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A long-term priority

Increasing the number of deportations from the EU has been a long-standing policy concern for EU institutions and member states. Common initiatives date back to the early 1990s, with a first attempt to harmonise the treatment of refused asylum-seekers in 1992.[1] By the middle of that decade the Council of the EU (made up of the governments of the member states) had adopted further joint measures on expulsion, including standardised travel documents and readmission agreements, as well as a recommendation on “concerted action and co-operation in carrying out expulsion measures”.[2]

In the intervening years, ‘return’ (a sanitised term for deportation[3]) was a constant issue for politicians and officials. In April 2002, in the wake of the xenophobia, racism and anti-migrant sentiment whipped up in the wake of the 11 September 2001 terrorist attacks in the USA, the European Commission published a green paper setting out options for EU policy in the area. A number of measures were subsequently adopted by the Council, such as a 2004 Directive on the organisation of joint removal flights, shaping the EU’s legal framework for expulsions for years to come.[4] In the same year, the initial legislation establishing Frontex also came into force.[5] Other proposals from the time (such as a common EU list of ‘safe’ countries for return) are still under discussion,[6] while negotiations on plans to revise the 2008 Returns Directive (discussed in the following section) are ongoing.

The introduction of a legal framework at the EU level did not eliminate policy-level discussions on deportations. In 2012 the Council adopted a plan on “migratory pressures”, in which the first priority was “preventing and combating illegal migration by orderly return of illegal migrants”. The paper demanded more “returns of illegal migrants” and the development of “swift, sustainable and effective return using a common EU approach, including more effective joint return operations.”[7] By this time the member states had started to make fairly regular use of the expulsion machinery operated by Frontex, the EU’s border agency, which was established in 2004. In 2012 over 2,000 people were removed on joint flights to countries such as Colombia, Georgia, Kosovo, Nigeria and Serbia, five times the total number from five years earlier.

Following the large-scale arrival of refugees and migrants in the EU that began in early 2015, a multitude of policy proposals, projects and action plans began to swamp the desks of officials. In April 2015 a “a 10-point plan of the immediate actions to be taken in response to the crisis situation in the Mediterranean” was adopted by the Council. It included a requirement to set up “a new return programme for rapid return of irregular migrants coordinated by Frontex from frontline Member States,”[8] such as Italy and Greece. The following year, Frontex-coordinated flights from Italy to Tunisia began in earnest – 609 people were expelled in 2016, growing to almost 4,000 in 2018. With the entry into force of the EU-Turkey deal in March 2016, Frontex also took on responsibility for ‘readmission’ operations from the Greek islands to Turkey, alongside Greek officials. By February 2020, the deal had led to 2,117 people being taken back to Turkey.[9]

In June 2015 the European Council met to address “the current emergency situation” and demanded the use of “all tools” to carry out expulsions and ensure that those removed would be accepted by destination countries.[10] The Commission was invited to establish “a dedicated European Return Programme”[11] and responded with an EU Action Plan on return, setting out a host of measures[12] that reflected the Council’s priorities but also significantly expanded upon them.[13] It was superseded just 18 months later by a Renewed Action Plan, which argued that there was a need for “more resolute action…to bring measurable results in returning migrants.”[14]

This “more resolute action” takes a number of forms and involves new laws, policy changes and operational action both inside and outside of the EU. The sections that follow examine the key changes being implemented within the EU – the proposed revision of the 2008 Returns Directive, the transformation of EU databases and the super-charging of the European Border and Coast Guard Agency, Frontex. These changes attempt to step up the number of deportations from the EU by lowering legal standards, increasing the ability of the state to track, detect and apprehend individuals, and by providing Frontex with an expanded budget, new powers and more personnel for carrying out expulsions. The risks for fundamental rights and democratic accountability posed by these developments are significant.

[1] ‘Draft Recommendation regarding practices followed by member states on expulsion’, http://database.statewatch.org/e-library/trevi-asylum-19immres.pdf. From the ‘TREVI Key Texts’ collection in the Justice and Home Affairs Archive, http://www.statewatch.org/semdoc/jha-archive.html

[2] ‘Monitoring the implementation of instruments adopted by the Council concerning illegal immigration re-admission, the unlawful employment of third-country nationals and co-operation in the implementation of expulsion orders – Summary report of the member states’ replies to the questionnaire launched in 1998’, Council document 7668/1/99 REV 1, 14 June 1999, http://database.statewatch.org/e-library/1999-07668-rev1-sg1-wp4-082.pdf

[3] “As a political artefact, [return] is a euphemism for the violence inherent in expulsion, it erases the complexity of migration journeys in which expulsion is rarely synonymous with return, and it ‘naturalises’ return as an inherent part of migration.” See: Clara Lecadet, ‘Deportation, nation state, capital: between legitimisation and violence’, Radical Philosophy, December 2018, https://www.radicalphilosophy.com/article/deportation-nation-state-capital

[4] Statewatch reported on the proposals in detail at the time: ‘EU: “safe and dignified”, voluntary or “forced” repatriation to “safe” third countries’, November 2002, http://www.statewatch.org/news/2002/nov/14safe.htm. Key measures adopted were Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit for the purposes of removal by air, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32003L0110; Council Decision of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more Member States, of third-country nationals who are subjects of individual removal orders, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32004D0573;

[5] Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004R2007

[6] ‘International protection: EU common list of safe countries of origin’, procedure 2015/0211 (COD), https://oeil.secure.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=&reference=2015/0211%28COD%29

[7] Council, ‘EU Action on Migratory Pressures – A Strategic Response’, 9650/12, 10 May 2012, http://www.statewatch.org/news/2012/jun/eu-council-migration-pressure-op-9650-12.pdf

[8] European Commission press release, ‘Joint Foreign and Home Affairs Council: Ten point action plan on migration’, 20 April 2015, http://europa.eu/rapid/press-release_IP-15-4813_en.htm

[9] UNHCR, ‘Returns from Greece to Turkey’, 29 February 2020, https://data2.unhcr.org/en/documents/download/74370

[10] This was to be done through readmission agreements and “high-level dialogues with the main countries of origin of irregular migrants,” the use of development policy to “reinforce local capacity-building, including for border control, asylum, counter-smuggling and reintegration,” the reinforcement of Frontex and the coordinated implementation of EU law concerning “safe countries of origin”.

[11] European Council meeting (25 and 26 June 2015) – Conclusions, EUCO 22/15, 26 June 2015, https://www.consilium.europa.eu/media/21717/euco-conclusions-25-26-june-2015.pdf

[12] European Commission, ‘EU Action Plan on return’, COM(2015) 453 final, 9 September 2015, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2015:453:FIN

[13] The Commission’s proposals were divided into two categories, each with five sub-headings. The first category was “increasing the effectiveness of the EU system to return irregular migrants”. This covered enhancing voluntary return, stronger enforcement of EU rules, enhanced sharing of information to enforce return, strengthening the role and mandate of Frontex, and an integrated system of return management. The second category was “enhancing cooperation on readmission with countries of origin and transit”. This covered effective implementation of readmission commitments, concluding ongoing and opening new negotiations on readmission agreements, high-level political dialogues on readmission, reintegration support and capacity building, increasing EU leverage on return and readmission.

[14] European Commission, ‘Communication on a more effective return policy in the European Union – a Renewed Action Plan’, COM(2017) 200 final, 2 March 2017, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52017DC0200