Izabella Majcher, PhD in International Law; Senior Legal Officer, ECRE*
*The views expressed in the post are those of the author and do not necessarily reflect the position of ECRE
On 17 December 2020, the European Parliament (hereafter Parliament) adopted the Resolution on the implementation of the Return Directive (2008/115/EC). The Resolution is an outcome of an own-initiative procedure launched in December 2019 as a response to a failure by the European Commission (hereafter Commission) to carry out an evaluation of the implementation of the Directive. In line with the better regulation guidelines, Article 19 of the Directive provides that the Commission should report on the application of the Directive every three years, starting from 2013. However, the Commission did so only once, in 2014 (see discussion here). In fact, failing to evaluate the implementation of the Return Directive did not prevent the Commission from issuing guidance on the implementation of the Directive and even proposing a recast of the Directive. In 2017, the Commission published the Recommendation on making returns more effective when implementing the Directive and the Return Handbook, which were followed in 2018 by a proposal to recast the Directive, which was not accompanied by an impact assessment. (On the proposed recast of the Directive, see discussion here and here).
It is worthwhile to juxtapose the Parliament’s Resolution and the Commission’s Recommendation, since both documents are meant to instruct the Member States on how to implement the Return Directive. Technically, the Commission’s Recommendation may have a stronger legal effect, as recommendations are listed in Article 288 of the TFEU as legal acts with no binding force (non-legislative acts). However, applying Senden’s classification of the EU soft law instruments, both the Parliament’s Resolution and the Commission’s Recommendation should be considered “interpretive soft law acts,” meaning that they “restate or summarize the interpretation that should be given to Community law provisions.” Also, relying on Hanchez’s terminology, since both documents refer to a key legal instrument (namely the Return Directive) which is legally binding, both qualify as “intra-legislative soft law.” In addition, while the Commission’s Recommendation was not informed by any actual evaluation of the implementation of the Directive, the Parliament’s Resolution was based on an implementation assessment, carried out by the European Parliamentary Research Service. Also, the adoption process was highly participatory and involved a considerable proportion of the members of the Parliament. After the draft resolution was presented in the Parliament LIBE Committee in early July 2020, 240 amendments were tabled by the members of the Parliament, and the compromise text was voted in LIBE in early December. In the plenary vote on 16 December, the Resolution was adopted with 512 votes in favour, 134 against and 49 abstentions.
To assess the respective weights of the Parliament’s Resolution and Commission’s Recommendation, the discussion should look beyond the form of the document and analyse the content of the position of the EU institutions. In fact, the EU return policy cannot be disassociated from international law, and the implementation of the Return Directive does not exonerate EU Member States from their international human rights obligation. Chapter VIII of the UN Charter foresaw the creation of regional agencies or arrangements whose “activities are consistent with the Purposes and Principles of the United Nations.” Return/expulsion of migrants in an irregular situation is regulated by a wide array of international human rights norms and standards, in particular the prohibition of refoulement, ill-treatment and collective expulsion, the right to life, liberty, family and private life and an effective remedy, as well as the principle of the best interests of the child. These norms are laid down in international and regional conventions, which all the EU Member States are party to, in particular the International Covenant on Civil and Political Rights (ICCPR), UN Convention against Torture, UN Convention on the Rights of the Child and Council of Europe’s (CoE’s) European Convention on Human Rights (ECHR). Based on this set of international norms, the UN Special Rapporteur on the Human Rights of Migrants (SRHRM), which is an independent expert mechanism reporting to the UN General Assembly and the Human Rights Council, issued thematic recommendations on return/expulsion within his 2018 Study on the return and reintegration of migrants.
The objective of this blog post is to discuss the key elements of the Parliament’s Resolution by contrasting them with the Commission’s Recommendation. The discussion of the diverging position of both EU institutions on the Return Directive will be presented against the background of the relevant international norms and standards, as encapsulated in the SRHRM’s recommendations.
1) Effectiveness of return
Since the wake of the so-called refugee crisis, the Commission has measured the effectiveness of the return policy based on merely the return rate (i.e. the proportion of return decisions issued in a given year to the number of returns in that year). The return rate rhetoric has dominated the Commission’s statements since then and the annual number of returns, considered insufficient by the Commission, led the Commission to propose policy and legal instruments that restrict the human rights guarantees and include disproportionate focus on return (including the recent Pact on Migration and Asylum). Conversely, the Parliament brings a much-needed broader perspective of effectiveness of the Return Directive. According to the Parliament, the effectiveness of the Return Directive should be measured not only by referring to the return rate but also by considering the sustainability of returns, implementing fundamental right safeguards, respecting the procedural guarantees and measuring the effectiveness of voluntary returns (§ 4). Further, the Parliament recognises that return rate is not a precise indicator. In fact, some states issue more than one return decision to a person and to people whose whereabouts are unknown, return decisions are not withdrawn if the return does not take place, and some people return voluntarily without their return being registered (§ 3).
2) Applicability of the Directive in border settings
Article 2(2)(a) of the Directive allows states to not apply the Directive to people who are refused entry in accordance with Article 14 of the Schengen Borders Code (SBC), who have been apprehended/intercepted “in connection with the irregular crossing” of the external borders and who have not subsequently obtained a right to stay. Although people subject to this derogation are to be ensured several safeguards enumerated in Article 4(4) of the Directive, this derogation raises several concerns. First, states may interpret the notion “in connection with” the irregular border crossing in a broad manner (although the ruling of the Court of Justice of the EU (CJEU) in Affum provides a narrow reading on this provision); second, it allows parallel procedures (based on either the Directive or SBC), which reduce legal certainty; and last, it risks limiting protective safeguards in the border context. According to the Commission, states should make use of the derogation under Article 2(2)(a) when this can provide for more effective procedure (§ 8). However, effectiveness cannot be equated with deficient procedures, and the Parliament stresses that this clause may lead to diminished safeguards compared to the regular return procedure and, therefore, urges states to apply the Directive to border situations (§ 21).
3) Return decision
Under Article 6(1) of the Directive, states should issue a return decision to any person in an irregular situation, without prejudice to a few exceptions. Under international human rights law, the key bars to return are the principle of non-refoulement and the right to family and private life. Articles 12 and 13 of the Directive spell out procedural guarantees and remedies for the persons concerned, which in all cases need to comply with the right to an effective remedy under the ICCPR and ECHR.
The principle of non-refoulement. According to the Commission, states should not assess the risk of breach of the principle of non-refoulement, if it has already been assessed in other procedures, the assessment is final, and there is no change in the person’s situation (§ 12(d)). Yet, under Article 5 of the Directive, states should respect the principle of non-refoulement when implementing the Directive, and the Parliament recalls that the principle of non-refoulement is binding on states in all circumstances (§ 19). The “other procedures” referred to by the Commission are typically asylum procedures, which commonly assess whether the person qualifies for refugee or subsidiary protection status, as defined under the Qualification Directive. Both protection statutes are narrower than the absolute protection from refoulement under the Return Directive. So, asylum procedure cannot substitute for assessing the risk of refoulement prior to or within the return procedure.
Return of unaccompanied children. The SRHRM stresses that children should be returned only when the return has been proved to be in their best interests through an appropriate procedure before a competent authority and with proper representation of the child (§ 92(d)). By virtue of Article 5 of the Directive, when implementing the Directive, states should take due account of the child’s best interests. The Commission supports returning unaccompanied children. It highlights that the prohibition to issue return decisions to unaccompanied children, which exists in the national legislation of several Member States, can create unintended consequences for irregular immigration, inciting unaccompanied children to embark on perilous journeys in order to reach the EU (recital 22). However, according to the Parliament, unaccompanied children should not be returned unless it can be demonstrated that it is in the child’s best interests (§ 18). (See now the CJEU’s recent judgment on applying the Directive to unaccompanied minors).
Effective remedy. Under Article 13 of the Directive, the person should be afforded an effective remedy to appeal against the return decision before competent authorities. In this context, according to the Commission, states should allow the shortest possible time-lines for lodging appeals against return decisions (§ 12(b)). On the contrary, noting differences between states regarding the time-limits of appeal, the Parliament reminds states to guarantee the right to an effective remedy (§ 20). Indeed, in the Strasbourg jurisprudence, the right to an effective remedy under Article 13 of the ECHR requires that the person has sufficient time to appeal against the return decision.
According to the SRHRM, states should offer protection from return to people who do not qualify for refugee and are in need of human rights protection. The SRHRM favours regularisation channels for people who have established ties in the host country or who would face rights violations upon return (§ 90). Under Article 6(4) of the Directive, states may grant a residence permit to a person in an irregular situation. Using this provision to regularise the stay of non-returnable people would end protracted limbo situations, which defeat effectiveness of the return policy and are likely to lead to breaches of fundamental rights. Yet, in its Handbook, the Commission stresses that states are not obliged to grant a permit to non-returnable people but may decide to do so under Article 6(4) (p. 138–139). On the other hand, the Parliament encourages states to expand the use of this provision. The Parliament has expressed its concern over the failure of states to issue a temporary residence permit where return has proven not to be possible, which often leaves unreturnable migrants unable to access their fundamental rights. The Parliament underlines that granting residence permits to non-returnable people could remove them from administrative limbo, reduce risk of labour exploitation, prevent protracted irregular stay and, ultimately, facilitate their social inclusion and contribution to society (§ 23).
5) Mandatory (“voluntary”) departure
Article 7 of the Directive lays down a general rule that the person should be provided with the possibility to leave on his/her own rather than being deported, which is called voluntary departure (referred elsewhere as mandatory departure, as this measure is not genuinely voluntary). According to the SRHRM, states should facilitate voluntary return (§ 88). Voluntary departure should be prioritised also under the EU law principle of proportionality, as restated in the CJEU’s ruling in Zh. and O. (discussed here).
Time-period for departure. Pursuant to Article 7(1)-(2) of the Directive, as a general rule, the period for voluntary departure should be between 7 and 30 days and can be extended in specific circumstances of the case. The Commission instructs states to provide for the shortest possible period for voluntary departure and grant a period longer than 7 days only when the person actively cooperates with the return process (§ 18 and 20). However, the Commission’s stance finds no support in the provisions of the Article 7 of the Directive. Crucially, an overly short period for voluntary departure may stripe such return of any voluntariness and ultimately reduce the uptake of voluntary departure programmes and defeat one of the key objectives of the Commission’s upcoming Strategy on Voluntary Return and Reintegration. Recalling the language of Article 7(1)-(2), the Parliament welcomes the provisions in several states that allow for extensions of the period of departure beyond 30 days (§ 12-13).
Refusal of voluntary departure. Under Article 7(4) of the Directive, states may refrain from offering the period for voluntary departure or may grant a duration shorter than a week in one of the following three circumstances: if the person’s application was dismissed as manifestly unfounded or fraudulent, the person represents a risk of absconding or the person threatens public policy or public/national security. The Commission entirely misreads Article 7(4) and notes that in those three circumstances, no period for voluntary departure should be granted (§ 21). For its part, the Parliament reminds that the three circumstances under Article 7(4) are exceptions (§ 12). As such, the Parliament’s position aligns with the CJEU’s ruling in Zh. and O., where the Court found that the three circumstances are exceptions to the general rule of granting a voluntary departure period and should be narrowly interpreted.
Under Article 15 of the Directive, states may detain a person subject to the return procedure to prepare return, unless other sufficient but less coercive measures can be applied effectively, if the person represents a risk of absconding or avoids/hampers the return process. This provision further sets out various detention safeguards, which in any case should be applied in accordance with the requirements stemming from the right to liberty under the ICCPR and ECHR.
Use of detention. The Commission prioritises detention. In the Commission’s view, detention can be an essential element to enhance the effectiveness of the EU return system (recital 16) and states should use detention to effectively ensure removals (§ 10(a)). Conversely, the Parliament brings the interpretation of Article 15 of the Directive in line with the international human rights law by stressing that detention must remain a measure of last resort, be necessary, reasonable and proportional to the objectives to be achieved, and be based on an assessment of the individual circumstances of the case (§ 30). These safeguards have been restated by the UN Working Group on Arbitrary Detention (WGAD) in its 2018 Revised deliberation no. 5 on deprivation of liberty of migrants, and the Parliament could have referred to this document.
Detention of children. The Commission encourages states to detain children. According to the Commission, states should not preclude in their national legislation the possibility to detain children, when this is “strictly necessary” to ensure removal, if states are not able to ensure alternatives to detention that can be applied effectively to ensure removal (§ 14). On the contrary, the Parliament agrees with the UN Committee on the Rights of the Child (CRC) that children should never be detained for immigration purposes, as detention can never be justified in children’s best interests. However, the Parliament further calls on the Member States to provide adequate, humane and non-custodial alternatives to detention (§ 34), which is an unfortunate demand. In this context, the UN CRC and UN Migrant Workers Committee, in their 2017 Joint general comment on State obligations regarding the human rights of children in the context of international migration, which the Parliament is implicitly referring to, do not recommend that states place children in alternatives to detention. Rather, the Committees call upon states to place unaccompanied children in alternative care structures and children with families in non-custodial facilities (§ 11-13). Likewise, in its 2020 recommendations on ending immigration detention of children, the SRHRM urges states to end child immigration detention and provide for adequate alternative care and reception for children, which implies that children are to be under child protection authorities, rather than immigration authorities (which typically manage alternatives to detention) (§ 86). The position of the UN expert mechanisms is premised upon the norm of non-detention of children. If children should not be detained and should enjoy the right to liberty, they should not be placed in alternatives to detention either, as these measures apply to people whose detention is lawful but not necessary and proportionate.
Length of detention. Under Article 15(5)-(6), detention can last up to 6 months and is extendable to 18 months in two circumstances. The EU institutions disagree when it comes to correlation between the length of detention and the possibility to remove the person. For the Commission, the maximum length of detention used by several states is significantly shorter than the one allowed under Article 15(5)-(6) of the Directive and precludes effective removals (recital 17). According to the Commission, states should introduce the maximum periods for detention under Article 15(5)-(6) in their domestic law (§ 10(b)). On the other hand, stressing that detention must last for the shortest time possible, the Parliament notes that states should not automatically resort to the maximum period permissible under the Directive. It reiterates that longer detention does not automatically increase the possibility of return and is generally more costly than alternatives to detention (§ 30-31).
7) Entry ban
According to Article 11 of the Directive, the return decision should be accompanied by an entry ban if the person has not received a period for voluntary departure or has not left the country within that period. In other cases, the imposition of an entry ban is optional. The entry ban prevents the person’s legal return to the whole Schengen area for up to five years, or longer in the case of a serious threat to public policy or public/national security. Although not explicitly provided in the Directive, an entry ban is subject to the principle of proportionality, which was restated by the CJEU in Zh. and O.; hence, it should be based on an individual assessment and imposed as a last resort.
Imposition and withdrawal of entry ban. In its Return Handbook, the Commission underlines that the Directive obliges states to issue an entry ban in two aforementioned circumstances (p. 125). On the other hand, the Parliament reiterates that an entry ban should not be automatically applied but should instead be based on an individual assessment (§ 17 and 25). Under Article 11(3) of the Directive, states may refrain from issuing, withdraw or suspend an entry ban for humanitarian or other reasons. In this regard, the Parliament recognises disproportionate consequences of an entry ban, in particular for families and children, and welcomes the practice by some states of exempting children from this measure. Stressing that children’s interests should also be a primary consideration when deciding on entry ban of their parents, the Parliament calls on states to ensure family reunification and respect for the right to family life, including by refraining from imposing entry bans (§ 27). Further, as the situation of a person may change during the period of an entry ban, the Parliament recommends that states lift the entry ban where the need for international protection arises and provide for effective procedures to this effect (§ 25).
Entry ban alongside voluntary departure. In its Return Handbook, the Commission asserts that an entry ban may be imposed even if the person departed voluntarily but encourages states to manage this measure in a way that incentivises voluntary departure (p. 125). For its part, the Parliament stresses that enforcing entry bans alongside voluntary departure may reduce an incentive to comply with a return decision and increase the risk of absconding. At least, as the Parliament notes, states should use the provisions of the Directive to allow for the entry ban to be lifted where the person can demonstrate to have left the territory of the state (§ 24 and 26).
8) Post-return monitoring
Following several reports of abuses and ill-treatment that people face upon return, the UN Committee against Torture, CoE Parliamentary Assembly, academia and civil society called for carrying out post-return monitoring. According to the SRHRM, no one should be returned without proper oversight by an independent post-return human rights monitoring mechanism (§ 89). In its Return Handbook, the Commission asserts that forced return monitoring that states should ensure under Article 8(6) of the Directive does not extend to post-return monitoring and does not cover the period following reception of the returnee in the destination country (p. 119). Conversely, the Parliament urges the Commission to establish a post-return monitoring mechanism to understand the fate of returned people, facilitate the exchange of good practices among the Member States on post-return monitoring and allocate sufficient funding for this purpose (§ 35).
The Parliament’s Resolution is a useful guidance on how Member States should implement the Return Directive. It is based on the premise that the Directive has a double objective, namely effective return and compliance with fundamental rights. The Parliament makes clear that the effectiveness should be measured not only by means of return rate but also by assessing the sustainability of return and human rights compliance. The Resolution demonstrates that it is possible to combine human rights compliance and effectiveness, which currently is unheard of from many Member States and EU leaders.
On several points, the Resolution clearly contrasts with the Commission’s Recommendation, as it reminds states that they are bound to respect the principle of non-refoulement at any stage of the return process; unaccompanied children should not be returned unless it is proved to be in their best interests; the length of the period for voluntary departure should be adequate; detention is a last resort measure; children should not be detained; and an entry ban should not be systematically imposed. In addition, the Parliament proposes other crucial safeguards, notably regularisation of non-returnable people and a post-return monitoring mechanism. The Parliament also advocates for applying the Directive in a border context, which would help increase legal certainty and respect for fundamental rights within the recently proposed border return procedure in the Commission’s proposal for the Asylum Procedures Regulation (discussed here and here). Several problematic elements of the Commission’s Recommendation discussed here have been later included in the draft recast of the Directive and have prompted concerns by the FRA, academia and civil society. Hence, the Resolution is timely as it can herald the Parliament’s position in the upcoming trilogue negotiations.
Beyond the realm of EU law and policy, with the Resolution, the Parliament brought the EU return policy in alignment with the international norms and standards on return/expulsion, recapitulated in the 2018 SRHRM’s recommendations. The Parliament’s implicit reference to the General Comment by the UN CRC is welcome, and it is hoped that EU institutions will begin to explicitly acknowledge other relevant UN standards, notably WGAD’s deliberation on immigration detention and SRHRM’s thematic recommendations. Moreover, the Resolution may reverse the trend whereby the EU attempts to curtail protective safeguards in international (prohibition on child detention in the Global Compact on Migration) and regional (stronger rules in the CoE’s European rules on immigration detention) instruments in the area of irregular migration. Ultimately, these standards are premised upon treaties that are binding on the EU Member States, regardless of the provisions of EU legislation. It is time for the EU to clearly restate and show its respect for the human rights of people in an irregular situation if it wishes to be an authoritative and credible voice when condemning violations of migrants’ rights in other world regions, as it commonly does.
Barnard & Peers: chapter 26
JHA4: chapter I:7
Photo credit: David Iliff, via Wikimedia commons