Despite Enforced Destitution, Refused Afghan Asylum-Seekers Continue to Resist Return

Guest post by Talitha Dubow and Katie Kuschminder. Talitha is a researcher at UNU-MERIT and Maastricht University. Her research focusses on the experiences and decision-making of irregularised migrants, and the impacts of policies on these. Katie Kuschminder is a Senior Researcher at the University of Amsterdam, where she is Principal Investigator of the ERC Starting Grant Reintegrate Project. This post is part of a collaboration between Border Criminologies and Geopolitics that seeks to promote open access platforms. The full article, on which this piece is based, is free to access here.

Amsterdam graffiti
Graffiti art on the side wall of a foot bridge in Amsterdam city. Photo by Fons Heijnsbroek https://unsplash.com/photos/1bAiWxWwJIE

Ensuring the exit of irregular migrants from the European Union (EU), including refused asylum-seekers, is viewed by EU policymakers as central to effective migration management. This includes return to the country of origin, but also to transit countries or countries of previous stay. People whose applications for asylum in the EU are rejected, are expected by state authorities to leave the EU and return to their country of citizenship – communicated via a ‘return decision’. Many, however, do not leave. This is for a variety of reasons such as: healthcare needs, relationships they may have with people (partners, children, etc.) in the country of destination, and fears of what may happen to them if they go back.

Although not a sufficiently accurate indicator of good migration governance, the overall ‘effective return rate’ (the proportion of irregular migrants in the EU who return to countries outside the EU) is low: on average less than 30%. Increasing the rate of returns is a priority issue for many EU member states. EU governments have introduced various measures to encourage returns – both via positive incentives to encourage departure (policy “carrots”, such as financial assistance) – and, increasingly, negative incentives to deter irregular migrants from staying on in the EU.

In this post we address a highly concerning trend in policy efforts to enforce returns: the withdrawal of access to basic protections including shelter, food and clothing. We examine the consequences of this policy for refused Afghan asylum-seekers in the Netherlands (prior to the Taliban takeover of Afghanistan in 2021). The implicit logic underpinning this policy is that, in a situation of destitution, refused asylum-seekers will be more likely to accept return. Enforced destitution is a violation of EU fundamental rights, according to which ‘human dignity is inviolable’ (see also this discussion of EU and international obligations). However, there is an increasing use of such exclusionary measures in pursuit of migration management goals. For example,  both Sweden and Finland had previously accommodated refused asylum-seekers in reception facilities irrespective of their cooperation with return procedures, but in 2015 and 2016 these countries respectively withdrew these provisions for refused asylum-seekers who do not cooperate (see this EMN study).

The Netherlands is a key example of how the national government seeks to induce returns through the denial of basic welfare to refused asylum-seekers. Since the 1998 Benefits Entitlement Act (‘Koppelingswet’), irregular migrants in the Netherlands have been excluded from social benefits such as housing, financial assistance, and basic services, and from access to the formal labour market. The national government has only provided accommodation to refused asylum-seekers who cooperate in their return. The Dutch government has pursued this policy in spite of opposition from Dutch municipalities and civil society actors (see, for example, Policies of Exclusion and Practices of Inclusion: How Municipal Governments Negotiate Asylum Policies in the Netherlands), and in spite of decisions by the European Committee of Social Rights (ECSR) and the Committee of Ministers of the Council of Europe , as well as condemnation by the United Nations Human Rights Council Special Rapporteur on extreme poverty and human rights (see UN human rights expert condemns Dutch refugee deal).

Despite these judgements, the Dutch government has maintained its position that by providing temporary accommodation to those refused asylum-seekers who cooperate on their return, they are not forcing any irregular migrant to live on the street (see here), and that to provide unconditional access to basic assistance would undermine the credibility and sustainability of the migration system (see here). The Committee of Ministers of the Council of Europe nonetheless stated that ‘The provision of emergency assistance cannot be made conditional upon the willingness of the persons concerned to co-operate in the organisation of their own expulsion’.

To examine the impacts of this Dutch policy on the experiences and decision-making of refused Afghan asylum-seekers, we conducted an analysis of 40 interviews with refused Afghan asylum-seekers who were, or had been, irregularly present in the Netherlands in 2013 and 2014. The interviewees were relying on the limited provision of shelter and other assistance from municipalities and Civil Society Organisations (CSOs) (so-called ‘bed-bath-bread’ arrangements), and from their own friends, family and other acquaintances, sometimes interspersed with periods of sleeping rough. The impacts of their exclusion from basic protections were severe. Interviewees described their material destitution, their anguished – and sometimes suicidal – mental state, the shame of their enforced dependence on family and friends, the deterioration of their personal relationships, and their vulnerability to abuse and exploitation. 

As one example, Jawad had arrived in the Netherlands as an unaccompanied minor. Following two negative decisions on his asylum application, he had been living irregularly for more than a year. At the time of interview he was supported by a church shelter, but had previously spent time sleeping rough and depending on his friends’ hospitality for a few days at a time. Although he now had relatively more secure shelter, he described the pain and frustration of his indefinite limbo: 

“My life is repetitive; going to the centre [of town], eating, sleeping. This is a problem. People are created to live, life means study, work, marrying, having children. Life does not mean to make yourself sleep while you are not tired, to sleep with pills, to forget everything at this age, being scared of police of being arrested, this is not life. You have to be at least one day illegal to understand me.”

Amir, another former unaccompanied minor who had been living irregularly for two years and was similarly supported by a CSO at the time of interview explained:

“your mind hangs sometimes, you do not [know] what will happen in the future, if this condition continues, if this is the future. Even this organization would not provide us with a place to live forever […] I left Afghanistan to save my life, now I am here and alive, in Afghanistan they kill you, but here your mind and soul will be killed, your future will be ruined”

None of the interviewees were, however, considering return, largely due to their fears of what would happen to them in Afghanistan (or Iran, where some had been born or grew up). In spite of the extreme hardship and distress they experienced in the Netherlands, they refused to even consider return, and were instead determined to stay in the Netherlands (or another EU country). Both Jawad and Amir were working on new asylum applications but said they would not return even in the case of another negative decision. As Jawad explained:

“I am not satisfied with leaving my country. It is a bad event to leave your country – it was my land, my memories are there. But now, I cannot return. If they wanted to deport me, they would have to kill me in the airport before sending me back to Afghanistan. I do not think of returning to Afghanistan even after 100 years. I need to be hopeful and fight to get status. I have to get along with the problems here.”

Our study therefore provides evidence that enforced destitution does not necessarily encourage refused asylum-seekers to return, as also illustrated in this video report with Somali women rejected in the Netherlands. We recognise that our study does not include refused Afghan asylum-seekers who have accepted return to Afghanistan; however, the proportion of irregular Afghan migrants who do leave the EU is very low. Their strong resistance to return is unsurprising given the extremely challenging conditions return migrants face in Afghanistan, including the risk of violence and persecution (see, for example, What happens post-deportation? The experience of deported Afghans).

The acute human costs of the Dutch government’s policy therefore cannot be justified on the basis of gains in return rates. In the Netherlands and across the EU, the return of refused asylum-seekers must be treated as a separate issue from that of ensuring basic welfare and human dignity. EU member states should provide humanitarian assistance to refused asylum-seekers, in recognition of their fundamental rights, without making such assistance conditional on their cooperation with return procedures. Since 2019 the Dutch national government has collaborated with municipalities on a pilot programme of five shelters (‘National Aliens Facilities’) that provide accommodation to irregular migrants who cooperate in finding a ‘permanent solution’ for themselves: either return, onwards migration, or, where possible, regularisation in the Netherlands. The emphasis on finding a solution beyond only return may be a positive development – however, opportunities for regularisation in the Netherlands remain very limited. More research is therefore needed to understand whether and how these centres can help to find ‘permanent solutions.’ Comparative research is also necessary to identify promising practices for managing irregular migration in full respect of fundamental rights.

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How to cite this blog post (Harvard style):

T. Dubow and K. Kuschminder. (2022) Despite Enforced Destitution, Refused Afghan Asylum-Seekers Continue to Resist Return. Available at:https://blogs.law.ox.ac.uk/blog-post/2022/06/despite-enforced-destitution-refused-afghan-asylum-seekers-continue-resist-return. Accessed on: 04/10/2022

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