Efficiency, but at What Cost

The Commission recently published its proposal for a reform of the Return Directive. The reform of the EU’s framework on return has been high on the Commission’s agenda and featured prominently inter alia in the President’s Political Guidelines. The reform proposal seeks to address the significant enforcement deficits concerning third-country nationals who are not or no longer authorized to stay in the EU. As the Commission highlights, only 20% of people ordered to leave actually leave the territory of EU Member States. While the return rate may not, in and of itself, be considered an appropriate benchmark for measuring the “effectiveness” of return policies, and the Commission’s proposal is not based on an impact assessment, there can be no doubt that the enforcement deficit in the context of return in the EU is significant.

The Commission’s proposal to reform the EU’s legal framework on return is presented as a necessary step to establish a “clear, modern, simplified [system of] […] common rules for managing returns effectively.” This blog post examines whether the proposal lives up to this objective. It assesses the extent to which the proposed changes address the deficits that currently hamper returns and illustrates how the reform would undermine the safeguards of the individuals concerned.

A Common European System for Returns

The Commission’s proposal seeks to establish a “Common European System for Returns.” This language resonates with the idea of a harmonized system, similar to the Common European Asylum System (CEAS). This move towards a “common” policy may be more than mere rhetoric. It implies, amongst other things, that common objectives underpin the rules established at the EU level and require some degree of common implementation. Most visibly, this links to the fact that the Commission proposes to replace the current Return Directive with a Regulation. After recent reforms of the Return Directive did not receive sufficient support from the co-legislators and the European Council had pressed the Commission to take immediate action to reform the current legal system, this will create a directly applicable set of EU rules on returns.

This move towards greater uniformity should be welcomed. The current legal system leaves much room for different legal arrangements at the national level, and this diversity has rightly been identified by the Commission as one of the sources of inefficiency of the EU’s return system. To avoid situations in which third-country nationals may prevent their return by moving to another member state, the Commission proposes to introduce a so-called “European Return Order.” Such an order would be issued alongside national return decisions and will be entered into the Schengen Information System. While this may further shift the focus of the Schengen Information System to the governance of migration, it will make it easier for national migration authorities to see whether a return decision has been issued for the person concerned. This innovation is complemented by a mechanism of mutual recognition and enforcement of return decisions, allowing member states to enforce return decisions previously issued by another member state.

Securitization and detention

The Commission seeks to reform the EU’s framework on return by referencing recent security incidents involving third-country nationals against whom a return decision had been issued but who had not been returned. Article 16 of the proposed regulation would oblige member states to remove individuals who pose a security threat as swiftly as possible, using detention if necessary and permitting them to impose lengthy entry bans.

These changes have been criticized for blurring the lines between criminal law and migration governance. The EU Commission thereby seems to give in to a narrative propelled by the far-right which ”[reinforces] dangerous stereotypes” of the “criminal migrant.” While this trend is certainly observable in various recent reforms of EU migration law, at least formally, the proposed regulation on returns includes certain safeguards against an undue characterization of a third-country national as a security risk. Article 16 mentions that the special procedure for persons who pose a security threat could only be activated where there are “serious grounds” for believing that the person committed a serious criminal offense as defined in the European Arrest Warrant Framework Decision, or where there are ”clear indications” of the intention to commit such an offense. Still, the risk that national migration authorities may try to activate this clause in situations where the indications for such criminal activity would be rather shaky is real. However, the wording of the Commission’s proposal suggests that an activation of this procedure in the absence of such clear indications or serious grounds would not be permissible.

A particularly problematic aspect of the Commission’s proposal is the extension of the already long maximum detention time from 18 to 24 months. Moreover, the proposal allows member states to use detention in a wide array of situations. In addition to persons posing a threat to security, the proposed regulation would permit member states to detain persons who are at risk of absconding. While the Commission proposal explicates in positive terms how migration authorities should establish the existence of such a risk (Art. 30), it is clear that this explication intends to prompt member states to use detention in a wider range of situations.

Forced return and the principle of non-refoulement

The Commission has long favored voluntary return over forced removal. At least on paper, this principled preference is still visible in the proposed reform. In its effect, however, the proposal significantly expands the use of forced removal. This suggests a partial change of heart in the Commission. The new proposal seeks to “reinforce” forced return and to “incentivize” voluntary return (here, at p. 10). Accordingly, it establishes an obligation for third-country nationals to cooperate in the return procedure and, if they refuse to do so, penalizes lack of cooperation through forced removal (Art. 12 (1) (a)).

The proposal clarifies that any form of coercion used in the context of forced return should be proportionate (Art. 12 (4)). However, the Commission’s proposal adds – unlike the currently applicable Return Directive – that such measures should only be used “as a last resort” (cf. Art. 8 (4) Return Directive). It is unclear whether this detail would change anything in practice, as the notion of an ultima ratio measure is reflected in the principle of proportionality. However, at least rhetorically, the Commission’s proposal appears to relax the criteria for the use of force in the context of forced return.

Another novelty in the Commission’s proposal relates to the fact that the suspensive effect of return decisions will no longer be automatic, but rather requires an application by the third country concerned (Art. 28 (2) of the Commission proposal). The Commission is quick to add that the enforcement of any return decision must be suspended if it risks breaching the principle of non-refoulement. Therefore, the judicial authority that decides on the application for suspensive effect will also have to determine whether such a risk of refoulement exists. However, the proposal suggests that a decision on the suspension of the enforcement of a return decision should ordinarily be taken within 48 hours (Art. 28 (4)) – quite a short time to make an informed and reasoned decision on the risks of refoulement.

Third-state cooperation and return hubs

The Commission’s proposal addresses one of the major problems regarding the enforcement of return decisions, namely the lack of cooperation with third states outside of the EU. In terms of administrative process, the proposal would oblige the national migration authorities states to submit a readmission application (Art. 36 (2) of the proposal). A readmission application is a request sent to competent authorities of third states, asking for a confirmation of the returnee’s nationality and relevant travel documents. By making this request obligatory, the Commission’s proposal would ensure that readmission forms are ”an integral part of the return process” (p. 12). In case of lack of cooperation, the EU may exert pressure on third states, including through the threat of visa suspension.

The most controversial aspect in the context of third-country cooperation, however, refers to the possibility of establishing so-called “return hubs.” The Commission presents this as an “innovative solution.” The proposal would allow member states to adopt an agreement, be it formal or informal, with a third state to return individuals to that state (Article 17). Controversially, these hubs would allow member states to return them to a third country to which the individuals would have no link whatsoever. This marks a drastic departure from the current legal framework, which only permits return to states of origin, a country of transit, or another third country, but only if the third country national ”voluntarily decides to return.” Notably, the Commission had argued in 2018 that externally located return centers would not be lawful under EU law, as this would imply sending someone “against their will, to a country they do not originate from or have not transited through.” The Commission’s new reform proposal clearly departs from this view.

“Return hubs” have been compared to the Italian-Albanian deal or the UK-Rwanda deal. What distinguishes the Commission’s proposal from these policies, however, is that these hubs would be aimed at individuals who no longer have the right to stay in the territory of the EU. Still, many of the problems of the previously mentioned ”deals” are likely to apply mutatis mutandis to “return hubs.” Particularly, in practice it would be very costly to convince a third state to host persons who have no link to that state, and who may have to stay there for a considerable time. Moreover, the question should be raised as to how member states could effectively ensure that fundamental rights would be duly respected in these centers. NGOs have warned that a system involving such “return hubs” would almost inevitably lead to fundamental rights violations, including by establishing systems of arbitrary detention.

If the reception conditions in “return hubs” would fully respect the principle of non-refoulement and other fundamental rights safeguards, which does not seem realistic, this would still raise the question of whether the sending of persons to a state to which that person has no connection could be acceptable under EU law. It should be noted that a “connection criteria” that UNHCR had advocated for politically does not apply to persons who fall outside the scope of refugee law. In this sense, the Commission’s proposal on the Return Regulation follows an “out-of-the-box thinking.” However, EU primary law may include other safeguards against an arbitrary return to a third state. One of the standards that may be invoked in this regard would be the principle of proportionality as a general principle of EU law. Such a standard may preclude member states from sending a person to a region far away from her or his state of origin.

The cost of efficiency?

The Commission’s proposal seeks to make the EU’s return policy more effective. In this respect, it includes some innovations, such as a general streamlining of Member State practices through the shift from a directive to a regulation, and the obligation to send a readmission request whenever a return decision is issued. Despite these improvements, however, many changes would imply a move towards more restrictive practices concerning individual safeguards. Perhaps the most controversial innovation relates to the creation of ”return hubs” in third states. As has been argued, this element of reform may be viewed by member states as a particularly important novelty increasing the effectiveness of their return policies, but one that leaves multiple questions regarding respect for fundamental rights and EU primary law unresolved.

This research benefitted from the support of the re:constitution programme. Re:constitution – Exchange and Analysis on Democracy and the Rule of Law in Europe is a joint programme of the Forum Transregionale Studien and Democracy Reporting International, funded by Stiftung Mercator (reconstitution.eu).