Steve Peers, Professor of Law, University of Essex
The EU’s Returns Directive, established to manage irregular migration by non-EU citizens, mandates that Member States issue return decisions to unauthorized individuals and enforce their removal. While the Directive allows for voluntary departure periods, it also outlines rules for detention and entry bans. Initially considered lenient by migrant support groups, the Court of Justice of the European Union (CJEU) has since interpreted the Directive more broadly. Notable judgments have restricted the use of criminal law to detain migrants, favoring administrative detention as outlined in the Directive, and have established a limited right to a hearing for irregular migrants. In certain cases, the CJEU has even provided grounds to prevent expulsion and ensure basic rights such as healthcare.
However, the perceived refugee crisis has shifted the perspective of the EU Commission and Member States. They now deem the Directive insufficiently strict, advocating for stricter enforcement as outlined in a 2017 action plan, recommendation, and revised Returns Handbook. This marks a departure from their 2014 stance, which urged generous application of the Directive.
In 2018, the Commission proposed an amendment to the Directive, aiming to lower existing standards. This proposal, still requiring approval from the European Parliament and Council, is part of a broader effort to strengthen migration control. Other measures include changes to the Frontex border agency and increased use of the Schengen Information System to enforce entry bans and expulsion orders. Importantly, while the UK, Ireland, and Denmark are not subject to this Directive, it will apply to their citizens who are irregular migrants in participating Member States after Brexit.
The new proposal
The proposed changes aim to expedite the expulsion of irregular migrants. One key change is defining the ‘risk of absconding’, making it easier to deny voluntary departure and justify detention. This, in turn, will likely lead to more entry bans.
The proposal introduces an obligation for irregular migrants to cooperate with authorities, mirroring existing CJEU case law, and requires Member States to issue a return decision as soon as a migrant’s legal stay ends or an asylum application is initially refused. Voluntary departure is restricted, obligating Member States to refuse it in cases of absconding risk, unfounded legal stay applications, or threats to public safety or health.
The proposal mandates efforts to verify the identity of irregular migrants lacking travel documents and to obtain such documents, aiming to streamline expulsion. It allows imposing entry bans on individuals detected leaving the EU without a return decision, aiming to prevent future entry.
A new ‘return management system’ will be established, though with no direct impact on migrants. Several changes affect remedies, requiring judicial, not administrative, review and potentially limiting appeals for failed asylum seekers.
Detention rules are also modified. The proposal expands detention grounds, broadens the definition of ‘risk of absconding’, and introduces a minimum three-month detention period. Special rules for failed asylum seekers at border posts include a simplified return decision process, limited voluntary departure, shorter appeal timelines, and a presumption of detention.
Comments
This proposal prioritizes expelling and detaining irregular migrants, coupled with issuing entry bans to curtail returns. The restrictions on voluntary departure will likely lead to more unexpected apprehensions, detentions, and forced removals. Fast-tracked legal challenges with shorter timelines are also anticipated. The increased use of detention raises concerns about its impact on national budgets and the well-being of those detained.
While not directly impacting the limitations on using criminal law to detain migrants, the proposal offers alternative administrative detention pathways, potentially circumventing existing case law. It’s worth noting that detention conditions remain unchanged, and separating families through criminal law detention, as observed in the USA, should be avoided.
The proposal lacks a robust impact assessment, raising concerns about its effectiveness in addressing declining expulsion rates. There is a risk of unintended consequences, such as discouraging irregular migrants from leaving the EU for fear of entry bans. Ultimately, the success of expulsion policies hinges partly on cooperation from non-EU states, a factor outside the scope of this proposal. Without such cooperation, increased detention capacity may not necessarily boost expulsion rates but instead inflate costs and exacerbate hardships for those involved.
Peers & Barnard: chapter 26
JHA4: chapter I:7
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