The Emperor’s New Clothing: National Responses to “Undesirable and Unreturnable” Aliens under Asylum and Immigration Law




            The “phenomenon” of foreign criminals whom the goverments cannot send back to their own countries has become a headline news. This kind of “Undesirable but Unreturnable” Foreigners have no Immigration status and official policy that covered their rights in the host state. Those who are suspected or convicted as a criminal oftenly facing legal obscurity because there is no spesification rules or policy to organize them. Their existence affect the sovereignty of the host state. This journal will explains about how the state have dealed with such a case.


            Firstly, the meaning of “Undesirable” aliens from the host state viewpoint is people who are considered to pose a danger to society and have committed serious crime in their country prior to arrival in the asylum state and they are not qualified as a beneficial person for the third-country (according to Article 1F of Convention relating to Status of Refugees in 1951). Therefore, their refugee status submission is rejected and they cannot be moved to the third-country. Whereas, in article 33 of Convention relating to Status of Refugees in 1951 is clearly said that the refuolement of refugee is prohibited. Because it is relating to human rights.

            Afterward, there are some factors why the “Undesirable” aliens will not be able to transferred by host state. The factors are, the lack of travel document and public transport options, non-diplomatic relation between host state and state of origin, fear of being judged and exiled by other countries due to human rights, and etc. The circumtances is getting worse because the number of aliens is increasing and the host state cannot fully control their behavior not to commit crimes. This is clearly affect the sovereignty of a host state and appearing the term of “Unreturnable”.

            There are some findings from the cause of the case “Undesirable but Unreturnable” aliens, they are: inconsistency of ad hoc establishment of immigration measures to overcome the circumtances or in another words, inconsistency of policy implementation; the policy has tendency indirectly related to crimes committed by foreigners; the policy represents a short-term solution but not-so conceive with long-term solution of un-returnability; the implementation of long-term detension, electronic tagging, and house arrest; Even in a worst case, the policy are not issued by few countries so that aliens will be remained “Undesirable”.

Not only that, there are some country studies about the policy of  “Undesirable but Unreturnable” aliens, consist of: Sarah Singer from United Kingdom explain that “Undesirable but Unreturnable” aliens will continue to removed by the government. But, it is not the long-term solution. This phenomenon will remain elusive. In France, Chloe´ Peyronnet consider to leave them trapped with uncertainty policy so that they will lose their freedom. Dutch is on the other side, Maarten Bolhuis, Hemme Battjes, and Joris van Wijk state that the government will give an entry ban and ignore the principle of refoulement. Excluded Afghans, will be deported. Greece represent as unattractive destination for migrants due to national security as Eleni Koutsouraki said. The government applied detention for migrants. It is clearly abandon the Greece’s International Obligation. Then, Satvinder Juss said that, in Australia, asylum-seekers will do a long procedure of assesment. The lack of ability to appeal and the lack information of the negative assesment will complicate the asylum-seekers. This is profitable for national security.

            The meaning of “Undesirable but Unreturnable” aliens is different in every country. Their profile need to be studied specifically. For instant, aliens who is coming from a war-zone country and does not have tendency to commit crimes worth the try. On the contrary, aliens who is suspected as a terrorist or have tendency to commit crimes will get the entry ban. If we can recognize this circumtances, the suitable policy can be authorized by the government. The step thas has been took will continue to restrict the number of “Undesirable but Unreturnable” aliens. The possibility of removal aliens will also increase due to measures such as implanting in regulation countries of origin so that it will facilitates extradition of those suspected of crimes abroad. Unfortunately, this is for short-term solution while the long-term solution still debated.

            The interpretation and implementation of “Undesirable but Unreturnable” aliens is frequently said in Convention of 1951. While their consequences seems explicitly explained. Likewise, the implementation of removal of “Undesirable but Unreturnable” aliens tend to be abandoned in many literatures or immigration policy. This kind of polemic is analogous to the story of The Emperor’s New Clothing.

Based on :
The Emperor's New Clothing: National Responses to "Undesirable and Unreturnable" Aliens under Asylum and Immigration Law by David Jamse Cantor, Joris van Wijk, Sarah Singer, Maarten P. Bolhuis

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