed by the Global Migration Group in its principles and practical guidance on the protection of the human rights of migrants in vulnerable situations, prepared pursuant to Human Rights Council resolution 35/17 (A/HRC/37/34 and Add.1). According to the principles and guidance, a “return” is an “umbrella term to refer to all the various forms, methods and processes by which migrants are returned or compelled to return to their country of origin or of habitual residence, or a third country. This includes […] deportation, expulsion, removal, extradition, pushback, handover, transfer or any other return arrangement.” They add that “the use of the term return provides no determination as to the degree of voluntariness or compulsion in the decision to return, nor of the lawfulness or arbitrariness of the return” (A/HRC/37/34/Add.1, chap. V).
According to IOM, “assisted voluntary return” is the “administrative, logistical, financial and reintegration support to rejected asylum seekers, victims of trafficking in human beings, stranded migrants, qualified nationals and other migrants unable or unwilling to remain in the host country who volunteer to return to their countries of origin.”
Voluntary returns are not always assisted, and returnees can be compelled to resort to “voluntary” return to avoid deportation, detention or destitution.
Similarly, there is no agreed definition of the term “reintegration”. Effective reintegration programmes depend largely on the voluntary character of returns, and may ultimately contribute to decreasing re-emigration rates.
In general, the terms “return”, “deportation”, “expulsion”, “repatriation” and “removal” are used interchangeably to describe the process of sending back or returning persons to their country of origin or habitual residence. Their common feature is a lack of genuine, fully informed and valid consent, thus the lack of voluntariness.
For the purpose of the present report, the term “return” refers to all acts by which persons are sent to a third country without their free and informed consent. Apart from coercion, the lack of alternatives to return will also determine the free character of the voluntariness, and therefore the boundaries between forced and voluntary returns. C. International legal framework .
The Universal Declaration of Human Rights and the core international human rights treaties provide the legal framework for non-discrimination and the protection of the human rights of all human beings, including migrants, regardless of their status and where they are. Article 13 of the Declaration states that everyone has the right to leave any country, including his or her own, and to return to his or her own country. Article 2 of the International Covenant on Civil and Political Rights requires States to ensure that the rights recognized in the Covenant are enjoyed by all individuals who are within its territory and/or subject to its jurisdiction, without distinction of any kind.