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Analysis

The Sudan saga: guidelines for a government carrying out returns

Analysis of the 2018 CGRS Sudan report: the procedural duties Article 3 ECHR and non-refoulement impose on Belgium before returning migrants to Sudan.

The European Court of Human Rights building in Strasbourg
The European Court of Human Rights building in Strasbourg. Photo: Gzen92, CC BY-SA 4.0, Wikimedia Commons.

Translated from Dutch. The original is the authoritative text. Read the original.

Key points

The article examines the 2017 return of ten Sudanese nationals and the CGRS report of February 2018 in light of the non-refoulement principle under Article 3 ECHR, EU law and Belgian case law. It concludes that the Immigration Office's investigation was insufficient in both manner and timing: the risk assessment came after the Sudanese identification mission and the order to leave, and relied on the absence of an asylum application.

On 22 December 2017, the federal government asked the Office of the Commissioner General for Refugees and Stateless Persons (CGRS) to carry out an investigation to determine whether the return of ten Sudanese nationals, who did not hold a valid residence permit, to Sudan was contrary to the principle of non-refoulement as laid down in article 3 ECHR. The occasion for this was a report by the Tahrir Institute containing several testimonies of returned Sudanese nationals pointing to torture and/or inhuman treatment.

The long-awaited Sudan report was received by the government on 8 February 2018 and the media soon reported a partial ‘victory’ for the government and in particular for the State Secretary for Asylum and Migration, Theo Francken. Nevertheless, the opposition draws different conclusions from the report, namely that the Belgian authorities are trampling on the ‘sacred principle’ of article 3 ECHR invoked by Prime Minister Michel. A report by Amnesty International had also previously been critical of the matter. This contribution examines which conclusions can be drawn from the Sudan report. To that end, it examines which obligations a government must comply with in order to respect the principle of non-refoulement when it expels foreign nationals and removes them from the country .

The Sudan affair

In the summer of 2017, ten Sudanese nationals, together with dozens of other trans(it) migrants, were arrested by the Belgian authorities. Their main intention was to travel on to the United Kingdom via Belgian territory. In order to carry out the return of these persons to Sudan, it was considered necessary to have their identity established. In view of the absence of identity documents, the Belgian authorities organised an ‘identification mission’ in cooperation with Sudanese government experts, so that a laissez-passer allowing the migrants to be returned could be issued for those identified. The mission was controversial since the regime the migrants had fled was called upon to make their removal possible. According to the State Secretary, an important motive for the mission was to increase the pressure on trans(it) migrants to apply for asylum in Belgium and thus prevent expulsion. Even when a migrant refuses to apply for asylum in our country, however, any return must take place in accordance with the principle of non-refoulement (cf. infra).

Objections to the expulsion of the Sudanese nationals arose at the end of December, when the Tahrir Institute published a report with testimonies of or about several returned Sudanese nationals, in which at least one key witness claims to have been ill-treated. The investigation by the Office of the Commissioner General could not provide certainty as to whether or not those events occurred. Whether or not ill-treatment took place upon arrival in Sudan is a question of fact which will therefore not be discussed further in this post.

Procedural requirements under article 3 ECHR

Since the Soering case, the European Court of Human Rights (ECtHR) has accepted that the principle of non-refoulement, which entails an absolute prohibition on returning persons to (origin) countries where there is a serious and real risk of treatment prohibited under article 3 ECHR, forms an inherent part of article 3 ECHR by attributing a reflex effect to it. That effect entails the involvement, and the resulting liability, of the expelling state in the case of an unlawful expulsion.

Important for the Sudan saga are the procedural requirements which the ECtHR attaches to the reflex effect of article 3 ECHR. Article 3 gives rise to a shared duty for the person concerned and the authorities to establish and evaluate all relevant circumstances. The person to be expelled bears the burden of proof for his or her own personal circumstances and must demonstrate that there are substantial grounds for believing that there is a real risk of a violation of article 3 ECHR. In doing so, however, account must be taken of the difficulties migrants may encounter in gathering evidence. Merely expressing a fear of ill-treatment is not sufficient. Conversely, the authorities must carry out an investigation of their own motion when they are aware of an increased risk of persecution, even when the foreign national chooses not to invoke it during the procedure (see F.G. t. Zweden (2016)).This is the case when the application is based on a ‘generally known risk’ or on an individual risk where the authorities ‘were made aware of facts relating to a specific individual’(see J.K. t. Zweden (2016)). Despite the fact that migrants initially bear the burden of proof, the ECtHR in some cases allows a reversal of the burden of proof: if, after investigation, doubt still remains about the risk of a violation of article 3 ECHR, credence will have to be given to the statements made by the person concerned and an expulsion will in principle not be able to take place.

The most important safeguard a migrant therefore has is the individualised duty of investigation of the authorities after the fear of being ill-treated or tortured upon return to the country of origin has been expressed. According to settled case law of the ECtHR, the authorities have the duty to subject every complaint of a person expressing this fear to ‘an independent and rigorous scrutiny’. (see Jabari t. Turkije (2000); Auad t. Bulgarije (2012); Hirsi Jamaa t. Italië (2012)). In Belgium, the Immigration Office (DVZ) must examine whether there is a real risk on the basis of both the current situation in the country and the personal circumstances of the person concerned (see Vilvarajah t. UK (1991)). The argument that not applying for asylum is an indication that there is no real risk of ill-treatment is endorsed neither by the ECtHR, the CGRS nor legal scholarship (see Jabari t. Turkey (2000); Hirsi Jamaa t. Italië (2012)). Were it decided to proceed with a return without further investigation merely because no asylum application was made, this would amount to a prohibited automatic removal. Moreover, the current asylum and migration situation has already shown that trans(it) migrants do not apply for asylum for many reasons, often unrelated to the situation in their country of origin.

Furthermore, this investigation must take place prior to the expulsion decision (see F.G. t Zweden (2016)). The ECtHR has already made clear with regard to Belgium that a possible violation of article 3 ECHR must be examined before a return decision is issued, and that the fact that this review can still take place during the forced enforcement of that decision is not sufficient (see Paposhvili t. België (2016)).

At EU level, the Common European Asylum System (CEAS) includes, among other things, a Return Directive. This directive concerns the return of certain foreign nationals staying illegally on the territory and imposes on the Member States the obligation in principle to issue an individual return decision. Such decisions must be in conformity with the principle of non-refoulement and must be based on objective criteria, which are not limited to the factual finding of illegal stay on the territory of a Member State. In the event of incompatibility, removal must be postponed. The Charter of Fundamental Rights of the European Union (hereinafter: Charter) also contains, among other things, a principle of non-refoulement (article 4). However, it only applies once the Member States act within the scope of Union law (see Åkerberg (2013)), so that a link with Union law is required.

In Belgium, the Immigration Office must fully observe the principle of non-refoulement on the basis of the direct effect of article 3 ECHR and, insofar as European law is applied, article 19, §2 of the Charter. Belgian case law has repeatedly confirmed the above requirements from the ECHR and Union law. In several rulings it was held that insufficient investigation had been carried out into the risk under article 3 ECHR. Moreover, the Council for Alien Law Litigation extends the Immigration Office's duty of investigation by prohibiting foreign nationals from being expelled to states which themselves violate the principle of non-refoulement.

Analysis of the Sudan report

It is in the substantive duty of investigation incumbent on the Immigration Office that the shoe pinches in the Sudan case. Although, on the basis of the available information, it cannot be demonstrated that the Sudanese nationals concerned were tortured and/or treated inhumanly after their removal, it is clear that the Belgian authorities did not properly comply with their procedural duty of investigation.

This is reflected in the questioning of the ten Sudanese nationals in question, as is apparent from an analysis by Amnesty International. All the Sudanese nationals concerned, with the exception of one person who returned voluntarily, made use of their right to be heard in which they made known their fear of torture/inhuman treatment, some even several times. Prior to the exercise of their right to be heard, a few questions were asked by means of standard forms. According to Amnesty International, those questions do not go into the regional situation (e.g. in Darfur), ethnicity or the reason for leaving the country. Yet that information is essential in order to be able to carry out an individual assessment. The CGRS states in its report that all those concerned answered the questions only briefly, so that it was not possible to verify whether the reasons given were credible or well-founded.

By organising an identification mission, however, the Sudanese nationals' right to be heard was possibly hollowed out. It is in principle permitted to call on the assistance of a third country in identifying potential nationals. By contrast, it is contrary to the principle of non-refoulement to call on the assistance of a foreign authority before a thorough investigation under article 3 has been carried out. The ECtHR holds that the authorities' duty of investigation starts as soon as a foreign national has expressed the fear of being ill-treated or tortured upon return. According to the CGRS report, the hearing only took place after the embassy had been asked to come by for the identification of the persons concerned. Only then did the Immigration Office carry out an assessment with regard to article 3 ECHR. Moreover, a review in light of article 3 ECHR must take place before an order to leave the territory (OLT) is issued, which according to the CGRS report did not happen.

After the hearing, the Immigration Office decided that there was no real risk of a violation of article 3 ECHR. That decision was problematic for several reasons. In the first place because the Immigration Office claimed that there was no risk, since the Sudanese nationals, despite their expressed fear, nevertheless decided not to apply for asylum in Belgium. As confirmed by the case law mentioned above, all relevant elements must be taken into account in the assessment under article 3 ECHR, even when no asylum application has been lodged. Secondly, it seems impossible for the Immigration Office to take a decision on the basis of the limited data at its disposal, since essential information was missing. The situation in Sudan at the time also indicated that an individual investigation into the foreseeable treatment in the country of origin was desirable before a decision on the real risk under article 3 could be taken, since ‘an independent and rigorous scrutiny’ is required. Finally, the report also mentions that the assessment can only be found in the form of a note in the file. The CGRS states that, on the basis of the principles of good administration, ‘this decision must be set out in a reasoned decision, which implies a possibility of appeal’.

Conclusion

The summary investigation by the Immigration Office was insufficient to provide any certainty about a possible violation of article 3 ECHR upon return of those concerned to Sudan. Not only was the manner in which the investigation was conducted insufficient to meet the requirements of article 3 ECHR, the moment at which it was carried out also does not meet the international requirements. In view of the far-reaching consequences of a possible violation, particular caution must be exercised in case of doubt. The urgency for the authorities to bring all procedures into line with the applicable requirements became clear once again at the beginning of April 2018, when the Immigration Office failed to examine adequately whether a Moroccan national, who had been convicted for participating in the activities of a terrorist group, would be exposed to a risk of ill-treatment or torture upon return to his country of origin.

Bibliography

See here for the image source.