DT&V and Afghanistan: how to bypass international human rights…

By: Naeri

DT&V and Afghanistan: how to bypass international human rights with shortcuts and ‘shirini’

This is part 1 of a series about the factual asylum policy towards Afghan refugees in the Netherlands and Europe.

How the Dutch Repatriation and Departure Service (DT&V for its acronym in Dutch) succeeds in deporting Afghan refugees through shortcuts, non-transparent deals, a sub-mandate, and fabricated ‘Mickey Mouse’ papers.

Memorandum of Understanding

March 18th 2003 – the Netherlands was among the first EU member states to sign a Memorandum of Understanding (MoU) with Afghanistan and UNHCR – the United Nations refugee agency. This three-party agreement facilitated the expulsion of Afghans from the Netherlands.

After reading the first paragraphs one gets the impression that the emphasis of the MoU is on so-called ‘voluntary’ return. The intention is stated as: ‘a safe, dignified return and durable repatriation for Afghans’.

In the text that follows, however, the true meaning of the MoU appears: Afghan refugees ‘can also be removed in an alternative way within the reasonable term of one month in the case of no cooperation with a voluntary return.’

To ‘compensate’, the Netherlands solemnly promises in the MoU to do everything to promote the voluntary return. In reality, this means that DT&V employees exert heavy pressure on refugees to force them into a ‘voluntary’ return. A pressure that starts immediately after the negative judgement of the Dutch Immigration and Naturalization Service (IND for its acronym in Dutch).

Hans Faber, the person within DT&V who is responsible for persuading representatives of countries of return to take back their compatriots, explained this effort with a logic wholly his own: ‘if forced return starts to be more common, migrants will make a different choice’. In the world of Hans Faber, having a choice apparently equals standing with your back against a wall.

Norway and Denmark followed later in 2003 with their own MoU’s with Afghanistan. At that time Germany had conscientious objections against forced returns and refused to sign.

The Afghan embassy disagrees

The MoU signed by the Netherlands was insufficient to guarantee forced returns, because the Afghan embassy refused to cooperate. The embassy would not grant laissez-passers (a document with which the diplomatic representatives of a country make possible the return of a compatriot) for persons who made it clear that they were about to be returned against their will.

At that time, the embassy held a position that it would not cooperate with forced expulsions. It was even on their website. If an Afghan national at a presentation under the guidance of a ‘direction planner’ of the DT&V, made it known they did not want to return, no laissez-passer or other travel document would be given. This made the expulsion in effect impossible. Yet DT&V found a way around the embassy’s refusal to cooperate.

The fourth power gets a sub-mandate

In 2008 the Dutch Ministry of Security and Justice gave a ‘sub-mandate’ to the Special Departure and Bookings (BVB for its Dutch acronym) section of the DT&V. This authorized the section’s employees to negotiate with third countries on a ministerial level and make decisions about forced expulsions. The sub-mandate was retroactively valid from January 1 2007.

The mandate certainly had the expected results for the DT&V. According to the ‘land-based departure information Afghanistan’- a protocol for DT&V employees for the ‘removal’ of Afghans – ‘successful force expulsions’ took place starting in October 2007.

With this mandate – among other measures, the Ministry of Security and Justice, and the DT&V have created a precedent in human rights violations without any serious consequences or opposition.

The EU-state

The DT&V can also make use of the mandate through the so-called ‘EU-state ‘. This is a paper that is produced by section BVB itself as a type of travel document that could bypass the refusal of the Afghan embassy to furnish travel documents. A laissez-passer would no longer be necessary, making cooperation of the embassy nonessential. The ‘EU-state’, however, has no legal basis. In the words of a human rights lawyer, it is only a ‘cut-and paste paper of the DT&V without any value’, suggesting that Europe is a sovereign state. This suggestion is enhanced by using a EU-logo. For these reasons, lawyers generally describe the document as a ‘Mickey Mouse’ paper.

From documents that were made public after a WOB-request towards the DT&V in 2012, it appears that in ‘2011 about 55 nationals from Afghanistan were forced to return to Afghanistan on the basis of an EU-state. In 2012 a total of 90 persons from Afghanistan were forced to return to Afghanistan, 85 of whom on the legal basis of an EU-state.’

With the mandate, the DT&V could negotiate directly with Jamahir Anwari, the Afghan minister of ‘refugees and repatriations’ under president Karzai. Anwari is accused of large-scale corruption. Money received by Anwari from the UNHCR, which was intended for the facilitation of returned refugees (internally or externally), vanished into the pockets of his wife and of a  friendly travel agency, among other destinations. The free piece of land that was promised to the returned refugees Anwari paid with ‘shirini’- slush money.

 Deportations according to the ‘Kabul-check’

The Dutch court decided in 2011 that the forced-returns to Afghanistan could continue: ‘the court weighs in this case that the claimants have been presented to the Afghan authorities where their nationality was confirmed, and the fact that on 18 November 2011 the Afghan Ministry of Refugee Cases was asked whether there was any objection against the return of the claimants (the so-called Kabul-check).  From here it follows that in the case where in the course of four following weeks no reaction has been received the accord with the Afghan government must be called a fictitious accord, which fact leads to the conclusion that the claimants can be deported to Afghanistan with a EU-status.’

(Jurisprudence a.0. Awb. 11/38797 and Awb 11/38798)

In this way, the DT&V had the means not only to bypass the uncooperative embassy of Afghanistan but also the UNCHR. A sneak-procedure was born which is described in the ‘landgebonden vertrekinformatie Afghanistan’ (country-bound departure information Afghanistan):

‘’(….) after  the confirmation of the nationality but refusal  of a laissez-passer because the person in question has refused a voluntary return to Afghanistan, the Ministry of Refugees and Repatriations (MORR) is asked if there might be an objection against his return. The procedure overseer sends this request immediately on to the section ‘Special Departures and Bookings’.

This section sends this request by email to the Dutch Ministry of Foreign Affairs which forwards it to the Dutch embassy in Kabul. The embassy reports the planned deportation to the MORR, stating the name and the place of birth of the refugee as well as the time and date of arrival. The Afghan embassy is also informed.

‘‘In the case of ‘no objection’ the section Special Departures and Bookings reports the result to the procedure overseer for departure. The overseer then takes care to prepare an EU-state (….) and the ‘accompanying letter’” according to the procedure. The legal background of the deportations is described in the document:  ‘forced return to Afghanistan is possible and based on the tripartite Memorandum of Understanding of 18 March 2003 which was agreed with the authorities and the UNHCR. After the establishment of the nationality of the supposed Afghan by the representatives in The Hague a procedure of no objection takes place with the authorities in Kabul. The factual deportation happens using the EU-state unless the person already has a valid travel document.’

No or hardly any objection

In an interview in the Groene Amsterdammer, asylum lawyer Maartje Terpstra says: ‘In the case of a real voluntary return most embassies are cooperative. Unfortunately this is rarely the case. The DT&V obliges people to make it seem so towards their embassies. They force people to cooperate ‘voluntarily’ by putting them in Foreigners Detention and by stopping their temporary housing. Embassies therefore check if there is real cooperation. Some embassies are suspicious just when they see people arriving in a DT&V car.’

In documents given after a WOB-request in 2012 the secretary of state alleges: ‘in line with the agreements with the MoRR, DT&V waits at least four weeks for a (possible) reaction on a planned deportation.’ But in the protocol it can be clearly read that the airline tickets are booked even before a possible reaction. This suggests prejudice from DT&V; it is already known there will be no objection from the MoRR against a deportation.

It is not at all clear that all these actions of letters and mail from one bureaucratic institution to the other can actually take place within the duration of four weeks, including the not-always-timely delivery of posted letters in Afghanistan. Do letters arrive on time at the MoRR to make it possible for them to react within the four-week period?

The last notice of deportation is delivered at the Kabul airport in the MoRR office. This office is- of all places- housed directly next to the UNHCR office. At this moment, the deportation in question is already factual. In principle the deportee can be refused. This has happened in the past, for instance because Afghanistan has the principled stand that family members cannot be separated by deportation. In such a case the person in question will be flown back directly to the ‘host country’.

A report from the Marechaussee (Military policy which carries out deportations) describes a deportation was prevented at the Kabul airport by MoRR officials: ‘At arrival in Kabul a discussion started with Afghan authorities. The refugee is not accepted, because he alleged to be married etc.’ The Afghan government stated that the Dutch Immigration Service had to prove that the man wasn’t married but, in the meantime, was divorced and they were returned.

Three cases of obstruction by MoRR officials are known to have occurred in 2015. Meanwhile, the DT&V is suspected of paying bribes through the interpreter in order to force a deportation. This is a conceivable scenario against the background of enormously grown corruption in Afghanistan since the American attack in 2011.

UNHCR letter about the Kabul-check

A 2013 UNHCR letter demonstrates how the DT&V succeeds in taking advantage of every disadvantage. In this case making use of the non-refoulement principle: the prohibition of returning a refugee to a country where the refugee may expect persecution or where his life and safety may be in peril. This principle is laid down in article 33 of the UN-refugee Treaty against Torture, in the UN treaty on Civil- and Political Rights, and in the European Treaty for the protection of Human Rights.

In the letter, there is a clear description of the method used to sideline the Afghan MoRR and the UNHCR: ‘it is not a natural consequence of the MoU that the UNHCR is enabled to give advice about a planned deportation. Until a few years ago it was customary that UNHCR was informed about the planned deportation.’

The letter goes on to state: ‘The MoU between the Netherlands and Afghanistan contains a paragraph where it appears that the Afghan Ministry for repatriation of refugees (the MoRR) is informed about a planned return. The MoU was in principle about voluntary return and was set up to facilitate this return. The MoRR could give advice about the planned return to Afghanistan. The MoRR would possibly have reservations. With that in mind the DT&V approached the MoRR. But the DT&V did not hand over a file. Just the place of birth or the place of longer stay before the flight information from the country was submitted. Thus the MoRR could merely advise if the mentioned place was safe enough to return to.’

But what to do if the case is a forced return? Even in that case the MoRR gets the information that a person is about to be deported. No advice is asked. The Netherlands has communicated that it is up to the person himself to travel inside Afghanistan, and the Netherlands has made it known that Kabul is considered a sufficiently safe place to return to. As far as it is known, the MoRR has not given any advice for years. It only happens rarely, on the basis of a substantial file.

All this leads us to the following conclusion:  ‘to presume there will be an objection is a negation of the current practice. To preserve this fiction is in my opinion only possible if the MoRR generally gives a reaction. The situation since 2013 is that the MoRR gives no reaction at all.’

The trust placed by the UNHCR in the Dutch Government has been at minimum naive. When the UNHCR ratified the MoU it was apparently under the impression that they, as a last buffer against violations of human rights  in the case of planned deportations, would be in a position to see the files of these vulnerable  refugees – to say the least – to be able to check them against international treaties. In 2003 the UNHCR of course could not know of a DT&V-mandate that would be created in 2007 and would in effect sideline the UN agency.

Completely in accordance to the rules, the MoRR, as the authority of the country of destination, only gets summary information about the person to be deported: name and place of birth, place of stay, place of stay before the flight.  The transfer of more private or individual files to the authorities of refugee-countries would be liable for punishment.  The MoRR thus has no incentive, because there is no information, to ask for an advice from the UNHCR, which in turn is not informed about a planned deportation. The elderly, the sick, single women and young people – most vulnerable according to international human rights safeguards – can be deported. This is how one of the most fundamental and most often laid down principles of the human rights of refugees has worked in the advantage of the deportation-machine.

Conclusion

Frustrated by the refusal of the Afghan embassy to give out laissez-passers – making deportations to Afghanistan impossible, a sub-mandate was given by the Ministry of Security and Justice to the Special Departures and Bookings section of the DT&V to employ the EU-state as well as to negotiate with the corrupt Afghan MoRR in order to be able to deport Afghans. The reality is that the MoRR does not answer requests; it may be that letters arrive later than the approval term allows or maybe because there is some ‘understanding’ between DT&V and the MoRR which is profitable to both.

With the mandate, it was possible to eliminate the Afghan embassy as well as the UNHCR as a last buffer against human rights violations.  Since October 2007 (just months after the establishment of the mandate) deportations to Afghanistan proceed ‘satisfactory’.