So-called “assisted voluntary return” (AVR) policies aim to encourage and facilitate the relocation of unwanted noncitizens—primarily irregular migrants and (rejected) asylum seekers—to their countries of citizenship. Whether such return can be “voluntary” at all is subject to ongoing debate: Governments and international organizations vigorously cling to this policy label and present AVR as a more humane, less expensive, and thus generally preferable alternative to deportation. Their critics see it as a euphemism hiding the fact that AVR relies on accompanying measures that inflict destitution or other kinds of coercion (including deportation) if the “offer” is dismissed (Ashutosh and Mountz 2011; Blitz et al. 2005; Dünnwald 2008; Gerver 2018; Kalir 2017; Khosravi 2009; Lietaert 2016; Vandevoordt 2017; Webber 2011). While this debate echoes philosophical understandings of in/voluntariness as a binary concept (e.g., Hyman 2013: 693), research on return decision-making and the corresponding policies has shown that voluntariness is a matter of degree, and that AVR and deportation should be conceptualized as part of one continuum (Dünnwald 2008; Erdal and Oeppen 2018; Lietaert 2016; Kalir and Wissink 2016; Newland 2017). So what, if anything, is the difference between these two types of “state-induced return” (Koch 2014)? While I agree that a definite line cannot be drawn, I argue that one potential marker of this difference is the involvement of nonstate actors. These have already been shown to play a crucial but highly ambiguous role in the implementation of AVR policies, whereby they enjoy varying degrees of autonomy and face difficult ethical dilemmas (Crane and Lawson 2020; Dünnwald 2008; Feneberg 2019; Gerver 2018; Kalir 2017; Kalir and Wissink 2016; McGhee et al. 2016; Vandevoordt 2017).
My article builds on and contributes to this literature by further exploring the link between civil society involvement and the voluntariness of return. Following broader philosophical and migration-related conceptualizations of voluntariness (Colburn 2008; Erdal and Oeppen 2018; Hyman 2013; Long 2013; Olsaretti 1998; Ottonelli and Torresi 2013), I highlight three fundamental dimensions of this concept: The absence of coercion; the availability of acceptable alternatives; and access to adequate and trusted information. This framework is useful for assessing the overall “quality” of the voluntariness that a given AVR scheme is able to produce, and it helps me to substantiate an important argument: that nongovernmental organizations (NGOs) can increase the limited room for voluntary decision-making within AVR if they retain substantial independence from government (cf. Dünnwald 2008; Vandevoordt 2017; Gerver 2018; Feneberg 2019). My analysis focuses on the provision of return-specific counseling and support, for which most European governments at least partly rely on NGOs (EMN 2019). While the most obvious function of return counseling is to provide information, it also aims at shaping migrants’ perception regarding the other two dimensions of voluntariness: the likelihood of coercive measures being taken against them and the availability of acceptable alternatives to AVR (Cleton and Schweitzer 2021). Whereas Laura Cleton and Sébastien Chauvin (2020: 309) describe return counseling as a merely “ritualistic performance” of freedom and agency, for Austin Crane and Victoria Lawson (2020: 5) it constitutes “a key practice that differentiates AVR from forced deportation.” What I will show in this article is that it can be both, and that the extent to which AVR in fact differs from deportation depends on how much weight counselors give to each of the three dimensions of voluntariness.
I empirically support these arguments with the help of original qualitative field data providing insights into counseling practices within the Austrian and British return regimes, both of which have witnessed a shift from NGO to state counseling. This shift arguably reflects a policy choice (of enforcement over voluntariness) that fits what Matthew Gibney (2008) called the “deportation turn,” and it provides an opportunity to learn about how this broader political trend affects policy implementation. My findings suggest that counseling providers that are more independent from the government are generally better placed to provide trusted information, offer acceptable alternatives, and at least temporarily reduce coercion. State agencies, in turn, face intrinsic limitations in relation to all three dimensions, and any organization can easily lose the ability to fulfill these functions by being perceived as, or actually becoming, part of the state. This lowers the quality of the voluntariness that the AVR system as a whole is able to produce and increases the share of resulting returns that effectively resemble deportations.
The Quality of Voluntariness and the Role of NGOs in Its Production
Official evaluations of AVR programs usually assess their success (or failure) in terms of “effectiveness” or “efficiency,” and thereby primarily focus on quantitative measures like the number of returns and, more recently, the “sustainability” of reintegration after return (Black et al. 2004; IOM and Swiss Red Cross 2015; IOM 2018; UNHCR 2008). Much less attention is paid to the actual process and methods of inducing return, the corresponding institutional arrangements, and how these affect the degree of voluntariness. When scholars point out that some returns are more voluntary than others (Black et al. 2011; Blitz et al. 2005; Erdal and Oeppen 2022), they often relate this variation to contextual factors—like the political climate, migrants’ personal circumstances, or the situation in their country of return—rather than concrete characteristics of return policies and their implementation. Marta Bivand Erdal and Ceri Oeppen (2018: 982) have highlighted the need to “further unpack the forced–voluntary spectrum” in relation to initial migration but also, and more specifically, in relation to return (2022), which according to them requires better understanding of the context of return decision-making and the role of different actors shaping this context. To contribute to this endeavor, I build on existing analyses and critiques of AVR as well as philosophical debates on the nature of voluntariness and thereby focus on three crucial aspects: (a) coercion, (b) choice and alternatives, and (c) information.
First of all, many scholars have pointed out that AVR only “works” at a reasonable scale if it is backed up with the possibility of coercion (cf. Black et al. 2011; Dünnwald 2008; Leerkes et al. 2017). Even if indirect, this reliance of AVR on measures like detention, deportation, or exclusion from basic support undermines the voluntariness of return, since “it is commonly assumed that an act is not done voluntarily if the agent is compelled to do it by a sufficiently grave threat” (Hyman 2013: 684). The same has been argued for situations in which the actor is compelled to accept what might be framed as an “offer” and underpinned by mostly positive incentives (Olsaretti 1998). While all AVR policies rely on some combination of pressure and incentive, the conditions under which the “offer” is made and the means by which pressure is applied can vary, and counseling itself can be more or less closely linked to coercive practices, depending on the institutional context (e.g., Feneberg 2019; Kalir 2017; Vandevoordt 2017). That coercion is never entirely absent from the AVR process, however, does not necessarily mean that there is no room at all for voluntariness. Political theorist Mollie Gerver (2019: 473), for example, assumes that “a recipient [of return counseling] can give their voluntary consent even if coerced by a third party into their decision, so long as they are not coerced by the agent providing them the service.”
A second aspect that undermines voluntariness is lack of actual choice. Authors who have made this point in relation to either initial migration (e.g., Erdal and Oeppen 2018; Ottonelli and Torresi 2013) or return (Erdal and Oeppen 2022; Long 2013) build on the work of Serena Olsaretti (1998: 54), who defines a choice as voluntary “if it was not made because no other acceptable alternative was available.” The mere existence of more than one option is thus not sufficient; such an alternative course of action must also be acceptable for the person taking the decision. Discussing the return of refugees, Katy Long (2013: 163) privileges acceptability over diversity, arguing that “[w]hile the ideal would be a range of attractive alternatives from which a refugee could choose, ensuring an [one] acceptable option is sufficient to ensure a voluntary return.” Both aspects are linked to the design and implementation of return policies, which can leave more or less room for return counselors to make alternative options available, and available options, including return, more acceptable for the potential returnee (Feneberg 2019; Vandevoordt 2017).
A third crucial dimension of voluntariness is information. Both Erdal and Oeppen (2018, 2022) and Gerver (2018) refer to Ben Colburn (2008), who sees “well-informedness” as an important precondition for voluntary choice. While he specifically argues that “becoming better-informed about an option can mean an agent realizes that they were wrong to think it unacceptable” (ibid.: 103), better information might also have the opposite effect: leading the actor to reject an option that until then seemed acceptable. Also in relation to the distinction between voluntary and forced migration, Valeria Ottonelli and Tiziana Torresi (2013: 802) maintain that voluntary decision-making requires “adequate knowledge” of what is being chosen. For such information to count as adequate, they further argue, it “must be reliable, actually trusted, comprehensible, relevant, and up to date” (ibid.: 803, citing González Martínez 2008). Providing migrants with “correct” and “objective” information also constitutes a central aim of every AVR scheme (e.g., Black et al. 2004; IOM 2018), whereby individual counselors have significant discretion regarding both the kind of information and the way they present it to a potential returnee (Cleton and Schweitzer 2021). Counseling is not only meant to address deficits in terms of access to information, but also of trust in that information (as well as the informant), which is why many governments rely at least partly on NGOs to deliver this crucial component of their AVR programs (Black et al. 2004; EMN 2019).
The important but also ambiguous and contested role that civil society actors often play in the implementation of AVR policies has received a lot of scholarly attention (Dünnwald 2008; Kalir 2017; Kalir and Wissink 2016; McGhee et al. 2016; Vandevoordt 2017). Like in other areas of public policy, they assume tasks that governments themselves are either unwilling or unable to fulfill. In this case, returning states’ limited capacity to “persuade” unwanted migrants to return has long been identified as a major obstacle (Black et al. 2004; Koser 2001). This often simply reflects unstable or insecure conditions in the country of return, but has also been related to a lack of trust (Black et al. 2011; Blitz et al. 2005; Dünnwald 2008), expertise (Feneberg 2019), and willingness to show empathy for migrants’ situation (Cleton and Chauvin 2020; Khosravi 2009). While much of the scholarship in this area focuses on the role of the International Organization for Migration (IOM) (e.g., Ashutosh and Mountz 2011; Koch 2014), it is often local or national NGOs that help governments to foster migrants’ trust in the AVR system, disseminate relevant information, obtain the necessary documents, and reduce the social stigma attached to return (Black et al. 2011; Blitz et al. 2005). This, according to Barak Kalir and Lieke Wissink (2016), makes these organizations part of the “deportation continuum,” within which state and nonstate actors not only work together but also share the same practices, terminologies, and underlying norms.
Contrary to this explicitly critical assessment, Robin Vandevoordt (2017: 1908) offers a more nuanced answer to the question of whether civil society actors “merely execute or actually transform their funders’ policy objectives.” His analysis of the Belgian case suggests that as the government's objective shifted from humanitarian assistance to migration management, “civil actors were … perfectly allowed to fulfil their job according to their own values, even though they began to function more and more within a wider strategy of expelling undocumented immigrants” (ibid.: 1918). He relates this contradictory development to a specific institutional context as well as (changing) legal-political conditions and argues that a certain “immunization” of NGOs—against “the values, practices and subject definitions through which nation-states operate” (ibid.: 1915)—also helps them to “implement state policies more effectively” (ibid.: 1919) and without changing their own practices.
Other studies have shown that NGO workers themselves often justify their personal involvement in AVR by highlighting the concrete difference that they believe they can make in terms of providing the necessary care for often very vulnerable individuals and families, making sure that all legal alternatives to return are being exhausted, and minimizing the degree of pressure that the state puts on potential returnees (Crane and Lawson 2020: 4; McGhee et al. 2016). Crane and Lawson (2020) describe these efforts to uphold humanitarian standards as “minor acts of care,” which are not enough to address the underlying problems and injustice. From a normative perspective, Gerver (2018) therefore argues that NGOs should only help refugees return if they (a) also try to reduce coercive conditions, (b) in no way contribute to these conditions, and (c) provide complete information regarding the risk of return.
While the underlying ethical “dilemmas of repatriation cannot be avoided even when working independently from the government,” as Gerver (2018: 862) also notes, some organizations seem to have resisted their own instrumentalization more successfully than others. According to Derek McGhee and his colleagues (2016: 32), an NGO's ability to do so significantly depends on its funding arrangement with the government, as well as “the relative size of [its] operation.” The same authors also highlight the double role that NGOs can play as both “insiders” working with the government and “outsiders” campaigning against certain aspects of its policy. Refugee Action—the organization that used to deliver the British AVR program—managed to combine both roles by using evidence gathered through service provision as a powerful resource for its advocacy work (ibid.).
Overall, this literature suggests that just as AVR is not the opposite of deportation, nonstate actors are not fully opposed to (nor completely aligned with) the government when it comes to implementing such policies. According to Kalir and Wissink (2016: 45), the “differences among and between state agents and NGO workers are not rooted in the principal question ‘Why we do what we do?’, but rather in the practical question of ‘How we do what we do?’” My subsequent analysis addresses this latter question—of how exactly different actors implement AVR—by highlighting concrete ways in which their relative independence from the government can affect the quality of the voluntariness they help to produce. The following section briefly presents my two case studies and methodological approach.
Two Cases of Civil Society Exclusion From AVR: Research Context and Methods
AVR has been a central component of both the Austrian and British return regimes since the 1990s (IOM 2004) and in both contexts, government-funded NGOs used to play an important role in AVR implementation, but were recently replaced by state agencies. While similar tendencies have already been identified in Germany (Feneberg 2019) and Belgium (Vandevoordt 2017), I selected two cases in which this move has been particularly explicit and far-reaching.
The first British AVR program (“VARP/VARRP”) ran from 1998 to 2011 and was implemented by IOM, which subcontracted the charity Refugee Action to provide “pre-decision advice” to potential returnees (Black et al. 2011). In 2011, the latter organization won the full government grant for AVR delivery and set up its own program, “Choices,” which ran until the end of 2015. Being funded through a grant agreement (rather than a contract) gave the organization more discretion and autonomy regarding many aspects of service delivery (McGhee et al. 2016). Even for the organization's leadership, it came as a surprise when, in 2015, the government decided to instead deliver AVR “in-house” through its newly established Voluntary Returns Service (VRS) and without any “impartial, pre-decision advice” (Refugee Action 2015: 2). This unexpected policy change was immediately followed by a substantial decrease in the overall number of removals and especially “voluntary” returns (NAO 2020: 9).
In Austria, it was Caritas that assisted returnees from the early 1990s and set up the country's first AVR program (Rückkehrhilfe) in December 1998. IOM has since then been involved in the operation of AVR and runs country-specific reintegration programs (currently in Iran and Afghanistan). In 2003, the Verein Menschenrechte Österreich (VMÖ), an NGO that has frequently been criticized for its lack of independence from the government (Pferschinger 2011), became the second major provider of state-funded AVR counseling. Other NGOs used to provide counseling for specific target groups, like victims of human trafficking, or include basic AVR information in their broader advice work. This institutional setup fundamentally changed with the creation of a new federal agency (the Bundesagentur für Betreuungs- und Unterstützungsleistungen GmbH, BBU), which since January 2021 has been responsible for providing state-funded asylum support, legal advice, and return counseling.1 In contrast to the UK's VRS (which practically is a Home Office department), the BBU is set up as a private, charitable corporation owned and formally controlled by the Interior Ministry (which holds the majority in the supervisory board). Like in the UK, the Austrian government justified the exclusion of NGOs primarily in terms of (cost) efficiency, but in contrast to its British counterpart continues to stress the centrality of face-to-face counseling.
The data for this article was collected in Vienna (between April and August 2019) and London (between September 2019 and January 2020) and mainly consists of 63 semi-structured interviews (and several informal conversations) with actors involved in the implementation of AVR policies, including (national and local) government officials (15), representatives of IOM (5), and (former) providers of state-funded, NGO-delivered return counseling (11), as well as independent experts and legal advisors (8), representatives of local asylum support and advocacy groups (12), and “potential returnees” themselves (12). It is important to acknowledge that my analysis is primarily based on the perspectives of implementing actors and thus privileges an institutional view on voluntariness, which, as Erdal and Oeppen (2018) have argued, can greatly differ from migrants’ perspectives. All formal interviews were audio-recorded, transcribed, and anonymized, and received the respondents’ approval. In Austria, I complemented these insights through nonparticipant observation of several hours of return counseling (as well as three embassy visits and one transfer to the airport) at Caritas and the VMÖ. In both countries I regularly volunteered for local charities, providing legal advice and practical support to migrants and asylum seekers. This helped me to better understand the material and emotional situation of people targeted by AVR policies and the everyday meaning that AVR carries within organizations not directly involved in its provision. In addition, I reviewed relevant legislation, policy documents, parliamentary inquiries, press statements, and other official proclamations by related state and nonstate actors.
Civil Society as a Buffer Against Coercion, Provider of Alternatives, and Filter of Information
Stephan Dünnwald (2008: 11) has argued that “a return policy that sees the state as the principal actor cannot assign very much voluntariness to the returnee.” In the following, I attempt to refine and substantiate this argument by relating concrete individual perceptions and institutional practices of return counseling to each of the three dimensions of voluntariness.
A Buffer Against Coercion
In liberal societies, only the state (through specific institutions) can legitimately use violence, and only as a measure of last resort. Most of the time, violence is not actually employed but remains a possibility, as Walters (2017) has illustrated by pointing at the fact that most deportees comply without physically resisting deportation and without accompanying agents making use of the available measures of restraint. For violence to even be a possibility during a return process, the person(s) accompanying the returnee (e.g., from a detention center to the airport) must have the corresponding means and authority to use them. Several of my interviewees were keen to emphasize that NGO workers lack “police powers” (as one of them called it) and that as a result, returnees’ compliance often becomes a matter of trust, as the following statement of a return counselor in Austria suggests: “I don't have much experience with detainees … some of them are just not honest. They only say that they want to go back voluntarily and then they run away when we bring them to the airport. That happened in many cases.” In this sense, AVR can open opportunities for migrants to escape from detention or abscond altogether.
A Caritas return counselor mentioned that precisely in order to minimize this risk, his organization had to change the way it handles clients’ travel documents:
We are practically the extended arm of the [Federal Immigration Office], which entrusts [the documents] to us on the condition that we hand them over to the client at the airport, on the day of departure. … It has happened a couple of times that someone did not return but already had the documents, because we didn't have this guideline yet.
By asking return counselors to hold on to these documents (together with the small cash payment that most returnees receive as part of the AVR package), the immigration authority retains a certain degree of control over the returnee, which at least partly compensates for the impossibility of physical restraint during transit. It is a subtle way of extending the reach of the state without visible signs of coercion.
In similarly subtle ways, a certain distance from the state can help to remove coercion from the counseling session itself, where its most common form is the threat of deportation or detention. The official guidelines of the VRS explicitly highlight the importance of making potential returnees “aware of the consequences of not leaving the UK voluntarily, including the possibility of being detained as part of an enforced return” (Home Office 2021: 6). While NGO counselors also see it as their job to give clients a “realistic outlook” regarding the consequences of not choosing AVR, the majority of those that I spoke to and observed in their work tried not to use deportation as an explicit threat, but rather referred to it as a possibility that might be more or less likely, but was in any case external to their relationship with the client. Although many were aware that this could be a powerful argument to potentially convince certain clients to choose AVR, they often expressed reluctance to make use of it. For some interviewees, this was because they felt that it would undermine the principle of voluntariness, or because they understood their job in terms of “providing nondirective advice” rather than “actively working towards return,” as one counselor put it.
For the same reason, some interviewees (in both countries) depicted state-led counseling as potentially “more effective.” Asked about the reason for excluding NGOs from the AVR system, a representative of the Austrian Interior Ministry noted that “a government employee has a different perspective on the issue [… and] it is possible that there will then be more [AVR] applications because the counseling is structured differently.” This statement also reflects the idea that “effectiveness” not only depends on who provides the counseling, but also in which institutional setting. Even before the exclusion of NGOs, both the AVR systems I studied (as well as many others) have relied on what could be conceptualized as “soft detention”: accommodating irregular migrants in detention-like facilities where they are not physically locked in, but are still spatially and socially isolated and repeatedly exposed to return counseling. This is true for the so-called “pre-departure accommodation” that is part of the UK government's family returns process (IFRP 2018) and for the two Austrian “return advice centers” (Egarter and Janik 2019). An Austrian official described these centers as
a more concentrated form of counseling, because if every day someone knocks on your door and says: “Don't you want to … [return]?” … then it will get on your nerves at some point. I don't want to say attrition tactics, but still … after all, we must make sure these people leave the country.
Referring to the VMÖ, which before the BBU used to be the counseling provider in these centers (as well as in detention centers), the same interviewee added that
in these consultations, the NGO should then assess whether it makes sense or not [to actually provide counseling]. Because willfully torturing someone where I realize they are absolutely not interested in what I'm saying … I don't need to do that either. It's just kind of a method of getting people to leave voluntarily.
While this is a good example of the intricate role that NGOs are often expected to play within AVR systems, it also suggests that the creation of the BBU must be seen as the culmination of a series of smaller policy changes. These include the introduction of return centers and, in 2017, of obligatory counseling for all asylum seekers who receive a negative first-instance decision. In these cases, the counseling provider already had the obligation to confirm the client's participation and notify the immigration authority of the outcome. Many of the counselors that I spoke to described this as an increasing “bureaucratization” of their professional practice, and as undermining their independence.
Importantly, changes in the institutional arrangement or administrative procedures can not only move counseling and state coercion closer together, but also have the opposite effect of reducing pressure on the migrant (while arguably also undermining effective government control). For example, several representatives of Caritas highlighted the importance of providing initial advice anonymously, and one of them told me that the organization found “an internal solution” to offer such advice even at the risk of not being fully reimbursed by the government (due to incomplete records). In the UK, the issue of confidentiality is central to the widespread criticism of the current AVR system, which requires anyone who contacts the VRS to share their name, address, and immigration status. A former manager within Refugee Action's “Choices” program highlighted the fundamental difference that this makes not just for individual migrants but also for migrant community organizations and support groups:
We were the buffer. The [other organizations] would present the client to us, we'd do a lot of work, and then some people would make an application and some people would choose not to. And if they chose not to, then the Home Office would be none the wiser. … Now, they don't have that buffer, and they know that at the point in which that individual is ringing the Home Office, the Home Office knows about them. And that's why I think [they] are reluctant to refer people.
For example, the charity that I volunteered with during my fieldwork in London (and during earlier research in 2014/15) used to display the “Choices” flyer and make referrals to Refugee Action for AVR counseling, but stopped doing so when the VRS became the new provider.
A Provider of Acceptable Alternatives
In the case of most people targeted by AVR policies, the government has already decided that return is the only available option. Return counselors describe these situations as particularly challenging, since their job is then to align their clients’ hopes, fears, and plans with the opposing demands of immigration law. If such realignment is possible at all, then it is only from an intermediary position, and by taking both the state's and the migrant's perspectives seriously. This makes the task particularly difficult for a government agency like the VRS, as the head of a London borough's Refugee & Migrant Services suggested: “They are struggling with their messages and maybe they are compromised by the fact that they have to look at everything from an enforcement viewpoint and a sanctions viewpoint, when something like voluntary return actually needs to be much more about a sort of discussion with a person.” Such discussion must be open-ended and nondirective, which in the words of a former Refugee Action counselor means “that it's not your responsibility to tell somebody what they should be doing, but to help explore with somebody what their situation is and what their options are.” Several of my interviewees expressed a suspicion that part of the reason for which the UK government ended Refugee Action's “Choices” program in 2015 was precisely that “it gave too much power to the migrants themselves to choose what they wanted to do,” as an independent policy analyst put it.
In order to uphold voluntariness within AVR, return counseling must not only take into account the clients’ plans and needs, but also present them with acceptable options, either by making the prospect of return itself more acceptable or providing suitable alternatives to it. Seen from this perspective, the abovementioned measures of “soft detention” contribute to the exact opposite: they undermine voluntariness not just by increasing the pressure to accept the AVR “offer” but also by removing alternatives, particularly the possibility of integration. One way to potentially make AVR a more acceptable option is through practical facilitation and effective post-return support, to which end both Caritas and Refugee Action used to closely cooperate with local NGOs in countries of return (cf. Black et al. 2011; Vandevoordt 2017). Many of my interviewees lamented, however, that while the promise of reintegration assistance might make the “offer” more attractive for some migrants, the insufficient funding generally does not enable them to “create real prospects” for their clients. A young man who had recently remigrated to Austria after his family's “voluntary return” to Kosovo had, in his own words, “completely failed” told me that his parents also now regretted their decision to accept the offer: “we got around 3,000 Euros, as far as I know, and we also got money there for the construction of our farm. But it just didn't work out. The problem was that it all just costs too much money.” Apart from insufficient financial assistance, various NGO counselors in both countries also mentioned cases in which they could “get a better deal” for their clients by renegotiating the practicalities or exact timing of return. In a few instances, AVR itself became part of a longer-term plan that did not involve staying in the alleged “country of origin” at all. A good example is the case of a young Palestinian man whom I also interviewed in Vienna: as a stateless person he could not be deported, although his asylum claim had been rejected. Instead, Caritas helped him to arrange his “return” to Jordan in order to travel from there to Dubai, where he had spent most of his childhood and was now planning to marry his Austrian girlfriend, with the plan to eventually return to Austria.
Particularly in cases where return to the country of citizenship is not an option for the client, return counseling should also explore alternative courses of action, including avenues for legal (or even semilegal) stays in the country, which again requires a certain distance from the government and its assessment of the case. In this context, the importance of independent legal advice and financial support to effectively appeal a negative decision was highlighted by interviewees in both countries. A former Refugee Action caseworker explicitly described it as a matter of voluntariness: “I think what would make it more voluntary is if that system helped people who have a route to regularization; if it paid for them to regularize their status. Because that would give them the means to actually properly fulfill another option that they might have.”
Ultimately, once all legal avenues and appeal rights have been exhausted, the possibilities of unlawful stay or onward migration also warrant discussion if the client considers them an option. In both countries, representatives of independent support organizations and municipal social services told me that many of the people they used to work with ultimately chose to “go underground,” even though they knew it meant living in destitution, without access to fundamental rights and services and at significant risk of exploitation. A social worker who supports young unaccompanied asylum seekers on behalf of a local authority in the UK explained how such discussion can look:
That's the kind of work that I'm trying to do, to build that level of trust, that we are seen as separate from the Home Office and want to work with them to be able to plan safely no matter what happens, and have this honest and frank discussions of, “Okay, so you told me you want to go underground … let's have a discussion of what that looks like for you.”
Arguably, someone working for—or even in close relation to—the immigration authority can hardly be expected to discuss such options, nor to provide trustworthy information regarding the everyday reality of irregular residence, including potential sources of support and livelihood.
A Trusted Filter of Information
Most return counselors who tried to define their own roles in making return “more voluntary” did so with explicit reference to information. In Austria, several interviewees (including return counselors and representatives of both IOM and the government) also described, and thereby justified, the introduction of obligatory counseling as a way of ensuring that more potential returnees had more information. As outlined in the theoretical framework, however, voluntariness does not simply require information, but information that covers all potential courses of action and is provided without advocating for or excluding any particular one. Apart from information about the available AVR program and procedure, and the situation in the country of return, counseling must therefore also cover alternative options “within” as well as “beyond” the law (cf. Cleton and Schweitzer 2021). As noted above, it is not only a question of what kind of information is (or is not) being provided, but also of who provides it, and in which institutional setting. Commenting on the recent developments in Austria, a legal adviser working for Caritas in Vienna noted that
if people are … accommodated somewhere where there is only state legal advice and state return advice, which then all tell them the same thing, namely that it is hopeless; and … if you cut off [other] information from people … then you can probably expect that less people will make an appeal.
While such streamlining of information under direct state control might thus potentially lead to quicker asylum and return decisions, it also undermines the voluntariness of any subsequent return. Probably the most frequent argument that my interviewees used against state-led counseling was that it requires more trust than irregular migrants and rejected asylum seekers can be expected to have in the government that openly seeks to exclude them. This was not only highlighted by civil society actors, but is also recognized by state agents, including a senior Home Office official interviewed in 2013 by McGhee et al. (2016: 32):
[Refugee Action] can have discussions with migrant groups that the Home Office can't … realistically we know that there's a concern about engaging directly with government; you know, a lot of illegal migrants will be very fearful of government [… and] the main function is to be a trusted independent source.
Interestingly, nonstate counseling providers also enjoy varying levels of trust depending on how closely they (are perceived to) work with the government. A Somali asylum seeker who I interviewed in Vienna told me that when his claim was rejected, he was sent to the VMÖ for return advice, but: “I didn't want to go there because I know that they are sided with the government, they only tell you what's good for the government, they don't tell you your rights,” whereas he also assured me that “Caritas is not part of this. Caritas and Diakonie are very good people [… who] are here to help us.” Representatives of migrant and refugee support organizations also tended to feel more confident referring their clients to Caritas than VMÖ, as several of my interviewees explicitly highlighted.
Being more independent allows individual AVR counselors to filter and complement official information, but also to more carefully select the audience of their services and exclude clients who they feel might be misled or put under undue pressure. From my own observations in Austria, it seemed as though Caritas counselors in particular saw it as part of the job to sometimes openly question a client's apparent wish to return, especially when they had doubts about their emotional state or mental capacity to decide. A similar practice—which arguably comes close to advising against return—was also highlighted by a representative of Refugee Action:
One of the questions we used to ask people was, “okay, I know that it feels really difficult now, and I know that you've got an open asylum claim and you haven't had any news on that for months and months; and I know that you're desperate, I know that you just want an end to it. But what if you had some news next week … would you still be feeling as you are today, that you want to return?” And I mean, it is really challenging people, but it's trying to put their decision in perspective for them. And, I mean, none of that is available through the Home Office …
This statement also reflects how easily return decision-making can be influenced by an ongoing legal procedure. This might be part of the reason for which several respondents in Austria saw the obligation to receive return counseling right after a negative (but only first-instance) asylum decision as a threat to voluntariness, as a representative of Caritas suggested: “People must indeed be made aware that this service exists, but the fact that [counseling] now happens as part of the legal [asylum] procedure, is an indication for me that it's no longer entirely voluntarily.” This critical stance was also reflected in Caritas's refusal to make use of a related provision (also introduced in 2017) that gave AVR providers the possibility of prescribing additional counseling appointments that their clients would then also be obliged to attend. Representatives of both organizations told me that while the general obligation significantly increased the number of counseling sessions and contributed to the bureaucratization of their work, it was unhelpful for effectively providing trusted information.
Conclusion
The aim of this article is not to advocate for NGOs to get involved in AVR, nor to argue that their involvement per se is a guarantee of voluntariness. Instead, my analysis and underlying data suggest three things: firstly, that in/voluntariness of return should be conceptualized not only as a matter of degree (rather than a binary distinction) but also in terms of its various dimensions; secondly, that even within an overall restrictive and oppressive regime, implementing actors can increase the quality of voluntariness in all its dimensions by upholding certain ethical and procedural standards; and thirdly, that doing this requires substantial independence from the government, not just in terms of political autonomy but also institutional distance and procedural discretion.
Based on existing literature and original empirical data from two case studies, I have highlighted three important conceptual dimensions of voluntariness and related each of them to concrete and observable aspects of return counseling practice: Firstly, return counselors can act as a buffer between migrants’ decision-making and state coercion. Secondly, they can strive to tailor the AVR offer to migrants’ concrete circumstances and thereby sometimes make it (seem) more acceptable, while also providing or at least discussing viable alternatives to it. Thirdly, they can filter and complement the available information and question the authority's assessment of their clients’ situation, thereby providing a more comprehensive and reliable basis for their decision-making.
In this sense, a “good” AVR scheme is one that structurally enables and effectively encourages (or even requires) individual counselors to actually make these various efforts to increase the quality of voluntariness. Policy changes like the introduction of obligatory counseling in Austria or the increasing reliance on “soft detention” and destitution as sources of pressure reflect a very different aim. In everyday practice, they constrain the work of counselors by limiting their ability to work on the different dimensions of voluntariness: absence of coercion, acceptable alternatives, and trusted information. My findings also suggest, however, that counseling providers can and do challenge these policies and attenuate some of their effects.
The latter might be part of the reason that some governments try to provide AVR without relying on intermediary actors, or at least exercise more direct control over their day-to-day work. In practice, as my analysis of the Austrian and British cases suggests, this means that there is less of a buffer against (state) coercion, less willingness to provide acceptable alternatives, and less trust in the information provided. This is how return counseling becomes a mere “ritual of freedom” (Cleton and Chauvin 2020) and AVR practically indistinguishable from deportation (Kalir 2017; Leerkes et al. 2017). Further research is needed to fully understand (and eventually measure) the longer-term effect of this shift, particularly from the perspective of returnees themselves (Erdal and Oeppen 2018). Although recent developments in Austria and the UK overall point in the same direction, the resulting institutional setup looks, at first sight, different: Whereas in the UK, nobody denies that the VRS is part of the Home Office, it remains to be seen to what extent the BBU will manage to be perceived as separate from the authority, and whether individual BBU counselors will be trusted—by migrants as well as their support networks—to provide unbiased information, as well as structurally enabled to effectively mediate between their clients and the government.
Acknowledgments
This research was funded by the European Commission (H2020-MSCA-IF-2017—Project number: 790197)
Note
Although the change had not been implemented at the time of my fieldwork, the issue was already very present since the proposal had been presented to parliament in March 2019. The law was passed on 16 May 2019.
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