Detention by Delay? A Structural Paradox in EU Migration Law

 

 

Miguel Alconero Bravo, Predoctoral Research Fellow (Formación de Personal Investigador – FPI) at the University of Valladolid*

*Part of the Research Project “Proceso Penal y Espacio de Libertad, Seguridad y Justicia: Garantías, Cooperación Transfronteriza y Digitalización” (Ref. PID2023 – 152074NB – I00). 

Photo credit: berthgmn via wikimedia commons

 

Introduction

 

Predicating the detention of a migrant on circumstances entirely beyond his or her control seems prima facie unjust. Indeed, even a cursory reading of the provisions of EU law empowering Member States to extend the detention of a foreign national due to delays in obtaining the necessary documentation from third countries unmistakably exposes the inherent disproportionality of such a measure.

 

Ordering detention v. Extending detention

 

It must first be emphasised that both Article 15(6) of the Return Directive and Article 32(3) of the Commission proposal to overhaul EU return procedures enable Member States solely to extend a period of deprivation of liberty that has already been lawfully ordered.

 

Accordingly, where the conditions required under EU law for the detention of a third-country national are not satisfied in a given factual scenario, it is legally immaterial whether any of the grounds permitting a State to prolong that measure are present. If a person could not lawfully have been deprived of liberty from the outset, there is, fundamentally, no valid detention susceptible of being extended.

 

In this regard, Article 15(5) of the Return Directive states that “detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal”, whereas Article 32(1) of the proposal for a Return Regulation provides that “detention shall be maintained for as short a period as possible and for as long as the conditions laid down in Article 29 are fulfilled […]”.

 

Reference must therefore be made to Article 15(1) of the Return Directive, which adopts a numerus apertus approach. This provision refers in particular to two situations that may lead to the detention of a foreign national pending removal: the existence of a risk of absconding, and the possibility of identifying conduct through which the migrant seeks to avoid or hamper the preparation of return or the removal process.

 

Similarly, Article 29(3) of the proposed Regulation sets out, in exhaustive terms, the only situations in which the requesting State may order the detention of an irregularly staying third-country national: (a) where there is a risk of absconding determined in accordance with Article 30; (b) where the third-country national avoids or hampers the preparation of the return or the removal process; (c) where the third-country national poses security risks in accordance with Article 16; (d) in order to determine or verify his or her identity or nationality; (e) in the event of non-compliance with the measures ordered pursuant to Article 31.

 

Thus, the vast majority of the grounds for detention laid down in the Return Directive and in the proposed Regulation relate to scenarios in which the third-country national concerned has sought to frustrate the enforcement of return or the removal process. In essence, deprivation of liberty under both instruments is generally linked to some form of non-cooperation by the person concerned.

 

In this context, it must be stressed that construing the foreign national's lack of cooperation as a ground for extending detention – as Article 15(6)(a) of the Return Directive and Article 32(3) of the proposed Regulation do – makes it easier to postulate that the ground originally justifying detention still subsists. In other words, such a construction allows the authorities to establish the presence of almost any of the grounds set out in Article 15(1) of the return Directive and in Article 29(3) of the proposed Regulation for the purpose of ordering the detention of a migrant.

 

As a matter of fact, when a State invokes the “lack of cooperation by the third-country national concerned” in order to prolong detention, it is essentially relying on a concept whose indeterminacy allows national authorities to subsume within it many of the very grounds on which they could initially have relied to deprive that person of liberty.

 

In sum, extending the detention of a foreign national as a consequence of his or her lack of cooperation will, in most cases, make it possible to ascertain that the grounds for detention set out in EU law continue to be met.

 

Nonetheless, an exception must be made in respect of Articles 29(3)(c) and 29(3)(d) of the proposed Regulation –namely, where the person concerned is a third-country national deemed to pose a security risk, and where detention is ordered for the purpose of determining or verifying the foreign national’s identity or nationality.

 

In that respect, it should be noted that detention ordered on the grounds that a migrant poses a risk to public order, public security or national security bears, strictly speaking, no relation to the degree of cooperation he or she may have been willing to display during the return procedure. Irrespective of the individual’s willingness to cooperate, once a foreign national has been deprived of liberty on the basis that he or she is regarded as a threat to a State’s public order, public security or national security, detention will persist for as long as that classification remains in force.

 

That being so, authorities cannot invoke a migrant’s lack of cooperation to extend detention where the initial deprivation of liberty was based on security grounds or on the need to verify identity, as those circumstances do not, as such, relate to the individual’s conduct during the return procedure (unless a genuine and subsequent lack of cooperation actually materialises). Nevertheless, it is equally true that, in our view, Brussels errs in treating said situations as grounds for detention in the first place.

 

Against this backdrop, the pivotal question is as follows: under which of the grounds set out in either Article 15(1) of the Return Directive or Article 29(3) of the proposed Regulation could a Member State’s intention to prolong the detention of a third-country national be classified when that intention is based, purely and simply, on the likelihood that the procedure will take longer owing to delays in obtaining the required documentation from third countries?

 

As far as the Return Directive is concerned, the answer may lie in the numerus apertus structure of Article 15(1). Article 29(3) of the proposed Regulation, however, does not, under any circumstances, permit a third-country national to be deprived of liberty solely on the basis of delays in obtaining documents from third countries.

 

The conclusion follows inexorably. The wording of Article 32(3) of the proposed Regulation allowing deprivation of liberty to be prolonged “where the return procedure is likely to last longer owing to […] delays in obtaining the necessary documentation from third countries” ought to be removed. If EU law does not recognise the possibility of detaining a foreign national on that ground, it is a fortiori manifestly contrary to the principle of proportionality that such delays should then be relied upon to justify prolonging the duration of a custodial measure.

 

A structural contradiction

 

It must be acknowledged that both Article 32(3) of the proposed Return Regulation and Article 15(6)(b) of the Return Directive pursue an entirely legitimate aim: namely, to prevent, through the use of all available means, a situation in which enforcement of the return decision becomes impossible as a result of a temporary delay in receiving the necessary documentation from the requested State.

 

That said, it is crucial to recall that, in order for the detention of a third-country national to be prolonged, there must first exist a custodial measure resting on a valid legal basis. The analysis must therefore begin by determining whether in the factual circumstances of the case the substantive conditions laid down in EU law for depriving a migrant of liberty are actually satisfied.

 

Against this background, neither Article 15(1) of the Return Directive nor Article 29(3) of the proposed Regulation treats a mere delay in the completion of the administrative or diplomatic formalities necessary to obtain the required documentation from third countries as a circumstance capable of justifying an initial deprivation of liberty.

 

This gives rise to a stark legal contradiction: if EU law precludes the initial detention of a third-country national on the basis of administrative delays in obtaining the necessary documentation from third countries, why does Brussels permit its Member States to extend detention on that very ground? Although such delays cannot justify the initial deprivation of liberty, they may nonetheless serve to prolong the detention of a migrant.

 

The result is a structural paradox whereby a custodial measure that should come to an end from the moment the substantive conditions underpinning detention are no longer met is nevertheless lawfully prolonged by the requesting State under the provisions governing extension.

 

That tension becomes all the more striking when viewed in the light of other instruments of EU migration law. In particular, Article 11(1) of Directive 2024/1346 provides that “delays in administrative procedures that cannot be attributed to the applicant shall not justify a continuation of detention”.

 

For all these reasons, if the EU wished to preserve this ground for prolonging detention in the proposed Regulation, its express incorporation into Article 29(3)  as a ground, not just for extending, but also for ordering detention would be necessary.

 

As regards Directive 2008/115, the only interpretative solution would be to conclude that, by merely identifying the risk of absconding and the possibility that the individual may avoid or hamper the preparation of return as the two grounds that, in particular, entitle a State to deprive a migrant of liberty, that instrument implicitly leaves room for the authorities to rely on other situations as independent grounds for detention. One such additional scenario would be, precisely, delays in obtaining the necessary documentation from third countries.

 

However, both of those alternatives must be categorically rejected. Otherwise, the ultima ratio nature traditionally associated with the detention of an irregularly staying third-country national would be severely compromised.

 

In any event, the release of the individual concerned does not prevent the authorities from resorting to less restrictive measures designed to secure the enforcement of return pending receipt of the necessary documentation.

 

In this regard, Article 31 of the proposed Regulation explicitly provides for various alternatives to detention, which must be “proportionate to the level of the risk of absconding assessed in accordance with Article 30”. Furthermore, Article 23 of said proposal provides for a series of options which, by restricting the individual’s geographical mobility, are capable of ensuring his or her availability during the removal process.

 

Mahdi: When can detention be extended?

 

The Court of Justice of the European Union (CJEU) clarified in Mahdi the scope of the assessment that national courts must undertake before authorising any extension of a detention period on the basis of Article 15(6) of the Return Directive

 

In order to rule on the questions referred by the Administrativen sad Sofia-grad, the CJEU began by identifying the defining features of Article 15 of the Return Directive. It emphasised, in particular, that this provision is both “unconditional” and “sufficiently precise”, qualities which explain why its implementation by the Member States requires “no other specific elements”.

 

The Court then turned to the provisions whose interpretation had been requested by the referring court, namely Articles 15(3) and 15(6) of the Return Directive.

 

Concerning Article 15(3), the Court underlined the clarity with which its wording indicates that any detention measure prolonged over time must be subject to the “supervision” of a judicial authority. Yet the CJEU also acknowledged that the provision does not specify the precise nature of that examination, thereby making it necessary to “recall the rules deriving from Article 15 […]” in order to complete the analysis required by the question raised by the Bulgarian court.

 

It was at that stage that the Court brought Article 15(6) of Directive 2008/115 into the discussion.

 

Significantly, however, the CJEU did not confine itself to identifying the consequences flowing from the substantive conditions set out in that provision. Instead, it examined Article 15(6) in the light of Article 15(4) of the same Directive.

 

In so doing, the Court of Justice of the European Union introduced two decisive elements into the judicial review of the deprivation of liberty of an irregularly staying third-country national.

 

First, it held that, “at the time of the national court’s review of the lawfulness of

detention”, there must be “a real prospect that the removal can be carried out successfully”, having regard to the time limits laid down in Articles 15(5) and 15(6) of Directive 2008/115.

 

Secondly, the Court established that the authority determining whether the individual’s detention should be extended or whether he or she should be released must re-examine the substantive conditions laid down in Article 15(1) of the Return Directive. Crucially, this entails verifying that the grounds “which have formed the basis for the initial decision to detain the third-country national concerned” continue to subsist.

 

This point is of central importance to the present discussion, since Article 15(1) of the Return Directive makes no reference whatsoever to the possibility of detaining a foreign national solely on account of delays by third countries in issuing the necessary documentation. It follows that reliance on such a ground does not relieve the competent authorities of the burden of demonstrating, first, that there remains a “reasonable prospect of removal” and, secondly, that the substantive grounds which justified the initial deprivation of liberty continue to subsist.

 

The disappearance of either the reasonable prospect of removal or the substantive grounds that initially justified the detention of the third-country national necessarily renders that deprivation of liberty unlawful, as Article 15(4) of the Return Directive makes clear. That conclusion is not altered by the mere fact that the authorities continue to await the necessary documentation from other States.

 

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.