Friday 28 March 2014

The EU’s Returns Directive: Does it improve or worsen the lives of irregular migrants?

Steve Peers

Many EU citizens are concerned about the social and economic impact of immigration, particularly irregular (sometimes called ‘illegal’) migration of non-EU citizens (third-country nationals) who do not have a right to enter or stay on the territory of an EU Member State. However, others are more concerned to ensure that irregular migrants are treated humanely and decently. To control and regulate irregular migration, the EU has adopted a number of measures, the most prominent of which is known as the ‘Returns Directive’. This Directive, adopted in 2008, governs a broad range of issues, in particular an obligation to return irregular migrants, their treatment during expulsion proceedings, entry bans, procedural rights and the grounds and conditions for detention.

When the Returns Directive was adopted, it was controversial among NGOs and the academic world, because of a perception that it took an unduly harsh approach on these issues. In the five years since its adoption, the Directive has been the subject of much litigation before the Court of Justice of the European Union (CJEU), largely (but not only) as regards its detention rules. [Update: for more on this CJEU case law, see my 2015 paper in the European Journal of Migration and Law].  We now have the opportunity to consider the impact of the Directive more fully, in light of today’s report by the European Commission on its application. This report forms part of a broader reflection by the Commission on EU expulsion policy. The Commission’s analysis of the implementation of the Directive, and this reflection on the broader aspects of returns policy, should be considered in turn.

Implementing the Returns Directive

Member States had to implement the Directive by Christmas Eve 2010, and the European Commission is required to report on its implementation every three years. The Directive does not apply to the UK and Ireland, but to the extent that it applies to those who enter the territory without authorisation, it applies to Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein).

Interestingly, according to the report, the Commission has already embarked upon a programme to ensure the correct implementation of the Directive in the Member States. The report summarises the results of this programme, by indicating how many Member States still needed to change their law after the transposition deadline in order to comply with key rules in the Directive, and how many of those States have implemented those changes.

In particular:

 - 6 out of 11 Member States have clarified the concept of ‘risk of absconding’ (an important issue as regards grounds for detention);

- 6 out of 7 Member States have changed their law to make clear that detention is not justified if there is no reasonable prospect of removal;

 - 4 out of 6 Member States now admit NGOs and international bodies to detention centres;

 - 4 out of 6 Member States now provide for free legal assistance to irregular migrants, subject to the conditions set out in the Directive;

- 13 out of 16 Member States have set up a forced return monitoring system;

 - 11 out of 14 Member States now take account of the EU guidelines on forced returns by air.

 The Commission then examines a number of specific legal issues in detail. As regards detention, where the Directive requires a review of detention after a ‘reasonable’ period, there is a wide variation between Member States, with some requiring frequent reviews and some providing only for a review at the end of the initial six-month detention period. A six-month wait for a review of detention cannot plausibly be considered to be a ‘reasonable’ period, and moreover frustrates the intention of providing for a review in the first place, since in principle detention can only be justified for six months, with a further extension of up to 12 months only on limited grounds. However, the Commission does not comment on this issue, or promise to challenge the Member State(s) in question. The best interpretation of the ‘reasonable’ review period is that, in the absence of frequent ex officio reviews, detention must be reviewed whenever the migrant presents a prima facie case that the grounds for detention are no longer satisfied.

It would be useful to know how often appeals against detention are successful and on what grounds, but the Commission does not discuss this issue. The Commission admits that it does not have statistics on the grounds for which irregular migrants are detained.

Next, the Commission presents details of the development of alternatives to detention in a number of Member States, although it does not present empirical evidence of how often these alternatives are applied in practice, as compared to how many people are detained, and how the Directive has changed the position in practice.

The Commission refers to some good practice as to the treatment of irregular migrants who cannot be removed, but the Directive does not address this issue in detail.

As for the maximum length of detention, the Commission indicates that 12 Member States reduced their maximum period to the 18-month maximum in the Directive after it was adopted, while another 8 Member States increased their detention period up to 18 months. Five Member States left their detention periods unchanged, while another three have apparently provided for detention where it did not exist previously (or perhaps the Commission simply lacks data on the prior rules applied in those Member States).

As the Commission points out, the maximum periods of detention are not usually applied, and it supplies data on how long irregular migrants are actually detained in practice to prove this point. But in the absence of data about how long irregular migrants were detained for in practice before the Directive was adopted, it is impossible to be sure what effect it has had on the actual length that migrants spent in detention.

Oddly, the Commission report says nothing about the rules governing the possible extended period of detention for up to 18 months. Since these extended periods can only be justified on a limited number of grounds, the Commission should have reported on whether Member States have properly complied with the relevant rules and how many people are detained for longer periods in practice.

The Commission rightly notes that inhumane detention conditions for irregular migrants fall within the scope of EU law, given the regulation of immigration detention by the Directive, and threatens to sue Member States on this point. But in light of the cardinal importance of the ban on torture or inhuman or degrading treatment, the Commission should surely feel a greater sense of urgency about this issue.

Next, the Directive requires that in principle immigration detainees cannot be detained in prisons. If it is not possible to apply this rule, then those immigration detainees being detained in prisons must be detained separately from other prisoners. The Commission reports that half of Member States do detain irregular migrants in prisons, and nine Member States do not comply with their obligations to keep immigration detainees separate from ordinary prisoners. It threatens infringement actions against these States. Moreover, as the Commission notes, there are pending cases before the CJEU addressing these issues (in fact, the cases which the Commission refers to will be heard by the CJEU before Easter).

As for other rules on detention conditions, the Commission reports that Member States have correctly legislated as regards detainees’ health care and communication with the outside world. But it reports that there are doubts about the correct application of these rules in practice, and promises follow-up. Similarly, Member States have achieved de jure, but arguably not de facto, compliance with the Directive’s rules on the detention of families and children. Here the Commission does not expressly promise to follow the issue up, even though it reports that significant numbers of children are being detained, and although the Directive states that children can only be detained as a ‘last resort’. Again, there are no statistics on the detention of children, and the effect of the Directive on this issue cannot be judged.

The Commission begins its assessment of the other provisions of the Directive by examining the rules on voluntary departure. Member States are obliged to offer irregular migrants the possibility of voluntary departure, with only limited exceptions. On this issue there have been many positive changes in national law, although the Commission does not assess what is actually happening in practice. It admits that it does not have statistics concerning voluntary departure, although it quotes a Frontex report indicating that 44% of removals in 2012 were voluntary, whereas 56% were forced. Without seeing the evolution of these statistics over time, the impact of the Directive on this point cannot be assessed.

Then the Commission moves on to consider the rules on monitoring of forced removals. Again, it notes positive legislative changes in many Member States, and threatens infringement actions against Member States which have not complied with the rules, but does not consider the practical impact. More precisely, while the report gives specific details as regards the joint return operations arranged by Frontex, the EU border agency (see below), it does not provide similar details as regards the percentage of returns by Member States which are actually monitored, and as to whether any complaints have been made.

Nor does the Commission assess: whether Member States have complied with their obligation to postpone removal in specified cases; how well Member States have complied with their overarching obligation to take account of the best interests of the child, family life, non-refoulement and the state of health of migrants when applying the Directive; and in particular whether removal operations have been ‘proportionate’, used only ‘reasonable force’, were consistent with ‘fundamental rights’ and observed the ‘dignity’ and ‘physical integrity’ of irregular migrants.

According to the report, most Member States have exercised the options to exclude from the scope of the Directive those being expelled due to a criminal offence, and those who were apprehended attempting irregular entry. However, the Commission does not assess whether Member States have interpreted these exceptions correctly in light of the CJEU’s case law, which makes clear that the ‘criminal law’ exception cannot apply simply because irregular entry or residence is a criminal offence in a Member State.

Even when irregular migrants are excluded from the scope of the Directive because they were apprehended attempting irregular entry, the Directive nevertheless requires that Member States apply some key rules to protect the persons concerned, as regards the conduct of removals, detention conditions, non-refoulement and emergency health care. The report states that these rules were applied in the ‘majority’ of cases (without further clarification), but appears rather insouciant about the cases where the rules were not applied.

As for the procedural rights of irregular migrants, there is again de jure compliance but some de facto non-compliance in practice, which the Commission largely does not promise to follow up on, except as regards the rules on legal aid. The majority of Member States do not provide for automatic suspensive effect of appeals.

On the important question of whether irregular migration can be criminalised, the Commission correctly notes that this issue is not directly regulated by the Directive, but provides very useful maps of which Member States criminalise irregular entry and/or residence, and by which means (fines or custodial sentences). As the Commission points out, the case law of the CJEU has curtailed Member States’ ability to impose custodial sentences for irregular migration, on the grounds that this interferes with the effectiveness of the removal process. It states that infringement procedures are underway to ensure the correct application of this case law by Member States.

Next, as regards the obligation in principle to expel irregular migrants set out in the Directive, the Commission states that this has had no impact on the numbers of apprehensions of irregular migrants. But one could hardly expect it to do so, since the rule does not concern apprehension as such. The key issue is whether the Directive has affected the numbers of irregular migrants who are subjected to removal orders after their apprehension, and the number of cases where these removal orders are carried out. While the Commission provides overall statistics on the numbers of apprehensions, removal orders, and removals carried out from 2010-2012, it makes no attempt to link these statistics to the application of the Directive.

Finally, as regards the rules on entry bans, the report indicates a convergence around the five-year maximum entry ban period which applies to most cases, with six Member States increasing the number of entry bans and eight Member States reducing the maximum time limits for such bans. Again, detailed statistics on the use of such bans in practice are not available, and the Commission does not assess Member States’ application of the detailed exceptions to the general rules in much detail.

Broader aspects of expulsion policy

The Commission’s assessment of the broader aspects of expulsion policy begins with an analysis of the role of Frontex, the EU’s border control agency, as regards coordinating joint expulsions. According to the report, Frontex arranges the joint expulsions of about 2000 irregular migrants a year, and about half of these joint expulsions are monitored, with no complaints in practice. The Commission urges Frontex to ensure that all joint expulsions are monitored, although its position is weakened by its questionable suggestion that Frontex is not obliged to do this. It refers to the appointment of a Frontex Fundamental Rights Officer, who has competence to examine the compliance of Frontex joint operations with fundamental rights, but does not assess how well this task is being carried out in practice. In particular, the Commission does not refer to the recent recommendation of the European Ombudsman that Frontex consider complaints from individuals affected by its activities.

As for future developments, the Commission intends to draw up a non-binding Returns Handbook regarding the implementation of the Directive. It also endorses a study on alternatives to detention being drawn up by the European Migration Network. It will consider proposing to legislate for an obligation to issue alerts in the Schengen Information System every time a Member State issues an entry ban, when it reviews that System in 2016, although it states that this already happens in practice in every case. The Commission also encourages the European Migration Network to draw up a list of best practices in the operation of returns procedures, supports the codification of Council of Europe rules on detention conditions and seeks to continue (without any concrete details) cooperation and dialogue with third States on returns issues. On the latter point, there is a stark lack of transparency as regards Member States’ arrangements with third countries, and about what happens to returned persons in practice. Finally, the Commission plans the collect information on best practice as regards the situation of people who cannot be removed, although it is not clear what it plans to do with this information.


Has the Returns directive improved or worsened the position of irregular migrants? When it was first adopted, the Directive was widely seen in the NGO community and among academics as a highly negative measure that offered little protection for irregular migrants, but rather encouraged Member States only to lower their standards. In light of the case law of the CJEU, and the information on national implementation of the Directive set out in this report, this assessment has to be more qualified.

It is clear that, as regards the length of detention and the use of entry bans, standards have been raised in some Member States and lowered in others. While it is always possible that the latter group of Member States would have lowered their standards on their own initiative, it cannot be ignored that they lowered those standards at the time of implementing the Directive, and that when they did so, they matched the Directive’s rules. This can hardly be a coincidence.

While the Commission’s efforts to ensure the correct implementation of the Directive are useful, they were also clearly rather tardy, and threatening to begin infringement proceedings only in 2014 is rather sluggish. As regards detention issues in particular, Article 5 ECHR requires all aspects of detention to be in accordance with the law, and this must logically refer to EU law as well as national law. So ensuring the correct enforcement of EU law as regards detention is particularly important.

Although the plan to draw up a guidance document as regards the Directive is welcome, the Commission could and should have done this earlier. If it had drawn up such guidance even before the Directive’s implementation deadline, rather than over three years afterwards, it could have avoided some errors in transposition. For instance, it recently drew up a guidance document as regards the implementation of the EU’s crime victims’ Directive, even though Member States do not have to apply that law until the autumn of 2015.

In fact, I can prove from personal experience that the Commission could have produced a guidance document on the Returns Directive before the implementation deadline, because I co-authored a lengthy report (with Olivier de Schutter of Leuven University) for the EU’s Fundamental Rights Agency back in 2009, on the correct interpretation of the Directive in light of international norms. Of course, it is hard for me to believe that the Commission could have disagreed with our interpretation! But even if it did so, it could at least have used our analysis as a source and a starting point for drawing up guidelines.

For the Returns Directive, the Commission’s tardiness matters less than it might, because of the significant role of the CJEU in practice as regards references from national courts concerning the Directive. In fact, this law has attracted more references to the CJEU than most EU immigration or asylum measures. While the Court’s case law has on the whole interpreted the Directive more liberally than its wording might suggest, it has focus more on the objective of efficient expulsion, rather than on irregular migrants’ human rights.

It is clear from the Commission’s report on this Directive that the usual dichotomy between law on the books and the practice of law on the ground is particularly sharp as regards this Directive. This cannot be easily solved by the usual means, so perhaps some fresh thinking is required. Building on the existing commitment to provide for an effective forced-return monitoring system, one way forward might be to expand on this system to require each Member State to provide for an effective supervision and complaints process (without prejudice to the role of the courts) as regards the implementation of this Directive.

The Directive required the Commission’s first implementation report to examine in particular the basic rules on detention, the provision on entry bans and the effect of the legal aid requirements upon Member States. Its report does examine the first two of these issues, but not the third. More broadly, the Commission does not expressly examine whether it ought to propose any amendments to the Directive.

This report raises implicit questions about the process of adopting implementation reports in areas of EU law, such as irregular migration, which impact greatly upon human rights. While this particular report does mention human rights issues, including inhumane detention conditions, it is arguable that such reports should always include a specific review of Member States’ compliance with the EU Charter of Fundamental Rights when applying the law, and also a consideration of whether the rights in the Charter could be promoted by amendments to the relevant legislation.

Overall, it's not possible to assess whether the Directive has positively or negatively affected irregular migrants without substantially more information about its application in practice. What we can conclude is that its correct and timely application has been hindered by the Commission’s initially cautious approach, and that we need to consider new ways of ensuring compliance with EU law in areas such as these.

 Barnard & Peers: chapter 26

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