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.
4) Regularisation
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.
6) Detention
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).
Concluding thoughts
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
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