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A revamped Returns Directive: enforcement versus rights

The legal framework for forcibly removing people from the EU is in large part governed by the ‘Returns Directive’. This came into force in 2008, despite significant opposition from civil society organisations and citizens, and sets out “common standards and procedures to be applied in Member States for returning illegally staying third-country nationals.”[1] Negotiations are ongoing over changes to that Directive. The aim is to enable the swifter deportation of a greater number of individuals. The means for doing so is the elimination or reduction of individual rights.

In September 2017 the European Commission published a recommendation calling for “a more effective implementation” of the 2008 Directive in order to step up the number of forced removals. The move was condemned by over 90 civil society organisations (including Statewatch), who accused the Commission of “encouraging member states to interpret the directive in a way that would allow for the lowest possible safeguards to be applied, abandoning positive advances made by a number of member states.”

Despite the Recommendation providing no evidence to back up claims that the harsher measures it proposed would be effective,[2] the Commission ploughed ahead. A year later it proposed a new (‘recast’) Returns Directive seeking to turn many of its recommendations into law, in order to address “the challenges related to the effective return of irregular migrants.”[3]

There was no public consultation prior to publication, and the Commission’s failure to produce an impact assessment led the European Parliament’s civil liberties committee (LIBE) to produce its own. It drew five conclusions on the proposal:

• there is no clear evidence that it would lead to more effective returns of irregular migrants;
• it complies with the principle of subsidiarity, but raises proportionality concerns;
• it would likely breach fundamental rights (for example, through increased use of detention[4]);
• it would generate substantial costs for member states and the EU;
• it raises questions of coherence with other EU legislation, especially pending legislation [such as measures that are part of the Common European Asylum System].[5]

The initial parliamentary rapporteur for the file, Green MEP Judith Sargentini,[6] said in her draft report on the proposal that attempts to increase the effectiveness of the returns system should only be pursued if “the steps taken in that direction are accompanied by unambiguous and enforceable fundamental rights safeguards.”[7] The Council, meanwhile, largely sought to maintain the Commission’s position, with an occasional preference for even harsher measures and some legal fine-tuning. Frontex also provided input to the Council’s negotiations, through a January 2019 ‘non-paper’.[8] Despite its technical tone, noting how certain provisions could contribute to the agency’s tasks, it clearly favours a coercive approach.

The new proposal: coercion and control

The Commission’s proposal put forward a number of measures aimed at reducing or eliminating existing rights and safeguards in order to increase the number of deportations. Key issues include an expanded use of detention through the introduction of new criteria for assessing the risk of absconding; an increase in the use of entry bans; the introduction of an “obligation to cooperate” on the part of those subject to return proceedings; closer links between asylum and return procedures; limiting opportunities for ‘voluntary’ return; and cutting opportunities for appeals against negative decisions.

To assess whether an individual poses a risk of absconding the proposal put forward a new, non-exhaustive list of 16 factors, four of which must be taken by national authorities as definitively indicating such a risk. This would make it easier for states to justify detention, refuse the option of so-called voluntary return and result in the issuance of a greater number of entry bans.[9] Although the proposed list may not be accessible, precise or foreseeable enough to meet the necessary legal standards,[10] the Council would maintain and extend a number of the criteria[11] and would allow member states to use “additional objective criteria in their national legislation”.[12]

The proposal would also extend the maximum permitted period of detention in two EU member states. The upper limit remains unchanged – 18 months, made up of a six-month period, extendable by up to 12 months. However, the proposal would prohibit a national maximum period of detention of less than three months.[13] This would oblige Spain and Portugal to increase their current 60-day time limits on detention.[14] There is no evidence to suggest that shorter detention periods hinder removals,[15] but both Frontex and the Council are in favour of the changes.[16]

The possibility for issuing entry bans would also be expanded by the proposal. An issue of particular concern is their automatic issuance to individuals whose asylum applications have been rejected;  because the proposal does not allow for the consideration of future changes of circumstances in the country of return, the ability to claim asylum may be compromised.[17] In order to improve the enforcement of entry bans handed down in accordance with the Returns Directive, the proposal would also make it mandatory for states to enter a corresponding alert on refusal of entry or stay into the Schengen Information System (see ‘Databases for deportations’).

The proposal would also introduce an “obligation to cooperate” on the part of those subject to removal proceedings. Frontex considered this provision essential to “make returnees more responsible”, adding that “it might increase the overall efficiency of return”.^[18] Failing to cooperate is one factor to be considered in assessments of the risk of absconding (meaning that lack of compliance might lead to detention), while the provision of “reintegration assistance” is dependent on compliance with the obligation.[19] However, while the proposal states that “Member States shall inform the third-country nationals about the consequences of not complying with the obligation” to cooperate with return procedures, there is no concrete list of what the potential consequences may be.

While the Returns Directive aims to enforce these obligations upon individuals who are subject to removal orders, the EU now also has the possibility to sanction would-be travellers to the EU who are citizens of states considered uncooperative with the EU’s deportation regime. The recently-revised Visa Code includes a requirement for the European Commission to monitor the cooperation of non-EU states with regard to return and readmission. If their level of cooperation is not considered sufficient, it will be possible to take measures against citizens of that state: raising visa fees, requiring more documents to accompany visa applications, or slowing down processing times and/or limiting the issue of multiple-entry visas as part of a ‘carrot and stick’ approach.[20]

Asylum and return proceedings would also be more closely linked by the proposal on the Returns Directive, which would require the immediate issuance of an expulsion order following “a decision not granting a third–country national refugee status or subsidiary protection status in accordance with… [the Asylum Qualification Regulation],”[21] a separate piece of legislation that has been under negotiation since 2016. The Sargentini report proposed erasing the entire paragraph for being “disproportionate and counterproductive”, highlighting the need for a “clear distinction” between the legal regimes on asylum and persons subject to removal measures.” Were return decisions to be issued immediately, it would create “confusion over the person’s right to remain on the territory both for the individual concerned and national and local authorities,” at a time when they may have an appeal pending.[22]

On this point, however, the proposal seeks to limit applicants for international protection to one opportunity to appeal return decisions, if they have already pursued judicial review within the asylum process. Appeals would have to be lodged within five days following a return decision. In cases concerning a potential risk of refoulement, they would have a mandatory suspensive effect on removal proceedings, although this safeguard would only apply in cases where fresh evidence was presented.

The Sargentini report emphasised that appeals must always have a suspensive effect and that the administrative procedures foreseen by the proposal would not meet the standards necessary to qualify as an effective judicial remedy. As the UK Supreme Court found with regard to the policy of ‘deport first, appeal later’, which applied to foreign nationals convicted of a criminal offence in the UK, “an appeal against a decision affecting a person’s family and private life can only effectively be brought from within the UK, and so only an in-country appeal is an effective remedy in these circumstances.”[23] Sargentini also proposed abolishing the time limit of five days for lodging an appeal against a return decision handed down with a decision rejecting an international protection application, arguing that it contravenes EU case law.[24]

Voluntary return procedures were another target of the Commission’s proposal. The Directive uses the phrase “voluntary return” to refer to compliance with the removal procedure. This is often a last resort to avoid detention, making “voluntary” a somewhat misleading term, but the associated procedures are preferable to detention and forced return.[25] The Commission proposes removing the minimum period for departure – which could lead to a limit of a single day, or in any case too little time to feasibly arrange departure.

The proposal also limits member states’ discretion in granting any voluntary departure period at all. Currently, they may grant a period of less than seven days or refrain from granting any period if there is a risk of absconding, an application for legal stay has been dismissed as manifestly unfounded or fraudulent, or if the person in question poses a risk to public policy, public security or national security.[26] Under the proposal, member states would be prohibited from granting any period of voluntary departure when faced with the existence of any of these three grounds, which may be interpreted broadly.

Fewer rights, more removals

A key mantra for EU officials since the onset of the ‘migration crisis’ in 2015 has been that the EU must “give protection to those in need” whilst removing “those who have no right to stay in the EU.”[27] If this is the case, the wildly differing asylum recognition rates in EU and Schengen member states for many nationalities suggest that reforming national asylum systems should be prioritised.[28] However, it is measures to enforce removals that have made most progress through the EU’s legislative process. The recast of the Returns Directive aims to make expulsion easier by removing rights and safeguards – described by the Commission as “legal and practical obstacles to return”.[29]

Even from a viewpoint that agrees with the overall aim of attempting to increase the number of deportations from the EU, the proposal appears counterproductive – alternatives to coercion exist and have been demonstrated to be “more effective in terms of ensuring respect for human rights, compliance and cost efficiency”, according to the Council of Europe’s Steering Committee on Human Rights.[30] The disregard for these arguments – not to mention a seeming indifference to the negative effects the proposals would have for individual rights – suggest that the proposal is a political exercise to appease anti-migrant rhetoric rather than a serious exercise in policy-making.

Nevertheless, negotiations are ongoing. In June, the new rapporteur for the file, Green MEP Tineke Strik, published a report on the implementation of the Directive as it stands. It criticises the Commission's emphasis, since 2017, on punitive enforcement measures, at the expense of alternatives that have not been fully explored or implemented, despite the 2008 legislation providing for them.  It remains to be seen whether the report will be adopted by the Parliament.[31]

[1] Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32008L0115. Member states retain the possibility to expel non-EU citizens on the basis of other legislation (see Article 2(2)).

[2] For example, while detention is widely-recognised to be inherently harmful to individuals’ physical and mental well-being, the 2017 Recommendation describes it as “an essential element for enhancing the effectiveness of the Union’s return system”. Without a shred of evidence, the paper claimed the maximum duration of detention set out in the Directive (18 months) “is needed to complete the return procedure successfully… short periods of detention are precluding effective removals”. See: Commission Recommendation on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council, C(2017) 1600, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32017H0432

[3] Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast), COM(2018) 634 final, 12 September 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018PC0634

[4] ‘Recast Return Directive Foresees More Immigration Detention’, International Detention Coalition, 9 October 2018, https://idcoalition.org/news/recast-return-directive-forsees-more-immigration-detenion/

[5] European Parliamentary Research Service, ‘The proposed Return Directive (recast) – Substitute Impact Assessment’, February 2019, pp.18-19,  http://europarl.europa.eu/RegData/etudes/STUD/2019/631727/EPRS_STU(2019)631727_EN.pdf

[6] Following the May 2019 European Parliament elections, Sargentini was replaced by another Green, Tineke Strik.

[7] Judith Sargentini, Draft report on the proposal for a directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 January 2019, http://www.europarl.europa.eu/doceo/document/LIBE-PR-632950_EN.pdf

[8] Frontex, ‘Non-Paper: Recast proposal of the Return Directive’, 8 January 2019, http://www.statewatch.org/news/2019/sep/eu-frontex-returns-directive-non-paper-1-19.pdf

[9] Proposed Article 6. The criteria used by member states to determine a risk of absconding must include at least the following (bold highlights: the criteria that must be considered as implying a risk of absconding):

• lack of documentation proving the identity;
• lack of residence, fixed abode or reliable address;
• lack of financial resources;
• illegal entry into the territory of the Member States;
• unauthorised movement to the territory of another Member State;
• explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive;
• being subject of a return decision issued by another Member State;
• non-compliance with a return decision, including with an obligation to return within the period for voluntary departure;
• non-compliance with the requirement of Article 8(2) to go immediately to the territory of another Member State that granted a valid residence permit or other authorisation offering a right to stay;
• not fulfilling the obligation to cooperate with the competent authorities of the Member States at all stages of the return procedures, referred to in Article 7;
• existence of conviction for a criminal offence, including for a serious criminal offence in another Member State;
• ongoing criminal investigations and proceedings;
• using false or forged identity documents, destroying or otherwise disposing of existing documents, or refusing to provide fingerprints as required by Union or national law;
• opposing violently or fraudulently the return procedures;
• not complying with a measure aimed at preventing the risk of absconding referred to in Article 9(3);
• not complying with an existing entry ban.

[10] European Court of Human Rights, Khlaifia and others v. Italy, application no. 16483/12, paras. 91-92, http://hudoc.echr.coe.int/eng?i=001-157277; CJEU, Al Chodor, C-528/15, 15 March 2017, para. 38, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:62015CJ0528; Maria Diaz Crego, ‘Recasting the Return Directive’, op. cit.; Fundamental Rights Agency, ‘The recast Return Directive and its fundamental rights implications’, 10 January 2019, https://fra.europa.eu/en/opinion/2019/returns-recast; European Parliamentary Research Service, ‘The proposed Return Directive (recast) – Substitute Impact Assessment’, op. cit.

[11] Council of the EU, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) – Partial general approach, document 10144/19, 13 June 2019, https://data.consilium.europa.eu/doc/document/ST-10144-2019-INIT/en/pdf. The Council proposed deleting a number of the Commission’s proposed criteria, such as lack of documentation, residence or financial resources. However, other criteria are extended, for example through the addition of “apprehension or interception in connection with irregular crossing of a Member State’s external borders” to “illegal entry into the territory of the Member States”; or “unauthorised movement to the territory of another Member State” being bolstered by “including following a transit through a third country or the attempts to do so.”

[12] Council partial general approach, proposed Article 6(1)

[13] European Commission, proposed Article 18(5): “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. Each Member State shall set a maximum period of detention of not less than three months and not more than six months.”

[14] Report of the fact-finding mission by Special Representative of the Secretary General on migration and refugees, to Spain, 18-24 March 2018, 3 September 2018, http://www.statewatch.org/news/2018/sep/coe-sr-migration-report-on-spain-mission-3-18.pdf; ‘Portugal Immigration Detention Profile’, Global Detention Project,  https://www.globaldetentionproject.org/countries/europe/portugal

[15] In 2017, Spain had a return rate of 37.2%. States using the maximum permissible detention period had return rates either far lower or only marginally higher than this: the Czech Republic had a return rate of 11.2%, Belgium of 18.2%, Greece of 39.5% and Germany of 46.3%. Maria Diaz Crego, ‘Recasting the Return Directive’, European Parliament Briefing, June 2019, p.6, http://www.europarl.europa.eu/RegData/etudes/BRIE/2019/637901/EPRS_BRI(2019)637901_EN.pdf

[16] Council partial general approach, proposed Article 19(1)

[17] Maria Diaz Crego, op. cit.

[18] Ibid.

[19] Commission proposal, proposed Article 14

[20] Steve Peers, ‘The revised EU visa code: controlling EU borders from a distance’, 17 April 2019, https://eulawanalysis.blogspot.com/2019/04/the-revised-eu-visa-code-controlling-eu.html

[21] Commission proposal, proposed Article 8(6)

[22] Sargentini report, Amendment 62

[23] It should be noted that the UK is not bound by the 2008 Returns Directive; nor will it be bound by any future recast of the legislation. Nevertheless, the ruling makes clear the impossibility of there being an effective remedy for persons already removed from the territory of the state in which they wish to appeal a judicial decision. See: Bronwen Jones, ‘The End of ‘Deport First, Appeal Later’: The Decision in Kiarie and Byndloss’, Border Criminologies, 21 March 2018, https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2018/03/end-deport-first

[24] Sargentini report, Amendment 10

[25] It might be argued that both “voluntary” and “return” are euphemisms given the fact that ‘voluntary return’ ultimately relies upon the threat of the use of force to be effective. See: See: Clara Lecadet, ‘Deportation, nation state, capital’, op. cit. fn. 16

[26] Proposed Article 7(4)

[27] European Commission press release, ‘European Agenda on Migration: Commission presents new measures for an efficient and credible EU return policy’, 2 March 2017, https://europa.eu/rapid/press-release_IP-17-350_en.htm

[28] For example, in the last quarter of 2019, the recognition rate in first instance asylum applications ranged from 2% in Portugal to 91% in Switzerland. See: Eurostat, ‘Decisions on asylum applications’, https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report#Decisions_on_asylum_applications

[29] Commission Recommendation on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council, C(2017) 1600, https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32017H0432

[30] The Steering Committee has detailed a series of measures that seek to “build trust in asylum and migration procedures”, “uphold individualized case management services”, “provide clear and precise information about rights, duties and consequences of non-compliance”, and “ensure access to legal assistance from the beginning and throughout the process”.  Their report cites examples such as temporary residence permits, case-worker support, family-based accommodation, open or semi-open centres or designated residence sites, regular reporting obligations, and return counselling among over 250 alternatives to detention identified from 60 countries. See: ‘Trust and support key to effective alternatives to detention’, op. cit.; There Are Alternatives’, International Detention Coalition, https://idcoalition.org/publication/there-are-alternatives-revised-edition/

[31] ‘Damning draft report on the implementation of the Return Directive’, Statewatch News, 15 June 2020, https://statewatch.org/news/2020/jun/ep-returns-report.htm