Identity Determination Dilemmas: Whose National Are You?

Abstract

The European Commission and EU Member States make often reference to the unwillingness of third countries to readmit their own nationals as one of the main obstacles for increasing return rates.

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

The European Commission and EU Member States make often reference to the unwillingness of third countries to readmit their own nationals as one of the main obstacles for increasing return rates. The scholarly debate has identified the main obstacles facing the negotiations and operability of EURAs. EURAs present a high level of dependency on the state of diplomatic relations between the states concerned. The academic literature has illustrated the importance of the role and cooperation of third country consular authorities in the workability or concrete implementation of readmission procedures, and the development of formal and informal patterns of cooperation covering ‘readmission’ which has been based on administrative arrangements, bilateral deals and exchanges of letters/memoranda of understanding as complementary to RAs.¹

In its evaluation of EURAs in 2011 the European Commission underlined the policy inconsistency resulting from certain EU Member States still their bilateral arrangements that pre-dated the EURA.² This has been a key point of discussion in the lifespan of EURAs during the last three decades.³ Suffice it to say that as instruments aimed at shaping international or inter-state relations in migration management, RAs depend on the state of diplomatic relations with the third (non-EU) country concerned. This dependency factor unlocks a series of practical challenges related to inter-state diplomacy and in handling conflicting sovereign interests at stake in expulsion procedures.

Cassarino has argued that “while incentives play a crucial role in inducing third countries to cooperate on readmission, they do not adequately account for the sustainability of bilateral cooperation in the long term”. In his view this is mainly due to the “asymmetrical impact of the effective implementation of the agreements”.⁴ Requested states do not often deliver the necessary travel documents or do not reply (on time or at all) to EU Member States’ readmission requests. Cassarino refers to the pressing challenge of re-documentation (i.e. “the delivery of travel documents or laissez-passers by the consular authorities of the third country needed to remove irregular migrants”) as an area where informal and bilateral (readmission deals) between EU Member States and third countries have progressively developed.⁵ The issue of re-documentation and lack of cooperation of third countries to readmit individuals identified as their own nationals, however, hides a more profound and far-reaching dilemma that is inherent to the practical implementation of the readmission logic and which has not received much detailed attention in the academic debate.

A field where asymmetries emerge in the readmission field relate to identifying who is a national of which state. The implementation of expulsion faces a deeper disagreement between the states concerned as to whether the person(s) involved are indeed nationals of the assigned or presumed country of origin. As noted in Chap. 2 above, when measuring effectiveness, the European Commission puts particular emphasis on the low rates of expulsions and why removal orders are not enforced by EU Member State authorities. The above-mentioned letter issued by European Commissioner Avramopoulos declared that one of the main reasons why removal orders are not enforced relate to a “lack of cooperation from the individuals concerned (they conceal their identity or abscond) or from their countries of origin (for instance problems in obtaining the necessary documentation from consular authorities)”.⁶

The difficulties in determining legal identity has been also highlighted in studies and Ad Hoc Queries issued by the European Migration Network (EMN). An EMN Ad Hoc Query on EU Laissez-Passer of October 2010 covered the obstacles experienced by some EU Member States in the processes of identification of the person to be readmitted, in particular when it comes to travelling documentation. The Query highlighted that often third countries are unwilling to cooperate with requesting EU states in the process of identifying the nationality of the person involved “because in many cases they have little or no interest in readmitting their own nationals”. According to countries like Germany, as the issuing of an EU Laissez-Passer ultimately requires the identification of a person’s nationality, modifying it would do little to address this fundamental issue. In the same vein, Sweden reported that “Even if the document quality would be improved, we would still have problems when it comes to the available information about the holder’s identity.”

In a 2012 report titled “Practical Measures to reduce irregular immigration” and funded by the European Commission, the EMN pointed out a number of situations where expulsions prove problematic. These included (i) a lack of cooperation of the country of origin and their unwillingness to readmit their own citizens; (ii) difficulties in establishing a person’s identity and the lack of travel documents; and (iii) an unwillingness on the part of individuals to cooperate in their own removal.⁷ Similar issues were identified in another EMN study from 2013 titled “Establishing Identity for International Protection: Challenges and Practices”.⁸ The EMN examined the ways in which EU Member States understand the concept of ‘identity’ within expulsion procedures. A majority of EU States reported that “In the absence of valid proof of identity, the authorities responsible for executing returns have to request travel documents for the applicant from his/her (declared) country of origin. Cooperation with third countries, including in the context of readmission agreements, affects success in this regard”.⁹ Another finding was that the type of documents accepted by countries of origin varies widely, depending on the type of expulsion procedures.¹⁰

The 2013 EMN study illustrates how contacts with the national authorities of the ‘presumed’ country of origin were reported to be indispensable in expulsion procedures, and that there were strict demands for documenting identity in these cases, sometimes including coercive methods.¹¹ The annex of the EMN study lays down a compilation of methods used by EU national authorities in determining the identity of the persons to be expelled. While citizenship constitutes the most important element in determining legal status, the study presents other methods used by relevant national authorities in EU Member States such as language analysis, age assessment, comparison of fingerprints and photographs with national or EU databases, DNA analysis, interviews, consultations with country liaison officers based in the (presumed) countries of origin, coercive methods (including forced searches of the applicant’s property), biometrics, etc.¹² According to the study,

In the domain of ‘forced return’, the identity question is often decisive regarding the possibility for return. To implement a ‘forced return’, the identity of the person concerned must either be verified (by the country of return) or documented (with valid passport or travel document) in a way accepted by the perceived country of origin.¹³

All these challenges remain despite the fact that a subsequent EMN published in 2014 stated that statistics provided by some EU Member States indicated that the majority (almost 100 %) of applications lodged by Member States covered own nationals of the countries with whom EURAs have been concluded.¹⁴ Identification challenges have been also reported in monitoring reporting procedures of removal regimes such as the one in the UK. Another report published in 2015 by the UK Independent Chief Inspector of Borders and Immigration highlighted: “We were told by the Home Office that there are some countries to where removal cannot be enforced, either because of the general situation prevailing in that country or because of an unwillingness on the part of the country to document its own nationals, e.g. Iran”.¹⁵ It is therefore clear that a third-country national cannot be readmitted when her/his identity is not adequately established. Two specific examples illustrate ongoing frictions related to the identity determination challenge: First, the obstacles in the implementation of the EURA with Pakistan (Sect. 3.1), and second, the UK Supreme Court judgment in Pham v. Secretary of State for the Home Department (Sect. 3.2 below).

3.1 The Quasi-suspension of the EURA with Pakistan

A recent controversy in the application of the EURA with Pakistan illustrates some of the previously identified dilemmas in the operability of readmission. The unclear situation of ‘Afghan nationals from Pakistan’ constituted an issue of concern from the very start of EU talks on migration and asylum with Pakistan in the late 1990s.¹⁶ The EURA with Pakistan entered into force in 2010.¹⁷ Five years later, and in the context of the so-called European refugee crisis, the Pakistani authorities reportedly announced in November 2015 the unilateral suspension in the application of the EURA because it argued that some deportations were unfounded.¹⁸ A representative from the Interior Ministry of Pakistan declared that readmissions had taken place “without proper determination they were Pakistan nationals”.¹⁹ The Minister of Interior also announced that “Pakistan would not accept any deportees accused of militant [terrorism] links without clear evidence of guilt”. A joint return flight coordinated by Frontex from Greece on 4 November 2015 was not permitted to disembark 70 persons to be readmitted as Pakistani nationals.²⁰

The Commission’s Communication on “Managing the refugee crisis: State of Play of the Implementation of the Priority Actions under the European Agenda on Migration” COM (2015) 510 of November 2015 emphasised: “A particular blockage was identified in Greece, resulting from disputes concerning documentation”.²¹ The Communication specified that “dedicated readmission discussions between the Commission, Greece and the Pakistani authorities” should lead to “a joint understanding on the application of the EU readmission agreement between Greece and Pakistan”. According to interviews conducted for the purposes of this book with EU policy makers in Brussels, even if the person to be readmitted has a passport issued by Pakistan, Pakistani authorities don’t seem to accept the readmission request if the passport does not have biometric identifiers and the name of the person is included in their national biometric database.²² These same interviews raised concerns about the non-reliability and “untrustworthiness” of the Pakistani biometric system at times of establishing the legal identity of the person involved.

On 23 November 2015 Commissioner Avramopoulos visited Pakistan to discuss and agree a way forward in the situation. After the meeting Avramopoulos declared that “everything is back to normal” and that “the EU would work with Pakistan to improve its verifications of citizenship before sending anyone back to Pakistan”.²³ In a meeting of the Civil Liberties, Justice and Home Affairs (LIBE) Committee of the European Parliament on 16 February 2016, the European Commission DG Home Affairs updated MEPs on the state of affairs with all EURAs. The Commission stated that a meeting had taken place on the 2 February 2016 with the Pakistani authorities in the context of the Joint Readmission Committee and that “concrete steps” were agreed to steer the implementation of the agreement. In particular, the Commission clarified that the Joint Readmission Committee had agreed operational arrangements with Pakistan, including a number of concrete actions to deal with current obstacles.

The operational arrangements agreed with Pakistan remain confidential. The Commission’s intervention before the EP LIBE Committee highlighted that they include a plan to organise a joint identification mission, which appears to be still in the planning stage. This would bring Pakistani authorities to Greece and jointly participate in the identification procedures, particularly in those cases where the identity is disputed, as well as in fostering the use of biometric technologies in the processing of readmission. The operational arrangements also foresee the obligation by Pakistani authorities to reply on specific deadlines for readmission requests by EU Member States. There continue to be obstacles when ‘readmitting’ people from Greece to Pakistan. According to interviews, Pakistani authorities continue not to reply within the stipulated deadlines. As of May 2016, Greece has reported a backlog of 592 readmission requests unanswered by the Pakistani authorities. This picture corresponds with the situation described by a study published by the European Migration Network (EMN) in 2014, which stated:

…the EURA with Pakistan is assessed as problematic due to delays in response and various other practical obstacles, such as the loss of documents. The average response time also reflects the disparity in the effectiveness between EURAs concluded with different third countries. For example, while the average response time for Georgia is 6-7 days, in the exceptional case of the EURA with Pakistan, it can take over a year to obtain a response from the authorities.²⁴

It is no clear at the time of writing how the obstacles in the EURA with Pakistan will be overcome. A Frontex Evaluation Report, issued 2 December 2015 on a Joint Return Operation from Greece to Pakistan,²⁵ identified ongoing identification issues when stating that

Only 19 returnees (13 from Greece, 4 from Austria and 2 from Bulgaria) were successfully handed over in Islamabad. Despite the fact that also the other 30 returnees (26 from Greece, 2 from Austria and 2 from Bulgaria) were holding valid passports and/or travel documents, they were not authorize to disembark the aircraft as, according to new rules imposed by the Pakistani authorities, their identity had not been “verified” prior to the flight by their Ministry of the Interior through supplementary biometric checks. Those 30 Pakistani citizens were brought back to Athens on board the same charter flight.

3.2 Pham v. Secretary of State for the Home Department Case

The 2015 Pham Case provides another example of inter-state challenges inherent to the ‘readmission logic’. The UK Supreme Court issued on the 25 March 2015 the judgment on the case.²⁶ The case related to the lawfulness of the UK Home Department’s decision to deprive the appellant of his British citizenship as it would render him stateless. The main point of contestation was the extent to which the UK authorities should take account before depriving the appellant of British nationality of the fact that according to Vietnamese authorities he was not a national of Vietnam “under the operation of its law” in light of Article 1.1 of the 1954 Convention relating to the Status of Stateless Persons.²⁷

The appellant was born in Vietnam in 1983 and hence acquired Vietnamese nationality. The family went to the UK in 1989, claimed asylum and were granted indefinite leave to remain in the country. Six years later they acquired British citizenship. Between end of 2010 and summer 2011 the appellant was in Yemen where “according to UK security services but denied by him, he is said to have received terrorist training from Al Qaeda. It is the assessment of the security services that at liberty he would pose an active threat to the safety and security of this country”. On the basis of his suspected involvement in terrorist activities he was deprived of British nationality. Ever since Vietnamese authorities have declined to recognise him as a national of Vietnam.

Mr. Pham appealed this decision before the Special Immigration Appeals Commission (SIAC), on various grounds, including the one that the decision would render him stateless as well as the compatibility of the decision in light of EU citizenship law. The Court of Appeals held that Mr. Pham was a Vietnamese national on the relevant date under Vietnamese nationality laws. The Court concluded:

If the Government of the foreign state chooses to act contrary to its own law, it may render the individual de facto stateless. Our own courts, however, must respect the rule of law and cannot characterise the individual as de jure stateless. If this outcome is regarded as unsatisfactory, the remedy is to expand the definition of stateless persons in the 1954 Convention or in the 1981 Act, as some have urged. The remedy is not to subvert the rule of law. The rule of law is now a universal concept. It is the essence of the judicial function to uphold it.²⁸

The case reached the UK Supreme Court which ultimately (and unanimously) dismissed the appeal and confirmed the Court of Appeal’s rejection of Mr. Pham’s claim and validated the decision by the UK Secretary of State for the Home Department. The Supreme Court held that there was no evidence “of a decision or practice of the Vietnam government which treated the appellant as a non-national “by operation of its law” or a decision effective at the date of the Home Secretary’s decision of 22 December 2011.²⁹ The Supreme Court also covered the compatibility of the decision with EU citizenship law and case-law by the Court of Justice of the European Union (CJEU), which is examined in detail in Sect. 5.3 of this book below. The UK Supreme Court reached the opinion that it was not necessary to resolve the dispute in light of EU law, and in particular the EU general principle of proportionality. It concluded in this regard that:

The issue would need to be considered by the domestic courts before it would be appropriate to consider a reference to the CJEU. However, before that stage is reached it is important that the tribunal of fact, SIAC, should first identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the European Convention on Human Rights, an issue already before SIAC, or from applying domestic law principles.³⁰