Blog post by Vasiliki Apatzidou, PhD Student, Queen Mary University of London.
The return of irregular migrants has been a key priority in the European agenda on Migration, both for the Member States and the EU institutions. Return procedures have been regulated since 2008 by the Return Directive. Although this legal instrument is applicable to all third-country nationals staying illegally in the territory of a Member State, the Return Directive allows Member States to exclude its application in the so-called “border cases” enshrined in Article 2(2)(a). The return procedures have also been the subject of reform negotiations, first in 2018 through the recast proposal for a Return Directive and later, through the various instruments presented in the new EU Pact on Migration and Asylum in 2020 such as the amended proposal for an Asylum Procedures Regulation (APR). In both legislative texts, the European Commission allows for the establishment and the operation of different return procedures at the borders. The return border procedures, established under Article 41a of the amended proposal for an APR, will be applicable to applicants whose application is rejected in the context of an asylum border procedures and are not authorised to enter the territory of the Member State. Indeed, in border procedures, the third-county nationals are not granted entry to national territory during the time that the authorities examine their application for international protection.
Notably, the derogation envisaged in Article 2(2)(a) of the Return Directive that concerns the non-application of the Directive in “border cases’’ in conjunction with the introduction of a new return border procedure that lies at the core of the amended proposal for an Asylum Procedures Regulation, may reduce legal certainty even more, and enhance divergent practices on returns at the EU’s borders. Parallel return regimes will be applicable at borders of the Member States, as they will be able to a) apply the Return Directive at the borders in case the applicants are rejected in the context of a normal border procedure; b) apply the return border procedures for those referred to asylum border procedures; and c) refrain from applying EU Law by excluding border cases from the scope of the Directive and apply national deportation law (Article 2 (2) (a) Return Directive and Article 41a (8) of the amended proposal for an APR).
This blogpost aims to provide the legal and regulatory framework of return procedures at the borders both as regulated in the Return Directive and the new EU Pact on Migration and Asylum. Thereafter, an explanation will be given as to why the non-application of the Return Directive in border cases should be the exception rather than the norm. It will become apparent in the blogpost that the discretion to not apply EU law in return procedures at the borders may both jeopardise the rights of the returnees and hamper the essence of EU Law, which is the harmonization of practices in the EU Member States. The blogpost will conclude with some observations on how Member States should interpret Article 2 (2) (a) of the Return Directive in order to ensure that procedural guarantees are preserved, and the returnees’ rights are protected at the borders of Europe.
Regulation of Return at the Borders: Exclusion from EU Harmonisation
The Return Directive is the main legal text governing the procedures and criteria to be applied by Member States when returning irregularly staying third-country nationals. On the one hand, concerns have been expressed about the Return Directive which sometimes came to be known as the “Directive of Shame”. The main criticism relates to the lack of a systematic assessment of the risk of refoulement from the authorities that are responsible for returns, the limited scope of application of the Directive in favour of informal return procedures and the over-reliance on pre-removal detention due to a broad definition of the risk of absconding, as well as no clarification as per the length of detention allowed in view of removal.
On the other hand, the Return Directive has become an important tool for safeguarding the rights and procedural guarantees for returnees, such as the right to appeal and to an effective remedy, the automatic suspensive effect of return in case of appeals, along with the proportionality principle that implies that voluntary departure is the most preferable option. Moreover, during the return procedure, the least coercive measures available to enforce return must be considered by Member States and thus detention should not be imposed if alternative measures are applicable. Thus, despite the fact that the Return Directive has received wide criticism both from civil society and academia, it can also be seen as an instrument that offers more procedural safeguards than some of the national rules that regulate deportation.
As per its personal scope of application, the Return Directive is applicable to all third-country nationals staying illegally on the territory of a Member State (Article 2(1) Return Directive). The Directive has a very wide personal scope of application, because “illegal stay” is defined as the presence on the territory of a Member State of a third-country national who does not fulfil, or no longer fulfils, the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State (Article 3 Return Directive). However, Article 2(2)(a) of the Directive allows States to not apply the Return Directive in two cases. Specifically, Member States can choose to not apply the Directive firstly to those subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code and secondly to those who are apprehended in connection with the irregular crossing of the external border of a Member State and who have not subsequently obtained a right to stay. Thus, borders can be seen as places of exception where Member States can refrain from applying EU Law.
The new Pact on Migration and Asylum does not separately regulate return procedures, as since 2018 the Return Directive has been the object of a separate recast proposal. In the Pact, the return procedures are regulated across the various proposals. As one of the novelties in the new Pact, the Commission is aiming to establish a “seamless link” between all stages of the migration procedures at the borders. The “pre-entry phase”, as it is named in the Pact, will contain screening procedures linked to asylum and return border procedures. Therefore, the extended use of border procedures can be noticed in both the amended proposal for an Asylum Procedure Regulation and the Screening Regulation.
What is problematic here is that, firstly, Article 4 of the Screening Regulation provides that during the screening, third-country nationals submitted to the screening at an external border are not authorised to enter the territory. Thus, this Regulation promotes a practice in which most of the refusals of entry will take place at the border. This means that in cases a return is taking place directly after the screening, the Member States will still have the option to apply national law to conduct returns based on the optional clause envisaged in Article 2 (2) (a) of the Return Directive (Article 14(1) and (4) Screening Regulation).
Secondly, the amended proposal for an APR expands the use of border procedures by rendering them mandatory for some categories of asylum-seekers, that were not foreseen in the Asylum Procedures Directive (Article 41 amended proposal for an APR). The proposal for a recast Return Directive had already referred to the mandatory return border procedures and the increased linkage of return to asylum policies, and this is now confirmed in the proposal for an Asylum Procedures Regulation. The return border procedures as described in the Pact are slightly different from those included in the proposal for a recast Return Directive. As envisaged in Article 41 (a) of the amended proposal for an Asylum Procedures Regulation, they will not only be implemented to those that are rejected during the asylum border procedures, but also to those apprehended at the external border disembarked after search and rescue operations.
Moreover, under Article 41(a) of the APR, the return border procedure will be applicable to people who have been denied international protection following an asylum border procedure. Specifically, border procedures will be mandatory for the accelerated examination of three cases: a) Where the applicant has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to identity or nationality; b) Where the applicant may, for serious reasons, be considered a danger to the national security or public order of the Member States; and c) Where the applicant holds a nationality or has a country of former habitual residence for which the proportion of decisions granting international protection is 20% or lower.
The expanded personal scope of border procedures and the fact that they become mandatory in some cases, may result in return border procedures becoming the new ‘‘new normal’’. However, Article 41a(8) of the amended proposal for an APR still gives the discretion to Member States to decide whether to implement the return border procedures in cases of rejected asylum claims at the borders or use the possibility offered by the Article 2(2)(a) that allows Member States to exclude “border cases” from the scope of the Directive.
Thus, the regulation of return procedures in the borders envisaged in the various legal texts of the new Pact, when read in conjunction with Article 2(2)(a) of the Return Directive may diminish legal clarity even more and actually allow Member States to choose either to apply the Return Directive and issue a return decision to failed asylum-seekers at the borders, or, due to the refusal of entry issued in border procedures, simply refrain from applying EU law and issue a deportation decision. Ultimately, the expanded use and scope of border procedures may result in the non-application of the Return Directive for most of the third-country nationals applying for asylum at the borders. The non-application of the Return Directive and the application of national deportation procedures may offer a weaker protection to the returnees, and this may lead to reduced guarantees of fundamental rights. The reason is that the national laws may not provide for example for an automatic suspensive effect of the return in case of an appeal against a first instance rejecting decision, the voluntary departure is not always the preferred option, and the use of automatic detention to enforce deportation is most commonly used in national systems.
Border Cases: Applicability of the Return Directive?
As highlighted in the European Implementation Assessment of the proposal for a recast Return Directive, most Member States already rely on Article 2(2)(a) of the Return Directive and exclude “border cases” from the scope of the Directive. In many border countries, such as Greece, Italy, and Spain, where screening and asylum procedures usually take place at the borders, the extensive use of border procedures premised on the ‘‘non-entry’’ fiction envisaged in the new EU Pact on Migration and Asylum may result in the non-application of the Return Directive in most of the “border cases” based on a “refusal of entry”.
However, the derogation envisaged in EU Law should be narrowly interpreted, and the non-application of the Return Directive to rejected asylum-seekers should be the exception rather than the norm. Specifically, third-country nationals intercepted at the borders are usually subject to screening procedures and afterwards, those who decide to apply for international protection are channelled to either the asylum border procedure or the regular asylum procedure. The important point here is that a third-country national acquires the status of an applicant for international protection, within the meaning of Article 2(c) of Directive 2013/32/EU, from the point when he or she ‘‘makes’’ such an application. Thus, from that point EU Law should be applicable to all procedures that concern him or her.
This means that an applicant of international protection has the right to remain in the country where he or she lodges the application. Based on the ECJ Gnandi ruling, an applicant for international protection is to be allowed to remain in the Member State for the sole purpose of the procedure until the adoption of a decision at first instance refusing that person’s application. Even though, according to the express wording of that provision, that right to remain does not constitute an entitlement to a residence permit, it is nevertheless apparent, inter alia, that it prevents an applicant for international protection from being regarded as “staying illegally”, during the examination period of the application for international protection. This decision proves that third-country nationals that apply for asylum at the borders should initially have the right to remain while their applications are examined, and thus, in cases of second instance rejecting decisions, the Return Directive should be applicable. The Court of Justice of the European Union (CJEU) has also confirmed in the Affum case that the Return Directive is applicable to those irregular entrants who have been apprehended at the external border and have subsequently obtained a right to remain as asylum-seekers. Even if — after final rejection of their asylum application — they become again “illegally staying”, they must not be excluded from the scope of the Directive as “border cases”.
The Affum case also confirms that Article 2(2)(a) implies a direct temporal and spatial link of the return with the crossing of the external border (see also CJEU Arib case that refers to the necessary temporal and spatial link). This is not the case to most asylum-seekers in border areas, as the persons intercepted at the borders are usually transferred to camps (hotspots), are subject to screening procedures that include registration, verification of nationality, conduct of health and security checks, and vulnerability assessments, and are then referred to the asylum (border) procedures. On the contrary, the Return Directive may not be applicable in a situation where third-country nationals have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the border or near that border after it has been so crossed.
This means that the period between the interception at the borders and the return (in case of negative decisions), even in asylum border procedures, is extremely long and there is no temporal link as required by the CJEU case-law. Consequently, even if asylum-seekers are referred to asylum border procedures, which can take up to four weeks, and which can take up to an additional period of eight weeks (see proposal for a Regulation addressing situations of crisis and force majeure), they should still be subject to the Return Directive in case of unsuccessful asylum claims. The opposite could result in the lack of legal certainty, diminished procedural standards, and nationality-based discrimination, as asylum border procedures will be compulsory to third-country nationals with a recognition rate below 20 %, which can be extended to persons with a first instance recognition rate under 75% in cases of a crisis (art. 4 proposal for a Crisis Regulation). Thus, asylum-seekers whose application for international protection has been denied at the borders should be admitted to a regular return procedure regulated under the Return Directive.
Ultimately, the non-application of the Return Directive in cases of “irregular crossings” in border areas, by using the fiction of “non-authorised entry” for asylum-seekers at the borders, should not be an accepted interpretation of EU Law. On the contrary, for third-country nationals applying for asylum at the EU borders who acquired the “right to remain” as asylum-seekers and did not have a temporal or spatial link between their interception at the borders and their return, the Return Directive (EU Law) should always be applicable.
No matter how the Court draws the line between the precise scope of the Return Directive and national deportation law, it seems that the discretion left to the Member States to not implement the Return Directive in border cases, could result in the increased applicability of national law from the Member States in carrying out deportations to asylum-seekers with rejecting decisions. Although, the Commission’s Better Regulation Guidelines set harmonisation as the legitimising notion for political action, it seems unlikely that the return border procedures envisaged in the Pact will achieve the objective of harmonisation. On the contrary, divergent practices and application of parallel legal regimes that regulate return at the Member States’ borders will become the “new normal”. It is likely that this complexification will be at the expense of legal certainty, respect for procedural safeguards, and fundamental rights.
To conclude, even if Member States choose not to implement the Return Directive to fulfil their return obligations, they still need to ensure that the rights envisaged in the Charter of Fundamental Rights such as the principle of non-refoulement, are respected. At the end of the day, it is unclear whether the mandatory border procedures, including the return border procedures, would be effective and efficient in reaching their declared objective of swift border processing, as the return of third country-nationals depends on their actual deportability. Will these people, in practice, be deportable? There is a clear gap in theory and practice, and this may result in huge violations of the fundamental rights of third-country nationals present at the borders.
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