Blog post written by Dr Izabella Majcher, a Refugee Law Initiative Research Affiliate and researcher at the Global Detention Project.
Izabella is presenting on a panel entitled ‘European Union Regional Strategies on Asylum and Migration’ at the upcoming RLI Fourth Annual Conference. View the conference programme and register for the event here.
In the EU response to the so-called refugee crisis, it was the return policy, rather than genuine refugee protection, legal pathways to Europe, and integration of migrants, which received a prominent place. The European Commission developed an argument that increasing the effectiveness of the return policy was the key to tackle the “crisis.” In EU parlance, the effectiveness relates to the return rate (i.e. number of actual returns) rather than the sustainability of this measure and its compliance with fundamental rights. In the 2015 EU Action Plan on Return, the Commission presented five sets of measures to strengthen the effectiveness of the return policy, including fostering the implementation of EU legislative provisions, information sharing between the member states, and the mandate of Frontex as well as developing an integrated system of return management. Since 2015, the number of asylum applications dropped, yet in its 2017 Renewed Action Plan, the Commission stressed that the challenges faced by the EU return policy increased and it further developed measures proposed in 2015.
The rhetoric about the effectiveness of return in policy documents paved the way for legislative proposals. In September 2018, the Commission unveiled a proposal for the recast of the Directive 2008/115/EC (Returns Directive), which is the main instrument regulating the EU return policy. After the peak of arrivals of people in search of protection in 2015 (which in any case was insignificant compared to some non-EU countries hosting large refugee populations), the numbers dropped to the pre-2015 levels. Yet, according to the Commission, since the entry into force of the Directive in 2010, the migratory pressure on the member states and the EU as a whole has increased, hence “the challenges relating to the effective return of irregular migrants need to be addressed more than ever.”
The focus on efficiency is not absent from the Returns Directive yet it is just one of two considerations underlying the Directive. In fact, the Directive is premised upon a balance between the effectiveness of the return and human rights protection. As repetitively stressed by the Court of Justice of the European Union (CJEU), “the objective of the Directive is to establish an effective removal and repatriation policy […] for persons to be returned in a humane manner and with full respect for their fundamental rights and dignity.” Indeed, in its original 2005 proposal for the Directive, the Commission held that aim of the Directive is “to provide for […] fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry, which take into full account the respect for human rights and fundamental freedoms of the persons concerned.” How then does the draft recast address these four main measures laid down in the Directive, namely return, entry ban, detention, and removal? The following analysis will outline the worrying trend of the recast Directive in lowering the protections of human rights in light of a continued prioritising of returns.
Limiting procedural safeguards against return
The return decision triggers the return process. Draft article 8(6) requires states to issue a return decision immediately after the adoption of a decision ending the legal stay of the person, including a decision refusing asylum. In cases where a return decision follows a decision refusing asylum, proposed article 16 foresees a number of limitations on procedural standards, notably non-suspensive effect of the appeal (if there are no new elements which significantly modify the circumstances of the case) and a five-day time-limit to lodge an appeal. The lack of suspensive effect of an appeal based on the principle of non-refoulement violates the right to an effective remedy under article 13 of the European Convention on Human Rights (ECHR). This guarantee would also be breached if an overly short time-limit to submit an appeal renders the remedy inaccessible in practice.
Multiplying entry bans
The entry ban strengthens the effect of return in that it bars the expulsed person from returning to the whole Schengen area during a period of time. Under draft article 13(2), states may impose an entry ban, without a prior return decision, when a person is detected during border checks at exit. The rationale behind this provision is to prevent future re-entry. Although proposed article 13(2) maintains that such a measure should take into account the individual circumstances of the case and the principle of proportionality, in practice, it would be hardly possible to assess the person’s individual circumstances in the context of checks at the border.
Expanding detention
The Directive allows states to impose detention during return proceedings if the person represents a risk of absconding or hampers or avoids return. The risk of absconding is to be assessed based on objective criteria established in domestic law. Draft article 6(1) enumerates no less than sixteen criteria for assessing the risk of absconding and explicitly points out that they are not exhaustive. In addition, four of the criteria should lead to a (rebuttable) presumption that the person represents a risk of absconding. Since they create a presumption of absconding, these criteria would function in practice akin to grounds for detention. Further, draft article 18(1)(c) adds a new ground for detention, namely a risk to public policy, public security or national security. This draft provision does not refer at all to the CJEU’s ruling in Kadzoev, where the Court found that detention due to risk to public policy cannot be a self-standing ground for a pre-removal detention under the Directive. These amendments would lead to a more systematic detention, which is at odds with the principle of proportionality.
Restricting “voluntary” departure
Voluntary departure means complying with the return decision and leaving the host state within a specified period of time, typically between seven and thirty days. Voluntary departure is, thus, not genuinely voluntary, yet it is preferable to forced return. States should in principle afford a period for voluntary departure, unless one of three exceptions applies. The recast proposal restricts the voluntary departure option. Draft article 9(1) removes the minimum seven-day time-limit, so the period for leaving the host state could be below a week. Currently, when one of exceptions is present (risk of absconding, application for a legal stay considered manifestly unfounded or fraudulent, or threat to public policy or national security) states may choose to waive voluntary departure period or shorten it. Draft article 9(4) provides that in such circumstances, states shall not grant a voluntary return. The draft amendments would result in voluntary departure being systematically refused. This goes against the CJEU’s ruling in Zh. and O., that, based on the principle of proportionality, voluntary return should as a rule be granted.
Upcoming recast negotiations
Since September 2018, the Council discussed the recast proposal at several meetings and issued a number of successive compromise proposals. These documents are not publicly available and the author was refused access to them. The only document available so far is the revised compromise proposal from 20 December 2018, published by the Statewatch. It gives a glimpse into the Council’s developing position. Overall, the Council welcomes the recast proposal but tables several changes to the Commission’s draft and the Directive itself, which overall further reduce the safeguards.
In turn, the European Parliament published its draft report on 16 January 2019, in which it proposes 120 amendments. The Parliament seeks to considerably strengthen the protective standards. Since the Commission’s proposal was not based on the impact assessment, the Parliament requested the European Parliamentary Research Service to provide a substitute impact assessment. Released in February 2019, the impact assessment concluded that the recast envisaged by the Commission would likely lead to breaches of fundamental rights and not necessarily contribute to more effective returns.
The Parliament’s report is supposed to be voted within the LIBE Committee in late summer, after which the trilogues will begin. Given the amount of amendments put forward and the divergent positions of the co-legislators, the negotiations will likely be cumbersome.
EU return regime insulated from international human rights standards on expulsion?
In 2004, discussing the EU nascent policy on irregular migration, Ryszard Cholewinski noted that it had lost its human rights component. The security approach trumped human rights safeguards and regularisation channels. Fifteen years later, the draft recast of the Returns Directive sets another grim milestone in this trend.
The recast proposal disregards the international human rights framework governing the expulsion of migrants in an irregular situation. In fact, every measure established in the Directive – return decision, entry ban, detention, and removal – is subject to a tight set of international human rights norms and standards. International binding provisions have recently been restated in the form of authoritative return-related instruments, including Objective 21 of the 2018 Global Compact for Migration, 2018 Study on the return and reintegration of migrants of the UN Special Rapporteur on the human rights of migrants, and 2014 Draft articles on the expulsion of aliens adopted by the International Law Commission.
The EU return policy should be compliant with the international human rights standards on expulsion, not least because these standards are premised upon binding provisions of international treaties ratified by the EU member states. In addition, adopting provisions falling short of international human rights norms shows a double standard of the EU, typically keen on giving lessons on human rights to other world regions. Finally, since the European countries are commonly regarded as upholding democratic values, their practices at variance with human rights norms risk undermining whole the UN system of human rights protection.
*The title borrows from Ryszard Cholewinski, “European Union Policy on Irregular Migration: Human Rights Lost?,” in Irregular Migration and Human Rights: Theoretical, European and International Perspectives, ed. Barbara Bogusz et al., (Leiden: Nijhoff, 2004), 159–92.
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