EUROPEAN COUNCIL ON REFUGEES AND EXILES
CONSEIL EUROPEEN SUR LES REFUGIES ET LES EXILES
PP1/03/2006/EXT/SH

GUIDELINES ON THE TREATMENT OF IRAQI
ASYLUM SEEKERS AND REFUGEES IN EUROPE

March 2006

Introduction & Key Recommendations

1. The European Council on Refugees and Exiles (ECRE) is a network of 80 organisations in 30 European countries. This paper is in response to the treatment of Iraqi asylum seekers and refugees in Europe. Many Iraqis in Europe face being returned to Iraq on the grounds that they would be safe in specific areas, despite widespread recognition of the unsafe conditions across the whole of Iraq. In addition, some European states are denying or withdrawing Iraqis' refugee status or other forms of international protection.

2. This paper concerns the voluntary return of Iraqis who have refugee or subsidiary forms of protection status, those with temporary protection status and those who are in the process of applying for protection, including those who have received a negative first decision and are engaged in an appeal process. It also looks at the mandatory and forced return of Iraqis whose asylum applications have been rejected, and those whose protection status has ceased or been withdrawn.

3. There is currently no effective infrastructure in place in Iraq to uphold the rule of law and protect human rights. In addition, instability due to increased violence, lack of basic services, housing shortages and high unemployment severely hinders the country's ability to absorb those who return. The United Nations High Commissioner for Refugees (UNHCR) has only a very limited international presence in Iraq at this time so there is little capacity to monitor what happens to returnees.

4. According to UNHCR, the number of Iraqi refugees worldwide in 2004 was 311,800, not taking into account the approximately one million displaced Iraqis in the region neighbouring Iraq. Iraqis represented the sixth largest asylum seeking group in 2004 with 23,500 claims worldwide. The main countries of asylum for Iraqis remained the same in 2004 as in previous years, namely Iran, Germany, the Netherlands, Sweden and the United Kingdom.

5. Throughout Europe the treatment of Iraqis seeking international protection continues to vary considerably. Some European countries have increased the protection afforded to Iraqi nationals, some have withdrawn protection from Iraqi refugees, whilst others are taking measures that might indicate a preparedness to return Iraqis to Iraq. In 2005 two European countries, Poland and the United Kingdom, forcibly returned Iraqi asylum seekers whose applications had been rejected to Iraq.

6. ECRE urges that European governments give Iraqi asylum seekers the opportunity to lodge an asylum application and that it be dealt with on an individual basis in accordance with international refugee and human rights law, and that all Iraqis, including those whose asylum applications have been rejected, be granted the socio-economic support necessary to live in dignity, as long as safe and sustainable return to Iraq is not possible.

7. ECRE does not dispute the fact that governments have the right to return asylum seekers whose applications have been correctly rejected following a proper, fair and substantive examination of their asylum applications and protection concerns. However, reports from the UN, international organisations and NGOs continue to emphasise that Iraq remains unsafe and that there is insecurity throughout, including northern Iraq, with many groups continuing to suffer persecution. ECRE believes that the current situation in Iraq is such that the mandatory or forced return of Iraqis is unacceptable, and recommends a continued ban on forced return to any part of the country, including the Kurdish Autonomous Region.

8. ECRE continues to be against the promotion of voluntary return as a durable solution since conditions of safety and dignity cannot be upheld. Therefore, voluntary return should only be facilitated for those who have indicated a strong desire to return, based on accurate and sufficient information available to them about conditions in their home areas.

9. ECRE continuous to advocate for a ban on the transfer of Iraqis from Europe to other countries in the region, regardless of their prior stay or transit in these countries. A premature influx to such countries could further destabilise the region and inflame underlying tensions, and could lead to returnees fleeing again.
I. THE SITUATION IN IRAQ

10. Since the fall of the former regime, Iraqis have been plagued by the proliferation of armed militias, and criminal and terrorist organisations acting with impunity, constituting major challenges to law and order and a threat to the security of the civilian population. The range of such criminal activities includes armed robberies, kidnappings for ransom, harassment, the killing of persons involved in the political process or reconstruction activities, sabotage attacks against civilian infrastructure such as electricity or oil pipelines and full-scale attacks involving bombs and/or other explosives. Attacks have become increasingly random and deadly, and any Iraqi can be the target of attack by insurgents at any time and any place. Many Iraqis continue to flee, especially to neighbouring Syria to escape lawlessness, harassment, and persecution. Data released by the Iraqi government show that nearly 6,000 Iraqi civilians, police and troops were killed in violence in 2005, while one independent source estimates that at least 28,501 civilians have been killed since the start of the US-led military action in Iraq in March 2003.

11. The unstable security situation has become manifestly worse over the past two years, especially since May 2005, leading to:

• High civilian death tolls
• Displacement of the civilian population
• Urgent humanitarian needs for water, food, and shelter
• Low public confidence in government officials
• High rates of criminality
• The lack of a properly functioning judicial system
• A weak local security system
• Kidnappings of civilian Iraqis
• Widespread corruption.

Many people cannot enjoy their socio-economic rights, due to slow reconstruction and a lack of or instable supplies of proper health, education, water, electricity and other facilities, as well as significant housing shortages and high unemployment.

12. Hopes for a stabilisation of the security situation in Iraq after the transfer of power in June 2004 to the Iraqi people have not yet materialised. The September 2005 report of the Secretary General to the United Nations on the UN's activities in Iraq noted that the security situation in Iraq remains ''a matter of serious concern". Attacks by ''hostile elements'' are said to have reached their highest levels since the January 2005 elections. Furthermore, the ''sophistication, scale and lethality'' of the attacks has also increased significantly. The NGO International Crisis Group warned in October 2005 that Iraq is sliding towards ''de facto partition and full-scale civil war''.

13. UNHCR has stated that due to the current volatile security situation in Iraq as well as the inability of the Iraqi authorities to provide adequate protection to Iraq's population, it is highly unlikely that asylum seekers who fear persecution in central and southern Iraq will be able to find a place in this region where they would be safe from persecution.

Northern Iraq

14. Although it may seem that the situation in northern Iraq is more stable, reports by the UN, UNHCR, NGOs and experts have indicated that the situation is unpredictable and therefore remains insecure. Reports of explosions, armed insurgent attacks as well as suicide bombing

attempts, (attempted) murders and indiscriminate bombings continue to emerge. There is also considerable fear that the conflict in the other parts of the country, in particular in the Governorates of Kirkuk and Mosul, could spill over to the three Northern Governorates of Dohuk, Erbil and Sulaymaniyah.

15. During the elections in December 2005, party officials from the Kurdistan Alliance described those who did not plan to vote for the Kurdistan Alliance List as ''traitors'' and ''non-patriots''. In the weeks leading up to the elections, Islamic Union offices in the northern city of Dohuk were burned and looted, while members of the Islamic Union were killed and others were injured. Moreover, Kurdish ambitions to expand the Kurdish area of control, in particular in the Governorates of At Ta'mim (principal city: Kirkuk) and Ninawa (principal city: Mosul), have met resistance from Sunni Arabs, Turkmen and the Turkish authorities. The reported presence of some 5,000 Kurdistan Workers' Party (PKK) fighters in northern Iraq, which causes tensions between the Kurdish authorities and the Turkish government, risks further inflaming the already volatile security situation in northern Iraq.

Agents of persecution in Iraq

17. There are growing indications that state persecution is taking place in Iraq, in particular by some police commandos and the Iraqi Security Forces (ISF) working under the authority of the Ministry of Interior, who have been accused of deliberately targeting Sunnis considered to be supporting the insurgency. The human rights violations include arbitrary arrests and detention, unlawful killings as well as torture and ill-treatment, without almost anyone having been held accountable so far.

18. Acts of persecution are also committed by a number of non-state actors, including Islamic extremists, private militias, loyalists of the former regime, persons fighting against the presence of foreign troops in the country or family/tribe members in the case of honour killings or tribal feuds. The risk of being subjected to persecution by any of these groups has become more pervasive, affecting all groups in society, and the number of such groups has become more varied since the fall of the previous regime.

19. In addition, private security contractors, who supplement the military forces and provide functions such as protecting government officials and diplomats, guarding oil pipelines and reconstruction projects, training the Iraqi Security Forces, and working on consultancy and technical support, have little or no legal accountability, making them especially feared by the Iraqi population. These private security contractors were allegedly involved in the Abu Ghraib prison abuses, where they were conducting interrogations on prisoners.

Particular groups at risk

20. Religious and ethnic minorities are persecuted but this is not necessarily directly linked to individuals' own religious beliefs or practice. More often, there are strong perceptions vis-à-vis members of these groups, e.g. that they all support the US-led Coalition Forces or act in disrespect of Islamic values, which put individuals at risk of persecution irrespective of their actual belief or behaviour. Many victims are most certainly targeted because of the ethnic/social/religious/political group they belong to. This is the case across the whole of Iraq.

21. According to numerous UNHCR, NGO and news reports, the following groups listed below are likely to have ongoing protection needs:

• Women. For example, women who have transgressed perceived social mores or strict Islamic traditions, single women or female heads of households. Due to the increasing influence of strong conservative, religious groups, the situation for women has worsened. There is evidence of physical force (murder, rape, kidnappings, domestic violence, 'honour killings' ) and increasing pressure due to stricter dress and behaviour rules, as well as numerous cases of forced marriage and systematic discrimination.
• Men who have transgressed perceived social mores or strict Islamic traditions, and homosexuals. Similarly to women, due to the increasing influence of strong conservative, religious groups, men are being subjected to attacks and killings by Islamic groups or militias for their alleged non-Islamic behaviour (e.g. mingling with women in public, selling music or videos, or having 'Western' haircuts).
• Members and associates of the Ba'ath Party and former regime.
• Sympathisers or affiliates (perceived or real), or employees of the former Coalition Provisional Authorities, of US-led Coalition Forces, of the current government and administration, as well as members of political parties.
• Iraqis employed by foreign contractors, the UN or other international organisations (including NGOs).
• Professionals. For example academics, teachers, journalists, artists, doctors and medical personnel due to suspected co-operation with or perceived support of the US-led Coalition Forces, suspected association with the former regime, as well as for the wealth they are perceived to have.
• Members of religious minorities. For example Kurdish Yazidis, Mandaeans, Jews, and Christians (including members of the Assyrian, Chaldean, Armenian and Catholic religious branch). Iraqi Christians increasingly experience discrimination with regard to access to the labour market or basic social services and many are afraid of persecution by insurgent groups as well as Islamic militias, which have gained de facto control over entire neighbourhoods in various cities and villages in Iraq. Additionally, there are reports from almost all parts of the country of assaults and attacks against Christian individuals and facilities (e.g. churches, community centres). Some are politically motivated and committed by members or supporters of the Kurdistan Democratic Party and the Patriotic Union of Kurdistan in northern Iraq. As part of increasing tensions between Sunnis and Shiite, individuals may also be targeted on the basis of their membership of either of these two groups.
• Members of ethnic minorities. There are continuous reports that long term residents of Arab origin in the Governorates of Kirkuk and Mosul are victims of stigmatisation, harassment and arbitrary detention because of their perceived association with 'foreign fighters'. Arabs in the region administered by the Kurdish Regional Government are especially viewed as possible agents of Iraqi insurgency groups or as former Ba'athists. The Kurdish Regional
Administration's vision for a ''Kurdistan for Kurds'' does not include the Arabs. Similarly, many Turkmen complain about being subjected to investigation and/or arrest by the Kurdish authorities in the three northern Governorates, while Kurds who do not support the current Kurdish Regional Government face continuous harassment and discrimination. Additionally, Human Rights Watch (HRW) reports that Kurds have been targeted due to their assumed support for the foreign invasion and presence in Iraq.

IDPs and refugees in Iraq

24. Estimates suggest there may be as many as 800,000 internally displaced persons (IDPs) throughout northern Iraq and 100,000-300,000 in central and southern Iraq. It has been further estimated that within Iraq itself there were more than 400,000 IDP returnees, some 250,000 returnees from abroad, and the number of stateless persons is thought to be between half a million and two million.

25. Significant numbers of Iraqis from within the country have returned to their places of origin or former habitual residence or settled in other areas of their choice. However, the ongoing insecurity, including continued armed conflict and increasing ethnic and religious tensions, new patterns of persecution as well as the acute lack of services and infrastructure have led to new displacement of Iraqis both inside and outside Iraq.

26. Ongoing military operations, especially in western and northern parts of the country, continue to generate displacement and hardship for thousands of families. Between May and October 2005 several thousand Iraqis all over Iraq were displaced from their homes following a series of offensives by the US-led coalition forces against insurgents. Reports by the UN Country Team (UNCT) of the United Nations Assistance Mission for Iraq (UNAMI) state that access to residents and to IDPs in these locations is difficult and sporadic due to security constraints. General access to water, health care, sewage, schools, fuel supplies and electricity often remain disrupted for residents.

27. It has been estimated that within Iraq itself there are some 46,000 refugees from Palestine, Turkey, Iran and Syria , and their protection problems are mounting with increasing reports from UNHCR of harassment, arrest and detention. Palestinian and Syrian refugees are facing increasing protection problems in the Baghdad area. Continued fighting and localised ethnic and religious tensions are resulting in their further displacement.

The duty of protection

28. UNHCR and UNAMI have stated that no state protection is available for persons fearing persecution in the areas under the administration of the central government. The Iraqi authorities are not yet able to provide residents with even a minimum of protection from violent attacks, including bombings specifically targeting civilians, nor guarantee them access to the basic services needed for a secure and stable life. In fact the Iraqi authorities, in particular members of the police and security forces, are amongst the targets of violent attacks. The ISF are currently not able to effectively maintain law and order. In addition, the lack of a functioning judiciary often leaves victims of assault, maltreatment, expropriation and other attacks without legal protection and redress. Increasingly, Iraqis are resorting to extra-judicial conflict resolution and relying on protection mechanisms provided by family, tribe, community and neighbours.

29. In November 2005, the former Iraqi interim Prime Minister, Iyad Allawi, called for immediate action against human rights abuses that were ''as bad today as they were under Saddam Hussein''. The European Council of the EU also expressed its concern in December 2005 about human rights violations in Iraq, and urged the Iraqi authorities to address these urgently and transparently.

30. Similarly, in the northern part of Iraq, neither the Kurdistan Democratic Party nor the Patriotic Union of Kurdistan can provide adequate protection to all segments of society, since they do not allow political dissent in their respective areas of control, which could in cases amount to persecution. Moreover, the judicial system has neither reached basic standards regarding independence from political influence nor is it capable of providing sufficient protection from persecution by non-state actors. Attacks against police stations and recruits also take place.
II. IRAQI ASYLUM SEEKERS AND REFUGEES IN EUROPE

31. European countries host sizeable numbers of Iraqi refugees and indeed they continue to receive applications from Iraqis seeking asylum in Europe. In 2004, 9,458 asylum applications were submitted by Iraqi nationals in Europe. The European countries receiving the highest number of asylum applications from Iraqis were the United Kingdom (1,878), Sweden (1,456), Germany (1,293) and the Netherlands (1,043). In 2005 the number of Iraqis seeking asylum in Germany rose by 53.4% compared to 2004. Half of the applicants in 2005 were Kurds. Moreover, Ireland has decided to use the whole of its newly increased annual resettlement quota to resettle 200 Iraqi Kurdish refugees to Ireland in 2005.

Iraqi asylum seekers

32. The following countries from which ECRE received information are currently processing claims from Iraqi asylum seekers: Australia, Austria, Belgium, Cyprus, Denmark, Finland, France, Greece, Hungary, Lithuania, Malta, Norway, Spain, Sweden, Switzerland, and the United Kingdom.

33. The Norwegian authorities consider persons originating from central Iraq and especially the Sunni-triangle to be in general need of protection. Similarly, the Swedish authorities normally grant protection in the form of a permanent residence permit to Iraqis originating from central Iraq, while asylum seekers from northern Iraq are given temporary protection and those whose applications have been rejected are not forcibly returned.

34. Since September 2005, Switzerland has been granting all Iraqi asylum seekers a subsidiary form of protection, due to the unsafe and unstable situation in Iraq. Subsidiary protection for Iraqis whose application had already been rejected is only granted upon request. So far 1,680 out of 1,871 Iraqis who did not originally receive refugee status were granted a subsidiary form of protection.

35. In Belgium, most Iraqis in 2004 and 2005 who received an expulsion order after a final negative decision on their asylum application had their deportation deadline extended indefinitely and were thus entitled to material reception conditions (but not the right to work). That policy is now under review.

36. In the Netherlands, the Minister for Foreigners Affairs and Integration (Minister voor Vreemdelingenzaken en Integratie) decided in January 2006 to end the blanket protection policy for asylum seekers from central and southern Iraq. All Iraqi asylum requests are now being rejected unless there are individual grounds for protection. In addition, asylum permits that were based on this blanket protection are being withdrawn if the asylum request was submitted after January 2003, unless the person is considered to be in continued need of protection on individual grounds. As a result many Iraqis from the centre and south of Iraq will face the threat of return. Even if expulsion is impossible, Iraqis will be excluded from state accommodation provisions.

37. From the limited statistical information received it emerges that the recognition rate varies from one EU Member State to another for Iraqi nationals. High recognition rates are evident in Austria, where it was 72 % in 2005 and 62% in 2004, and in Hungary, where it was 41.7% in 2005 and 24% in 2004. In addition, the subsidiary protection rate for Iraqis in Hungary was 58.3% in 2005 and 61.1% in 2004.

38. However, the percentage of Iraqis granted asylum in Denmark, Finland, France, Greece, Poland, and the United Kingdom is much lower. In Denmark, since January 2004 the Immigration Services and the Appeals Board have restarted processing cases of Iraqi asylum seekers, after a period of suspension, but the vast majority of cases have been rejected. In Finland in 2005, no refugee status was granted, 4 Iraqis received subsidiary protection, and 73 Iraqis were granted a temporary residence permit. During 2004 in France, only 15.3% of Iraqis were given refugee status, while the number of Iraqis that were granted subsidiary protection is reported to be very low. In Greece in 2004 the recognition rate (refugee status and subsidiary forms of protection) was zero. In 2005 the authorities in Norway rejected 63% of Iraqi asylum claims and only granted humanitarian status to 11.1% and protection status to 22.1% Iraqi applicants, while only granting refugee status to 3.8%. Similarly, in Poland the statistics show that the refugee recognition rate for Iraqi asylum seekers is very low. In the United Kingdom, statistics show that the refugee recognition rate of Iraqi asylum seekers was extremely low in the last quarter of 2005 and throughout 2004, and no Iraqi was granted humanitarian protection.

Recommendations:

39. All Iraqi asylum claimants in Europe must be given the opportunity to lodge an asylum application and have it processed with minimum delay, respecting procedural safeguards. These applications should be dealt with on an individual basis, in order to identify and recognise their status. This should include either refugee status in accordance with the 1951 Refugee Convention or a subsidiary form of protection for those who fear persecution but fall outside a full and inclusive interpretation of the terms of the 1951 Refugee Convention. European countries should take due account of all persecution including that stemming from non-state actors when assessing Iraqi asylum claims.

40. ECRE would reject the presumption that applications are deemed to be manifestly unfounded on the basis of the establishment of an Iraqi government, an Iraqi constitution, as well as a Kurdish Autonomous Region, as the rule of law and protection of human rights are not in place in any part of Iraq.

41. In relation to assessing the possibility of applying the internal protection alternative (IPA) alternative within Iraq, UNHCR has stated it is necessary to assess the individual case based on two main sets of analyses, namely whether internal relocation is relevant and reasonable. For example, individuals, whether of Kurdish origin or not, may not be able to access areas in the northern Governorates safely and legally and, even if they can, they may face undue hardship, as conditions for economic survival may not be met. Given the evident insecurity throughout Iraq and the inability of the Iraqi government and the Kurdish Regional Government to provide adequate and sustainable protection, ECRE opposes the use of the IPA notion in the consideration of claims from Iraqi asylum seekers.

42. ECRE is concerned at the large variances between European countries in the recognition rates of Iraqis and especially alarmed by the low recognition rate of Iraqis in some European countries. Iraqis who, despite all the security concerns, are not granted refugee status or a form of subsidiary protection should not be returned. They should be granted a legal status (temporary or permanent, depending on their circumstances), which affords them their human rights and a dignified standard of living in the host country.

Iraqi refugees

43. Changing policies of European governments are having a considerable impact on Iraqis, in terms of their legal protection and their socio-economic rights.

44. In Malta, the level of protection given to Iraqis was 'downgraded' from 1951 Refugee Convention status to humanitarian protection, in view of the changed conditions in Iraq during 2004 and 2005.

45. In 2004, out of 73,489 Iraqi refugees living in Germany, 7,114 had their status withdrawn on the assumption that most Iraqis fear for their life and their health because of the general insecurity in Iraq and not because of an individual fear of persecution. This is likely to include refugees who have been in Germany a long time. This policy runs counter to recommendations made by a number of bodies, both governmental and non-governmental , including the Parliamentary Assembly of the Council of Europe and the Executive Committee of UNHCR , requesting that appropriate arrangements be considered for those persons who cannot be expected to leave the country of asylum, due to a long stay in that country resulting in strong family, social and economic links there.

46. In a recent judgment, an administrative court (Verwaltungsgericht Sigmaringen) in Germany reversed a decision made by the Federal Office for the Recognition of Foreign Asylum Seekers (Bundesamt für die Anerkennung ausl?ndischer Flüchtlinge), which had previously revoked the refugee status of an Iraqi national. The court ruled that conditions in the country of origin have to be in place to definitely exclude any persecution and to be reasonable enough to expect a refugee to avail him/herself voluntarily of the protection of that country as defined by the 1951 Refugee Convention, and the court stated that this was clearly not the case in Iraq.

Recommendations:

47. ECRE believes that before taking such a serious step as withdrawing refugee status European countries should ascertain that the refugee can effectively, genuinely and voluntarily re-avail him/herself of the protection of the country of origin as prescribed in international refugee and human rights law.

48. ECRE believes that where the cessation clauses are applied because of a change of circumstances in the country of origin, the asylum state must ensure that the changes are effective, fundamental and durable before proceeding to withdraw recognition of refugee status. Refugee status should be maintained unless someone falls clearly within one of the cessation clauses and should not be subject to constant review. Moreover, ECRE recommends that states include the 'compelling reasons' exception to cessation set out in Articles 1 C (5) and (6) of the 1951 Refugee Convention. ECRE agrees with UNHCR that this 'humanitarian principle' should prevent cessation being applied to refugees who are able to invoke compelling reasons arising out of previous persecution for refusing to avail themselves of the protection of the country of nationality.

49. ECRE urges European countries not to prematurely 'downgrade' or withdraw protection from Iraqi refugees. A settled status is an important factor in ensuring successful integration into the asylum country and eventual re-integration into the home country. However, the current situation in Iraq makes it very difficult to envisage a return that would be safe, dignified and sustainable in the near future.

50. Even if the withdrawal of refugee status is permissible, European countries should ensure that no Iraqi with long-standing and strong ties to the host society is deprived of a legal status that permits him/her to remain in Europe.

III. RETURN

Voluntary return of Iraqis

51. Significant numbers of Iraqis from abroad have returned voluntarily to their place of origin or former habitual residence or settled in other areas of their choice. However, many end up internally displaced, largely because of the lack of absorption capacities, ongoing conflicts and property disputes. Returnees are particularly affected by the difficult economic and humanitarian conditions. The specific problems are, inter alia, a lack of employment possibilities, difficulties obtaining documentation and accessing education due to the non-recognition of educational qualifications and certificates earned abroad, a lack of adequate language skills in Arabic or Kurdish, inadequate health care facilities and the high cost of essential medicines.

52. The following countries from which ECRE received information are providing assistance to those who want to return voluntarily: Australia, Austria, Belgium, Denmark, Germany, Switzerland, and the United Kingdom. Although Spain also has a voluntary return programme, it is not available to Iraqi nationals because the situation in Iraq is considered to be too unstable.

53. During 2004, 141 Iraqis with permission to remain in Denmark returned voluntarily to their country.

54. The United Kingdom is considering the introduction of an 'explore and prepare' scheme specifically for Iraqis. This scheme would allow eligible Iraqis to visit Iraq, assess the conditions there and return to the UK, without it affecting their permission to stay in the UK.
Recommendations:

55. ECRE strongly urges European states to postpone the introduction of measures that are intended to promote voluntary returns, which should only be 'facilitated'. Voluntary return should be facilitated for Iraqis who indicate a strong desire to return. Returnees should be given the necessary information to make an informed choice. Information should cover whether or not conditions for safe and sustainable return are in place in the country of origin, the right guaranteed there, as well as any options for exercising the right to remain in the host country. Promotion of voluntary return should only take place when an assessment of the situation in Iraq shows that the necessary conditions of return in safety and dignity including "physical, legal and material safety'' exist.

56. European countries should also organise 'explore and prepare' visits to Iraq so that Iraqis can assess for themselves whether it is realistic to return, while retaining their status in the country of asylum. They should be given sufficient time to commit to and prepare for the repatriation process.

57. In order to prevent any burden on Iraq that would undoubtedly arise from any sudden mass influx of returnees, ECRE would urge that any voluntary returns to Iraq from Europe should be gradual and staggered. ECRE is very concerned that a premature influx of Iraqis from Europe might worsen the situation for IDPs and refugees in Iraq, and might also lead to the renewed displacement of returnees.

58. ECRE believes that international cooperation with countries of origin in a spirit of solidarity at all stages of the return process is a pre-requisite to achieving sustainable return. Therefore, if the Iraqi government and the Kurdish Regional Government raise concerns about continued absorption capacity, these should be taken very seriously. The burden on Iraq should not be increased. It is very important to assess the absorption capacity of the country of origin in relation to levels of damage to infrastructure (e.g. roads, hospitals, schools, housing, sanitation, water sources), the extent of military and insurgent presence, the scale of internal displacement, the availability of arable land and housing.

Mandatory and forced return of Iraqis

59. In December 2005, the Kurdistan Regional Government Nordic Representation made a statement warning that the Kurdish Regional Government would under no circumstances receive refugees who have been expelled against their will.

60. The means used to return Iraqis to Iraq can put them at risk and deny them a safe and dignified return. According to several sources, attacks are occurring on the main supply routes into Iraq, particularly the Baghdad-Amman highway, as well as on military and civilian aircraft throughout Iraq and at Baghdad's International Airport.

61. In relation to northern Iraq, UNHCR warns that the three Northern Governorates of Dohuk, Erbil and Sulaymaniyah are not easily accessible. There are continuous reports of security incidents on the roads leading from major Iraqi cities to the north, including armed fighting, highway robbery and car-jacking, ambushes and hostage taking, landmines and unexploded ordnance (UXO), as well as having to pass through numerous checkpoints at the unofficial border between central and northern Iraq.

62. The authorities in Denmark are generally coercing asylum seekers whose applications have been rejected to return home by withdrawing cash support, moving them to one specific asylum centre and/or routinely asking them to report with the police. Special financial repatriation packages have been launched to act as incentives to Afghan and Iraqi asylum seekers whose applications have been rejected to return to their home country, which include offering around $2000 and counselling.

63. Between July 2003 and September 2005, 250 Iraqis went back to Iraq 'on their own' according to information from the Swiss Federal Office for Migration. However, according to the Swiss Organisation for Refugees (Schweizerische Flüchtlingshilfe), many of these did not return 'voluntarily'. There was indirect pressure from the Swiss authorities, since the status of these Iraqis had been withdrawn. Between January and September 2005, 97 Iraqis returned in these conditions, while 15 chose to go to a third country.

64. In the United Kingdom unsuccessful asylum applicants are not entitled to the standard National Asylum Support Service (NASS) support. However, they can apply for support under Section 4 of the Immigration and Asylum Act 1999 providing they satisfy one or more conditions, primarily whether they are taking steps to leave the UK. In January 2005 the Home Office conceded that land routes into Iraq were unsafe and it was unreasonable to require Iraqis to sign up for voluntary return in order to qualify for support. Following the opening of air links, however, the Home Office announced on 1 August 2005 that it considered a safe return route to exist. NASS makes no distinction in its treatment with regards to the area where Iraqi asylum seekers originate from. In most cases the choice Iraqi asylum seekers have to make is either to agree to leave or to lose section 4 support.

65. The following countries are not forcibly returning any Iraqi nationals to Iraq: Australia, Austria, Belgium, Cyprus, Denmark, Finland, France, Greece, Hungary, Ireland, Lithuania, Luxembourg, Malta, Norway, Spain.

66. In Belgium a non-return policy is currently in place for Iraqis from central and southern Iraq. In 2004 and 2005 no Iraqi national was forcibly returned to any part of Iraq by the Danish authorities, since the local authorities in Iraq refused to receive asylum seekers whose cases had been rejected, fearing that it would have a destabilising effect on the country.

67. In Switzerland, in 2004, one Iraqi was forcibly returned by the Swiss authorities and 59 Iraqis were transferred to a third country. In 2005, no Iraqi was forcibly returned to Iraq, but 18 Iraqis were transferred to a third country.

68. The governments in Poland and the United Kingdom have a different policy stance from the rest of Europe. In Poland, 10 Iraqis in 2005, and 6 Iraqis in 2004, received an expulsion decision. At the same time ECRE has been informed that the Polish government has removed Iraqis in 2006. Four persons have been transferred to Yemen, on the basis that Iraqis have a right of legal stay in Yemen. The other person was returned to Iraq, after the Polish authorities did not manage to arrange for adequate treatment of the person's mental illness in Poland.

69. While plans by the United Kingdom government to remove 30 Iraqis a month from April 2004 were not acted upon, the policy of removing Iraqi asylum seekers whose applications have been rejected was maintained. After a subsequent announcement by the government that it would return Iraqis by the end of August 2005 and an outcry by human rights and refugee organisations, the government deferred implementation. However, in mid-November 2005, 15 Iraqi asylum seekers from the northern Kurdish region whose applications had been unsuccessful were forcibly returned to Iraq. They were flown to Cyprus, where they were put into military fatigues, helmets and body armour, and transported by military plane to Erbil (Arbil). It then emerged that one of the returnees had been unlawfully deported and the Home Office was instructed to bring him back to the UK, which it did. It seems likely that the government is planning to return more Iraqis, since news has emerged that support was withdrawn in December 2005 from at least 1600 asylum seekers whose asylum applications had been rejected.

70. International and European law prohibits the return of anyone to a place where his or her life or freedom would be threatened or faces persecution. Given the precarious situation prevailing in Iraq, forced return of persons to that country risks violating fundamental rights, including the right to life and liberty, as well as the right to be free from torture and cruel, inhuman and degrading treatment.

Recommendations:

71. ECRE calls for a ban on the forced return of Iraqis from all European countries. Equally, no mandatory return to Iraq should take place (e.g. individuals who, although not having freely consented to leave, have been induced to do so by means of incentives or threats of sanctions) until there is an effective and sustainable infrastructure in Iraq to uphold the rule of law and protect the human rights of Iraqis and until the country is in a stable enough position to absorb the number of people who have already returned. These conditions still do not exist at present. Returns by European states also risk triggering forced returns to Iraq from countries in the region or further destabilisation within Iraq and the region.

72. ECRE also strongly recommends not forcibly transferring Iraqi asylum seekers to third countries in the region in accordance with international solidarity and responsibility-sharing principles, regardless of their prior stay or transit in these countries.

Situation of Iraqis who cannot be returned

73. European governments are mostly unable to return persons due to the unsafe conditions in Iraq. Yet, some European countries do not grant any kind of protection status or other legal status to former asylum seekers awaiting return and they are then left in a legal 'limbo', in an irregular situation with few or no rights and without any possibility of receiving support or permission to work in order to survive. This is the case for a great number of Iraqis in Europe.

74. In Finland many Iraqis do not get a protection status but instead are given temporary residence permits for one year because they cannot be returned for technical reasons. This permit does not give them the right to work or to education and can only be renewed after the first year. During the second year, however, the person can have access to the labour market. If this permit lasts for 2 years then the person is no longer subject to return by the authorities who have to give them a long-term residence permit. A similar situation exists in Ireland with Iraqi asylum seekers whose applications have been rejected, since they cannot be removed to Iraq but are not granted access to the labour market nor to the education system.

75. Since Germany is currently not forcibly returning Iraqis to Iraq but still making use of the cessation clause of the 1951 Refugee Convention, they are granting exceptional leave to remain for six months. Every six months the permit is reviewed and if considered necessary renewed.

76. In Lithuania, there is generally a high risk of detention for asylum seekers, whose applications have been rejected and who cannot be returned. One Iraqi national has been in detention since 21 July 2004.

77. The United Kingdom's Home Affairs Select Committee has recognised that applicants whose claims have been rejected and who cannot be returned through no fault of their own should be given a temporary status, which would allow them to work. At the moment, many are left destitute and, at best, eligible only for 'hard case' support. This is more limited than basic asylum support for which the eligibility criteria are narrow.

Recommendation:

78. In order to address the unacceptable 'limbo' situations in which increasing numbers of Iraqis find themselves in Europe today, it is imperative that European countries maintain or grant legal statuses for all Iraqi nationals who face return up to the time of their departure from the host country. This status should include rights to housing, health, employment, and education.

March 2006

ANNEX: Contributing Organisations

ECRE MEMBER AGENCIES

Austria
Asylkoordination
Belgium
Vluchtelingenwerk Vlaanderen
Denmark
Danish Refugee Council
Finland
Finish Refugee Advice Centre
France
France Terre d'Asile
Germany
Arbeiterwohlfahrt Bundesverband e.V.
Greece
Greek Council for Refugees
Hungary
Hungarian Helsinki Committee
Ireland
Irish Refugee Council
Lithuania
Lithuanian Red Cross
Luxembourg
Caritas Luxembourg
The Netherlands
Dutch Council for Refugees
Norway
Norwegian Organisation for Asylum
Spain
Asociaci?n Comisi?n Cat?lica Espanola de Migraci?n
Switzerland
Schweizerische Flüchtlingshilfe (SFH)/Organisation Suisse d'Aide aux Réfugiés (OSAR)
United Kingdom
British Refugee Council

OTHER AGENCIES

Australia
Australian Refugee Council
Cyprus
Symfiliosis
Malta
Jesuit Refugee Service Malta
Refugee Commissioner
Poland
Helsinki Foundation for Human Rights