Voluntary and Forced Return of Third Country. Nationals from Germany

Transcription

1 Axel Kreienbrink Voluntary and Forced Return of Third Country Nationals from Germany Research Study 2006 in the framework of the European Migration Network German National Contact Point

2 Table of contents Summary Introduction Definitions, Categorization of Returnees and available Data Definitions Categorization of Returnees Data on forced and voluntary return Data on forced return Data on voluntary return The political and legal framework The political and legal framework in Germany The influence of European legislation Return measures Overview Voluntary return Return counselling and return assistance Information campaigns Incentives for voluntary return Forced return Termination of illicit residence: expulsion and notification of deportation Identification and obtaining travel documents Committing foreign nationals to departure centres and detention pending deportation Transport and return measures Sustainability of forced-return measures Bilateral and multilateral cooperation Conclusions Appendix I References II Statistics III List of agreements on facilitation of return (as of January 2007) IV Institutions and organisations

3 List of tables Table 1: Persons under a legal obligation to leave the country in the Central Register of Foreigners (AZR) ( ) Table 2: Deportations, removals and rejections ( ) Table 3: Rejections ( ) Table 4: Removals ( ) Table 5: Deportations ( ) Table 6: Transfers as part of the Dublin Regulation ( ) Table 7: Persons leaving the country with the assistance of return programmes ( ).. 26 Table 8: Costs for voluntary return as part of the REAG/GARP Programme ( ) Table 9: GARP Resettlement assistance List of countries Table 10: Expulsion statistics stored in Central Register on Foreigners as of Table 11: Persons with stored enforceable or unappealable expulsion ( ) Table 12: Deportation by air, top 10 according to nationality ( ) Table 13: Deportations according to federal states, top 3 according nationality ( ) Table 14: Persons with executed deportation ( ) Table 16: Deportations by air - accompanied ( ) Table 17: Failed returns according reason ( ) Table 18: Transfer requests within the Dublin procedure ( ) Table 19: REAG/GARP Main departure countries (specified by age and sex) ( ) Table 20: REAG/GARP departures by length of stay, travel route, and residence status ( )

4 Summary Against the backdrop of increasing significance attached to return policy in Europe, the study examines approaches, results and deficits in implementing measures of voluntary and forced return in Germany. The level of research leaves much to be desired, if it concerns return migration and reintegration of refugees or persons under a legal obligation to leave the country. Definitions, Categorization of Returnees and available Data The term return is not defined in German law. However, the terms that describe the area of forced return as a whole (e.g. expulsion, obligation to leave the country, removal, deportation etc.) are defined by law or decree. Voluntary is indeed mentioned in the law, but is not defined. In this study, voluntary return is primarily understood as assisted voluntary return. The term voluntariness in this context is not uncontroversial though. The overarching category of returnees that we look at in this study consists of those individuals who are under a legal obligation to leave the country. The reasons for the obligation to leave the country are manifold, but do not already predetermine as to whether the person in question will finally leave voluntarily or will be deported. There are a number of data sources that are gathered by authorities concerned with return measures. Like this, numbers on persons under a legal obligation to leave the country, on return operations (deportations, removals, and rejections) and on assisted voluntary return are available. There are deficits regarding information on the scale, e.g. of detention for the purpose of deportation or on persons who leave the country voluntarily without claiming return assistance. The available figures indicate that there has been a significant decrease in returns as well as in voluntary returns during the last years. Regarding deportations as well as voluntary return, persons from Eastern and South Eastern Europe (Yugoslavia and Serbia-Montenegro) as well as from Turkey dominate. Regarding the distribution, almost four-fifth of the deported persons were male between 2000 and 2005, whereas the share of males among voluntary returnees stood at around three-fifth. Voluntary return assistance is primarily claimed by rejected asylum seekers. The political and legal framework The Federal Republic of Germany regards return policy as a necessary part of asylum policy, due to the link existing between being recognised as entitled to asylum and being granted a legal residence title, or vice versa, the binding obligation to leave the Federal Republic of Germany if one s petition for asylum has been rejected. Otherwise, asylum procedure would become pointless. What is more, in the perspective of regulated migration, a lack of consistency and determination in return and repatriation policy would weaken political options for channelling and regulating migration inflows. German state and federal authorities have responded to existing deficiencies in implementing return and repatriation policies, e.g. by pooling and centralising responsibilities. If obstacles to return measures continue to exist, these problems cannot be attributed to the legal regulations, but to the implementation of the law. As far as voluntary return is concerned, the official position emphasises that this form of re-migration constitutes a humane and cost-effective alternative to forced return measures, the main reasons being that there is no need to use physical force and that the financial cost of deportations is significantly higher than that of voluntary returns. Return policy has met with criticism among several NGOs and church-based support groups. Most of their criticism focuses on the forced-return measures, arguing that it is irresponsible to force mi- 4

5 grants to return to troubled regions. Assisted voluntary return measures have also been criticised because they are regarded as a complementation of return policy. With subsequent evidence, however, showing that these additional incentives have contributed to a greater success of return and re-integration programmes, some critics, especially the major charities, have given up their initial opposition. The legal framework for non-voluntary return measures can be found, above all, in Section 5 of the Residence Act (AufenthG), which took effect in In comparison to the previous Foreigners Act, which remained in force until 2004, the new legislation only includes relatively few changes. Voluntary return measures, on the other hand, depend on programmes which are developed in cooperation between federal and state authorities. EU Directives and Council Decisions concerning return policy have been transferred into national regulations and implemented. Council Directive 2003/110/EC of November 25, 2003 on assistance in cases of transit for the purposes of removal by air will probably be implemented in German law in Possibilities created by RETURN, the EU funding programme for preparatory actions in the area of return management, as well as funds provided by the European Refugee Fund for voluntary-return measures, have also been used. Return measures In the area of voluntary return, the responsible authorities are the Federal Ministry of the Interior and the state ministries of the interior, IOM, BAMF and the authorities that are eligible for applications (social security office, foreign-resident authority), welfare organisations, special counselling offices, Central Return Counselling Offices, UNHCR etc. Regarding forced return, the main responsibility rests with the foreign-resident authority. Depending on the case, the central foreignresident authorities, BAMF, the Federal Government s Coordination Office for Matters of Return at the Federal Police Central Bureau, the state police, the states interior and justice administrations in cases of detention pending deportation, as well as the Federal Police in case of accompanied returns are involved. The costs for forced return are higher than those for voluntary return. Some line items in the budget can be estimated, a comprehensive overview of all costs incurred does not exist though. An extensive evaluation of return measures according to scientific standards has also not been carried out yet. However, there are internal evaluations of various projects in order to optimize the measures. Voluntary return Regarding the motives of voluntary return, there is a range of theoretical approaches, which are, however, effectively not applicable to the situation of persons under a legal obligation to leave the country. At the moment there are no empirical studies on this topic in Germany. Obstacles to return are closely connected to migration motives and can, for example, be explained by the fact that the reasons for migration or seeking refuge in flight partly or fully continue to exists, or that the migration objective (prosperity) could not be achieved. If the migrant resides in the host country for a longer period of time, local family ties or alienation from the country of origin might take effect. A nation-wide responsibility for return counselling does not exist in Germany. It is offered by various authorities, although during the last years there has been an increasing tendency to central 5

6 return counselling offices as those serve as constant contact points and can draw from accumulated experience. Providers can also be federal states, local governments or welfare organisations. There is no regulation as to when counselling regarding voluntary return should be employed. There is widespread agreement, however, that it should be brought to the returnees attention as early as possible. Like this, the services can be extensively used and the return can be prepared. The main target group of counselling services consists of asylum seekers whose applications have been rejected or are still pending. Usually the counselling is individually tailored, based on the potential options offered by the REAG/GARP Programme, in some cases supplemented by further aspects. Among the providers of counselling services a specialization regarding target countries and target groups of persons have developed, with a trend to a need-based variety of offers. The offers can be categorized as integrated counselling which is part of migration counselling with open results, as well as targeted return counselling which aims at specific support for the return process. Some providers use concepts that also include counselling and the provision of services in the country of origin, after the return is completed. Improving the flow of information on voluntary return is consistently further developed. To facilitate this, the BAMF established the Centre for the Provision of Information on Assisted Return (ZIRF). Via this database a wide range of information on measures, countries of origins, contact persons and counselling centres is provided. Through the project ZIRF Counselling, the range of options has been further expanded, as it allows responses to individual requests by persons interested in return, beside the country-specific fact sheets. Furthermore, the classic dissemination channels are used, such as mailing of information material, brochures, flyers etc. as well as information road shows. Incentives for voluntary return are mainly created by the REAG/GARP Programme. It subsidizes travel costs via the REAG return support and pays GARP resettlement assistance for persons from so-called migration-politically significant countries of origin. The latter depends on the country of origin and is differently staggered. In addition, some federal states, districts and municipalities provide additional financial support. Furthermore, some providers of return counselling convey information on additional financial assistance or training and qualification courses. The experts mostly agree that the amount of the financial assistance is only a secondary aspect, compared to other factors (personal, family-related and social aspects, perspectives in the country of origin). In view of very few existing studies, it is barely possible to assess the actual sustainability of voluntary return. Counselling services that consider the specific situation in the country of origin are more likely to result in sustainability. Various projects target the situation in the country of origin and promote the returnees social environment to improve integration, or try to empower responsibility, own initiatives and sustainability by providing micro credits. Forced return In order to terminate the residence of a foreign national, foreign-resident authorities issue an expulsion order. In the process, the authorities have to review if there are grounds for granting special protection against expulsion. Expulsions do not constitute a sanction for a previous violation of legal regulations, but a preventive measure. Generally, expulsion orders are issued together with a notification of deportation. Obstacles to deportation arising from conditions in destination countries are reviewed by BAMF in the context of asylum procedure. Other deportation bans as well as obstacles to implementation arising in Germany are reviewed by foreign-resident authorities. 6

7 Expulsion orders have to be issued in written form. When issuing expulsion orders, the authorities can set a time limit for leaving the county. If a notification of deportation is issued, setting a time limit is mandatory. Expulsion orders have to set forth the underlying grounds and also include instructions on legal recourse. Notifications of deportation have to state the country to which a foreign national is to be deported, whereas other countries, which could also be potential destinations, do not have to be specified. Legal recourse against expulsion measures does have a delaying effect on further proceedings. It is possible to lodge objections against expulsion orders and, if these objections are rejected, administrative decisions can be contested by taking the case to an administrative court of law. Before return measures can be carried out, the identity of a person has to be established, and it has be ensured that the necessary travel documents are available. In many cases, identifying foreign nationals, and obtaining travel documents from foreign representations, has proved to be a severe problem. According to legal regulations, foreign nationals are obliged to cooperate with the authorities in order to establish their identity. In addition, they also have to take part in identification measures in embassies or consulates for the purpose of obtaining travel documents. If the identity of a foreign national can not be established and the necessary documents can not be obtained, the responsibility for this state of affairs can lie with the foreign national concerned. However, problems in obtaining such documents can also arise from a lack of cooperation on the side of foreign embassies or consulates: In order to reduce problems in this area, state governments have centralised proceedings in the form of clearing centres for obtaining travel documents. The Federal Police Central Bureau has set up a federal coordination centre for return measures, which has adopted central responsibilities for obtaining passports or passport replacement documents from several problem states. Other options include regular interrogations or committing foreign nationals to departure centres, among others. In 2005, the possibility of setting up departure centres was included in the new Residence Act, but some federal states had already established such institutions before. The main aim of departure centres is to provide counselling and support in order to convince foreign nationals to take part in voluntary return measures. In addition, these centres ensure that foreign nationals are within easy reach of the authorities and courts, and that return measures can be implemented without delay. The fact that the restricted conditions in the departure centres (guarded access checkpoints, regular interviews, searches, residency restrictions, non-cash benefits, ban of gainful employment) lead to frustrations among residents is intended inasmuch as the frustration is to be transferred, by means of intensive return counselling, into a more positive attitude towards returning to their home countries. Critics of the departure centres, which can mainly be found among human rights organisations, churches, trade unions as well as some opposition parties, have objected to these conditions, and the fact that no legal limit for the maximum duration of stays in departure centres exists. According to representatives of the state governments, however, the departure centres have proved to be effective. Detention pending deportation can be imposed in two forms: preparatory detention or security detention, if there is evidence that returnees are planning to obstruct deportation measures. In each case, the administrative request for detention requires judicial authorisation. It is the responsibility of the local courts to review whether the detention is admissible, but local courts only have to review the detention grounds as such, not all the proceedings that have been carried out under foreign-resident law. It is mandatory that the foreign nationals concerned receive fair hearing by the local court. It is also possible to lodge a complaint against the court s decision. The state governments are responsible for the institutions of detention pending deportation. The detention is carried out either in separate institutions for deportation detainees or in regular penal institutions. The du- 7

8 ration of preparatory detention may not exceed six weeks. Security detention can be extended up to a maximum period of 18 months, provided that the principle of proportionality is observed. With regard to the practice of detention pending deportation, NGOs, churches and other organisations have criticised that detention is imposed too rapidly, too frequently and for periods of time that are too long. According to the data available, however, in most cases foreign nationals have to remain in detention pending deportation for a few days or weeks only. In order to implement return measures, foreign-resident authorities send the passport or travel documents of returnees to state police authorities, which assist the foreign-resident authorities in implementing return measures and transport returnees to the national border or to the airport, where returnees are transferred to federal police authorities. The authorities do not have to announce the date on which a deportation is to be implemented. Most deportations are conducted via air, either with or without accompanying security personnel. Usually, the accompanying personnel are provided by federal police authorities, but it is also possible that security personnel are provided by airlines. If the authorities assume that deportees will put up resistance, deportees can be restrained. This measure has to be employed in accordance with the principle of proportionality. Police officers accompanying forced-return measures receive special training, with training courses having been extended significantly since the year In Germany, illnesses or medical conditions posing obstacles to deportation have been a contentious issue as they can have the effect of obstructing forced-return measures. The debate between state authorities and medical associations mainly focuses on the question if, in the view of the federal states, the authorities only have to review whether the deportation process itself poses a health risk, but not whether the living conditions in home countries could have an impact on the medical condition of deportees. Representatives of the medical profession, on the other hand, have emphasised that this would be insufficient, pointing out that reviews have to comprehensive and the situation in the home countries of deportees has to be taken into consideration, too. A preliminary list of criteria, which was compiled by representatives of the federal states and the German Medical Association, has so far only been implemented by some states. For return measures that are conducted via scheduled flights, the Federal Police Central Bureau has reached bilateral agreements with several airline companies, which regulate the modalities concerning accompanying security personnel or medical support, for example. Seats for these flights are either booked by centralised state authorities or via the coordination centre of the Federal Police Central Bureau. In addition, accompanied return measures are conducted by chartered aircraft, partly in the form of collective fights in cooperation with other countries. The expulsion, removal or deportation of foreign nationals automatically leads to a permanent ban on re-entering the country. However, this ban may by request be limited to a certain period of time, which is usually the case. The exact time period of the ban is not defined. Violations of the re-entry ban constitute a criminal offence, but according to the data available, the number of violations of the re-entry ban is relatively low. Bilateral and multilateral cooperation Pursuant to international common law, every state has the duty to readmit its own citizens even against their will if the receiving country asks for it. The readmission of third country nationals, however, can only be clarified on the basis of international agreements. Readmission agreements regulate the modalities of the readmission process. Except for some examples, the German readmission agreements are mutual. In addition, Germany has closed transit agreements which facilitate the transfer of foreign nationals through the signatory state without obtaining transit visa. It can 8

9 also be regulated if the persons to be returned are accompanied by security personnel of the accepting state or the transit state. The emphasis of the German agreements lies on Eastern and South Eastern European countries. All and all, Germany has created a relatively extensive system of readmission agreements, which is consistently expanded. In addition, there are technical agreements or procedural arrangements (Memoranda of Understanding) to abolish individual problems in the return process in the cooperation with transit states and countries of origin. Conclusions The scope of available data could be extended, regarding the returnees themselves as well as the costs for return measures. Preferably, an extensive scientific evaluation of return measures should be carried out. This would need clarification of potential evaluation criteria and to what extent domestic aspects and also those in the countries of origin might play a role. In any case, the research should include questions on the sustainability of voluntary and forced return and on the impacts of return on the countries of origin, which has been covered insufficiently so far. Another focus could be on remigration movements beyond assisted voluntary return and return operations, in order to identify potential links and possible synergies in the counselling practice. 9

10 1 Introduction Since the Treaty of Amsterdam went into effect, an increasing significance has been attached to the issue of return within the European Union s migration policy. The European Commission and the Council of the European Union have promoted progress in this policy area, the emphasis being on questions of EU-internal co-ordination of operational procedures, defining common European standards, and launching joint measures. To that end, the European Commission in 2002 published a Green Book and an announcement (Europäische Kommission 2002a; 2002b), which resulted in the adoption of an action plan by the Council 1 in late At the end of the year 2004, the Council also reached a conclusion on best practices concerning the return of illegally resident third-country nationals. 2 First steps towards an improved European co-operation had already been taken in 2001, with the Directive on the mutual Recognition of Decisions on the Expulsion of Third Country Nationals, and in 2003, with the Directive on Assistance in Cases of Transit for the Purposes of Removal. 3 Subsequent to the decision of the Council to integrate the Hague Programme on Strengthening the Area of Freedom, Security and Justice into its return and removal policies, 4 the Commission in 2005 presented its Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals (Europäische Kommission 2005a). In addition, additional funds are to be allocated to this policy area, the aim being to launch a return fund (Europäische Kommission 2005b: ). Concerning the co-operation with third countries, the Council (until March 2007) has authorised the Commission to negotiate bilateral readmission agreements with 16 third countries 5 (BAMF 2006c: 44-48; Cassarino 2006, Hailbronner 2005b). In view of the increasing significance of return policy for Europe, this study aims at providing an overview of the specific circumstances and the current situation at the national level in order to improve mutual understanding of the various approaches, results and deficits concerning measures of voluntary return and forced return (deportation, removal) in Germany. Furthermore, the study also aims at providing an overview of the available data as well as at identifying specific areas that have so far been marked by a lack of research. The study is part of a comprehensive * We thank Andreas Ohnemüller for his contribution to the part of the study focussing on voluntary return measures. 1 Council of the European Union, Return Action Programme, Doc /02 LIMITE MIGR 125 FRONT 135 VISA 172, Brussels, November 25, Council of the European Union, Council Conclusion on best practices on return with regard to specific countries of third-country nationals illegally staying on the territory of Member States, Doc /04 LIMITE MIGR 107 COMIX 713, Brussels, November 23, Council Directive 2001/40/EC on the Directive on the mutual Recognition of Decisions on the Expulsion of Third Country Nationals (OJEU No. L 149 of June 2 nd 2001, p. 34). Council Directive 2003/110/EC (November 25, 2004) on Assistance in Cases of Transit for the Purpose of Removal by Air (OJEU No. L 321 of December 6 th 2003, p. 26). 4 Hague Programme on Strengthening the Area of Freedom, Security and Justice - paragraph 1.6.4, (OJEU No. C. 53, p. 1). 5 Negotiations have been authorised for the following countries: Morocco, Sri Lanka, Russian Federation, Pakistan, Hong Kong, Macao, Ukraine, Albania, Algeria, China and Turkey. The new mandates refer to Macedonia (FYROM), Serbia, Montenegro, Bosnia-Herzegovina and Moldova. 10

11 study commissioned by the European Migration Network, with 11 member states participating. The respective national results and a comparison of these results with those of other member states can provide an important stimulus for initiating amendments and further development of German as well as European return policy. Return and return policy: an overview Return migration is an integral part of migration flows. Nevertheless, the political debate concerning the return of refugees did for a long time only play a rather subordinate role in the debate of the international community. During the Cold War, when the majority of refugees had escaped from the Communist bloc, the emphasis was placed on integrating refugees into the societies of receiving countries or, alternatively, onward migration. During the time of recruitment programmes for socalled guest workers, refugees were also regarded as a welcome addition to the national labour force. After the East-West conflict of political and economic systems had come to an end, the scope and origin of migration inflows of refugees and asylum seekers changed considerably, which also affected their perception by political actors. Subsequently, return policy became part of migration management policies. Efforts to repatriate refugees thus became a constituent element of these policies, especially after the wars in the former Yugoslavia in the 1990s (Black/Gent 2006: 16; Koser 2000: 57; Ghosh 2000: 215). The concept of temporary protection, which was introduced as a new element in migration policy, implied that the return of refugees, as soon as the conflicts in their respective home countries had been settled, was an integral element of the protection provided. Parallel to that, another new perception developed, according to which the return of refugees is part of peace-keeping measures in post-conflict areas. According to that view, this form of return migration is supposed to provide legitimacy to newly established democratic governments as well as to the international coalitions and actors that have contributed to these political changes (Black/Gent 2006: 17; Amore 2002: 168). For instance, international peace agreements regularly contain provisions aimed at facilitating the return of population groups that have fled or been displaced 6 Especially Germany, which had admitted the great majority of refugees from the former Yugoslavia, took a keen interest in the return of these refugees and thus led the way towards a new emphasis on return policy in Europe (Widgren 1999: 37f.). Germany s active return policy had several priorities: The return of illegally-resident foreign nationals was regarded as a key element of an migration management policy aimed at imposing limits on migration inflows (Lehnguth et al. 1998: 36). Simultaneously, a new instrument of migration policy was developed, i.e. voluntary return programmes. It is true, such programmes had already been developed in Germany in the 1980s, initially with a focus on developmental aid, but these initial programmes only achieved little success (Mahnig/Giger 2000: 23). 7 The focus on voluntary return policy was also fuelled by cost analyses, 6 However, this form of return migration may not be unproblematic, as some refugees return to areas that have undergone significant changes (Barkan 2004: 65f.; Meier 1999: 341). For instance, it might well be that returning migrants are regarded as detrimental to the social and economic stability in their countries of origin, especially during periods of reconstruction, so that governments in these countries possibly favour a gradual return (Noll 2000: 109f.). 7 Motte (2000) has objected to the view that the ( guest worker ) return programmes of the early 1980s achieved little success, emphasising that the results were positive, especially if one takes into consideration the structural changes in the industrial sector which occurred at that time. 11

12 according to which the one-time expenses incurred by the return of migrants would be lower than the long-term expenses that would be incurred if respective persons remained in the country (Noll 2000: 105). The significance of return policy in Germany becomes obvious in view of the following statistical figures: between 2000 and 2005, a total of 121,424 persons returned voluntarily form Germany to their countries of origin in the context of the REAG/GARP Programme, with a further 472,021 persons being deported or removed during the same period. Return as research topic Even though the political significance of return processes has been increasingly acknowledged, the level of international research on return migration, voluntary as well as forced return, leaves much to be desired. Currently, no systematic research is being undertaken (Laaser 2006: 2). Existing research literature on the topic is either purely descriptive or based on empirical studies. On the other hand, international comparisons or efforts to achieve a theoretical synthesis do hardly exist (King 2000: 40). 8 Correspondingly, literature and research are both marked by a divergent use of terms, which are neither clearly delineated from each other nor defined unambiguously (return, voluntary return, remigration, return migration, re-integration, repatriation etc.). From a research perspective, it also remains unclear frequently when a return process begins or ends. Black et al. (2006: 10), for example, have pointed out that recent research has shown that return cannot be regarded as a straight-forward, once-and-for-all event, but rather as a long-term process with different preliminary stages and, at least partly, with a considerable number of migration flows to and fro. The level of research at the national level in Germany, on the other hand, can be regarded as satisfactory, especially as far as the return of labour and, at least partly, educational migrants are concerned. A large number of studies has been conducted in this area, beginning in the 1960s and 1970s, but especially in the 1980s and the early 1990s, often focussing on return motives and problems of re-integration (occupational, social, educational). However, there are hardly any studies on the return and re-integration of refugees or third-country nationals who are under a legal obligation to leave the country (Schmidt-Fink 2006: 1f.). Sources and materials used for this study This study has been compiled on the basis of the research literature that is currently available. On the whole, the current status of research literature, especially as far as the topic of voluntary return is concerned, has to be considered unsatisfactory, as a survey of databases of research literature and relevant websites on legal issues, as well as websites of NGOs and support networks, has shown. The number of research papers on forced return, on the other hand, is considerably higher, most of them focussing on legal issues. In order to gather additional information, we have also conducted a survey of so-called grey literature, such as newsletters, conference papers, press statements as well as reports and materials provided by organisations participating in or opposing return measures. In addition, further information could be gained from the records of several parliamentary interpellations in the Bundestag (lower house of the federal parliament) and state legislatures (Jäger 2004, Hatz 2005, Schneider 2006). Useful information could also be obtained from the report evaluating the Immigration Act, which was published in summer 2006, and contains responses and comments by the Federal Ministry of the Interior, all state governments and a large number of organisations (BMI 2006a, b, c). Other useful sources providing background information 8 For further details on voluntary return, cf. Chapter

13 have been the records of the Working Group Removal (AG Rück), a commission set up by the German Conference of Interior Ministers, and records of several meetings of representatives of state governments and the Federal Office for Migration and Refugees (BAMF). Valuable insights could also be gained from an expert meeting entitled Exchanging experiences on voluntary return, which was hosted by the Federal Office for Migration and Refugees (BAMF) in Nuremberg from June 27 29, The participants of this panel included representatives of the relevant federal (Federal Ministry of the Interior, Federal Office for Migration and Refugees) and state authorities as well as experts from welfare organisations, private providers of social services and non-governmental organisations. In addition, several interviews have been conducted with experts from the Federal Police Central Bureau in Koblenz, the IOM Mission Germany in Nuremberg and the regional UNHCR representation in Nuremberg as well as BAMF staff. Subsequently, unresolved questions have been discussed with representatives of state governments. In addition, several researchers working within the EMN network have been commissioned to compile expert reports in order to gain further insights into the theoretical framework, the historical foundation, the interrelatedness with issues of development policy, and the current practice of return counselling (Currle 2006, Schmidt-Fink 2006, Laaser 2006, Westphal/Behrensen 2006). Main focus and structure of this study In accordance with the political priorities set by the European Commission (Cassarino 2006: 2), the primary, if not exclusive, focus of this study lies on the return of third-country nationals who are under a legal obligation to leave the country. This study provides an overview and analysis of return policy and return measures for the years 2000 to 2005, the main emphasis being on procedural and administrative aspects. An additional analysis of the social and economic conditions concerning returning migrants and their countries of origin would have gone beyond the scope of such a study within the EMN network. Similarly, it has been impossible to provide an in-depth analysis of remigration processes involving former guest workers and other labour migrants, non- German university students and scientists etc. within the scope of this study, also due to the limitations of the available data and research literature. A comparative study of return processes of thirdcountry nationals, which also promises to provide valuable insights into return processes involving persons who are under a legal obligation to leave the country, will have to be deferred to a subsequent study conducted by BAMF. However, some fundamental information can already be obtained from a study on the historical development of return policy in the Federal Republic of Germany, which has been commissioned by BAMF and has been enclosed in the appendix of the German version of this study (Schmidt-Fink 2006). This study follows the structure that has been chosen for all national studies with the EMN network (European Commission 2006). However, the delineation between voluntary and forced return poses particular problems as there is no clear boundary allowing the categorisation of respective procedures right from the start. 9 Consequently, it has been impossible to simply divide this study into these two parts. Rather, it has been necessary in several chapters to focus on questions that are equally relevant for both types of return. What is more, it has become obvious during the compilation of this study that the complexity of administrative procedures in Germany makes it impossible to fit all aspects into the structure that has been agreed upon within the EMN. It has therefore 9 In addition, the debate has so far failed to reach a consensus on the term voluntary. For further details, cf. Chapter

14 become necessary to make some alterations and modifications in order to be able to provide a logical structure that follows administrative procedures. The structure of this study can be summarised as follows: the introductory chapter (Chapter 2) focuses on providing definitions and presenting available data. The following chapter (Chapter 3) summarises the political and legal background at the German national level and clarifies the impact of European law on national policies and legislation. Chapter 4, which constitutes the main part of the study, starts with an overview of responsibilities and costs of return measures (Chapter 4.1). This is followed by an in-depth analysis of voluntary return (Chapter 4.2) and forced return measures (Chapter 4.3). Chapter 5 focuses on bi- and multilateral cooperation in the field of return. The conclusion of the study is provided by Chapter 6. Finally, an appendix has been added comprising references, a list of institutions working in the field of return policy, a list of agreements that facilitate the return of foreigners under a legal obligation to leave the country, and additional statistical data. 2 Definitions, Categorization of Returnees and available Data 2.1 Definitions Return is a broad term which includes voluntary as well as forced return. In international law, such as in the Universal Declaration of Human Rights, return is used as a term that entitles every person to return to his or her country (Art. 13 Par. 2). In German law, however, the term as such is not defined. The European Commission has presented a suggestion for a definition of return which is not binding though. According to that, return comprises the preparation or implementation aiming at the way back to the country of origin or transit, irrespective of the question whether the return takes place voluntarily or forced. (Europäische Kommission 2002b: 28). Although the umbrella concept return is not defined in German law, the terms that describe the area of forced return, are relatively easy to define as they are usually regulated by law or decree. The obligation to leave the country (Ausreisepflicht) ( 50 Residence Act) results from the nonpossession or the subsequent discontinuation of the required residence title. This does not require an administrative act. The obligation to leave the territory of the Federal Republic of Germany rather derives in virtue of law, without an expulsion being enacted. Usually the authorities make the person aware of the obligation to leave the country by issuing an order to leave the country (Ausreiseaufforderung) to make sure that the foreigner is acquainted with this duty (Storr et al. 2005: 50 Margin no. 3). As a rule, a deadline to leave the country is stated. Expulsion (Ausweisung) ( 53, 54, 55 Residence Act) is a form of an administrative act by the foreign-resident authority which nullifies a foreigners residence permit, whereby the possession of a residence title does not constitute a precondition for the expulsion. It is also a regulatory legal measure which aims at preventing the disturbance of the public safety and order by a residing foreigner in Germany. It results in a residence ban and a re-entry refusal (Storr et al. 2005: 53 Margin no. 2). The term forced return (Rückführung) comprises various forms of forced return in the country of origin, transit or another third country on the basis of an administrative act or a court decision (Europäische Kommission 2002b: 28), namely deportation, removal and rejection as well as transit for 14

15 the purpose of removal. It includes the escorted transport of a foreigner to the country of destination and finishes with the entry there. 10 A rejection (Zurückweisung) is a (usually verbally) administrative act by the (border) police with regard to refusal of entry, which is immediately executed. A foreigner who intends to enter the country illegally is refused entry. A rejection can, for example, be executed if there is a reason for expulsion, if there is a well-founded suspicion that the residence is not in compliance with the declared purpose or if the requirements for entry according to art. 5 Schengen Agreement are not fulfilled ( 15 Residence Act). This measure is usually combined with its immediate execution, in terms of physical denial of entry or the return across the border (Storr et al. 2005: 15 Margin no. 3). The removal (Zurückschiebung) ( 57 Residence Act) is a measure terminating the residence of a foreigner who has already entered the country. It can and should be executed to bring the foreigner to the country from which the foreigner entered the German territory (Storr et al. 2005: 57 Margin no. 3). Finally, deportation (Abschiebung) ( 58 Par. 1 Residence Act) means forcibly carrying out the obligation to leave the country, if the voluntary compliance with this obligation is not guaranteed or if the supervision of the departure is necessary due to reasons of public safety and order. Return as part of deportation includes the actual transport of the foreigner out of Germany. Related to this, there is the notification of deportation and the deportation order. The notification of deportation is an administrative act that is usually combined with the request to leave the country. In case the foreigner does not leave the country within the stated deadline voluntarily, he is threatened to be deported ( 59 Residence Act; 34 Asylum Procedure Code). The threat of deportation has to be distinguished from the deportation order. It is issued in those cases in which the asylum seeker has entered Germany from a secure third country ( 34a Asylum Procedure Code). In addition, a deportation order can be issued against a foreigner by the highest authority in the federal state, on account of a prognosis based on facts to defend the Federal Republic of Germany against a particular danger or a terrorist risk. This kind of deportation order can be issued without prior expulsion ( 58a Residence Act). The transit for the purpose of removal (Durchbeförderung) or transfer is the escorted transport of a foreigner from one country through the Federal Republic of Germany to a third country. This includes the escorted transport via German airports as well as transits carried out by the German authorities via transit countries (Bundesministerium des Innern 2005: 7). Readmission (Rückübernahme) is the decision by a state on the re-entry of individuals, on the request of a third country, who have entered that third country illegally or who have resided there illegally, whereby a distinction needs to be made between own citizens, third country nationals and stateless individuals (Lehnguth et al. 1998: 59). In contrast to the legally definable terms regarding forced return, the term voluntary return can be less distinctly defined, even if it is treated with priority over forced return. There is no explicit legal regulation for voluntary return, but it is mentioned in the Residence Act ( 61 Par. 2 Residence Act and as a task of the BAMF in 75 no. 7 Residence Act). In that sense, this also refers to the return programmes stated in the Asylum Seekers Benefits Act ( 11 Par. 1 Asylum Seekers Benefits 10 The suggestion by the European Commission for a guideline on common standards and procedures in the Member States for returning illegally staying third-country nationals defines, in contrast to the paper of 2002, return as voluntary and forced return (Europäische Kommission 2005: 15). 15

16 Act). Both cases are based on the expectation by the legislator that individuals will voluntarily leave the country once they are subject to a legal obligation to leave the country ( 50 Residence Act). However, it is controversially discussed as to whether one can really talk about voluntariness in this case. The range of arguments stretches from the position that one can only talk about voluntariness, if there is a real option to stay, the position that the foreigner can actually leave voluntarily and will be supported when faced with the alternative of forced repatriation, up to the idea that voluntariness only means the lack of physical violence in the process of deportation (Black/Gent 2006: 19). UNHCR defines voluntary return as a result of the execution of the own free and unrestricted will in a sensible choice between returning or not returning to the country of origin against the background of the existing conditions [own translation] in the country of origin and in the country of asylum (UNHCR 1993: 52). No measures, such as physical, psychological or material pressure, that force the refugee to return to his home should be exerted. This includes that refugees are legally accepted und are entitled to a right of residence (UNHCR 1996: chapter 2.3). The definition of voluntary return presented by IOM follows this rather broad definition by UNHCR to a large extent and contains the element of the free and informed decision. In addition, there is the assisted voluntary return in which the returnee is granted organisational and financial assistance. Furthermore, IOM differentiates between voluntarily without compulsion and voluntarily under compulsion, whereby the first alternative would correspond with the voluntariness concept of UNHCR and the second wouldn t. In this case, the voluntary decision to return is rather linked to the impossibility of continued residence in the destination country (IOM 2004: 10). The latter variant which only offers the alternative to stay in the country illegally or to be forcibly repatriated is used by the European Council on Refugees and Exiles (ECRE) as mandatory return, deliberately avoiding the term voluntariness (ECRE 2003: 4). This term is also preferred by various representatives of German nongovernmental organisations that actively deal with questions of return assistance. 11 Representatives of private providers of social services and welfare organisations, who work in refugee counselling, as well as representatives of support organisations for refugees reject the term voluntariness with regard to assisted return. They argue in the sense of the broad UNHCR definition that one can only talk about voluntariness if a foreigner actively renounces his or her secure residence status for family, job or other reasons and if he or she decides to leave Germany after the purpose of residence has expired (e.g. university studies, vocational training) or during a pending asylum decision. Individuals who are under a legal obligation to leave the country are in a situation in which they are faced with deadlines for departure, re-entry bans, reduction of social benefits, cancellation of the work permit, pending deportation, institutionalization in departure centres etc. These factors, combined with simultaneous return counselling, exert considerable pressure and do not make the return a voluntary process (Düvell 2005: 63). 12 This type of voluntary return is then only a euphemism for a deportation policy with other means (Berthold 2005: 57). If the debate sometimes goes even further and questions the humanitarianism and dignity of this kind of return (Düvell 2005: 66), this discussion is no longer about the definition of voluntary return. It is rather the case that not only the type of return, but also the reasonableness of forced return, 11 See for example statements by Klaus Dünnhaupt (AGEF) on the occasion of the expert meeting Exchanging experiences on voluntary return, June 27-29, 2006 at BAMF. 12 The former Commissioner of the Federal Government for Migration, Refugees and Integration has a similar, hesitant view (Beauftragte 2005: 482). 16