Expert meeting on the human rights of migrants in the context of return, 6 March 2018
On 6 March 2018, OHCHR organized a one-day expert meeting on the theme "The human rights of migrants in the context of return". This expert meeting sought to explore human rights protection gaps for migrants in the context of State return policies and procedures, including both forced return ('expulsion', 'deportation') as well as 'voluntary' return practices.
More than 40 experts engaged in this discussion, including academics, representatives from philanthropic and non-governmental organizations, regional networks, National Human Rights Institutions, independent experts and mandate holders of the UN system, and representatives of international humanitarian and human rights organizations.
Please see the informal summary below for more information about the content and outcomes of the discussion.
In the course of the expert meeting, participants provided a wealth of research findings, academic studies, and first-hand accounts of the experiences of migrants in return procedures. These led to a number of suggestions and recommendations for further action, which have been reflected in OHCHR's Key Messages on the human rights of migrants in the context of return:
- Non-refoulement and collective expulsion. The principle of non-refoulement and the prohibition of arbitrary or collective expulsion comprise customary norms of international law and apply to all human beings at all times, including to all migrants, regardless of their migratory status. States, therefore, have an obligation to ensure that no person is returned to a place where there are substantial grounds to believe that he or she would be at risk of torture or other cruel, inhuman, or degrading treatment or punishment, or other serious human rights violations, including enforced disappearance, serious forms of discrimination and arbitrary interference with the right to a family and private life.
- Due process and procedural safeguards. The prohibitions on non-refoulement and collective expulsion imply that, prior to being returned, migrants have a right to an individual assessment, in accordance with due process and fair trial guarantees. This individual assessment requires an in-depth, substantive understanding of each migrant’s situation and the risks that she might face upon removal, as well as access to fair and efficient protection procedures.
- Sustainability. There is an urgent need to address the sustainability of returns from a human rights perspective. When migrants are sent back to countries in which they face the same conditions that compelled them to leave, such returns will not be sustainable. Instead, they may lead to repeated cycles of migration through increasingly dangerous routes and in increasingly perilous conditions. States should implement measures that will ensure returns are sustainable, principally by ensuring returning migrants are able to enjoy all of their human rights upon return, and tailored reintegration programmes should be developed to address the different needs of women, men and children, among others.
- Children’s best interests. Children should only be returned where it has been determined through a formal, adequate and participatory process that return is in the best interest of the child. Return should not cause children to be separated from their parents, to become homeless, or to go without proper care and custody. If determined that it is in the best interests of the child to be returned, an individual plan should be prepared, together with the child where possible, for her sustainable reintegration.
- Voluntary return should be given preference over forced return. Voluntary return should be given preference to forced return, including by providing information about voluntary return processes in accessible formats and languages migrants are known to understand. Returns can be called “voluntary” only if migrants are fully and meaningfully informed of the choice they make and if consent is given free of any coercion, including actual or implied violence, torture, ill-treatment, indefinite detention or arbitrary detention, including detention in inadequate conditions.
- Monitoring and accountability. Independent mechanisms for ongoing human rights monitoring post return should be instituted in order to ensure that the return did not violate the principle of non refoulement, the right to seek asylum, or the prohibition of arbitrary and collective expulsions; to guarantee that all allegations of human rights violations during return processes are promptly and impartially investigated; to monitor the human rights situation of migrants who have been returned in both forced and voluntary processes; and to ensure access to effective complaints mechanisms and remedies.