In their new book – Undesirable but Unremovable Migrants: War Criminals, Terrorists and Foreign Offenders in Limbo – criminologists from Vrije Universiteit Amsterdam (VU) Joris van Wijk and Maarten Bolhuis examine a group they call “undesirable but unremovable migrants”, or UBUs: migrants who are regarded as undesirable by states, but who cannot be deported.
A group with considerable political impact
It’s a relatively small group, but one with considerable political impact, according to the researchers. These individuals are suspected of war crimes, terrorism or other forms of criminal conduct, for example, and therefore have no right to asylum, lose their residency status, or even lose their nationality. Some have been convicted; others not. At the same time, these people cannot return to their country of origin – perhaps because it’s at war, because torture or the death penalty awaits them, or because the country refuses to take them back.
Living in limbo
What actually happens to someone who cannot be deported? Van Wijk explains that this varies greatly from country to country and from case to case. “Some people are detained for years with no prospect of release or trial. This applies, for instance, to alleged Islamic State supporters held in Syrian Kurdistan and Iraq. Others receive a temporary residency permit and have access to housing and social services, as in Norway or Germany. The Netherlands does not grant such temporary permits, and simply communicates: ‘we acknowledge that you cannot return to your country of origin, but you must leave here in any case. It’s up to you to arrange how.’”
Why the problem is becoming more urgent
According to the researchers, current conflicts are increasing the number of undesirable and unremovable migrants. Virtually every conflict creates new groups of people who cannot return, yet are not welcome elsewhere.
This happened during the First and Second World Wars, when German and Japanese nationals in enemy countries were regarded as security risks. The same is happening again today. Since Russia’s large-scale invasion of Ukraine, thousands of Ukrainian civilians have been held in Russia or occupied territories, often without charge or trial.
Political developments also play a significant role. According to the researchers, populist leaders across the world are gaining support by promising to rid society of unremovable foreign “criminals”. President Trump is cited as a prominent example. His administration sent unremovable Venezuelans to a maximum-security prison in El Salvador, and deported criminal migrants from countries including Cuba, Laos, Mexico, Myanmar and Vietnam to South Sudan. The researchers argue that these examples show how domestic political interests are increasingly taking precedence over international solidarity and human rights.
Afghan man seen as possible war criminal
For their book, criminologists Van Wijk and Bolhuis spoke with many different people. One of the cases that affected them most took place in the Netherlands. It concerned an Afghan man whom the immigration service regarded as a possible war criminal. There was no hard evidence, but according to the service there were “serious reasons” to suspect this – sufficient grounds to exclude him from asylum. His wife and children were granted a residency permit, while he was left behind in a state of uncertainty.
“He suffered greatly under the label of ‘war criminal’ that had been attached to him, and said he felt deeply ashamed,” the researchers recount. “During our conversations, we saw not only a broken man, but also a broken family.” At the time of the interview, he had already been in this situation for 20 years and seemed condemned to spend the rest of his life in limbo.
Guantánamo East
Another case that made a strong impression concerns Yemeni detainees from Guantánamo Bay. Under President Obama, they were transferred to the United Arab Emirates as part of a resettlement programme – where they almost immediately disappeared from public view. Without trial and with no prospect of judicial review, they were once again imprisoned in a high-security facility.
For the United States, the Guantánamo file was closed. For the men themselves, little had changed. The nickname of the prison where they ended up was telling: “Guantánamo East”.
An age-old problem in new guises
In their book, Van Wijk and Bolhuis show that the issue of undesirable and unremovable migrants is far from new. As early as 16th-century England, authorities struggled with groups they considered undesirable, such as travelling Roma communities. Later examples include alleged anarchists in the United States, Nazis in Canada, Afghan war criminals in the Netherlands, and terrorists in Syria, Iraq and Kurdistan.
Although the context continually changes, the dilemmas remain the same. States seek ways to make those they do not want, disappear from view. Sometimes that’s through prolonged detention, sometimes through temporary residency status, and sometimes by simply pushing people across the border.
Stronger legal protections, more UBUs
Interestingly enough, it’s precisely countries with a strong human rights framework that more frequently encounter this group. In Europe, the European Convention on Human Rights and the European Court of Human Rights provide comparatively strong protection. As a result, states find it harder to deport people when there is a risk of torture, an unfair trial or the death penalty.
“The stronger a country’s human rights framework and its independent judiciary, the greater the likelihood that the country will be confronted with undesirable and unremovable migrants,” the researchers write. They also argue that this explains why the issue has become so politically charged in Europe and the United States in particular.
Is there a perfect solution?
The researchers emphasise that no perfect solution exists. The issue is, in their view, a classic “wicked problem”: a complex challenge without a clear-cut answer. They identify two ways to reduce the number of UBUs: designating fewer migrants as undesirable, or making deportation easier.
The researchers find the second option problematic where it entails violations of fundamental rights. As for the first – being slower to designate migrants as undesirable – they note that decisions to exclude someone from asylum, revoke a residency permit, or declare someone undesirable must always be proportionate. Such decisions must be grounded in transparent and robust legal procedures, and must not rest on vague or unverifiable suspicions.
“The question of how to deal with this group should form part of a broader social debate about identity, nationality and borders,” the researchers write. “These conversations are difficult, often uncomfortable and emotionally charged. But they are indispensable for a democratic, inclusive and ethically sound society.”
Want to read more? In the book Undesirable but Unremovable Migrants: War Criminals, Terrorists and Foreign Offenders in Limbo, Joris van Wijk and Maarten Bolhuis explore the history, dilemmas and international examples surrounding undesirable and unremovable migrants in greater depth. The e-book is available to VU staff and students via this link.