Christian Mommers, external PhD candidate at the Europa Institute of the Leiden University Law School and Adviser to the Commissioner for Human Rights of the Council of Europe*
* Views expressed are solely the author’s
Discussions on the European Commission’s proposal for a recast of the Returns Directive (Directive 2008/115/EC), which it published in September 2018, are likely to gain speed after the summer. Among a range of other issues, which may well claim the limelight, the proposed recast has important implications for voluntary return. Voluntary return, in brief, relates to the granting of a period when the member state refrains from enforcement and during which the individual has an opportunity to meet the obligation to return of his own accord. Although giving such an opportunity is a key principle of the Directive, the proposal seeks to open the possibility of giving only very short periods for voluntary return, would make denial of a voluntary departure period mandatory rather than discretionary in some cases, and introduces criteria that could result in a wide-ranging application of exceptions to the general rule that voluntary departure should be possible.
This seems to confirm a trend in which the granting of a possibility to return voluntarily is seen as a hindrance, rather than an integral part of, a fair and effective return procedure. This follows increasing concerns from both member states and the Commission that return rates are too low, an issue that has become even more salient in the wake of the increased arrivals of asylum seekers and migrants in 2015 and 2016, and the political panic that followed it.
In this post, I will discuss some of the key issues that have the potential to put at risk the priority of voluntary as a central legal principle underpinning EU return policy. These observations result from my own PhD research on the scope and limits of individual responsibility of third-country nationals faced with voluntary return, but to a considerable extent they overlap with, and are complemented by, the analyses and commentaries of others. This includes the EU’s Fundamental Rights Agency, NGOs like Amnesty International, the European Council on Refugees and Exiles (ECRE), as well posts by Peers and Majcher, among others.
Although important in their own right, and relevant to the overall question of voluntary return, this post will not deal with proposals for enhanced return assistance and counselling, which deserve separate attention. Neither does it address other problematic elements of the recast proposal, such as the introduction of a border procedure, limiting remedies, and a widening of detention possibilities, each of which are discussed in detail in the above-mentioned publications.
Where we are in the process
Before going into the substance, a quick update on the process is in order. As noted, a recast proposal was published by the Juncker Commission almost two years ago. In May 2019, the Council adopted a partial general approach. Consideration in the European Parliament had started, and a draft report was published by the Rapporteur of the Civil Liberties, Justice and Home Affairs Committee (LIBE), but work was interrupted by the 2019 elections. In June of this year, the new Rapporteur, Tineke Strik MEP, published her draft report, on which discussions in Committee and subsequently in the plenary will have to continue after the summer recess. The quick adoption of a recast Returns Directive will likely also be identified as a priority action in the upcoming EU Pact on Asylum and Migration.
The priority of voluntary return
The impact and legitimacy of the Commission’s proposals cannot be understood properly without first considering the role that the priority of voluntary return plays. Both in the current Directive (recital 10), and in the proposal (new recital 13), a general principle is formulated that voluntary return should be preferred over forced return “[w]here there are no reasons this would undermine the purpose of a return procedure.” Although one of the purposes of the Directive is to ensure persons who are not or no longer authorised to stay in an EU member state – “illegally staying third-country nationals” in the language of the Directive – effectively return, it is not the only one. Of particular importance is the aim to provide fair and transparent rules for returns, which should guarantee the fundamental rights and dignity of those required to return. The assumption that voluntary return would provide third-country nationals with a more ‘humane and dignified’ way of returning has historically been an important driving force behind the inclusion of the priority of voluntary return within the EU legal framework for returns. In its only judgment on the specific interpretation of the Directive’s provisions on voluntary return so far, the Zh. and. O. case (discussed here), the CJEU has clearly recognised that the granting of a voluntary departure period serves “inter alia, to ensure that the fundamental rights of those nationals are observed in the implementation of a return decision,” (paragraph 47) and thus plays a key role in balancing these objectives. By giving an opportunity to return voluntarily, the third-country national can avoid detention and removal by coercive means, thus acting as a kind of proportionality mechanism.
Extremely short voluntary departure periods
Under the current Directive, member states should normally issue an appropriate voluntary departure period of between seven and thirty days (Article 7(1)). They can issue a period that is shorter than seven days (or refrain from issuing such a period completely) only if one of the three grounds for exceptions, described in more detail below, would apply. The Commission’s proposal, by contrast, requires member states to issue a voluntary departure period of “up to thirty days” (new Article 9(1)), abolishing the lower limit of seven days. This would allow member states to issue extremely short voluntary departure periods, even in the absence of any ground for exceptions.
However, member states cannot be assumed to have full discretion over the length of the period accorded. Under both the current Directive and the recast proposal, such a period should be “appropriate”. While this is increasingly framed as giving the shortest possible period (for example in a 2017 Commission Recommendation and in the Return Handbook), a reading in line with the above-mentioned CJEU judgment would require member states to provide, in good faith, a period that would give the third-country national a realistic opportunity to return voluntarily. What is appropriate in such a situation will depend on his or her circumstances, and should draw upon knowledge about time-frames for return to specific countries of origin or transit. In practice, even the current minimum period of seven days will be insufficient to offer a realistic chance of returning voluntarily in all but the most advantageous situations, for example when the third-country national has valid travel documents and transport is available at short notice. In most other cases, it will fall short of being appropriate for the effective enjoyment of the opportunity to return voluntarily. This problem will only be compounded if states are able to issue even shorter periods. Although this problem may be offset to some extent by the requirement that any voluntary departure period is extended “where necessary” (Article 7(2) of the current Directive and maintained in the recast proposal), the current formulation in the proposal, in my view, does too little to reflect the role of the voluntary departure period as a mechanism to protect fundamental rights.
Mandatory denial of a voluntary departure period
As noted above, the current Directive allows member states to shorten or deny a voluntary departure period if relevant grounds to make exceptions apply. This is the case if (1) the person’s application for legal stay has been dismissed as manifestly unfounded or fraudulent; (2) there is a risk to public policy, public security or national security; or (3) there is a risk of absconding (Article 7(4)). The latter must be grounded in reasons in the individual case based on objective criteria set out in law (Article 3(7)). While the recast proposal maintains these grounds, it would make denial of a voluntary departure period mandatory in all three situations (new Article 9(1)). If this would be applied as a general practice, it would raise questions about the compatibility with the key role of voluntary return in protecting fundamental rights. At the very least, this would have to be subject to further clarification that such a decision should still be subject to the principle of proportionality. While the recast, like the current Directive, requires all decisions to be taken on a case-by-case basis (recital 6), the proposal to make denial mandatory may create confusion over this.
The turn towards mandatory denial is particularly problematic as the situations in which the grounds for exceptions apply look to be expanding. For example, the 2016 proposal for a new Asylum Procedure Regulation (APR) sought to introduce the mandatory practice that member states, when rejecting an asylum application by a person from a so-called ‘safe country of origin’, should not just dismiss such an application as unfounded, but as manifestly unfounded. Under the recast Returns Directive, this would then automatically trigger a denial of a voluntary departure period for all who have been subject to such a dismissal. The list of safe countries used by various member states furthermore includes many key countries to which individuals currently return voluntarily. As a result, a large number of people currently able to return voluntarily would be deprived of that possibility.
The Commission may seek to review the APR proposal as part of the new Pact, so it remains to be seen if this is maintained. However, if both proposals are taken forward in the current form, and other grounds for the deprivation of a voluntary departure period are expanded as well (see below), this may bring virtually all, or at least a majority, of persons within the scope of the Directive under one of these grounds for denial. This would risk reversing the relationship between the rule and the exception, and thus negate the priority of voluntary return.
Indicators of a risk of absconding
The denial of a voluntary departure period on the basis that there is a risk of absconding arguably has the greatest potential for states to undermine the priority of voluntary return (see, for example, Baldaccini 2009). The current Directive requires states to set objective criteria in law that would indicate such a risk. In practice, member states have set very wide-ranging criteria (as in this REDIAL report). In its recast proposal, the Commission aims to harmonise this by setting a non-exhaustive list of 16 criteria which member states should, as a minimum, include in their law (new Article 6). Four of these criteria would furthermore create rebuttable presumptions of a risk of absconding. While the goal of harmonisation is commendable, the list itself has been criticised as vague and broad, potentially only aggravating existing problems with the use (and abuse) of a risk of absconding as a means to deny an opportunity for voluntary return. While it would go too far to discuss all the criteria proposed, I will outline some more general principles which they should meet, and point to some of the more problematic proposals in this respect.
First, the criteria must be fit for purpose. This means they must actually be able to indicate a risk of absconding. The Directive only defines a risk of absconding in relation to the setting of objective criteria, but nowhere clarifies the meaning of ‘absconding’ itself. As a result, ‘absconding’ must be interpreted by its normal meaning, which is commonly defined in relation to disappearing off the radar of the authorities, or trying to evade control or capture. In various language versions, this meaning is more explicit, referring to a risk of escaping or flight (Fluchtgefahr, risque de fuite, riesgo de fuga) or a risk of going underground (e.g. risico op onderduiken in the Dutch version) (Article 3(7)). In this way, absconding is distinct from issues of non-compliance or non-cooperation by the individual. These issues are relevant to the question whether a return should be enforced. The Directive clearly takes into account the possibility that an individual will not comply voluntarily, and has an answer to this in the form of clear provisions on enforcement. The purpose of ensuring that the person does not abscond during the voluntary departure period is thus not to ensure compliance or cooperation as such, but to guarantee he or she is available for enforcement when the voluntary departure period ends. It is also for this reason that the Directive provides for the imposition of measures to prevent absconding during the voluntary departure period, such as financial guarantees, confiscation of documents, or reporting duties (Article 7(3)). The logic of the priority of voluntary return would also dictate that a member state makes use of these measures if this would effectively ensure that a voluntary departure period could still be granted.
Despite this limited meaning of ‘absconding’ some criteria go beyond this. One of these is that the risk of absconding would be indicated by the individual’s explicit expression of intent of non-compliance with return-related measures (new Article 6(1)(e)). As discussed above, this is something quite different from intending to abscond. For example, a person may say that he or she does not want to return, but in the meantime stay in view of the authorities by staying in government-provided accommodation or meeting reporting requirements. Furthermore, such a criterion ignores the possibility that a person’s intention of complying may change during the voluntary departure period, especially as the prospect of removal, and possibly detention, draws nearer.
Another factor limiting the use of the risk of absconding is the requirement that all decisions related to the return procedure must be made on the basis of individual circumstances, with considerations going beyond the “mere fact of illegal stay”. This makes sense because illegal stay is already the reason why a person comes within the scope of the Directive and must return. If that same fact could be used to deny a voluntary departure period, this would give member state the opportunity to do so in all cases. It would thus create a double jeopardy-like situation. Despite this clearly not being compatible with the Directive, a number of proposed indicators skirt uncomfortably close to the “mere fact of illegal stay”. This is particularly the case for indicators such as those relating to irregular entry (new Article 6(1)(d) or the lack of documents (new Article 6(1)(a). Both of these are not only common occurrences for persons coming without the scope of the Directive, but they may also directly create the fact of irregular stay itself. This does not mean that these facts are necessarily meaningless. However, it would be up to the member state to show that particular circumstances of an individual’s irregular entry, or the manner in which he or she became undocumented (such as the deliberate destruction of documents), provide evidence that there is a concrete risk of absconding.
Other criteria also raise questions, such as the individual being a subject of a criminal investigation or proceeding (new Article 6(1)(l)). This may provide member states with a backdoor to circumvent the arguably higher threshold for denying a voluntary departure period because he or she poses a risk to public policy, which has been the subject of extensive clarification by the CJEU in the Zh. and O. judgment.
In general, the long list of proposed indicators (which is not exhaustive for member states), in combination with their very general nature and common occurrence provide for a very blunt instrument, which does not match the requirement of an individualised approach which, as a starting point, aims to give a fair opportunity to return voluntarily. At the very least, they would require a much more nuanced application, which cannot become a ‘tick-the-box’ exercise. Furthermore, the creation of a rebuttable presumption of a risk of absconding in specific cases would reverse the burden of proof, which is difficult to reconcile with the fact that the member state is acting in a manner that may constraint fundamental rights, and thus needs to bear the responsibility of justifying them.
The Commission’s approach to the priority of voluntary return is highly ambiguous. On the one hand, it is seeking to reinforce assistance for voluntary returns, even proposing to include a requirement that member states set up programmes to this end in the recast Directive (new Article 14(3)). However, while historically being the key advocate for prioritising voluntary return, some of the Commission’s proposals now look to undermine this priority. As discussed, this does not only raise questions of compatibility with the objectives of the Directive and the protection of fundamental rights more generally. Backpedalling on the priority of voluntary return may also be short-sighted from the perspective of ensuring effective return. Frontex data shows that, over the last years, voluntary returns have contributed to almost half of all verifiable returns, and presumably at a cost much lower than forced return (Annex Table 13). If the low number of effective returns is indeed such a concern, limiting opportunities for voluntary return seems a non-solution. Furthermore, as the lack of cooperation by countries of origin with return and readmission is becoming an increasingly prominent issue (warranting even explicit mention in the recast proposal, see new Recital 47), turning away from voluntary returns may be the worst option from an international relations perspective. Cooperation is likely more forthcoming if countries see that the EU is promoting and facilitating the voluntary return of their citizens, rather than resorting to more repressive means as its main response. The priority of voluntary return has been emphasised in several cooperation frameworks with countries of origin, and in some cases countries of origin have even explicitly limited their cooperation to voluntary return cases.
Luckily, it is by no means evident that the proposed changes will end up being adopted by the co-legislators, as current positions are still far apart. On the issue of short voluntary departure periods, while the Council appears to accept, or at least not oppose, the Commission’s proposal, the LIBE Rapporteur instead suggests making 30 days the standard length of all voluntary departure periods. As regards the mandatory denial of a voluntary departure period, the Council largely follows this, but proposes to keep denial optional in the case of manifestly unfounded applications (while adding to this also inadmissible cases). The LIBE Rapporteur, on the other hand, advocates scrapping all grounds for denial apart from the presence of a “genuine and present” risk to public security or national security, which would at any rate be optional. The Council’s position also modifies some of the criteria for assessing a risk of absconding, including some of the problematic ones discussed above, whereas the LIBE Rapporteur seeks the deletion of the entire list of criteria, citing reasons that overlap with a number of the points discussed above. In light of serious concerns raised by various actors, the current Commission may also have become more open to suggesting compromise proposals during the trilogue that better secure the priority of voluntary return.
In this way, much remains to be discussed and therefore much to be gained in retaining the hard-won principle of priority of voluntary return as the centrepiece, rather than an afterthought, of an effective and fundamental rights-compliant EU return procedure.
Barnard & Peers: chapter 26
JHA4: chapter I:7
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