Undesirable and Unreturnable? Policy challenges around excluded asylum-seekers and other migrants suspected of serious criminality
but who cannot be removed
25-26 January 2016
Hosted by the Institute of Advanced Legal Studies, University of London
Funded by the Arts and Humanities Research Council (AHRC)
This international conference initiates reflection on the emerging public policy challenge of excluded asylum-seekers and other migrants suspected of serious criminality but who cannot be removed from the territory of the host State.
The conference forms part of an AHRC-supported international research network project led by the Refugee Law Initiative, University of London, and the Center for International Criminal Justice, VU University Amsterdam. It aims to present and discuss state-of-the-art research and thinking by network participants, whilst incorporating new perspectives gathered via an open call for papers. Alongside high-profile academic experts, the event will be attended by policy-makers from over a dozen countries who participate in the network.
The archetypal expression of this problem is presented by those asylum-seekers excluded from refugee status due to suspected involvement in serious crimes - as defined by Article 1F of the Refugee Convention - but who cannot be removed from the host State’s territory on other legal or practical grounds. The alleged Rwandan genocidaires seeking asylum in the UK are a case in point. Moreover, other migrants who have attracted adverse attention as a result of alleged criminal activities in the host State or overseas may end up in a similar situation, including former refugees such as Abu Qatada.
Impediments to the expulsion of migrants suspected or convicted of serious criminality can be ‘practical’, such as the lack of means to send the person to their country of origin, or ‘legal’ in nature, as where human rights standards prevent removal. The variety of measures adopted by different countries and their often ad hoc nature suggest that States do not know how to respond effectively to these issues.
Such ‘undesirable’ cases are actually quite rare. However, they attract enormous public interest, serving to embody concerns about migration control, the integrity of asylum, the role of human rights in contemporary society, and the bringing to justice of perpetrators of serious crimes. Simultaneously, these controversial cases raise formidable empirical and theoretical questions for refugee, criminal and human rights law and policy.
The conference provides a forum to address the following key questions:
• What are the scale and key characteristics of the problem of ‘undesirable and unreturnable’ migrants and policy responses adopted in a range of most-affected States?
• How should future policy development in relation to this problem take place? What would a coherent and uniform policy on this topic look like?
• Can law respond to address the ‘legal limbo’ in which such persons find themselves and resolve their situation one way or the other? Are other tools required?
• What are the implications of this situation for the wider legitimacy of refugee law and human rights law? How should these wider contexts inform the search for a solution?
• Do these cases represent the emergence of a ‘fundamental system error’ in international law or merely a practical problem in the application of the law?
• How should humanitarian issues of ‘international protection’ be balanced against international criminal law imperatives to counteract impunity?
CALL FOR CONFERENCE PAPERS
The conference panels are structured in three parts.
Abstracts for proposed papers to be presented in any of the three parts of the conference are welcomed. Please see the following text for further details.
1. Empirical country conditions/responses
The papers on these panels aim to redress the gap in data that currently exists as to the scale and characteristics of the problem of ‘undesirable and unreturnable’ migrants in affected States across the globe. In that context, they also describe the variety of policy responses developed at the national level by the countries in question.
Papers on these panels should thus seek to answer the following three questions in relation to one particular country:
i. To what extent is the country affected by the issue of non-removable migrants suspected or convicted of serious crimes and what are the key characteristics of that population? This could include the countries of origin of such migrants, the type of (alleged) crimes committed, and why – in legal terms – they are non-removable.
ii. What is the scale of the problem? If possible, please include an estimation of the number of undesirable and unreturnable migrants; or illustrate the dilemmas faced by the State with examples of well-known cases.
iii. Which policy measures to deal with the issue exist in the respective State and how often are these measures applied?
Papers are already being prepared on the following case studies: Brazil (Dr Liliana Jubilut); Canada (Dr Jennifer Bond); Italy (Dr Marco Odello); Netherlands (Maarten Bolhuis); Norway (Prof Terje Einarsen and Mi Christiansen); United Kingdom (Dr Sarah Singer); and United States (Prof Deborah Anker).
* Papers are particularly solicited on other relevant regions such as Africa, Asia and Latin America (not Brazil) or countries such as Australia; Belgium; France; Germany; Greece; and Sweden. Please specify which aspects of that country’s policy and practice you intend to focus upon.
2. Cross-cutting thematic approaches
The papers on these panels aim to analyse in more critical terms particular types of policy measures adopted by States to address the problem of potentially non-removable migrants suspected of serious criminality, and their broader legal, policy and practical implications. The variety of measures adopted by different countries and their often ad hoc nature suggest that States do not know how to respond effectively to the issue of ‘undesirable and unretunable’ migrants. These panels seek to provide clarity by assessing each measure in terms of its effectiveness in resolving the ‘legal limbo’ often faced by such migrants, the relative advantages or disadvantages of the approach adopted, and the legality of the use of such measures in practice.
Papers on these panels should thus seek to address one aspect of the following thematic areas, i.e. not limited to looking at the practice of one country:
i. The prosecution of migrants suspected of serious criminality by national courts (e.g. on the basis of universal jurisdiction or following extradition) or international tribunals; or
ii. ‘Humanitarian solutions’ to the issue of unreturnable migrants, including temporarily allowing or condoning the stay of the person concerned in the host State (via restricted leave policies or temporary permits) or providing the possibility of longer-term legal residence in the host State; or
iii. The expulsion of ‘undesirable migrants’, both excluded asylum seekers and other migrants suspected or convicted of criminal activity. Such measures include deportation or removal to the country of origin, the use of memoranda of understanding, voluntary return packages, and relocation to a third country; or
iv. The consequences of the return of such ‘undesirables’ on countries of origin where this has been carried out. For example, the impact of deportations of gang members from the US to Central America in the 1990s.
Papers are already being prepared on the following case studies: prosecution (Dr Joseph Rikhoff); extradition (Prof Geoff Gilbert); memoranda of understanding (Dr Mariagiulia Giuffre); voluntary return/relocation (Dr Joris van Wijk).
* Papers engaging in an innovative way with any aspect of these thematic areas – especially those on which papers are not being prepared! – or any other related questions are solicited.
3. Coordinated and harmonised solutions
The papers on this panel explore the potential for coordinated or harmonised solutions to address the challenges posed by non-removable migrants suspected or convicted of serious criminal activity, especially in relation to those who are unreturnable over the long-term. This, in turn, raises the question of whether a ‘one size fits all’ approach is needed to address the issues raised or whether different scenarios require different solutions. For example, different approaches might be warranted in relation to excluded asylum seekers as opposed to other migrants convicted of a serious criminal offence in the host country.
Papers on this panel might thus seek to address some aspects of the following questions:
i. What is the role and/or potential role of international or regional bodies in developing inter-governmental coordination or policy responses in respect of these cases?
ii. What are the wider consequences of these cases for existing frameworks in international law and policy, whether relating to the protection of refugees or the prosecution of fugitive criminals?
iii. Alternatively, is the ubiquity of such cases now partly just the effect of States’ greater willingness to exclude asylum-seekers under Article 1F of the Refugee Convention? If so, what are the implications?
* Papers engaging in an innovative way with any aspect of these or other related questions are particularly solicited.
SUBMISSION OF ABSTRACTS
To propose a paper, please send an abstract of up to 300 words by email to email@example.com before Monday **5 October 2015**.
Selected presenters will be asked to submit a draft paper of 5 000-8 000 words by 1 December 2015 to enable paper-sharing in advance among the participants. Local accommodation will be offered to selected presenters, as well as a contribution towards economy travel expenses of up to £50 (UK), £200 (Europe), £750 (World). After the event, revised papers will be submitted for publication.
In order to facilitate the participation of doctoral/early career researchers at the conference, a number of places on the panels have been set aside exclusively for papers to be presented by doctoral/early-career researchers