Seminar on Migration Legislation

Ministry of Foreign Affairs of Guatemala

15 – 16 February 2007

Rights of States

Recognition of the rights of States established within the international legal framework and subject to their convention obligations, to control the entry and residency of non nationals;

Recognition that in the process of exercising this right, States may find it necessary to expel and forcefully return irregular entrants;

Identification of Good Practices on Expulsion Issues

Fundamental principles and recommendations to achieve dignified and respectful deportation within the international framework of HR

Promotion of Voluntary Return

The State should consider ways to promote voluntary return as an alternative to forced return:

Preferable to forced; Better guarantee of respect for HR

In case of forced return, it is advisable to share as much information as possible when requesting cooperation – notification of date of expulsion; opportunity to notify family; opportunity to collect personal belongings, etc.

Deportation or Removal Order

Expulsion orders should only be issued following decisions made within the legal framework;

Before ordering expulsion, the State should consider the needs for international protection and ensure the return will not endanger the life of persons – return of persons considered not to require international protection, Excom 96 of 2004;

Right to believe a third country will fulfill its obligation not to return persons to situations of danger

Prohibition of Collective Expulsion

Collective expulsion is prohibited.

Each expulsion order should be issued after reasonable and objective consideration of the circumstances of the individual case, taking into account the specific circumstances of each case

Notification

In writing (directly or through an authorized representative);

In an understandable language;Explaining the legal and factual bases;Explaining the recourses available

(suspension effect or not?);Offering additional information sources;Explaining the consequences of non

compliance.

Detention Prior to Deportation or Removal

It is acceptable to detain a person as a measure to ensure the execution of an order to leave (in full respect of the above mention standards)

The person should be promptly informed of the reasons for detention and have the opportunity to contact a lawyer or another person to discuss the situation

Length of Detention before Expulsion

The length of the detention must be directly linked with the expulsion process;

Should the expulsion not be accomplished within an acceptable timeframe, the detention must be reviewed.

Practical Conditions of the Detention

Children: only as measure of last resort and for the shortest time possible;

No mixing with prisoners convicted of criminal offenses;

Families detained in anticipation of the expulsion shall be kept together, in full respect of their privacy.

Readmission – Cooperation between States

The State of origin shall cooperate by accepting the obligation to readmit its nationals and permanent residents – respect to the family unit;

Respect to the confidentiality of personal information (especially regarding requests for asylum;

Prohibition of arbitrary loss of nationality, especially if the result would be stalessness

Escorts and Imprisonment

The use of escorts and imprisonment measures in the course of the expulsion should be proportional and the security and dignity of the expelled person as well as that of the personnel involved and other passengers should be taken into consideration

Monitoring and Complaints

The States shall consider the most adequate ways to monitor forced returns, providing an adequate observation role to relevant international and national organizations.

Art 32 of the 1951 Convention

Expulsion

For reasons of national security or public order

Procedural Requirements – legal due process

Prohibition of expulsion to countries where there is risk of persecution

Reasonable time to seek admission into a third country

The person in question does not lose refugee status despite the expulsion

Art 33(2)

Exception to Non Refoulement

If a refugee constitutes a danger to

the security of the receiving country; or

to the community of the receiving country, after having been convicted of a particularly serious crime

The person concerned continues to be a refugee

Art 33(2)

• Burden of Proof: The State is responsible for establishing the case

• Merit: ‘reasonable grounds’ to consider the person to be a danger

• The procedural guarantees of Art 32 apply equally in this case

• Refoulement shall only be justified if it is proportional to the threat presented

Art 33(2) Proportionality Test

Requirements in cases of National Security or threat to the community:

• A rational link between the refugee leaving and the elimination of the threat

• In case of serious crimes – present or future risk to the community?

• A measure of last resource?

• The danger to the country shall be greater than the danger to the refugee in case of refoulement