Steve Peers, Professor of Law, University of Essex
One of the key EU laws regulating migration is the Returns Directive, now nearly ten years old, which regulates the main aspects of irregular migration by non-EU citizens. It requires Member States in principle to issue a return decision to every non-EU citizen not authorised to be on their territory, and to enforce that decision by removing the person concerned. In some cases, irregular migrants should be given a period for voluntary departure, so they won’t be subject to forced removal. Member States are required to issue entry bans to many of those subject to a return decision, but must provide for basic remedies to challenge expulsion. There are also rules on the grounds for detention of irregular migrants and their conditions during detention.
When it was adopted, NGOs supporting migrants believed that the Directive set an inexcusably low standard. However, in practice the CJEU has interpreted the Directive more liberally than some expected. I discussed this in detail in a paper published in 2015, and there have been several more CJEU judgments interpreting the Directive since then: Celaj (discussed here), Affum, Ouhrami, Gnandi and KA. For instance, the case law limits the use of the ordinary criminal law to jail irregular migrants, requiring Member States to use the administrative detention rules in the Directive in most cases. The jurisprudence also establishes a limited right to a hearing for irregular migrants (discussed here), and in some extreme cases provides for a basis to prevent expulsion of irregular migrants, and secure their basic rights to health care in the meantime (as discussed here).
The case law has been sufficiently liberal that in light of the perceived refugee ‘crisis’ of the last three years, it’s the EU Commission and Member States who are now concerned about the law, because in their view it is not stringent enough. This approach was set out in an ‘action plan’ and a recommendation issued by the Commission in 2017, as well as a revised Returns Handbook. They represented a change of tone from the 2014 Commission report on the implementation of the Directive, discussed here.
In 2014, the Commission urged Member States to apply the Directive generously, while in 2017 it recommended that they apply it as strictly as possible. But there are limits to the latter strategy without amending the legislation to lower standards, and today the Commission did just that, tabling a proposal to amend the Directive. To become law, it must still be agreed by the European Parliament and the Council (Member States’ interior ministers). It forms one of a number of measures proposed or adopted in recent years to strengthen migration control in light of the perceived crisis, including changes to the EU’s Frontex border agency (discussed here), and greater use of the EU’s Schengen Information System to enforce entry bans and expulsion orders (the agreed text is here). Another proposal to give further powers to Frontex – including to assist more with expulsions – was also released today.
The UK, Ireland and Denmark opt out of this Directive – although it will apply to UK citizens in the participating Member States after Brexit, in the event that they are irregular migrants.
The new proposal
The first change in the proposal is to define ‘risk of absconding’. The effect of such a definition is to make it easier to refuse a prospect of voluntary departure, and correspondingly easier to justify detention. Reducing the number of people given the chance of voluntary departure will in turn increase the number of those subject to an entry ban.
The list of cases which might constitute a risk of absconding is long (there are sixteen factors listed) and non-exhaustive (‘at least’). Some of the grounds are very broad (‘illegal entry’). Member States will have to apply these criteria on a case-by-case basis, but four of the grounds create a rebuttable presumption: using false documents et al; opposing expulsion violently or fraudulently; not complying with a measure like a reporting requirement; or violating an entry ban.
There’s a new obligation for irregular migrants to cooperate with the authorities, which reflects CJEU case law such as KA. The proposal does not, however, add the right to a hearing expressly into the Directive. Member States have a new obligation to issue a return decision as soon as a migrant loses a right to a legal stay, or an asylum seeker’s application is turned down at first instance. In theory this just repeats the underlying obligation to issue a return decision to all irregular migrants, but the Commission states that not all Member States do this. The issue of a return decision after a first-instance refusal of an asylum application takes account of the Court’s judgment in Gnandi: asylum-seekers cannot be regarded as irregular migrants until a refusal of their application at that stage. The implications of this for appeals are discussed further below.
Voluntary departure is tightened up. First of all, Member States need no longer give a seven-day minimum of time for an irregular migrant to depart. Secondly, the three cases where Member States can opt to refuse to give the irregular migrant a chance to leave voluntarily – risk of absconding, manifestly unfounded or fraudulent application for legal stay, and risk to public policy, public security and public health – are replaced by an obligation to refuse the chance of a voluntary departure in such cases. As noted above, the effect of this change is bolstered by including a wide definition of what might be considered as a risk of absconding. Although the CJEU has narrowly interpreted the exception for public policy, et al, as discussed here, this matters less now that the ‘risk of absconding’ ground is widely defined.
There’s a new obligation to try to confirm the identity of the irregular migrant who doesn’t have a travel document, and also to obtain such a document. The thinking is presumably that this should facilitate the expulsion process. Non-EU countries sometimes insist on such documentation before readmission, and as the Commission notes, its proposal is consistent with separate recent proposals to amend the EU’s visa laws (discussed here) to punish non-EU countries for non-cooperation.
Next, there’s a change to the rules on entry bans. Member States may impose an entry ban on an irregular migrant without making a return decision, if they detect the irregular migrant on his or her way out of the EU. This would not be an expulsion measure, but a means of trying to prevent the person concerned from coming back in future. Imposing an entry ban would only apply in such cases ‘where justified on the basis of the specific circumstances of the individual case and taking into account the principle of proportionality.‘
As noted above, there’s also an implied change to the rules on entry bans too. Since an entry ban must be imposed when an irregular migrant is refused the possibility of voluntary departure (subject to exceptions in individual cases), narrowing down the cases where voluntary departure is possible will have the knock-on effect that more entry bans are issued.
Next, there’s a new obligation to set up a ‘return management system’, comparable to Member States’ obligations relating to border control and asylum. This will have no direct impact upon irregular migrants.
There are several changes to the rules on remedies. First, any remedy must be before a judicial authority, not an administrative authority. This implicitly takes account of recent CJEU case law on appeals against refusals to issue a visa (El-Hassani), where the Court said that the EU Charter of Rights requires judicial control of immigration decisions.
Next, a new clause states that failed asylum seekers have only one instance of appeal against a return decision, if they have already had effective judicial review within the asylum process. This transposes the recent Court judgment in Gnandi. A further new clause, also taking account of CJEU case law, states that where the irregular migrant has concerns about refoulement (being sent to an unsafe country), at last the first level of appeal must have suspensory effect, ie stopping removal from the country. The irregular migrant can ask for suspensory effect in the event of a further appeal, but the national court must rule on that request within 48 hours. Furthermore, these possibilities don’t exist where there have already been proceedings concerning asylum or legal migration status, unless there are new issues in the case. Finally, failed asylum seekers will have only five days to appeal a return decision.
The proposal then moves on to detention. There will now be three grounds for detaining irregular migrants, rather than two; and anyway this list will become non-exhaustive (the word ‘only’ will be deleted). The first ground – risk of absconding – will be broadly defined, as we have already seen. The second ground, which was already broadly defined, remains ‘avoids or hampers the preparation of return or the removal process’. The new ground is where the irregular migrant ‘poses a risk to public policy, public security or national security.’ This new ground matches one of the grounds to detain asylum seekers in EU asylum legislation, which the CJEU has interpreted narrowly (as discussed here); but this hardly matters when the other two grounds for detention are broadly defined, and the whole list is non-exhaustive.
Another change relates to time limits: Member States’ maximum time for detention must be at least three months. This will not mean that all irregular migrants must be detained for that long, only that this must be a possibility on the books as a maximum period of detention. The other current rules on detention time limits – six months as the normal time limit, a further twelve months as a possibility in special circumstances – are retained.
Finally, a new clause sets out special rules for failed asylum seekers at border posts, effectively derogating from some key standards in the Directive. They must be given a standard ‘tick-box’ form setting out the return decision, rather than a reasoned explanation. In principle there’s no chance for voluntary departure, except where the migrant holds a valid travel document (handed over to the authorities) and cooperates fully. Such migrants will have only 48 hours to appeal a return decision, and suspensive effect only applies where there are significant new findings or there was no effective judicial review already. Detention is apparently always justified, with a four-month time limit; but then the proposal provides for the regular time limits to be applied on top of this, if return is not possible.
This proposal is entirely concerned with facilitating the expulsion of irregular migrants, and detaining them to that end – in addition to imposing entry bans to make sure they do not return. The narrower possibilities to obtain a period of voluntary departure will mean surprise knocks at the door, detention time and forced removal for more irregular migrants. More legal challenges will be fast-tracked, with the time limits in this proposal arguably below the standards set by CJEU case law (see the Diouf judgment). More migrants will be detained, and the Member States with the most generous approach to detention time limits will have to be more stringent.
While the proposal does not directly affect the case law that limits Member States’ use of criminal law to detain irregular migrants, it will to some extent circumvent the limits in that case law indirectly, by giving Member States more powers to detain irregular migrants in the context of administrative law instead. Note, however, that the rules on detention conditions would not be changed; and the continued requirement to channel immigration detention largely away from the criminal law process should prevent the family separation we have seen in recent months in the USA, which results from applying criminal law detention to irregular migrants who are parents.
Will the proposal impact upon the declining rates of expulsion? (45% in 2016 and 36% in 2017, according to the Commission) It’s hard to tell, because there’s no proper impact assessment alongside the proposal: this is not evidence-based policy-making, or at least not transparently so. Some of the proposals might possibly backfire: for instance, if the consequence of an irregular migrant leaving the EU is being detected and then subjected to an entry ban, the irregular migrant concerned might just decide not to leave at all.
In any event, the effectiveness of expulsion policy depends partly upon cooperation of non-EU States, and this proposal can’t affect that – although, as noted above, there are other EU initiatives underway on that front. Detaining more people has a cost for national budgets, but this proposal overlooks this awkward fact. Anyway, without additional cooperation from outside the EU, constructing more detention centres will not by itself increase the rate of expulsion, but merely increase the cost of irregular migration for national budgets and the misery of the persons concerned.
Peers & Barnard: chapter 26
JHA4: chapter I:7
Photo credit: Robert Hickerson on Unsplash