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.
Conclusions
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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