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When voluntary return is not voluntary at all


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In recent years the United Kingdom government has resorted to indirect measures like the hostile environment to force people to leave the UK, alongside directly removing people. The government can then claim that the person left the UK voluntarily, and may have thought that there could be no liability for any breaches of the person’s human rights after they have returned to their country of origin.

However, the Strasbourg court has now ruled that voluntary return must be a free and informed choice. It will not be free and informed for a failed asylum seeker who is placed under pressure to leave by the immigration system.

NA v Finland (application no. 25244/18) was a case brought against the Finnish government by the daughter of a man who had claimed asylum in Finland. He was originally from Iraq and had fled after an assassination attempt against him. His asylum application was refused and although he initially challenged the decision, he decided in the face of plans to detain and remove him to accept a voluntary return package offered by the International Organisation for Migration. As part of the deal, he signed a waiver stating that the Finnish government could not be held liable or responsible for his return in any way.

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Shortly after the man returned to Iraq he was killed. His daughter brought the case alleging that Finland had breached Article 3 of the European Convention on Human Rights.

The Finnish government argued that the application was not admissible because the applicant’s father had voluntarily returned to Iraq and therefore the consequences of his return had nothing to do with Finland. The court rejected this argument:

In the light of the circumstances of the case, in particular the factual background of the applicant’s father’s flight from Iraq as acknowledged by the domestic authorities, the Court sees no reason to doubt that he would not have returned there under the scheme of “assisted voluntary return” had it not been for the enforceable removal order issued against him. Consequently, his departure was not “voluntary” in terms of his free choice.

Therefore, the application concerned acts within the jurisdiction of the Finnish government.

The court then considered the supposed waiver of liability. It declined to consider whether it is possible in principle to waive one’s rights under Article 3 ECHR, but ruled that any waiver would have to be free and informed which was not the case here:

In the present case, the applicant’s father had to face the choice between either staying in Finland without any hope of obtaining a legal residence permit, being detained to facilitate his return by force, and handed a two‑year entry ban to the Schengen area, as well as attracting the attention of the Iraqi authorities upon return; or agreeing to leave Finland voluntarily and take the risk of continued ill-treatment upon return. In these circumstances the Court considers that the applicant’s father did not have a genuinely free choice between these options, which renders his supposed waiver invalid. Since no waiver took place, his removal to Iraq must be considered as a forced return engaging the responsibility of the Finnish State.

Having found that the application was admissible, the court went on to rule that there was a breach of Article 3. The Finnish immigration authorities failed to consider properly the cumulative effect of the various dangers in Baghdad or give sufficiently careful consideration to the previous attacks against the applicant’s father.

This is a very sad case and it is unfortunate that the Strasbourg court only became seized of the matter after the applicant’s father had returned to Iraq. But it is an important statement by the court that it will not tolerate attempts to use indirect removal measures against failed asylum seekers whose applications have not been considered with sufficient care and attention.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers