What is unreturnability?
Unreturnable migrants cannot go back to their country of origin for reasons beyond their control. At the same time they cannot obtain a residence permit in the country where they live. Without documents or status, they can be detained for a forced return that never becomes possible.
Migrants can be unreturnable for various reasons. Sometimes the reasons are administrative: for example, the inability or refusal of the national authority of the country of return to issue documentation, without which return is impossible. Some are unreturnable because they are stateless. Others cannot be returned to countries where their human rights could be breached, such as Somalia and Mali, or because return would breach their right to a family life. Finally, some migrants are unreturnable for medical reasons, since essential treatment is unavailable in their country of origin or they are too unwell to fly.
Unreturnable migrants in limbo and detention
Unreturnable migrants live in long-term limbo, facing the constant threat of immigration detention. In the UK, they can be detained indefinitely. In each country, they can be repeatedly detained and released. States refuse to acknowledge the fact of unreturnability, so use detention in an attempt to enforce return.
Unreturnable migrants frequently remain for years in an irregular situation, without any prospect of a regular residency status. As a consequence they are excluded from rights to health care, housing, education and work.. They experience destitution, poor physical and mental health, and even criminalisation. They are simply stuck, with nothing that they can do to take responsibility for their lives.
Some European countries have mechanisms in place to grant unreturnable persons a residence permit or tolerated stay with minimal access to fundamental rights. These processes are valuable in acknowledging the existence of unreturnability, yet do not provide a sufficient route to regularisation.
Solutions are needed urgently
Unreturnable migrants should not be detained as there is no prospect for return. As a result, detention can never be necessary as a last resort, as permitted by the Return Directive. Detention should not be used to incentivise voluntary return or to punish refusal to return. At the moment of release, unreturnable migrants should at least receive documents proving their former stay in detention, including the reason for release.
Unreturnable migrants should be granted a temporary permit, giving access to fundamental rights such as work, healthcare and benefits. There should be a route to permanent status if the situation of unreturnability continues.
At the European level, EU institutions must promote the implementation of policies that prevent detention by a strict application of the safeguards laid down in EU law and international human rights law. Further research should be undertaken into the situations of unreturnability in the EU member states.