The New EU “Common System for Returns” under the Return Regulation: Evidence-Lacking Lawmaking and Human Rights Concerns

 

Dr. Izabella Majcher, Independent Consultant

Photo credit: Alamy Stock Photo 

On 11 March 2025, the European Commission published a proposal for a Return Regulation to replace the 2008 Return Directive. This new proposal also supersedes the Commission 2018 proposal to recast the Directive (discussed here and here). Negotiations on the 2018 recast proposal spanned several years, incurring significant costs, yet they stalled at the European Parliament level before even reaching interinstitutional negotiations between the Parliament and the Council of the EU. This raises questions about the necessity of launching fresh negotiations, their financial implications, and ultimately whether a comprehensive revision is needed at all. Why will this proposal pass through the negotiations if the previous one got stalled? In addition, opting for a regulation rather than a directive could make negotiations even more complex, as Member States recognize that a regulation’s provisions would be directly applicable in their domestic legal systems.

The underlying aim of the proposal is to increase the number of people returned, as it regrets that only around 20% of those issued a return decision actually leave. The proposal links this objective to the effectiveness of return. This objective is to be achieved through two main contributions of the proposal.

First, the proposal aims to streamline and harmonise return procedures, attributing the inefficiency of returns at the EU level to divergent national approaches. To address this, the Commission proposes shifting from a directive to a regulation and restricting the ability of Member States to provide stronger safeguards at the domestic level. Notably, the proposal criticises “significant room” the Directive leaves for national courts to interpret EU rules and removes the option for “more favourable provisions” option under the Directive (Art. 4). In the effort to create “modern, simplified and common” procedures, there is a risk that essential human rights safeguards will be eroded. It is crucial to remember that return procedures must comply not only with the principle of effectiveness but also with human rights standards. Second, the proposal upgrades “common standards and procedures” of return to a “common system for returns.” Besides the return standards and procedures, the “common system for returns” includes mutual recognition of return decisions (see discussion below), necessary resources and personnel to be ensured by the Member States, cooperation between Member States, support from EU bodies and agencies, and digital management systems. These measures are neither groundbreaking nor novel enough to justify an entirely new legislative text—especially considering the costs of adopting a new law.

The lack of an ex-ante impact assessment makes these questions even more pressing. Citing urgency and existing studies and consultations (most of which have not been made public), the Commission chose not to conduct an impact assessment for this proposal. None of these explanations is convincing, especially in light of the importance of evidence-based law-making. Under its own Better Regulation Guidelines, for every initiative that is likely to have significant economic, environmental or social impacts, the Commission should conduct an impact assessment to demonstrate the added value of the proposed measures and their coherence with key criteria—including impact on fundamental rights.

The proposal introduces some stronger human rights protections compared to the Directive, including the judicial form of appeal (Art. 26(1)), expanded monitoring of forced returns (Art. 15), basic needs provision during removal postponement (Art. 14(6)), and age assessment for children (Art. 19). However, these safeguards are overshadowed by the proposal’s overall coercive approach and several provisions that weaken rights. This analysis examines five key measures that are particularly problematic from a human rights perspective, questioning not only their human rights compliance but also their effectiveness.

1) Mutual recognition of return decisions: Building upon the Commission Recommendation from March 2023, the proposal enshrines the mutual recognition of return decisions. Under this mechanism, a Member State that apprehended a person who has already received a return decision in another Member State may (and in the future shall) enforce that decision rather than issuing its own (Art. 9). This is made possible through a “European Return Order” (a form listing main elements of the return decision) made available among the states through the Schengen Information System (Regulation 2018/1860) or other information exchange channels. In theory, mutual recognition enhances efficiency, as only one state would conduct the return procedure. It is therefore unsurprising that the Commission presents it as a key element of the common system for return. However, this measure was already provided in a 2001 Council Directive, yet it does not appear to be regularly used.

Recognizing another state’s return decision comes with practical and legal challenges. Since grounds for legal stay are not harmonised at the EU level, a person may be in an irregular situation in one state but not in another. Although the proposal aims to harmonise procedures, Member States will still be allowed to grant residence permits on humanitarian, compassionate, or other grounds (Art. 7(9)). Since these residence permits are not harmonised, situations may arise where a state is required to remove a person who would otherwise qualify for a residence permit under its domestic law. Additionally, despite formal harmonisation, there will remain the scope for domestic interpretation of grounds for a legal stay (currently demonstrated by discrepancies between asylum recognition rates for the same nationality across the EU). So a state enforcing another’s return decision may face litigation, even though appeals against the decision would have to be lodged against the issuing Member State, according to the proposal. The enforcing state would also bear the costs of removal and potentially detention. Although the proposal provides for Frontex funding or compensation by the issuing state, accessing this financing may be cumbersome to organise. Mutual recognition is thus generally in the interest of the transit countries while disadvantageous for the destination countries.

Crucially, mutual recognition of return decisions and entry bans raises proportionality concerns as it effectively spreads across the EU the most restrictive approaches. As demonstrated above, despite the proposal's aim to harmonise procedures, there will still be room for domestic non-harmonised statuses (e.g., under Art. 7(9) of the proposal) as well as variations in the interpretation of harmonised statuses (e.g., refugee or subsidiary protection statuses). The Commission’s approach lacks coherence on this issue. It glorifies the mutual recognition of return decisions as a key efficiency measure, yet it makes no effort to introduce the mutual recognition of protection statuses—exposing a clear double standard in EU migration policy.  

2) Expansion of detention: the proposal significantly expands the legal basis for detention. Under the Directive, states may only apply detention unless other sufficient but less coercive measures can be applied effectively in a specific case. The proposal removes this requirement (Art. 29(1)-(2)), making detention the first resort measure, which is at odds with the CJEU case-law and HRC jurisprudence. The proposal introduces three new grounds for detention (Art. 29(3)), which are also questionable under international human rights law. Among the new grounds for detention is the need to determine or verify the person’s identity or nationality, even where there is no risk of absconding. This ground could lead to unnecessary and prolonged detention of individuals whose nationality is disputed, not recognized, or who are stateless.

Detention would henceforth also be allowed if the person poses “security risks,” defined as a threat to public policy or public or national security, the existence of serious grounds for believing that the person has committed a serious offence, or a clear indication of their intention to commit one (Art. 16). The proposal further provides for derogations from the detention regime otherwise applicable. States will be able to detain those covered by this ground in prisons (albeit separated from “ordinary prisoners”) rather than in dedicated detention centres, and for a period longer than the maximum permissible length under the proposal—potentially indefinite. Detention based on “security risks” blurs the lines between (administrative) immigration detention and criminal detention. Because it offers fewer guarantees to detainees, immigration detention is an exceptional measure that should only be applied on narrowly defined grounds related to imminent removal. Immigration detention is by no means intended to address security risks; rather, criminal laws should apply equally to anyone under the state's jurisdiction. Criminal pre-trial and post-conviction detention provide stronger due process guarantees and clearer time-limits. The proposal thus intends to sideline the CJEU case-law, as the court was adamant in stressing that detention on public order or safety grounds cannot be based on the Directive.

The proposal extends the maximum permitted length of detention in ordinary cases from 18 months to 24 months (Art. 32(3)). While states are not required to maintain detention for the maximum period, in practice, they often do. As a result, the proposal would lead to longer detention periods across the EU. This stands in stark contrast to the Commission’s previous stance, which claimed that the Directive had a beneficial effect on detention lengths in Member States by generally shortening them. Additionally, the proposal clarifies that these limits apply within a given Member State. So, if a person is transferred between states (for instance, under the mutual recognition mechanism), the detention period may start anew. The proposal also facilitates extended and unnecessary detention by removing the principle that detention shall only be maintained as long as removal arrangements are in progress and executed with due diligence. However, this requirement stems from the ECtHR's well-established case-law, so the Member States remain bound by it in any case.

The expansion of detention thus conflicts with several safeguards flowing from the right to liberty. Additionally, as pointed out by the EPRS, detention is neither necessarily effective (since there is no evidence to suggest that more detention leads to higher return rates) nor efficient (due to the considerable costs involved).

3) Generalized restriction on freedom of movement: the proposal introduces five freedom-restricting measures (including reporting obligations, residing in a specific place and electronic monitoring), labelling them as “alternatives to detention” (Art. 31). However unlike genuine alternatives to detention, these measures are not to be imposed instead of detention (i.e., when detention would otherwise be lawful) but in addition to detention – when detention is not or no longer justified (Art. 32). Labelling such measures as “alternatives to detention” is therefore misleading and creates confusion. Under the framework of detention and its so-called alternatives, individuals risk being either detained or subjected to these restrictive measures depending on the perceived level of the risk of absconding. Given the expansive definition of the risk of absconding (Art. 30), personal freedom would effectively become the exception rather than the rule. Although the proposal includes some human rights safeguards flowing from the right to freedom of movement within a State—such as individual assessment and proportionality requirements—these may not be sufficient to counterbalance the broad scope of restrictions.

Another set of freedom-restricting measures introduced in the proposal relates to the new obligation to cooperate and remain available for the return process (Art. 23). To ensure a swift, efficient, and effective return, the proposal subjects individuals to geographical restrictions (such as confinement to a designated area or residence at a specific address) and/or reporting duties for the duration of the return procedure. Notably, the proposal does not establish any additional conditions for imposing these measures. Subjecting every person in the return procedure to geographical restrictions is an indiscriminate and disproportionate measure. It fails to meet the necessity requirement under the right to freedom of movement, which demands that any restriction be necessary in the individual case for achieving the legitimate objective.

4) The downgrading of “voluntary” departure/return: The proposal rebrands "voluntary departure" (currently used in the Directive) as "voluntary return," which reduces clarity. A return that follows a return decision is not truly voluntary, as it is not based on the person’s informed and free consent. Even "voluntary departure" under the Directive is misleading, with "mandatory" or "accepted" return previously suggested as more accurate. The shift to "voluntary return" only deepens the confusion, likely aligning the language with assisted voluntary return and reintegration programs run by the International Organization for Migration.

Additionally, the proposal removes the priority currently given to "voluntary" departure/return, making removal the default option. The minimum 7-day departure period has also been eliminated, further downgrading the role of “voluntary” departure/return (Art. 12–13). This shift contradicts key legal principles and the Commission’s own position. The CJEU in Zh. and O. confirmed that “voluntary” departure/return is rooted in the principle of proportionality. Furthermore, this form of return is in states’ interests—it is cheaper and easier to organize. As the Commission acknowledged in its 2021 strategy, “voluntary” departure/return helps ensure more effective and sustainable outcomes. The explanatory memorandum applauds the increase in the uptake of “voluntary” departures/returns and, due to the absence of an impact assessment, it remains unclear why this form of return is now being restricted. While the proposal limits “voluntary” departures/returns, it simultaneously promotes them by introducing a new provision dedicated to return and reintegration assistance (Art. 46(3)). This inconsistency ultimately undermines both legal principles and practical considerations.

5) Externalisation of return: The proposal allows Member States to remove individuals—except unaccompanied children and families with children—to a third country with which they have an agreement or arrangement for return (Art. 17). This “return hub” would then be responsible for the further removal. In effect, the proposal establishes a legal basis in EU law for the externalisation of return. On paper, outsourcing returns may seem attractive to Member States. However, as a recent migration deal has shown, such measures often face legal challenges, operational hurdles, and high costs for the outsourcing state. The Commission itself considered “externally-located return centres” in 2018 but identified serious legal and practical challenges, including the risk of violating non-refoulement and conflicts with EU values.

Return hubs raise human rights concerns, particularly regarding detention and onward return. While the proposal requires third countries to uphold international human rights standards, including non-refoulement, it fails to specify how and by whom compliance would be assessed. Similarly, although independent monitoring is mandated, its scope and mandate remain undefined. Member States may not be able to escape responsibility for human rights violations in return hubs. Under the proposed framework, their involvement may be substantial enough to establish jurisdiction, as seen in recent UN Human Rights Committee decisions.

Concluding thoughts

As this analysis has shown, several measures in the Commission’s proposal risk violating fundamental human rights, including the prohibition of refoulement, arbitrary detention, and torture or ill-treatment. The generalised restrictions on freedom of movement and the downgrading of “voluntary” departure/return are not in line with the EU law principle of proportionality. At the same time, these measures are unlikely to improve the effectiveness of return, even when effectiveness is reduced to the sheer number of persons returned—let alone efficiency, which considers the human and financial resources required. In fact, detention does not necessarily lead to higher return rates, while being costly. Similarly, forced removal is more expensive and complex to organize than “voluntary” departure/return. The so-called “innovative solutions”—such as mutual recognition of return decisions and return hubs—lack clarity and may prove far more difficult to implement than envisioned on paper.

Moreover, the proposal fails to meet other key criteria for EU policymaking as outlined in the Commission’s Better Regulation Guidelines. The de-prioritisation of “voluntary” departure/return contradicts the criterion of sustainability. The criterion of coherence is also put into question. Internally, the downgrading of “voluntary” departure/return is inconsistent with the promotion of “voluntary” assisted return and reintegration. Externally, the use of “alternatives to detention” as standalone restrictive measures distorts the concept, which is meant for people who would otherwise be lawfully detained. Ultimately, the proposal disregards several core criteria of EU lawmaking—shortcomings that could have been identified through an ex-ante impact assessment.

The proposal fails to acknowledge that, despite its arsenal of measures to increase return numbers, not everyone in an irregular situation can or will leave EU territory. The obligation to issue a return decision for every person in an irregular situation—without a mandatory prior assessment of refoulement risks or other legal bars to removal (such as family and private life or health conditions)—inevitably creates a group of unreturnable individuals. This issue already existed under the Directive and is further exacerbated by the proposal. Currently, Member States may issue a residence permit for humanitarian or other reasons instead of a return decision, or withdraw/suspend an existing return decision for such reasons (Art. 6(4)). However, as the EPRS observed, these considerations are not automatically assessed within the return procedure.

Rather than addressing this gap, the proposal eliminates this possibility from the list of exceptions. Member States will only be able to withdraw or suspend a return decision (Article 7(9)); abstaining from issuing a return decision on such considerations will not be an option anymore. Impediments to return will be assessed only at the appeal stage of the return procedure, which undermines the effectiveness and efficiency of return policies let alone human rights compliance. Instead, an automatic assessment should be conducted before issuing a return decision, and a regular status should be granted to those who cannot be returned. Regular pathways for stay are widely recognized as a viable alternative to return and a normal feature of migration governance. A genuine "Common System for Returns" should at least recognize regularisation measures for unreturnable persons.

A legislative proposal based on coercion and restrictive measures—without any supporting evidence due to a missing impact assessment—would never see the light of day in the EU if its addressees were not people whose voices are typically unheard. People fall into irregular situations in many different ways and many have lived in and contributed to European societies for decades. They remain invisible, and those who defend their rights face increasing criminalisation. In this context, responding to the demands of some Member States, the Commission has enjoyed wide flexibility to propose unrestricted coercive measures—with little accountability for their impact on those affected. However, law-making without evidence sets a dangerous precedent. In the future, such an untransparent approach could extend beyond undocumented migrants, affecting asylum seekers, migrants in a regular situation, and ultimately EU citizens. Now, it is up to the European Parliament and the Member States in the Council to reaffirm the EU’s founding principles: democracy, the rule of law, and human rights.

The new Screening Regulation – part 5 of the analysis of new EU asylum laws

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Rock Cohen, via Wikimedia Commons

(Amended on 14 May and 10 and 18 June 2024 - changed sentences marked with an asterisk)

Just before Christmas, the European Parliament and the Council (the EU body consisting of Member States’ ministers) reached a deal on five key pieces of EU asylum legislation, concerning asylum procedures, the ‘Dublin’ system on responsibility for asylum applications (also known as the 'Asylum and Migration Management Regulation', or AMMR), the ‘Eurodac’ database supporting the Dublin system, screening of migrants/asylum seekers, and derogations in the event of crises. These five laws joined the previously agreed revised laws on qualification of refugees and people with subsidiary protection, reception conditions for asylum-seekers, and resettlement of refugees from outside the EU. Taken together, all these laws are a ‘package’ of new or revised EU asylum laws.* All the legislation was formally adopted on 14 May 2024, and published in the EU Official Journal on 22 May 2024.*

I’ve looked at all the new legislation on this blog in a series of blog posts, which are based on a forthcoming article.* This is the fifth post in the series, on the new Regulation on screening of migrants (mostly) at the external borders. The other blog posts in the series concern the new qualification Regulation (part 1), the revised reception conditions Directive (part 2), the new Regulation on resettlement of refugees (part 3), the revised Regulation on Eurodac (part 4), the revised Dublin rules on responsibility for asylum-seekers/AMMR (Part 6), the Regulation on asylum procedures (part 7), and the crisis Regulation plus general comments (Part 8).*

The 2024 asylum package joins the previous Regulation revising the powers of the EU asylum agency, which was separated from the package and adopted already in 2021.* (On EU asylum law generally, see my asylum law chapter in the latest edition of EU Justice and Home Affairs Law).

The Screening regulation: background

There have been two previous ‘phases’ in development of the Common European Asylum System: a first phase of laws mainly adopted between 2003 and 2005, and a second phase of laws mainly adopted between 2011 and 2013. The 2024 package is in effect a third phase, although for some reason the EU avoids calling it that.*

However, unlike most of the 2024 package of legislation, the Screening Regulation is entirely new – although to some extent it may provide a legal basis for things that were already going on in practice before its adoption. So unlike most of the other laws in the asylum package, there is no current version of the law to compare the new version to – and therefore no prior CJEU case law to consider either.

Having said that, the Screening Regulation amended a number of other EU measures, to ensure their consistency with it, namely the Regulations on: the Visa Information System; the entry-exit system; ETIAS (the travel authorisation system); and interoperability of databases.* Furthermore, a parallel Regulation amended two EU criminal law measures to ensure that they are also consistent with the main Screening Regulation.*

Why two parallel Regulations? Because the Screening Regulation, unlike the rest of the package of EU asylum law measures, is technically a law on external borders, not asylum. As such, it ‘builds upon the Schengen acquis’, and so is applicable in principle to the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) too.* Ireland must opt out (as it does not participate in Schengen) and Denmark is formally excluded (although it may apply the Regulation as a matter of national law). In contrast, the parallel amendment to EU criminal law is only relevant to Member States (but again, there will be an Irish and Danish opt out from it).

In this context, the preamble to the Regulation makes special provision for Cyprus, which has not yet fully applied Schengen; that country must apply the Regulation to those crossing the line separating the areas controlled by the Cypriot government and the Turkish Cypriot administration, even though it is not legally an international border from the perspective of EU law.  As for Denmark and Schengen associates, the preamble states that for them, references to the EU’s reception conditions Directive in the Screening Regulation should be understood as references to the relevant national law.   

As with all the new EU asylum measures, each must be seen in the broader context of all the others – which I discuss over the course of this series of blog posts.* Furthermore, the new Screening Regulation has links with the Schengen Borders Code, the main law governing crossing of external EU borders – although the Regulation did not formally amend the Code.* It will also link with (but again, not amend) the EU’s Returns Directive.

The legislative process leading to the agreed text of the screening Regulation started with the Commission proposal in 2020, as part of the attempt to ‘relaunch’ the process of amending EU asylum law, started back in 2016.* The proposal was subsequently negotiated between EU governments (the Council) and then between the Council and the European Parliament. But this blog post will look only at the final text, leaving aside the politics of the negotiations.

Like most of the other measures in the asylum package, the application date of the Screening Regulation will be about two years after adoption - namely 12 June 2026.* However, the provisions on queries of other EU information systems will only start to apply once those information systems enter into operation.

Scope

The Regulation applies to four categories of people, namely those who: 

without fulfilling the entry conditions [in the Schengen Borders Code], have crossed the external border in an unauthorised manner, have applied for international protection during border checks, or have been disembarked after a search and rescue operation

and of

third-country nationals illegally staying within the territory of the Member States where there is no indication that those third-country nationals have been subject to controls at external borders, before they are referred to the appropriate procedure.

The Regulation distinguishes between the first three categories, who are all connected with the external borders, and the fourth category (illegal staying where is there is no indication of having been controlled at external borders). For simplicity’s sake, this blog post refers to the first three categories as ‘external cases’, and the fourth category as ‘internal cases’. Both the first and third groups must be screened regardless of whether they apply for asylum or not.

Member States ‘may refrain’ from screening the fourth category of people (on the territory, having entered without authorisation), if they send the non-EU citizen back, ‘immediately after apprehension, to another Member State under bilateral agreements or arrangements or under bilateral cooperation frameworks.’ In that event, the other Member State must apply a screening process.

The Screening Process

For external borders cases, screening must be ‘carried out without delay’, and in any event completed within seven days of apprehension, disembarkation, or presentation at the border. For internal cases, the deadline is three days. Screening must end if the person concerned is authorised to enter the territory. Screening may end if the person concerned ‘leaves the territory of the Member States, for their country of origin or country of residence or for another third country’ to which they voluntarily decided to return to and were accepted by. In any case, screening ends once the deadline to complete it is reached.

Screening must take place at an ‘adequate and appropriate’ location decided by Member States; for external cases, that location should be ‘generally situated at or in proximity to the external borders’, although it could be at ‘other locations within the territory’. It must entail (referring in part to checks under other EU laws): checks on health, vulnerability, and identity; registration of biometric data ‘to the extent that it has not yet occurred’; a security check; and filling out a screening form.

For those who have made an asylum application, the registration of that application is governed by the asylum procedures Regulation. The preamble to the Screening Regulation explicitly states that an asylum application can be made during the screening process. Furthermore, the Screening Regulation is ‘without prejudice to’ the Dublin rules; and it ‘could be followed by relocation’ (ie movement to a Member State not responsible for the application) under the Dublin rules ‘or another existing solidarity mechanism’.

Member States are obliged to inform the persons being screened about the screening process itself, as well as asylum law and returns law, the Borders Code, national immigration law, the GDPR, and any prospect of relocation. Otherwise, there is no explicit reference to procedural rights. Conversely, the people being screened have procedural obligations: they must ‘remain available to the screening authorities’ and provide both specified personal data and biometric data as set out in the Eurodac Regulation. Finally, after screening ends, the person concerned should be referred to the appropriate procedure – either the asylum process or the returns process.

Treatment During Screening

As regards immigration law status during the screening process, external cases must not be authorised to enter the territory of the Member States, even though the screening might be carried out on the territory de facto. This is obviously a legal fiction, which is exacerbated by the prospect (under the procedures Regulation) of continuing that legal fiction under the ‘borders procedure’ for up to 12 weeks.

Moreover, Member States must provide in their national law that persons being screened ‘remain available to the authorities carrying out the screening for the duration of the screening, to prevent any risk of absconding and potential threats to internal security resulting from such absconding.’ This wording looks like a euphemism for detention, which the Regulation goes on to refer to more explicitly – providing that where the person being screened has not applied for asylum, the rules on detention in the Returns Directive apply.

For those who have applied for asylum, the reception conditions Directive applies to the extent set out in it. This cross-reference is potentially awkward because that Directive applies to those ‘allowed to remain on the territory’ with that status, whereas the Screening Regulation decrees that the people covered by it are not legally on the territory. Logically the reception conditions Directive must apply despite the non-entry rule of the Screening Regulation, otherwise that Regulation’s references to that Directive applying would be meaningless (the preamble to the Regulation also says that the detention rules in the reception conditions Directive ‘should apply’ to asylum seekers covered by the Regulation). Screening is not as such a ground for detention in the exhaustive list of grounds set out in the reception conditions Directive – so Member States will have to find some other ground for it from that list. The preamble to the Regulation sets out general rules on limits to detention, borrowing some language from the reception conditions directive.

As for other aspects of treatment, the Screening Regulation states that Member States ‘shall ensure that all persons subject to the screening are accorded a standard of living which guarantees their subsistence, protects their physical and mental health and respects their rights under the Charter [of Fundamental Rights].’ For asylum-seekers, this overlaps with the more detailed rules in the reception conditions Directive, but for non-asylum seekers, it in principle goes further than the Returns Directive – although the case law on that Directive has required some minimum treatment of people covered by it. Of course, for many people subject to screening, it will be the provisions on detention conditions under those two Directives which will be relevant in practice. There is a more specific provision on health care, stating that those being screened ‘shall have access to emergency health care and essential treatment of illness.’

The Regulation includes specific provisions on minors. The best interests of the child must always be paramount; the minor must be accompanied by an adult family member, if present, during the screening; and Member States must ensure the involvement of a representative for unaccompanied minors (overlapping with the relevant provisions of the reception conditions Directive).

Finally, as for contact with the outside world, ‘[o]rganisations and persons providing advice and counselling shall have effective access to third-country nationals during the screening’, although Member States may limit that access under national law where the limit is ‘objectively necessary for the security, public order or administrative management of a border crossing point or of a facility where the screening is carried out, provided that such access is not severely restricted or rendered impossible’. Presumably such access can help check that the rules on treatment are being applied, including possible challenges to detention and offering advice as regards subsequent asylum or returns procedures, or potential challenges to screening as discussed above.

Human Rights Monitoring

The Regulation sets out an overarching obligation to comply with human rights obligations, including the principle of non-refoulement (not sending a migrant to an unsafe country), as well as a requirement to have an independent human rights monitoring mechanism, which is specified in some detail. Member States must: ‘investigate allegations of failure of respect for fundamental rights’ as regards screening; ensure civil or criminal liability under national law ‘in cases of failure to respect or to enforce fundamental rights’; and create an independent mechanism to monitor human rights compliance during the screening, ensuring that allegations of human rights breaches are triggered or dealt with effectively, with ‘adequate safeguards’ to ensure its independence. The preamble points out that judicial review is not enough to meet these standards. (Also, these rules will apply to monitoring the borders procedure in the procedures Regulation)

Assessment

To what extent has this Regulation ensured a balance between migration control and human rights? It does aim towards a greater degree of migration control by imposing new legal obligations as regards many asylum seekers; but the key point as regards their rights is that the Regulation provides for a filtering process, not a final decision. In other words, the screening process does not entail in itself a decision on the merits or admissibility of an asylum claim, or a return decision. Whilst it is based on a legal fiction of non-entry, that process is strictly and absolutely limited in time, with no prospect of extending the short screening period even as a derogation under the Exceptions Regulation. (In contrast, the border procedure under the procedures Regulation lasts for longer, and can be extended in exceptional cases). And the legal fiction does not in any event mean that no law applies at all to the persons concerned; obviously at the very least, the screening Regulation itself applies, as do other EU laws which it makes applicable. (So does the ECHR: see Amuur v France) For instance, the Regulation refers to detention on the basis of the returns and reception conditions Directives, and although the lack of authorisation to enter means that the right to remain on the territory as an asylum seeker is not triggered as such, nevertheless the Regulation precludes Member States taking return decisions to remove asylum seekers, as it only provides for a filtering process.

Despite the absence of any express procedural rights in the Regulation, it is arguable that in light of the right to effective remedies and access to court set out in Article 47 of the Charter, it should at least be possible to challenge the application of the screening procedure on the basis that (for example) there is no legal ground for the screening at all, or that the screening has exceeded its permitted duration. In any event, the absence of express procedural rights should be seen in the context of the screening process not determining the merits of an asylum application.

The drafters of the Regulation chose instead to focus on the prospect of non-judicial processes to protect human rights in the context of the screening process. While non-judicial mechanisms of course play an important role in protection of human rights in general, it is useful if parallel judicial processes can be relied upon too. And one area where the Regulation should have explicitly provided for both judicial and non-judicial mechanisms is pushbacks from the territory – illegal not only under human rights law but also under EU law, as recently confirmed by the CJEU.

 

The implementation of the EU Return Directive: The European Parliament aligns the EU expulsion policy with recommendations of UN human rights expert mechanisms

 

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