A Closer Look at the EU Returns Directive: Five Years On

Many EU citizens are worried about the impact of immigration, especially when it comes to unauthorized migrants without legal status. Others, however, prioritize humane treatment for these individuals. To manage this challenge, the EU created the “Returns Directive” in 2008, outlining procedures for returning unauthorized migrants, including detention rules and procedural rights.

Upon its introduction, the Directive faced criticism from NGOs and academics who felt it was overly harsh. Numerous legal challenges, especially concerning detention rules, have been brought before the Court of Justice of the European Union (CJEU) since then. Now, five years later, a new report by the European Commission allows for a comprehensive evaluation of the Directive’s impact. This analysis will cover both the implementation of the Directive and broader EU expulsion policies.

Implementing the Directive:

EU Member States were required to implement the Directive by December 24, 2010, with the Commission providing progress reports every three years. The UK and Ireland are exempt, but Denmark and Schengen associated countries (Norway, Iceland, Switzerland, and Liechtenstein) are obligated to adhere to the Directive’s rules regarding unauthorized entry.

The Commission has been working to ensure proper implementation across Member States. Their report highlights progress made, particularly in areas like clarifying “risk of absconding,” ensuring detention is only used when removal is likely, granting access to detention centers for NGOs, providing legal assistance, establishing forced return monitoring, and utilizing EU guidelines for returns by air.

Despite progress, inconsistencies remain, such as varying interpretations of “reasonable” detention review periods. Crucially, data on detention durations before and after the Directive’s implementation is lacking, making it difficult to assess its true impact. The report also lacks information on the use of extended detention periods (up to 18 months), a crucial area for scrutiny.

While the Commission acknowledges the seriousness of inhumane detention conditions, its response feels insufficient given the gravity of potential human rights violations. The report also reveals non-compliance with the Directive’s mandate to separate immigration detainees from the general prison population in several Member States.

Furthermore, practical application of rules concerning healthcare access, communication, and detention of families and children remains questionable. The lack of comprehensive data makes it challenging to assess the Directive’s impact on these vulnerable groups.

While legislative changes regarding voluntary departure and monitoring of forced removals appear positive, the report lacks information about their practical application. It also fails to address Member States’ compliance with obligations like postponing removal in specific cases, prioritizing the best interests of children, upholding non-refoulement principles, and ensuring the humane treatment of migrants during removal.

The Commission highlights Member States’ use of exceptions within the Directive, but doesn’t delve into whether these exceptions are being applied within the boundaries established by the CJEU. The report’s overview of procedural rights for irregular migrants reveals a gap between legal requirements and actual practice.

Though the Directive doesn’t directly address criminalizing irregular migration, the Commission provides a helpful overview of Member States’ approaches. Importantly, it acknowledges the CJEU’s stance on limiting custodial sentences for this offense due to potential interference with the removal process.

Finally, the report fails to establish a clear connection between the Directive and its impact on apprehension and removal numbers. While statistics are presented, a direct link to the Directive’s influence is missing. Similar issues arise when analyzing the use of entry bans, with a lack of data preventing a thorough assessment.

Broader aspects of expulsion policy:

The report analyzes the role of Frontex, the EU’s border control agency, in coordinating joint expulsions. While the agency facilitates the return of approximately 2,000 individuals annually, monitoring remains incomplete, with only half of these operations being observed.

The Commission encourages comprehensive monitoring, but its position is weakened by suggesting that Frontex may not be obligated to do so. While the appointment of a Fundamental Rights Officer at Frontex is positive, the report lacks an assessment of this role’s effectiveness.

Looking forward, the Commission plans to develop a Returns Handbook for implementing the Directive. Though a positive step, this feels overdue. Earlier guidance could have mitigated implementation errors. The Commission’s commitment to supporting the development of alternatives to detention and codifying Council of Europe rules on detention conditions are welcome steps.

Concerning cooperation with third countries on return issues, the report reveals a concerning lack of transparency. Understanding the fate of returned individuals is crucial and requires greater transparency from Member States.

Conclusions:

Determining whether the Returns Directive has improved the situation for irregular migrants is difficult without more comprehensive data on its implementation. The impact on detention lengths and entry ban usage has been mixed, with improvements in some Member States and regressions in others.

While the Commission’s efforts to ensure proper implementation are commendable, they have been slow. The delay in initiating infringement proceedings until 2014 raises concerns about the Commission’s commitment to swift action.

The decision to create guidance on the Returns Directive, while welcomed, should have happened sooner. Earlier intervention could have prevented implementation missteps. The significant role of the CJEU in interpreting the Directive highlights the need for clear guidance from the Commission.

A recurring theme throughout the report is the stark contrast between legal requirements and their practical application. Addressing this requires innovative solutions. Expanding the existing forced-return monitoring system to include a robust supervision and complaints mechanism could be beneficial.

The report raises questions about the process for reviewing the implementation of EU laws that significantly impact human rights. Future reports should consistently include evaluations of Member States’ compliance with the EU Charter of Fundamental Rights and analyze whether amending existing legislation could further promote these rights.

Ultimately, evaluating the Returns Directive’s impact necessitates a deeper understanding of its practical application. The Commission’s initially cautious approach hindered timely and effective implementation. Moving forward, finding new ways to ensure compliance with EU law in this area is critical.