Izabella Majcher, PhD in International Law; Senior Legal Officer, ECRE*
*The views expressed in the post are those of the author and do not necessarily reflect the position of ECRE
In December 2020, the European Parliament issued a Resolution regarding the implementation of the Return Directive (a 2008 directive concerning the rules for returning undocumented migrants). This Resolution resulted from the European Commission’s failure to assess the Directive’s implementation, a task they were supposed to perform every three years starting in 2013. The Commission only conducted this evaluation once in 2014, yet proceeded to offer guidance on the Directive’s execution and even suggested a revised version.
Both the Parliament’s Resolution and the Commission’s Recommendation provide guidance to member states on implementing the Return Directive. Despite the Commission’s Recommendation potentially carrying more legal weight, both are considered non-binding “interpretive soft law acts.” It’s important to analyze the content of these documents and consider the broader context of international law. The EU’s return policy must align with international human rights obligations, which are outlined in various conventions that all EU member states have ratified. These norms informed the UN Special Rapporteur on the Human Rights of Migrants’ recommendations on returning or expelling migrants.
This post compares key aspects of the Parliament’s Resolution and the Commission’s Recommendation, examining them in light of international norms and standards.
1) Defining Return Effectiveness
Since the 2015 refugee crisis, the Commission has primarily gauged the effectiveness of return policies based on the return rate (the ratio of return decisions to actual returns). This narrow focus on return rate, which the Commission deems insufficient, has driven them to propose policies and legal measures that potentially restrict human rights. In contrast, the Parliament provides a more comprehensive view of effectiveness, suggesting that it should encompass the sustainability of returns, upholding fundamental rights, adherence to procedural guarantees, and the success of voluntary return programs.
2) Applying the Directive at Borders
The Directive includes provisions allowing states to bypass certain rules for individuals apprehended while crossing borders irregularly. While this exception includes safeguards, concerns remain about its potential for broad interpretation, reduced legal certainty due to parallel procedures, and limitations on protective measures at borders. While the Commission encourages using this exception to enhance effectiveness, the Parliament stresses that it might weaken safeguards and advocates for the Directive’s full application in border situations.
3) Return Decisions
The Directive mandates issuing a return decision for anyone in an irregular situation, with few exceptions. International human rights law emphasizes the principle of non-refoulement (not returning individuals to situations of danger) and the right to family and private life as key factors in return decisions.
Non-refoulement: While the Commission suggests forgoing non-refoulement assessments if already conducted in other procedures, the Parliament asserts that this principle applies unconditionally. Importantly, asylum procedures, often cited by the Commission, don’t substitute for comprehensive non-refoulement evaluations.
Returning Unaccompanied Minors: Although the Commission supports returning unaccompanied minors, highlighting potential negative consequences if not returned, the Parliament emphasizes that such returns should only occur if demonstrably in the child’s best interests.
Right to Appeal: Regarding appeals against return decisions, the Commission advocates for short deadlines, while the Parliament prioritizes guaranteeing sufficient time for individuals to exercise their right to an effective remedy.
4) Regularization
The UN Special Rapporteur recommends offering protection from return to individuals who need it and suggests regularization pathways for those with established ties or facing risks upon return. While the Directive allows granting residency permits, potentially providing a solution for non-returnable individuals, the Commission emphasizes that states aren’t obligated to do so. The Parliament, however, encourages expanding this provision to address protracted situations and uphold fundamental rights.
5) Encouraged (“Voluntary”) Departure
The Directive emphasizes providing individuals with the option to leave voluntarily rather than facing deportation. This practice, termed “voluntary departure,” is sometimes referred to as “mandatory departure” because it may not be genuinely voluntary.
Departure Timeframe: The Directive outlines a departure period between 7 and 30 days, extendable in certain cases. While the Commission encourages the shortest possible timeframe, the Parliament highlights the Directive’s flexibility and the importance of adequate time for departure.
Denying Voluntary Departure: The Directive outlines specific situations where voluntary departure might be denied or shortened. However, the Commission misinterprets these exceptions as mandatory, while the Parliament correctly identifies them as exceptions to the general rule, aligning with the Court of Justice’s interpretation.
6) Detention
The Directive allows detaining individuals slated for return under specific circumstances but emphasizes detention safeguards and proportionality.
Using Detention: The Commission prioritizes detention as a tool to boost return system effectiveness, whereas the Parliament stresses its last-resort nature and the importance of necessity, proportionality, and individual assessments, echoing international human rights standards.
Detaining Minors: The Commission believes detaining minors should be possible in certain cases, while the Parliament aligns with the UN’s stance against detaining children for immigration purposes, advocating for suitable alternatives.
Detention Duration: While the Commission views lengthy detention periods (up to the Directive’s maximum limit) as potentially enhancing return effectiveness, the Parliament highlights the lack of automatic correlation and underscores the importance of minimizing detention duration.
7) Re-Entry Bans
The Directive links re-entry bans to return decisions, particularly when individuals don’t leave within the voluntary departure timeframe. However, these bans should be proportionate and based on individual assessments.
Imposing and Lifting Re-entry Bans: While the Commission highlights situations necessitating re-entry bans, the Parliament emphasizes individual assessments over automatic application. Moreover, the Parliament calls for flexibility in lifting bans, particularly for humanitarian reasons, family reunification, or when individuals’ circumstances change (e.g., needing international protection).
Re-entry Bans with Voluntary Departure: The Commission acknowledges that imposing re-entry bans even after voluntary departure might discourage compliance and encourages careful management. The Parliament suggests that this practice contradicts the purpose of encouraging voluntary departure and recommends lifting bans for those who comply.
8) Monitoring Post-Return
Given reports of returnees facing abuse and mistreatment, international organizations have called for post-return monitoring. The UN Special Rapporteur emphasizes the need for independent oversight mechanisms. Despite this, the Commission maintains that monitoring mandates don’t extend beyond the return process itself. Conversely, the Parliament urges the Commission to establish a post-return monitoring system, share best practices, and allocate adequate funding.
Final Thoughts
The Parliament’s Resolution offers valuable guidance on implementing the Return Directive while upholding human rights. It emphasizes a comprehensive view of effectiveness, moving beyond return rates to consider sustainability and rights compliance. The Resolution challenges several problematic aspects of the Commission’s approach, aligning with international norms and standards for returning and expelling individuals. Notably, the Parliament advocates for applying the Directive in border contexts, promoting regularization for those ineligible for return, and establishing a post-return monitoring mechanism. By integrating these recommendations, the Parliament demonstrates a commitment to a more humane and rights-respecting EU return policy that aligns with international obligations. The Resolution is particularly relevant in light of ongoing discussions about EU asylum and migration policies, serving as a potential blueprint for future legislation and signaling a commitment to upholding the rights of all individuals, regardless of their migration status.