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By Salam Sheikh-Khalil
Second-year student at the University of Michigan Law School and Associate Editor for Reflaw.org
In late August 2016, Italy deported 48 Sudanese nationals—many of them from war-torn Darfur—back to Sudan. After being arrested in Ventimiglia, Italy, near the French border they hoped to cross, they were identified by Sudanese officials and placed on a chartered flight to Sudan’s capital, Khartoum. Upon their arrival, some of the deportees were reportedly beaten and imprisoned by authorities, with many later going into hiding.
The group’s speedy processing has raised eyebrows. Members of the Italian Parliament have demanded an investigation into the legality of the deportation. Moreover, NGOs are skeptical that the Sudanese had the opportunity to apply for asylum after they were detained (especially considering that approximately 60% of Sudanese asylum applicants in Italy are granted asylum status). That some of the deportees may have been abused upon their repatriation has further outraged refugee advocates.
Unfortunately, this deportation of Sudanese nationals is likely to be only the first of many. A few weeks earlier, Italy and Sudan signed a migration agreement aimed at distinguishing between “welcome guests” and “citizens who have no right to remain in the territories of the two states.” And Italy is not operating alone. Implementing readmission agreements with African countries, particularly those along the heavily-traveled Sahel and Horn of Africa migration routes, is an urgent priority for the European Union. These agreements are to be accompanied by billions of euros in development funding, equipment, and training to keep would-be migrants home.
The EU’s use of readmission agreements has long raised concerns about their compliance with international refugee law. But the new, aggressive pursuit of readmission agreements—no matter the partnering country—sets those agreements on even shakier legal ground.
Non-Refoulement
The most prominent worry, of course, is that the agreements may violate the principle of non-refoulement, as established in Article 33 of the Convention Relating to the Status of Refugees. By not assessing whether or not deportees have a valid asylum claim, the deporting nation faces a real risk of returning those individuals to a place where they will be persecuted. When these removals force return into the hands of governments notorious for their human rights abuses, this possibility is especially foreseeable.
In last month’s Italian deportation of Sudanese, this risk materialized in the form of immediate arrests and abuse upon landing in Khartoum. Italy could not possibly have been heedless of the dangers the deportees faced upon their return. Sudan’s dreadful human rights record is well-known, particularly in Darfur, which is still roiled by war and from where many of the deportees hailed. President Omar al-Bashir is wanted by the International Criminal Court on charges of genocide in Darfur. Moreover, Sudan has long been under heavy UN and EU sanctions. Indeed, during secret meetings this summer planning migration cooperation with Sudan, EU members feared negative publicity if the meetings became public.
Some of the other nations the EU is considering partnering with—including Eritrea, Ethiopia, and Somalia—have equally notorious human rights records. Robotically repatriating potential asylum-seekers to such places thus presents a serious risk of refoulement.
Collective Expulsion
Additionally, readmission agreements raise the very real danger of collective expulsion. Defined by Article 4 of Protocol No. 4 of the European Convention on Human Rights as “any measure compelling aliens, as a group, to leave a country” except “on the basis of a reasonable and objective examination of the particular case of each individual alien of the group,” collective expulsion is explicitly prohibited under EU law.
In the 2015 case Khlaifia and Others v. Italy, the European Court of Human Rights (ECHR) reaffirmed this definition. There, Italy had signed a bilateral readmission agreement with Tunisia which, inter alia, provided for identification of Tunisian migrants by Tunisian consular officials and did not provide for individual interviews or evaluations. The Court held that the subsequent deportation of a group of Tunisians without consideration of their individual circumstances and based solely on their nationality violated Art. 4. Khlaifia is part of case law stemming from the 2002 ECHR case Conka v. Belgium. Relying on Art. 4, the Court there specifically criticized Belgium’s expulsion procedure for not sufficiently guaranteeing the individual evaluation of asylum-seekers.
In Italy’s recent deportation of the Sudanese, it appears that the deportees were not afforded any review of their individual cases by Italian authorities or otherwise allowed to explain their presence. Rather, their expulsion order appears to have been rubber-stamped by a magistrate judge, before they were later presented to Sudanese consular officials and deported based on their national origin.
If true, these actions appear to be a clear violation of Art. 4’s prohibition on collective expulsion. Given that Italy has already been sanctioned by ECHR for this behavior at least three times previously, its new readmission agreement with Sudan is especially troubling. However, the risk of collective expulsion is present generally in the many readmission agreements the EU hopes to conclude.
Conclusion
Italy’s deportation of the 48 Sudanese nationals highlights the inherent shakiness of readmission agreements and their tension with refugee law. The systematic repatriation of potential asylum-seekers, based solely on national origin and without individual consideration of claims, risks violations of non-refoulement and collective expulsion under EU and international law.
The EU’s conclusion of these with notoriously-repressive governments also rests on serious moral ambiguity. By repatriating unwanted nationals of certain countries, the EU in effect gives life to the ancient adage, “The enemy of my enemy is my friend.”
