By Jonas
Bornemann, Assistant Professor of European Law at Rijksuniversiteit
Groningen and re:constitution fellow 2024/2025 and Isabela Brockmann,
Research intern at the Department of European and Economic Law,
Rijksuniversiteit Groningen.
Photo credit: Konstantin von Wedelstaedt, via Wikimedia
commons
1.
Legislative creativity:
thinking outside the (legal) box?
In lawmaking,
creativity is an asset. The ability to devise innovative solutions can break
deadlock and help align previously irreconcilable positions. But even the most
innovative idea must stay within the limits of legality. This is particularly
true for sensitive areas like migration law, where ‘out-of-the-box’ thinking
has recently
become fashionable among political leaders in Europe to signal their
determination to pursue a more restrictive migration policy.
The most recent
illustration of such an out-of-the-box mentality figured in the Commission’s reform
of the Return Directive. Among the changes proposed, the Commission seeks
to introduce an option for Member States to create so-called return hubs –
centres established in third states to facilitate
the return of persons who are not or no longer authorised to stay in the
territory of EU Member States. The term ‘return’ is used here, following the
terminology used by the Commission, although it should be borne in mind that
persons send to return hubs are usually expelled to places they have never been
to before. Speaking of ‘return’ in such a context may therefore already be a
euphemism. Be that as it may, the Commission’s proposal has been presented and
hailed as an innovative way to increase the
effectiveness of returns, offering an avenue of deporting persons from the
territory of EU Member States who cannot, for practical or legal reasons, be
returned to their country of origin. However, the fate of this innovative
instrument is far from certain. Even if it would ultimately be accepted by the
co-legislatures, several important aspects regarding the implementation of the
proposed policy remain unclear. This blog post discusses the potential limits
in EU primary law that circumscribe the way that return hubs can be established
and run, and proposes refinements to the legal design of the currently
discussed reform of the Return Regulation.
The post will do so
by, first, placing the idea of return hubs in the broader scheme of initiatives
that seek to offshore migration administration (2.). It will subsequently
present the legal basis for the establishment of return hubs as proposed by the
Commission (3.), before zooming in on the options regarding the practical
implementation of these hubs by the Member States. Specifically, it will
discuss possible limits to the geographical location of these hubs (4.), the
risk of systematised detention (5.) and the paramount importance of an
effective remedy (6.). It concludes by drawing attention to aspects that should
be addressed during the legislative process, to circumscribe, with greater
clarity, the mandate of Member States to establish and use return hubs (7.).
2. Return hubs –
a piece in the puzzle of offshoring migration administration
The idea of return
hubs is closely linked to related attempts of offshoring migration
administration. The
Rwanda scheme, for instance, attempted to outsource asylum examinations
through the adoption of a bilateral agreement between Rwanda and the UK that
would have enabled the latter to send asylum-seekers to Rwanda to have their
claims processed by Rwandan officials. However, following successful legal challenges
before the UK Supreme Court and a new government which subsequently repealed
the Safety of Rwanda Act, the Rwanda scheme was abandoned and now largely serves as a
cautionary tale for efforts to externalise migration administration. The
(voluntary)
return
of four asylum-seekers pales in contrast to the extreme financial costs of
the scheme, estimated to amount to £700m. Costs included upfront payments to
Rwanda, asylum processing and operational costs and funding for an integration
package covering five years if the individual decided to stay. The results,
however, remained extremely meagre.
More recently, the
Italy-Albania
deal followed a similar but not identical template. The deal took the
format of a protocol
concluded between the two states to allow for the transfer of asylum seekers to
Albanian asylum facilities. This measure applied exclusively to persons
intercepted in international waters, and would have allowed Italian authorities
to process claims under Italian law, although physical
access to Italian territory is prevented. After transfer to these newly
established facilities had been halted by Italian courts, and legal challenges
are currently
pending before the Court of Justice, the government decided to ‘reactivate’
the now moot asylum facilities, turning them into so-called ‘repatriation hubs’.
A similar initiative was announced
by the British Prime Minister during his visit in Albania: the UK would
establish ‘return hubs’ in Albania to facilitate return of persons whose asylum
application had been rejected.
All this suggests
that there is a functional
connection between the attempts
to offshore asylum processing and the emergence of ‘return hubs’, even
though the categories of persons targeted by these initiatives differ. Return
hubs have no role to play in the context of asylum processing, but rather
during the return of third country nationals that are not or no longer
authorised to stay in the territory of the Member States. This may relate to third
country nationals who are not or no longer allowed to stay and cannot be
returned to their state of origin. Return hubs could therefore equally be used
to return persons whose application for international protection had been rejected.
With a view to this group of persons, however, it should be borne in mind that the
Commission’s
recently proposed changes to the Asylum Procedures Regulation could give
rise to situations where the third state in which a return hub is established
will be designated as ‘safe third county’ and that would-be beneficiaries of
protection would be returned to that third state without their case being
assessed on the merits in the EU.
3.
Return hubs as a Member
State project
Despite the fact
that several Member States are currently considering the use of return hubs,
and the Commission’s proposal would adjust the legal framework in EU law
accordingly, the design – both in law and fact – of these hubs remains far from
clear. The Commission’s proposal indicates that persons may be returned to a
third country with which an agreement has been concluded, thereby effectively
creating a legal basis in EU law for such agreements (see here
at 6). However, the proposal only vaguely predetermines the elements that such
an agreement should satisfy, thereby backloading potential legal problems to
Member States’ implementation of return hubs.
First of all, the
proposal suggests that return hubs may be established on the basis of either an
‘agreement or arrangement’. The reference to ‘arrangements’ may be read as
permitting Member States to resort to forms of cooperation other than formal
international agreements. This wording may be inspired by the blueprint of the
original UK-Rwanda deal, which took the form of an informal Memorandum of
Understanding rather than an international agreement and was termed an ‘asylum
partnership arrangement’. Informal arrangements, however, would likely fall
short of the requirements outlined by the Commission’s proposal, specifically
the obligation to ensure that the third state would be ready to accept the
returnee (on this point, see here at 17).
While an informal agreement may, in principle, likewise practically ensure that
the third state accepts entry of returnees (here
at 148), it is characterised by weaker normativity than formal international
agreements and appears less suitable to ensure the willingness of third states to
accept entry of returnees or ensure respect for safeguards of migrant
protection. The importance of formal rules is acknowledged not just by the
UNHCR (here,
point 3. v), but likewise by the EU legislature, as Art. 59 (7) of the Asylum
Procedures Regulation, seems to rest on the view that a formal international
agreement adopted under the procedure of Article 218 TFEU would ensure full
respect of the principle of non-refoulement.
The Commission’s
proposal spells out several requirements that the international agreement
adopted with third states should satisfy. An agreement establishing return hubs
would have to outline the procedure for transfer, the conditions of stay in the
third state, including the responsibilities of the Member State and third state
respectively, modalities of onward return and the consequences if onward return
would not be possible. In addition, the Commission’s proposal clarifies that
unaccompanied minors and families with minors shall not be returned to a return
hub and insists, moreover, that the agreement would include an independent
monitoring mechanism to verify the effective application of the agreement.
Last, the agreement must make provision for cases in which the arrangement
would be violated or a significant change had occurred that would adversely
impact the situation of the third country.
While the
Commission’s proposal therefore lists certain elements that agreements
establishing return hubs should satisfy, it is safe to say that the Commission
wishes to ensure that the establishment of return hubs is a Member State
project. For EU lawmakers, the choice for national solutions may seem
preferable for several reasons: first, it accepts a level of diversity, to the
effect that Member States remain free to decide whether they wish to include
return hubs as an element of their return efforts. In addition, a legal design
that simply requires agreements to respect essential safeguards, such as
respect for international law and human rights, may be viewed as a means to
keep one's hands clean. Any violation of these safeguards would be attributable
to Member State authorities rather than EU institutions. In this sense, the
Commission can present its proposal as conforming with standards of EU and
international law, whilst leaving the implementation of return hubs, and
associated legal challenges, to national authorities.
4.
Does EU law accept
arbitrary geographical choices?
The establishment
of return hubs is legally operationalised through a broadening of the
concept
of the ‘country of return’. Pursuant to Article 4 (3) of the Commission
proposal, a country of return includes not only the country of origin or
transit of a third country national, but has been extended to any third state
willing to host a return hub and has entered into an agreement to that end with
one or several Member States. Leaving the issue of political feasibility at the
side, this raises the question whether Member States’ choice for the location
of return hubs would be subject to any standards of legality, or whether this
would essentially allow national governments to make an entirely arbitrary
geographical choice. Are Member States allowed to return persons to hubs in
third states that are extremely remote from both the EU and the country to
which the person should ultimately be returned?
Current legal
standards limiting the geographic stretch of the deportation of asylum-seekers
may not be applied by analogy when it comes to the return of third country
nationals who are no longer authorised to legally stay in the EU Member States.
Indeed, the ‘connection
criterion’, a safeguard against arbitrary deportation which has aptly been
referred to as the ‘anti-Rwanda’
rule, stipulates that asylum seekers may only be deported to a safe third
state to which (s)he has a connection ‘on the basis of which it would be reasonable
for him or her to go to that country’ (Article 59 (5) Asylum Procedures
Regulation). While such a criterion may not
be mandatory under international law and the Commission has recently
proposed to allow Member States to derogate from it, one of the innovative
aspects of the Commission’s proposal concerns the fact that this safeguard does
not apply mutatis mutandis to persons who are not or no longer asylum seekers.
More generally, the connection criterion does not apply outside refugee law,
and is therefore a ground that cannot be relied upon to limit a Member State’s
geographical choice for setting up return hubs.
In the absence of a
legal standard such as the connection criterion, Member States appear, in
principle, to be free to return third country nationals to hubs located in
states to which the individual has no personal link whatsoever. However, it is
not unreasonable to argue that this principled freedom should be limited by
general principles of EU law, specifically the principle of proportionality.
While the proposed Return Regulation would leave significant room for maneuver
to Member States, it would nonetheless create a legal framework governing the
use of return hubs, to the effect that Member States would act within the scope
of EU law (for a discussion of the case law, see
here
at 141). If this is a correct reading of the proposed Regulation, return to a
return hub in a region far removed from the country of origin of the person and
to which that person has no connection may be viewed as violating this
principle. While the principle of proportionality would not preclude Member
States from establishing return hubs in third states, it may limit their
geographical choice, nonetheless. As UNHCR rightly points out, return hubs would
only further the effective return of a person if such hubs are geographically
located in places from which individuals may actually be able to travel onwards,
either by virtue of visa-free or other forms of mobility regimes. If this would
not be the case, return hubs might not be suitable to attain the objective of
effective return.
5.
Conditions in return hubs –
towards systematised detention?
The Commission’s
proposal suggests that an international agreement setting up return hubs must
clarify the conditions of stay in the third state. However, it remains silent
about the nature of these conditions. This has given rise to criticism by NGOs
and scholars (see here,
here,
here
as well as here,
here and here),
suggesting that return hubs may incentivise practices of arbitrary detention.
On the one hand, it is not inconceivable to argue that an international
agreement may allow third country nationals deported to a return hub in a third
country to move freely in that country. However, existing practices suggest
that cooperation with third states will most likely take the form of restricted
mobility or ‘semi-carceral spaces’ (for this apt description, here
at 34). This raises questions regarding the respect for fundamental rights in
return hubs, specifically the right to liberty. Depending on the length and
nature of stay, mobility restrictions in return hubs in third states may amount
to detention. If it is presumed that return hubs will not magically resolve the
obstacles of onward return to countries of origin, it is entirely reasonable to
presume that these hubs will frequently amount to a restriction of liberty
which would coincide with significant habeas corpus safeguards, particularly
also the obligation
to provide for periodic review of detention and to respect maximum detention
periods.
The presumption
that return hubs will frequently be designed as closed facilities follows from
political preferences rather than legal necessity. Governments willing to host
return hubs might accept that returnees are staying short-term before they are
returned to their country of origin, but they might be much less enthusiastic
about the prospect of returnees establishing themselves more permanently in
that country. There is no obligation for Member States to ensure that third
country nationals would remain at or in the proximity of return hubs. While
Member State authorities (or the European Border and Coast Guard, as the case
may be) may remain responsible for bringing the return of a third country
national to her country of origin to a successful end (see here, point
14), there is no provision in EU law that would require Member States to limit
the mobility of third country nationals in the country in which the return hub
is located. Rather, with a view to persons who cannot be returned in the short-
or medium-term to their country of origin, UNHCR advocates for arrangements
that minimise restrictions to movement, and that allow for pathways to
self-sufficiency in the host third country.
6.
Could return hubs increase
the effectiveness of the EU’s return policy?
The creation of
return hubs is driven by the ambition to increase the
effectiveness of return. Although the Commission’s proposal does not
explain how the establishment of such hubs would help attain this objective,
there seems to be an
implicit assumption that a person who is returned to a country in which
(s)he does not like to reside would be more easily convinced to return. This
assumption is problematic, not just because of the lack of empirical data
supporting it. Such a conclusion equally fails to acknowledge the variety of
reasons why persons leave their country of origin, and ignores the fact that
return is often hampered by lack of cooperation on the side of the third state,
not the individual.
In addition to
these factual uncertainties, the political objective of increasing the
effectiveness may be criticised for being based on fair-weather presumptions.
It presupposes that Member States would be able to ensure that returnees will
not be exposed to inhuman or degrading treatment in the third state to which
they have been transported. On the one hand, it can surely be welcomed that the
Commission’s proposal explicitly reminds Member States of this obligation,
requiring them to respect “international human rights standards and principles
(…) including the principle of non-refoulement” (Article 17 (1) of the
Commission proposal). On the other hand, NGOs,
scholars
and curiously, in a 2018 working paper, even the
Commission itself, had warned against the significant risks of refoulement
associated with the establishment of return hubs. For example, a third country
may be declared prima facie safe, however, this may still fail to account for
intolerance towards certain groups, such as LGBTQ+ individuals or religious
minorities. A de facto risk of violating non-refoulement therefore remains.
In this context, it
is crucial that individuals have the possibility to challenge their deportation
to a return hub. National courts may find deportations to return hubs to be
unlawful if this would amount to a violation of migrants’ fundamental rights. One
of the key questions for the future of the idea of establishing return hubs
will therefore revolve around the availability and nature of judicial redress.
While the Commission’s proposal clarifies that individuals would benefit from a
right to an effective remedy with a possibility of suspensive effect, a
document drafted by the Council Presidency before the publication of the
Commission’s proposal indicated that ‘the prevailing position’ in the Council was
that ‘judicial scrutiny [...] could put the implementation of this innovative
solution at risk’ and should therefore be precluded. This proposition is highly
problematic, as it seems to be at odds with EU primary law, specifically the
right to an effective remedy, proposing to sacrifice this crucial
constitutional safeguard in the name of innovative lawmaking, thereby exacerbating
the risk of refoulement that is inherent in the idea of offshoring return.
7.
The uncertain future of
return hubs
Return hubs are one
of the key innovations proposed by the Commission. Hopes may be high that this
will enable Member States to increase the effectiveness of return policies,
thus marking what is presented as a significant change in EU migration policy.
As this blog post has argued, however, the fate of return hubs is far from certain.
It is unclear whether the co-legislatures may be able to find common ground on
this element of reform or whether the proposed legal basis for return hubs in
EU law will be kept as it is, amended or abandoned altogether. Specifically, it
should be worth critically reflecting on some of the underlying presumptions of
this policy instrument: would it really persuade third country nationals to
move back to their country of origin? And could Member States in practice enter
into a cooperation with third states that ensures that courts will accept, in a
significant number of cases, deportation?
Presuming there is a political majority for the idea of return hubs,
based on the preceding analysis, the co-legislature may wish to consider some
of the following aspects that may allow them to define, more clearly, the legal
option of Member States to rely on these return hubs. First, the Return
Regulation should clarify that such return hubs could only be established on
the basis of formal international agreements. Second, return hubs would have to
be established in a third state from which a person may, factually or legally,
be able to move to her or his country of origin. Third, the EU legislature
should oblige Member States to include, in their cooperation with third states,
rules that clarify the legal position of third country nationals who cannot
return to their country of origin. After a reasonable period of time, these
individuals would have to be authorised to move freely within the territory of
that third state, in order to avoid a practice of indefinite and systematic detention.
Lastly, unlike views
reportedly raised in the Council, ideas to drop or undermine the
effectiveness of judicial review should be abolished. The right to an effective
remedy is crucial in the context of deportation to a third state, and likewise
a firmly enshrined constitutional guarantee. While judicial review may
undermine the idea of effective return, this is surely a price worth paying.
The fate and success of return hubs as an innovative policy instrument will
depend on these safeguards. Should return hubs emerge as an innovative policy
tool, its legal design needs to be waterproof.
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