38/41 Report of the Special Rapporteur on the human rights of migrants
Document Type: Final Report
Date: 2018 May
Session: 38th Regular Session (2018 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-07146(E)
Human Rights Council Thirty-eighth session
18 June–6 July 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the human rights of migrants
Note by the Secretariat
Summary
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the human rights of migrants, prepared pursuant to Council
resolution 34/21.
The present report is the first to be submitted to the Human Rights Council by the
new mandate holder, Felipe González Morales, who assumed his functions on 1 August
2017. In the report, the Special Rapporteur summarizes the activities undertaken since
taking up his functions, and includes a thematic study on the return and reintegration of
migrants.
United Nations A/HRC/38/41
Report of the Special Rapporteur on the human rights of migrants
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Activities of the Special Rapporteur ............................................................................................. 3
A. Country visits ........................................................................................................................ 3
B. Other activities ...................................................................................................................... 3
III. Study on the return and reintegration of migrants ......................................................................... 4
A. Introduction .......................................................................................................................... 4
B. Concepts and terminology .................................................................................................... 5
C. International legal framework ............................................................................................... 5
D. Current return practices and their impact on the human rights of migrants .......................... 6
E. Migrants with particular protection needs ............................................................................ 10
F. Current reintegration measures and their impact on the human rights of migrants .............. 12
G. Monitoring mechanisms, access to justice and accountability .............................................. 16
IV. Conclusions and recommendations ............................................................................................... 17
I. Introduction
1. The present report is submitted pursuant to Human Rights Council resolutions 8/10
and 34/21. It contains information on the activities of the Special Rapporteur on the human
rights of migrants since he assumed his functions on 1 August 2017, and a thematic study
on return and reintegration of migrants.
II. Activities of the Special Rapporteur
A. Country visits
2. During the period under review, the Special Rapporteur undertook a visit to Nepal,
from 29 January to 5 February 2018 (see A/HRC/38/41/Add.1), and plans to conduct a visit
to Mali in May 2018. 1 The Special Rapporteur thanks both Governments for their
cooperation before and during the visit.
3. The Special Rapporteur thanks the Government of the Niger for accepting a visit,
and encourages the Government of the United States of America to respond positively to
his request to conduct a visit in the second half of 2018.
B. Other activities
4. On 20 October 2017, the Special Rapporteur presented the report of the previous
mandate holder on a 2035 agenda for facilitating human mobility to the General Assembly
(A/72/173). Since his appointment, the Special Rapporteur has been involved in the process
and development of the global compact for safe, orderly and regular migration. On 30
August 2017, he delivered the opening speech at a regional consultation in Santiago de
Chile. He also took part in the sixth thematic consultation of the global compact on the
theme “Irregular migration and regular pathways, including decent work, labour mobility,
recognition of skills and qualifications and other relevant measures”, held in Geneva on 12
and 13 October 2017. He also attended a stocktaking conference in Puerto Vallarta,
Mexico, from 4 to 6 December 2017, and provided input for the report of the Secretary-
General on the theme of “Making migration work for all” (A/72/643). In his contribution,
the Special Rapporteur proposed ideas on how to develop the global compact, stressing the
need for a strong, human rights-based, normative and institutional framework for migration
within the United Nations, ensuring accountability, monitoring and oversight.
5. The Special Rapporteur participated in regional and international conferences,
including as a panellist at a seminar on justice and migration organized by the Office of the
National Public Defender and the Inter-American Court of Human Rights in Santiago de
Chile, on 8 August 2017. He gave a lecture on migration standards at the Universidad
Nacional Autónoma de Mexico in Mexico City, on 7 September 2017; a keynote lecture on
migration, entitled “Challenges for the international community”, at the University of Texas
in Austin, United States of America, on 4 October 2017; and a keynote lecture on
“Migration, State obligations and rights in a globalized context” at the University of
Geneva, on 12 October 2017. He participated from 20 to 23 November 2017 in an induction
session organized for new special procedure mandate holders by the Office of the United
Nations High Commissioner for Human Rights (OHCHR) in Geneva.
6. On 24 January 2018, the Special Rapporteur gave a keynote speech at the
Interparliamentary Committee Meeting on the theme “The European Agenda on Migration:
What about legal avenues and integration?”, organized by the Committee on Civil
Liberties, Justice and Home Affairs of the European Parliament in Brussels.
1 The Special Rapporteur will submit a report on his visit to Mali to the Human Rights Council at its
forty-first session.
7. In three working visits to Geneva and one to New York, the Special Rapporteur held
initial consultations with multiple stakeholders relevant to his mandate, including the co-
facilitators of the global compact, the co-chairs of the Global Forum on Migration and
Development, representatives of OHCHR, the International Organization on Migration
(IOM), the Office of the United Nations High Commissioner for Refugees (UNHCR), the
International Labour Organization (ILO), the United Nations Children’s Fund (UNICEF),
the Special Representative of the Secretary-General on Violence against Children, special
procedure mandate holders, ambassadors, academics and representatives of non-
governmental organizations.
8. During the period under review, the Special Rapporteur sent 30 joint
communications (see A/HRC/37/80). He also issued several press releases on the situation
of migrants in Israel, Libya and the United States of America, and on, inter alia, the
international days of migrants and against racism, prior to the stocktaking conference in
Puerto Vallarta.
III. Study on the return and reintegration of migrants
A. Introduction
9. 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. 2 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.
10. 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).
11. 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).
12. 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.
13. The study was informed by submissions from international organizations and non-
governmental 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.
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
14. 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).
15. 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.”3 Voluntary returns are not always assisted, and returnees can be compelled to resort
to “voluntary” return to avoid deportation, detention or destitution.4
16. 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.5
17. 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.
18. 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
19. 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.
20. In the context of migration, States must also respect the right to be free from torture
and ill-treatment without any discrimination.6 The prohibition of torture and ill-treatment is
further developed by the absolute and non-derogable principle of non-refoulement, which
3 IOM, Glossary on Migration, International Migration Law Series, No. 25, 2011, p. 11.
4 Caritas Europa, “Human rights and human dignity at the centre of return policies”, position paper, 9
February 2018.
5 Ibid.
6 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1.
prohibits States from deporting any person to another State’s jurisdiction or any other
territory where there are substantial grounds for believing that he or she would be in danger
of being subjected to torture or ill-treatment7 or other serious human rights violations, or
where there would be a real risk of such violations (see A/HRC/37/50). Therefore, the
principle of non-refoulement also applies in cases of return to situations of socioeconomic
deprivation (namely, the return should not proceed in cases where it would imperil the right
to health of the returnee).8
21. Concerned at the growing use of detention in the context of migration, the Working
Group on Arbitrary Detention stressed in its revised deliberation No. 5 of liberty of
migrants that any form of administrative detention or custody for migrants must be used as
an exceptional measure of last resort, for the shortest period and only if justified by a
legitimate purpose. Automatic or mandatory detention and indefinite detention are
arbitrary. The Working Group added that persons detained in the course of migration
proceedings enjoy as a minimum the same rights as those detained in the criminal justice or
other administrative context, and that migrants have the right to bring proceedings before a
court to challenge the legality of their detention and to obtain appropriate remedies if their
challenge is successful.
22. In their recent joint general comments on the human rights of children in the context
of international migration, the Committee on the Rights of the Child and the Committee on
the Protection of the Rights of All Migrant Workers and Members of Their Families
recalled that the detention of children based on their migration or refugee status was never
in their best interests, and that alternatives to deprivation of liberty must be found instead,
including family-based solutions.9
23. In addition to the core international human rights treaties, other international
instruments that protect the human rights of migrants with particular protection needs
include the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, supplementing the United Nations Convention against Transnational
Organized Crime and the Protocol against the Smuggling of Migrants by Land, Sea and
Air, supplementing the United Nations Convention against Transnational Organized Crime,
the ILO Migration for Employment Convention (Revised), 1949 (No. 97) and the Migrant
Workers (Supplementary Provisions) Convention, 1975 (No.143), the Convention relating
to the Status of Stateless Persons and the Convention on the Rights of Persons with
Disabilities.
D. Current return practices and their impact on the human rights of
migrants
24. The human rights consequences of being the subject of voluntary or forced return
procedures are vast. Persons in forced return procedures are issued an entry ban, lose their
right to emergency shelters, become subject to detention and lose the possibility of
obtaining a residence permit through regularization programmes. Asylum seekers cannot be
expected to comply with the demands for their return as long as appeal procedures for
asylum applications are still pending. 10 Destination countries place the responsibility to
7 Ibid., art. 3 (1).
8 Vladislava Stoyanova, “How exceptional must ‘very exceptional’ be? Non-refoulement, socio-
economic deprivation, and Paposhvili v Belgium”, International Journal of Refugee Law, vol. 29, No.
4 (30 December 2017), p. 580.
9 Joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights of the
Child on the general principles regarding the human rights of children in the context of international
migration; joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of
All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the
Rights of the Child on State obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and return.
10 “Deported: human rights in the context of forced returns – Summary”, Amnesty International
Netherlands, July 2017.
leave the country on migrants themselves, even though many rejected asylum seekers
originate from countries that are relatively poor in terms of freedom, safety and living
standards. Once a person is considered non-compliant, the “voluntary” return procedure is
ended and a forced return process is initiated. In practice, it is not always sufficiently clear
which actions or omissions result in a person being classified as non-compliant.11
1. Return policies
25. Returns to countries of citizenship or prior residency are an integral part of current
migration policies and are a “globally ascendant practice”.12 Political pressure to increase
deportation rates poses risks for the respect of human rights. Over the past few years,
destination countries have labelled a large number of countries of origin of refugees and
persons with protection claims as being “safe”. Asylum seekers from listed countries are
confronted with accelerated asylum procedures, a higher burden of proof in asylum
applications and the rule that their appeals do not have a suspensive effect.13
26. In the European Union, standards and procedures applicable to persons subject to a
return decision are regulated by Directive 2008/115/CE, which requires States members of
the European Union to issue a return decision to undocumented migrants, unless their status
is regularized. In 2017, the European Commission adopted a new action plan and
recommendation for Member States on how to best implement the return directive with a
view to achieving more effective return procedures. Member States are required to make
the most of the flexibility offered by the return directive, including by limiting safeguards
and expediting the asylum procedure by rationalizing (namely, restricting) legal remedies.14
27. Numerous human rights concerns have been raised with regard to the practices
adopted in certain States members of the European Union in their procedures to return
undocumented migrants to their countries of origin. According to information provided in a
position paper on the directive by the Platform for International Cooperation on
Undocumented Migrants, these practices include the use of systematic and prolonged
detention, the detention of children and their families, violence and violations of the
principle of non-refoulement during removal procedures, lack of access to justice and
redress mechanisms, and the lack of effectiveness of return policies. In this regard, the
Fundamental Rights Agency of the European Union has stated that, while States have a
right to control immigration, certain enforcement measures such as reporting obligations,
data-sharing or arresting migrants in front of schools have a negative and often
disproportionate impact on the human rights of irregular migrants.15
28. Strengthened immigration enforcement efforts in the United States of America and
tighter border security measures also threaten to increase the return of migrants from the
United States to Mexico and the Northern Triangle. While deportations to Mexico and
Central America did not increase in 2017, apprehensions of undocumented immigrants in
the United States increased by 40 per cent in the first seven months of 2017 over the figures
for 2016. Phasing out the Deferred Action for Childhood Arrivals and the Temporary
Protected Status protection programmes threatens to have a significant impact on the
potential return of migrants and asylum seekers or their families to Mexico and Central
America.
29. Assisted voluntary return programmes are also a central component of prevailing
migration management policies. The programmes, which are aimed at assisting States to
address the practicalities of the return process, are mainly administered by IOM, though
other smaller providers are also involved. 16 Returns of this type are faster and less
11 Ibid.
12 Daniel Kanstroom, “Deportation as a Global Phenomenon: Reflections on the Draft Articles on the
Expulsion of Aliens”, Harvard Human Rights Journal ILC Forum Essays, 2016.
13 “Deported: human rights in the context of forced returns” (see footnote 10).
14 Caritas Europa, “Human rights and human dignity” (see footnote 4).
15 Solidarity, “Fundamental rights of migrants in an irregular situation in the European Union”,
European Union Agency for Fundamental Rights, 2011.
16 Assisted voluntary return and reintegration has become a central component of migration policies in
expensive than forced removal, and do not require the approval of the country to which the
migrant is returned.17
30. In general, the conditions under which migrants request assisted voluntary return do
not allow for the return to be qualified as voluntary, as they do not fulfil the requirements of
a fully informed decision, free of coercion and backed by the availability of sufficient valid
alternatives, such as temporary permits for work, study or humanitarian purposes, or
opportunities for permanent residence or citizenship. Some migrants request assisted
voluntary return out of despair, to avoid deportation, or because they are held in detention
— some indefinitely, because of slow and complicated family reunification and asylum
procedures, the risk of becoming destitute, poor reception conditions or withdrawal of
social support.18 The Special Rapporteur notes that States and other stakeholders who carry
out returns under an assisted voluntary return programme to States that are not safe and in
which migrants may face violations of their fundamental human rights may be in violation
of the principle of non-refoulement.
2. Readmission agreements
31. Since the 1990s, there has been a proliferation of readmission agreements between
destination countries and countries of origin and transit or readmission clauses in
cooperation arrangements. These agreements constitute a means to overcome the practical
and procedural obstacles to readmission that result when migrants are insufficiently
documented and requested States are uncooperative.19 They specify the obligation of States
to readmit their own nationals, and often include conditions to readmit citizens of third
countries. They also include a list of means of evidence requiring a requested State to
recognize nationality, and an obligation to issue a travel document within a certain time
limit. 20 There are concerns, however, that readmission agreements include clauses that
facilitate the issuance of documents to returnees in exchange for incentives for third
countries, such as visa facilitation, trade facilities and development aid.21
32. New informal deals or arrangements, also known as “flexible cooperative
frameworks”, have flourished in recent years as most third countries are reluctant to engage
in negotiations on readmission agreements owing to public hostility. Such arrangements
have been criticized for increasing the legal uncertainty with regard to the terms of the
accords, thereby impeding proper democratic accountability and judicial oversight, and
diluting responsibilities and procedural safeguards.22
33. The recourse to “safe third country” policies is another worrying trend. The aim of
these policies is to allow for the rejection of protection of asylum seekers who have
allegedly already found protection in a third country or who have travelled through a third
country where it would have been possible to seek protection while considered “safe”.23
many destination countries; for example, 83 per cent of cases of assisted voluntary return and
reintegration facilitated by IOM come from the European Economic Area. See IOM, Assisted
Voluntary Return and Reintegration: 2016 Key Highlights, Geneva, 2017.
17 Katie Kuschminder, “Taking Stock of Assisted Voluntary Return from Europe: Decision Making,
Reintegration and Sustainable Return – Time for a paradigm shift”. EUI Working Papers, European
University Institute, June 2017.
18 For instance, in the case of Australia, the option of remaining in Nauru or Papua New Guinea
indefinitely and under conditions that amount to inhumane or degrading treatment, or to resettle in
Cambodia through the assisted voluntary return scheme cannot be considered an option free of
coercion (see A/HRC/35/25/Add.3).
19 Nils Philip Coleman, European Readmission Policy: Third Country Interests and Refugee Rights,
Immigration and Asylum Law and Policy in Europe, vol. 16, 2008.
20 Ibid.
21 Caritas Europa, “Human rights and human dignity” (see footnote 4).
22 See Jean-Pierre Cassarino and Mariagiulia Giuffré, “Finding its Place in Africa: Why has the EU
opted for flexible arrangements on readmission?”, University of Nottingham, Human Rights Law
Centre, December 2017.
23 For instance, in the framework of the European Union-Turkey Statement, Greece may reject asylum
applications of persons who passed through Turkey as being inadmissible and shift the responsibility
of merit assessments to Turkey. See Maybritt Jill Alpes, Sevda Tunaboylu, Orcun Ulusoy and Saima
These returns are often made without an individual assessment of possible risks faced upon
deportation, at the expense of returning migrants and asylum seekers to countries where
they risk serious human rights violations. They are thus contrary to the principle of non-
refoulement.
34. The trend towards the externalization of migration management to border countries
by means of return and readmission agreements raises many concerns from a human rights
perspective. Such agreements often lack not only a clear legal status but also transparency,
culminating in a lack of accountability and human rights monitoring; 24 as a result, the
human rights of migrants are frequently violated in such agreements.
3. Removal procedures and the principle of non-refoulement
35. When a decision to deport is not taken with due care — for example, following a
comprehensive and effective assessment of individual risks — the return can lead to serious
human rights violations, including refoulement. Even though most abuses and violations are
committed in the context of forced returns, they are also suffered by migrants who opt
“voluntarily” for assisted return. Persons can be subject to different types of risk, such as
economic and psychosocial risks, insecurity and threats, and refoulement.25 States may also
use deportations to limit the duration of labour migration, making family reunification
impossible and seriously hampering access to decent work, services and justice.
36. Authorities of deporting States should be aware of post-deportation risks;26 reports
on the country of origin do not, however, often address such risks, or only do so to a very
limited degree. Information of this type is essential for decisions on the granting of asylum
and for the preparation of return processes. Furthermore, most Governments do not
investigate what happens after people are returned to countries of transit and origin. Little
information is in fact available about what the handling by State officials when deportees
arrive; the impact of emergency travel documents on the security of deportees; the
implementation of exit laws (which sometimes criminalize emigration in countries of origin
and transit); or the fate of persons who have been returned to a country of transit rather than
to their country of nationality.27 Travel documents that are incomplete or not recognized
can have negative consequences for deported persons upon arrival in countries of origin,
and emergency travel documents produced by the deporting State do not offer guarantees
for their access to national identification documents, a situation that entails the risk of
statelessness. Sensitive personal information (regarding for example the identity of the
asylum seeker, criminal records, health or sexual orientation) should not be shared with
authorities from countries of origin in order to protect the life, security and privacy of the
persons concerned and their families.
37. The timely preparation of return processes and the presence of embassy staff or
liaison officers from deporting States or from local non-governmental organizations can
help to prevent abuses against deported persons upon their arrival. The time and place of
arrival by air or land are also crucial to a person’s security upon return.28 Since returns may
involve many hours of travel, migrants should have access to water and bathroom facilities,
and not be constrained in their physical movement (for example, by the use of restraints).
Hassan, “Post-deportation risks under the EU-Turkey Statement: what happens after readmission to
Turkey?”, European University Institute, Migration Policy Centre, November 2017.
24 “Deported: human rights in the context of forced returns” (see footnote 10).
25 Jill Alpes and Ninna Nyberg Sørensen, “Post-deportation risks: people face insecurity and threats
after forced returns”, Danish Institute for International Studies, Policy Brief, November 2016.
26 See also the draft articles on the expulsion of aliens adopted by the International Law Commission
(Official Records of the General Assembly, Sixty-ninth session, Supplement No. 10 (A/69/10)), which
stress the importance of the principle of non-refoulement and human rights of persons subject to
expulsions.
27 See “Post-deportation risks: a country catalogue of existing references”, Stichting LOS, October
2017.
28 For instance, the Governments of the United States of America and of Mexico signed local
repatriation agreements in 2016 that prohibit repatriations along their common border between 10
p.m. and 5 a.m., and include specific provisions for the safe repatriation of children and families.
Timely communications between government agencies of the countries concerned, and
individual assessments of the specific needs of returnees (such as medical assistance or
communication with relatives) are also critical to ensure safe return and that migrants
receive the assistance they require.
38. In the context of forced deportation, detainees are particularly vulnerable to risks of
ill-treatment and torture. A number of legal and procedural safeguards can assist in
effectively preventing serious human rights violations, such as (a) individual medical
screenings by qualified professionals prior to deportation; (b) access to detention records to
enable persons to make timely and accurate complaints about their treatment; (c) strict
limits on the use of force, which should only be used as a last resort, and be necessary and
proportionate to individual circumstances; (d) the use of limited means of restraint, which
should be used only as a last resort, to the least extent necessary, and be removed at the
earliest opportunity; and (e) appropriate selection and assessment of and specific training
for escort staff.29
4. The use of detention, including detention of children and their families
39. The fact that detention is extensively used as a tool of border management and
deterrence tool against migrants, and too often as a means to prevent their access to justice,
is a worrying trend (A/72/173, para. 57). While progress has been made in some countries,
detention of migrants has largely become a systematic part of migration management across
entire regions. The increasing use of detention for migration purposes is not systematically
accompanied by legal guarantees or human rights protection for detained migrants.
40. Experience has shown that detention does not deter irregular migration, nor does it
increase the effectiveness of removal procedures; it only increases the suffering of
migrants, and may have a long-term detrimental impact on their mental health.
Furthermore, detention has no influence on the choice of destination country, nor does it
lead to a reduction in the number of irregular arrivals. Evidence has also revealed the high
costs and low effectiveness of lengthy detention when used as a tool for migration
management.30
41. According to international human rights norms and standards, children should never
be detained for immigration purposes, nor can detention be justified as being in a child’s
best interests. 31 The European return directive nonetheless allows for the detention of
children as a measure of last resort and for the shortest appropriate period of time, in
violation of international child rights norms and standards.32
E. Migrants with particular protection needs
42. States have a legal obligation to pay special attention to migrants with particular
protection needs, such as children, victims of trafficking, persons with disabilities, older
persons and persons with medical needs. The vulnerability of these migrants may be related
to the reasons for leaving their countries of origin, the situations that they encounter during
their journey and destination, and their identity, condition or circumstances.
29 “National preventive mechanisms: monitoring the force deportation flights of migrants”, Association
for the Prevention of Torture, March 2012. See also “Twenty Guidelines on Forced Return”, adopted
by the Committee of Ministers of the Council of Europe on 4 May 2005.
30 Platform for International Cooperation on Undocumented Migrants, Position Paper on EU Return
Directive, April 2015.
31 See joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All
Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights
of the Child on the general principles regarding the human rights of children in the context of
international migration; joint general comment No. 4 (2017) of the Committee on the Protection of
the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the
Committee on the Rights of the Child on State obligations regarding the human rights of children in
the context of international migration in countries of origin, transit, destination and return.
32 OHCHR, “UN Child Rights Experts call for EU-wide ban on child immigration detention”, press
release, 21 February 2018.
43. The forced return of a child has a negative impact on, inter alia, the child’s
development, health and education. According to information the Special Rapporteur
received from Defence for Children International, a non-governmental organization,
children are often forced to return with their families after having lived in their host
countries for years. The rights of a child with deep social ties to the child’s destination
country who applies for regularization should not be undermined by lack of compliance by
the child’s parents.33 States have an obligation to handle applications by a child or the
child’s parents to enter or leave a State for the purpose of family reunification in a positive,
humane and expeditious manner,34 and allow regularization through family reunification.
44. The best interests of the child should be the paramount consideration in decisions
relating to return. A formal procedure to determine best interests should be conducted with
certain safeguards, for example, with the meaningful participation of authorities responsible
for child protection, and the right of the child to be heard and to have competent and
independent legal representation (see A/HRC/37/34, principle 6, guideline 6). Where return
is deemed not to be in the child’s best interests, families should be kept together in the
country of residence. When unaccompanied and separated children are returned, countries
of origin and destination should cooperate to continue family tracing efforts after return
(ibid., guideline 7). Safety and the designation of appropriate caregivers for children should
be prerequisites to return. Return should not cause children to become homeless, nor should
children be housed in orphanages or residential care facilities, or held in any situation that
could compromise their development or lead to social exclusion (ibid., guideline 8). In the
case of families with children, the government authorities responsible for processing returns
should ensure that children are not separated from immediate family members in the return
process.
45. In general, there are concerns that forced return programmes that lack appropriate
mechanisms for screening indicators might include large numbers of suspected victims of
trafficking. In particular, the risk of non-detection increases when countries do not have
procedures for proactive detection and officials lack the necessary training. When cases of
trafficking are identified, no clear guidance is available within the social protection system
when a return has already been processed. The risk that victims of trafficking run of
exposure to reprisals and re-victimization also increase, given that they can be recontacted
by trafficking networks after their return. Returned victims of trafficking are often
stigmatized and subject to discrimination, and may suffer from psychological disorders (see
A/HRC/38/45).
46. States should adopt measures offering comprehensive protection for migrants with
disabilities, including those who acquire a disability in transit or destination countries. Such
measures should include the prohibition of detention, unhindered access to health and social
services and a comprehensive assessment of individual protection needs before any
decision on return is made. Similarly, countries of origin and destination should introduce
comprehensive return and reintegration programmes for migrants who return with a
disability. Host countries should adopt prevention policies and create safe working
conditions, and refrain from cancelling residence and/or work permits and returning
migrants who have acquired a disability in the workplace.
47. Return policies and practices affect women and girls differently. The Special
Rapporteur received allegations concerning proposed regulations to deport pregnant
migrant workers, which could in turn compel women in such a situation to seek unsafe
abortions (A/HRC/26/35, para. 54). Migrant women who work as domestic workers are
also more vulnerable to sexual harassment, abuse and violence, including rape, and face
loss of access to essential services and even deportation if they file a complaint. In order to
address the particular protection needs of women and girls in the context of returns, States
should address the root causes of exploitation rather than restrict the mobility of migrants
33 “Deported: human rights in the context of forced returns” (see footnote 10).
34 See Convention on the Rights of the Child, art. 10 (1), and general comment No. 6 (2005) of the
Committee on the Rights of the Child on the treatment of unaccompanied and separated children
outside their country of origin, para. 83.
perceived as “vulnerable”. Similarly, States should provide access to justice, including safe
reporting, for all migrants, and pay special attention to those who have subjected to
exploitation, criminal acts, sexual or gender-based violence or other types of violence.
F. Current reintegration measures and their impact on the human rights
of migrants
1. Reintegration policies
48. The factors influencing a person’s ability to reintegrate into his or her community
are often similar or equal to the “push” and “pull” factors that led to the decision to migrate
in the first place. Such factors include poverty, violence and discrimination, lack of access
to rights and poor governance in countries of origin, the adverse effects of climate change
and environmental degradation, labour needs and family reunification in the destination
country (A/HRC/35/25, para. 28). There may, however, be additional factors, such as the
trauma experienced during the journey or in the destination country, or the stigma endured
upon return or because of the migration experience.
49. States, academia and policymakers use different definitions and indicators for
“sustainable return”, such as reintegration into the economic, social and cultural process in
the country of origin, the level of fear of persecution and violence experienced by returnees,
or the number of returnees choosing to remigrate. 35 States, in particular destination
countries, often measure the success of a return by the extent to which it can serve as a
deterrent to other aspiring migrants.
50. In full recognition of the right to freedom of movement and the right to leave a
country, including one’s own, the Special Rapporteur refrains from terminology that would
measure returns and reintegration with success factors, qualifying a return as “sustainable”
and reintegration as “successful”, given that a person may not want to remigrate, but may
nevertheless not have (in his or her own perception) fully reintegrated.
51. In the context of well-governed migration policy, return may be one step in the
migration cycle, but it is not necessarily the end of the process. Otherwise, “migration
management” would merely become a policy of containment rather than one of human
mobility in full respect of dignity and human rights.
52. More awareness and research on how returned migrants can reintegrate into their
country of origin is required. Reintegration is possible only if the return has been truly
voluntary, informed, free of coercion and with consideration of sufficient and valid
alternatives to regularize a stay or to grant access to citizenship, and where the return has
not been the only way out of exploitation and abuse in the destination country.
53. The Special Rapporteur recognizes the efforts made and the need to assist migrants
in their reintegration process. Destination countries, countries of origin, civil society
organizations, United Nations agencies, IOM and other stakeholders should be guided by a
human rights-based approach to return and reintegration policies. They should only engage
following a due diligence process that assesses the voluntariness of the return. Any
programme for assisted voluntary return and reintegration should comprise a transparent,
credible and public monitoring and evaluation system, also with regard to financial
transparency and accountability.
2. Reintegration measures and challenges
54. States should ensure that all cooperation across borders promotes a human rights-
based approach to migration governance. They should take all possible measures to enable
returning migrants to enjoy their human rights, including to benefit from their entitlement
to social protection, health care, an adequate standard of living, decent work, education and
access to justice. Returning and receiving States should provide effective and tailored
reintegration programmes that address the different needs of returnees, on the basis of age,
35 See Kuschminder, “Taking Stock of Assisted Voluntary Return from Europe” (see footnote 17).
gender and other factors. All reintegration policies should be subject to continuous
evaluation (A/HRC/37/34, principle 6, guideline 8). To mitigate the risks that returnees may
face, the preparedness of migrants prior to their return is essential.
55. States should cooperate to ensure the transfer of benefits, income, property, savings,
skills and credentials, and provide non-mandatory options for participatory pre-departure
and reintegration assistance for migrants choosing to return, especially for those who are
vulnerable, have special needs or are in a situation of an emergency evacuation or large-
scale repatriation.36
56. Countries of origin should also create the conditions necessary for return by
incorporating measures based on reintegration needs into national development planning,
creating employment opportunities, providing skills recognition and training, and steps to
allow the restitution of property.
57. The Special Rapporteur notes that civil society in both countries of destination and
countries of origin make an important contribution to facilitating preparedness and
reintegration of migrants. States, as duty bearers, however, have the responsibility to fulfil
their obligations under international law in this regard.
(a) Integration at the individual, family and community levels
58. Reintegration should be addressed at the individual, family and community levels.
Returnees may face multiple challenges; each returnee should therefore receive an
individualized response, with special attention paid to groups with particular needs, such as
children, victims of trafficking, persons with disabilities, older migrants, and persons with
medical needs. In this regard, shelter and other accommodation options, medical care,
psychological assistance, including family counselling, legal assistance, education,
vocational training, economic assistance and livelihood opportunities should be made
available.
59. Economic advantages or assistance provided solely to returnees can lead to tension
within a community. It is therefore important to ensure that reintegration assistance is
balanced and that investments are made in the receiving communities in countries of origin,
to avoid social conflict and to reinforce sustainable community development and stability.
Reintegration programmes should link with national, regional and international
development plans and include local economic development strategies. Prior to the return
of migrants, an assessment of the labour market, institutional capacities, prevailing
socioeconomic and environmental conditions, services and infrastructure should be carried
out.
60. Reintegration into family and community structures can be challenging: after several
years of absence, the family and community may have evolved while the migrant may have
become accustomed to different cultural norms and a different work environment.
Reintegration policy should also take into account social resolution issues from a family
and community perspective.
61. Facilitating reintegration requires programmes to focus on both returnees and the
communities of origin to which they will return, including pre-arrival activities with host
communities to ensure that reintegration benefits all. Particular focus should be put on
social integration and the importance of social cohesion and stability within receiving
communities.
62. Awareness-raising campaigns, targeting the public at large, as well as employers,
trade unions and other stakeholders, should be developed in countries of origin. When well
designed, such campaigns can contribute to a better understanding and acceptance of
returnees, including of their needs and expectations in the labour market, and address
possible types of discrimination, thereby facilitating more effective and sustainable
integration.
36 See Now and How, “Ten Acts for the Global Compact: a civil society vision for a transformative
agenda for human mobility, migration and development”.
(b) Effective access to health care
63. Prior to any return, destination countries should verify that adequate health care is
effectively available. All returnees should be provided with medical documentation and a
supply of medication in order to ensure that any treatment they are undergoing is not
interrupted.
64. Some migrants experience depression or trauma as a result of violence and abuse
endured during their migration, or face difficulties in their home country and decide to
migrate internally or remigrate abroad. Their specific needs should be addressed and
psychosocial counselling made available to facilitate their reintegration in their home
community.
(c) Access to education, employment and an adequate standard of living
65. Children enrolled in schools in countries of destination should be able to complete
the education cycle in which they are enrolled.37 Prior to any return, States should ensure
that secondary education is available in the country of origin. Children, who might
otherwise face difficulties in continuing their education or training upon their return to their
country of origin, should receive education certificates, regardless of status.38
66. In the country of origin, school systems should accelerate their consideration of
school reports from other countries in order not to delay or interrupt education. Teachers
and administrators at schools receiving returning children or children returned with their
families should receive special sensitivity and cultural training: in the context of
immigration, children of returnees often have fewer opportunities than the second or third
generations, which benefit most in terms of economic and cultural capital from the
migratory experience.39
67. Migrants are often returned to countries that are in full expansion and where
emigration is widespread, making the reintegration of returnees nearly impossible. In the
light of the demographic shifts of important destination countries and considering that the
large majority of migrants are of working age (in 2017, 74 per cent of all international
migrants were aged between 20 and 64 years),40 return and reintegration can be particularly
challenging for migrants; local economies might not be able to absorb the local workforce,
and only limited employment opportunities available.
68. Economic reintegration activities, such as vocational training, business support or
other income-generating activities, should be conducted. Any skills acquired abroad should
be recognized and put to use. The capacity of absorption of the labour market and income-
generating opportunities for the host community and returnees should be increased. In order
to ensure an adequate standard of living, public services should be made available.
(d) Portability of pension, health and social security benefits
69. Many migrants are not eligible for social security benefits either in the country of
destination or in the country of origin. Migrant returnees frequently risk losing their
entitlement to social security benefits in their home country because of their absence, while
at the same time encounter restrictive conditions under the social security system of their
country of employment. The portability of social security for migrants who wish to return
to their home country is also problematic. Access to social security is particularly difficult
for irregular migrants who, though often not able to participate in contributory schemes,
contribute to the financing of social protection schemes by paying indirect taxes. In
addition, residency requirements in certain countries deprive temporary migrants of access
to social security for long periods of time (A/HRC/26/35, para. 44).
37 See European Court of Human Rights, Vikulov and others v. Latvia, judgment, 25 September 2012.
38 See Ryszard Cholewinski, Study on obstacles to effective access of irregular migrants to minimum
social rights, Council of Europe Publishing, 2005.
39 Parvati Nair, “Homeward Bound? Questions on Promoting the Reintegration of Returning Migrants”,
UN Chronicle, vol. L, No. 3, September 2013.
40 Department of Economic and Social Affairs, International Migration Report 2017, p. 17.
70. Bilateral agreements are a first step towards the portability of social security
entitlements. Such agreements, however, often apply only to regular migrants. The
availability of and access to portable pensions can be crucial for the decision of migrant
workers on whether to retire in the country of origin or of destination.41
(e) Stigma due to migration
71. Returnees may face large debts, incurred in the payment of recruitment fees and
loans or in payments made to smugglers. If the migratory project has not been successful
and the migrant not managed to send remittances or returns without savings, reintegration
may become a challenge. In addition, returnees may be poorly perceived by their families
and communities, particularly if funds had been mobilized to finance the migrant’s journey.
Communities and families may also need to identify new alternative sources of income
after having lost those previously assured by remittances.
72. Returnees may face stigma and discrimination in their own community as a result of
their failed migration experience, and decide to settle elsewhere in their country of origin.
Migrant women may face additional stigma where their migration is associated with sexual
exploitation. Their return can be particularly challenging when attempting to rejoin the
family and to reintegrate into the community structure. During his visit to Nepal, the
Special Rapporteur noted that migrant women returning from the Middle East or Malaysia
faced additional challenges because of their migratory experience. For women in need of
help, there are insufficient shelters providing comprehensive psychosocial support and
reintegration assistance (see A/HRC/38/41/Add.1). In some communities, returning young
men are perceived as having failed to meet their gendered role as family providers, which
may also add to the stigma against them.
73. Migrants who have been deported may be subjected to additional human rights
abuse and stigma. The fact that they were forcibly removed raises concern not only in the
authorities but also among family members and the larger community that they may have
committed a crime in the destination country. Many deportees face mistreatment, arbitrary
detention and violence, intimidation, extortion, confiscation of property by government
officials, statelessness, homelessness, lack of access to work, medical care and education.
In many countries, returnees from Europe are suspected of being spies and subsequently
receive threats. In other countries, irregular departure is a criminal offence; deportees run
the risk of a prison term upon their return to their country. In such cases, deportation
becomes a significant barrier to reintegration.
(f) Well-governed mobility policies as a prerequisite to reintegration
74. Studies show that restrictive migration policies in a destination country undermine
return programmes and may undermine prospects for reintegration upon a migrant’s return.
Living and working conditions in the host country play a preponderant role in reintegration.
The ability to secure employment and to have access to independent housing and the
freedom to develop social contacts while abroad are likely to be important factors in
supporting the reintegration of returnees.42 A study on returnees to Nigeria showed that
migrants who had been able to stay in their country of destination for as long as they
desired were less inclined to remigrate; instead, they were more focused on readjusting to
life in Nigeria.43
75. Well-governed and effective migration policies would mitigate most of the risks that
returnees face while respecting fully the human rights of migrants, including when
facilitating reintegration. In order to enhance their ability to reintegrate, returning migrants
41 Nurulsyahirah Taha, Karin Astrid Siegmann and Mahmood Messkoub, “How portable is social
security for migrant workers? A review of the literature”, International Social Security Review, vol.
68, No. 1, January-March 2015.
42 World Bank Group, “Migration and remittances: Special topic: return migration”, Washington, D.C.,
October 2017.
43 Jenny Pennington and Brhmie Balaram, “Homecoming: return and reintegration of irregular migrants
from Nigeria”, Institute for Public Policy Research, April 2013.
should be able to enjoy all their human rights, including those to an adequate standard of
living, access to education, health care, decent work and justice in both transit and
destination countries. Migrants who benefit from comprehensive human rights protection
throughout their migration journey are more likely to reintegrate. A study on Sri Lankan
returnees showed that individuals who had negative experiences abroad, such as harassment
or the non-payment of wages, were less likely to successfully reintegrate economically and
socially.44
76. For reintegration to be successful, governance of migration should be strengthened,
while more options for regular, safe, affordable and accessible migration should be created.
Opening up more channels for migrants at all skill levels would allow people to look for
work on the regular labour market. The Special Rapporteur notes that abolishing
sponsorship-based temporary migrant worker programmes and providing open work visas
would make migration and return a free choice, and thereby help to assure the success of
reintegration. Sufficient channels should similarly be created to allow migrants to reunite
with their family, and for education and humanitarian needs.
77. In the absence of sufficient regular migration channels, many migrants stay beyond
the validity of their visa or migrate irregularly; once they reach the destination country and
despite often exploitative and abusive conditions, they usually try to avoid return until they
have achieved their migration aspirations and goals. If they are returned, remigration,
including internal migration, is often the next step, as the same socioeconomic situation that
compelled them to leave in the first place still awaits them in their country of origin. States
should increase resettlement options and establish common and accessible visa and work
permit regimes, including options for circular migration, which would allow for re-entry
after return. Studies have shown that offering opportunities for multiple entry and/or
securing the residence status in destination countries can facilitate temporary or permanent
return, since this generally makes re-entry after return possible.45
G. Monitoring mechanisms, access to justice and accountability
78. Returning and receiving States should establish independent mechanisms to monitor
human rights in pre-removal and return processes and after migrants return. States should
put in place appropriate administrative and legislative mechanisms to grant legal status to
migrants who are unable to return, including those who cannot be removed on grounds
relating to the fundamental prohibition of refoulement (A/HRC/37/34/Add.1, principle 20,
guideline 5).
79. In some countries, the national human rights mechanisms monitoring returns often
lack independence, while the scope of their monitoring activities is limited. Even when they
cite international human rights norms, monitoring mechanisms do not systematically
operationalize them in their implementation manuals. Effective human rights monitoring
should cover not only the conditions and circumstances of the return process but also the
situation and individual circumstances of the third country of the migrant after arrival.
Independent oversight and human rights monitoring provide information that can be used
for reporting in the country of origin and for better formulation of agreements with
countries of origin and working instructions supporting persons who have received a
deportation order before, during and after the deportation process.46
80. Effective monitoring of the practices undertaken by State authorities to detect, arrest
and eventually deport undocumented migrants would ensure better protection of the basic
rights of migrants.47 The worrying trend of forced deportation creates an even greater need
44 “Are returnee migrant workers economically better off?”, Institute of Policy Studies of Sri Lanka,
Policy Insights, 17 September 2014.
45 Marianne Haase and Pia Honerath, “Return Migration and Reintegration Policies: A Primer”,
Integration Strategy Group, December 2016, p. 9.
46 “Deported: human rights in the context of forced returns” (see footnote 10).
47 Platform for International Cooperation on Undocumented Migrants, Position Paper on EU Return
Directive, April 2015.
for independent bodies to monitor the entire process, thereby assuring greater transparency
and accountability with regard to conditions for and the treatment of detainees.48 The use of
monitoring, however, in no way legitimizes forced deportation, which should be avoided
whenever possible as an inherently degrading situation involving serious risks to the human
rights of the detainee that might amount to torture. Good practices have shown that
monitoring not only sheds light on conditions and treatment in detention; the mere presence
of an external mechanism in itself has a strong deterrent effect and reduces the risks of
torture and ill-treatment. Effective monitoring provides a further safeguard for all
individuals, including those with particular protection needs, and can be instrumental in
pressing and assisting the authorities to address and improve them. In this context, the
Subcommittee on the Prevention of Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and national preventive mechanisms have, under article 4 of the
Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, a role to play, since they both have a mandate to
monitor the entire deportation process.49
81. No one should be returned under a readmission agreement without effective
oversight by an independent post-return human rights monitoring mechanism that ensures
that the human rights of returnees are actually respected and provides for an accountability
mechanism. The presence of embassy staff of the returning country may help upon arrival.
For effective, transparent and independent monitoring of the post-return situation of those
returned, ensuring participatory verification of well-being, and the reintegration and rights
of returnees, national mechanisms should be developed.
82. Prior to any return procedure, migrants should receive adequate information on their
rights and on the possibility to report any human rights violation they have endured. The
Special Rapporteur notes the legitimate concerns regarding liability for human rights
violations or other breaches of international law resulting from the externalization of States’
obligations through the actions of international or regional organizations during return
procedures, such as IOM and the European Border and Coast Guard Agency (Frontex). In
the case of the latter, States delegate the implementation of forced returns to a regional
institution, which raises concerns with regard to liability. 50 International responsibility
arises, however, for any internationally wrongful act attributable to an international
organization that is in breach of an international obligation.51
83. States and other stakeholders involved in return procedures should be held
accountable for any human rights violations or other breaches of international law. An
accountability mechanism should be put in place to ensure that violations of human rights
are addressed, irrespective of whether they are committed by States or other stakeholders
involved in the return and reintegration process. States should ensure that effective
complaint and remedy mechanisms are also in place.
84. Migrants should have access to complaint mechanisms to report misconduct,
violence or ill-treatment prior, during and after return. Although an individual complaints
mechanism was introduced in European Union Regulation 2016/1624 of the European
Parliament and of the Council (art. 72), the regulation is rather ineffective, since it largely
relies on the discretionary powers of internal oversight bodies. It lacks a clear definition of
what actually constitutes “appropriate follow-up” by Frontex or by States, and the role that
a Frontex fundamental rights officer can play in follow-up.52
85. Access to justice after return should also be ensured for any human rights violations
suffered by labour migrants, who should be certain that claims for unpaid wages, social
security benefits or overtime compensation, or for complaints filed against exploitative
48 “National preventive mechanisms” (see footnote 29).
49 Ibid.
50 See Jorrit Rijpma, “The Proposal for a European Border and Coast Guard: evolution or revolution in
external border management?”, Directorate-General for Internal Policies, European Parliament, 2016.
51 See Yearbook of the International Law Commission, 2011, vol. II, Part Two, arts. 3–4.
52 Rijpma, “The Proposal for a European Border and Coast Guard” (see footnote 50).
employers are followed up, even beyond their return. Interstate cooperation and
formalization through bilateral and multilateral agreements are in that regard essential.
IV. Conclusions and recommendations
86. All migrants are entitled to the protection of their human rights, without
discrimination and regardless of their status. Migrants in irregular situations require
individual screening and assessment procedures so that their specific situations of
vulnerability are effectively identified and the legal protection frameworks that meet
their needs, including under international human rights law, may be determined.
Failure to provide such procedures constitutes a violation of due process guarantees
and the international principles of non-refoulement and the best interests of the child,
among others. The protection of the economic, social and cultural rights of migrants,
such as access to an adequate standard of living, food, water, health and education,
and their civil and political rights, such as access to justice, in countries of origin,
transit and destination must be ensured.
87. The return of migrants who do not meet international or national legal
standards to remain in their host country should be conducted in safety, with due
regard for dignity, humanity and respect for human rights, and in compliance with
international law, on the basis of the primacy of voluntary returns; cooperation
between States of origin and reception; and enhanced reception and reintegration
assistance for those who are returned. Given the potentially dramatic consequences,
including rights violations, of forced or coerced returns, priority should be given to
independent and voluntary returns at all times.
88. States should facilitate the voluntarily return of migrants — fully informed,
free of coercion and with sufficient valid alternatives, such as effective access to
temporary permits for work, family unity, study or humanitarian purposes, and
opportunities for permanent residency and citizenship — to their countries of origin
or citizenship, including through cooperation on consular assistance and issuance of
the necessary travel documents. A return cannot be considered voluntary if a migrant
decides to return in order to, inter alia, avoid deportation or detention, flee from
abusive or exploitative situations in destination or transit countries, or avoid the
deprivation of socioeconomic rights in the destination country.
89. Forced returns should always be a measure of last resort, and only follow a fair
and efficient process guaranteeing that all legal safeguards have been provided. No
return should be implemented without due process of law, in a legal procedure where
the migrant is effectively and properly represented and has access to effective
remedies. All appeals and remedies, and procedural guarantees, should have a
suspensive effect on deportation. Furthermore, no one should be returned without
proper oversight by an independent post-return human rights monitoring mechanism.
90. When migrants in an irregular situation are long established in a host country,
lack ties to their country of origin or would otherwise face violations of their human
rights upon return, alternatives to forced returns, such as regularization, temporary
or long-term options for entry and stay, access to citizenship or the facilitation of
family reunifications, are preferable. States should offer migrants in need of human
rights protection but who do not qualify for refugee status temporary or long-term
protection from return.
91. Long-term solutions and safe, regular, accessible and affordable channels,
rather than “quick fixes” (such as readmission agreements), are needed so as to
ensure the protection of the human rights of migrants. Liability for human rights
violations or other breaches of international law resulting from the actions of
international or regional organizations during return procedures should be subject to
investigation, and such stakeholders should be held accountable.
92. In order to ensure the respect for human rights of migrants in the context of
returns, States and other stakeholders should:
(a) Create well-functioning systems of protection for asylum and other
needs and an adequate and appropriate institutional framework for managing large
movements of migrants;
(b) Ensure that returns are decided on the basis of a procedure that ensures
the confidentiality of information and during which the migrant is duly represented,
has access to appropriate legal assistance and interpretation services, and has an
effective opportunity to explain why a return would not be in respect of his or her
rights; appeal procedures should have a suspensive effect;
(c) Adopt and support strategies on migrants in vulnerable situations,
including by creating mechanisms and allocating resources to ensure that the status of
migrants in vulnerable situations can be determined individually, fairly and reliably
while respecting the principle of non-refoulement;
(d) Children, whether unaccompanied, separated or accompanied by their
parents or other caregivers, should be returned only when the return has been
determined to be in their best interests through an appropriate procedure before a
competent institution that includes the proper representation of the child. Families
should never be separated unless separation is necessary to ensure the best interests of
the child; children should never be detained on the basis of their or their family’s
migration status, and alternatives to deprivation of liberty, such as family-based
solutions, should be adopted instead;
(e) Ensure and facilitate, including as part of any readmission agreement,
independent monitoring of pre-removal processes, return, reception and reintegration
of migrants in countries of origin to guarantee compliance with international human
rights;
(f) Ensure that readmission agreements or clauses comply with
international law, including the principle of non-refoulement, and guarantee
transparency, monitoring, oversight and accountability. All stakeholders, including
United Nations agencies, international organizations, non-governmental organizations
of all States involved, national human rights institutions and ombudspersons, and
migrants themselves, should be consulted prior to any conclusion of a readmission
agreement;
(g) Provide accessible complaint mechanisms for migrants, including those
who have experienced sexual or gender-based violence, and also legal information and
aid in a language that they understand to ensure their access to justice and remedies
for human rights violations;
(h) Provide and publicize accessible complaint mechanisms that migrants
may use without fear of retribution; and ensure prompt, impartial and independent
investigation of violations of human rights against migrants; and bring States,
international and regional organizations and other non-State actors found to be
responsible of human rights violations to justice through a fair trial;
(i) Ensure that reintegration programmes are provided for migrants who
are returned to their countries of origin.
93. In order to ensure reintegration that is human rights-centred and effective,
States and other stakeholders should:
(a) Grant migrants, including irregular and temporary migrants, access to
social security benefits on the basis of equal treatment with nationals, and ensure the
portability of social security benefits by, inter alia, entering into bilateral, regional or
multilateral agreements;
(b) Ensure that economic, sociocultural and psychosocial support is
provided to returnee migrants and communities in the country of origin prior, during
and after the return;
(c) Ensure that children are able to obtain a certificate in the country of
destination attesting to the level to which they have completed their education;
(d) Ensure that victims of trafficking are properly compensated for the
harm suffered and are protected from retrafficking;
(e) In cases of forced return, conduct human rights risks assessments upon
arrival in order to determine and provide the protection and assistance necessary to
prevent human rights violations of migrants in returning countries; and decriminalize
illegal border crossings and combat stigma and discrimination associated with
irregular migration;
(f) Promote regular intra- and interregional channels for migration and
labour mobility, and ensure that sufficient regular, safe, accessible and affordable
channels for migration are available;
(g) Refrain from making development aid programmes, visa facilitation and
trade liberalization conditional to migration management;
(h) Collect and analyse disaggregated data, and conduct research on all
aspects of the return of migrants in order to inform effective migration policies that
respect the human rights of migrants, including in the context of returns.
94. By adopting the 2030 Agenda for Sustainable Development, States made a
commitment to facilitate orderly, safe, regular and responsible migration and mobility
of people, including through the implementation of planned and well-managed
migration policies (Sustainable Development Goal 10, target 7). Furthermore, the New
York Declaration for Refugees and Migrants stressed that States would consider
facilitating opportunities for safe, orderly and regular migration, including, as
appropriate, employment creation, labour mobility at all skills levels, circular
migration, family reunification and education-related opportunities. Under these
premises, the global compact for safe, orderly and regular migration will mark a
fundamental shift in the way that migration is perceived and framed. In particular,
States should move from a policy of containment to one that is migrant-centred and
ensures that movement, including returns, takes place in full respect of human rights.
Migration policies should be developed and implemented in accordance with States’
obligations under international human rights law, ensuring that regular, safe,
affordable and accessible avenues are available for all migrants.