Home Affairs and Migration Commissioner Magnus Brunner presented a legislative proposal for an EU regulation on the return of “irregular migrants” (i.e. those who have been denied protection or asylum), thereby harmonising Member States’ expulsion procedures. The regulation was supported by several governments and conservative or right-wing parties, while it was promptly challenged by various political groups, several representatives of the Italian and European Catholic world, and NGOs active in the field of migrant reception. In the opinion of many experts, this provision – in view of the measures it provides for – seems to be in conflict with international law and to undermine respect for human rights, while at the same time offering a somewhat reassuring measure in the eyes of the electorate, albeit one that is hardly effective in the fight against illegal immigration.
The so-called “return hubs” constitute the most controversial measure.
The Commission plans to introduce the possibility for Member States to conclude agreements with third countries to which migrants awaiting return to their country of origin can be transferred. The proposal has been seen as mirroring the UK’s deportation scheme of flying asylum seekers to Rwanda, and also – albeit at a different level – Italy’s agreement with Albania to send migrants to temporary detention centres in the Land of the Eagles. A major point of controversy is the fact that once migrants are transferred to a third country (it is up to each government to decide whether or not a third country respects international human rights standards), they are placed under the jurisdiction of that country, with no guarantee that EU law will be respected.
The use of the term ‘repatriation’ has also been noted, i.e. return to the country of origin: not to other states.
The fact remains that the new legal framework for returns “constitutes – according to the EU executive – a key piece to complement the Pact on Migration and Asylum which was adopted last year setting out a comprehensive approach on migration.” With return rates across the EU currently standing at only 20 percent, and with a fragmentation of different systems lending themselves to abuse, a modern, simpler and more effective legal framework is needed.”
The new proposed rules comprise several elements.
First, a “truly European system in the form of a Regulation with common procedures for the issuance of return decisions and a European Return Order to be issued by Member States.” This would overcome the existing 27 different systems. Second: “Mutual recognition of return decisions will allow a Member State to recognise and directly enforce a return decision issued by another Member State without having to start a new process.” Regarding the “return hubs”, the Commission clarified: “Member States called for innovative solutions for migration management. This proposal introduces the legal possibility to return individuals who are illegally staying in the EU and have received a final return decision, to a third country based on an agreement or arrangement concluded bilaterally or at EU level. Such an agreement or arrangement may be concluded with a third country that respects international human rights standards and principles in accordance with international law, including the principle of non-refoulement.”
The Commission’s legislative proposals include provisions to encourage voluntary returns. Forced returns will be mandatory “when a person illegally staying in the EU does not cooperate, absconds to another Member State, does not leave the EU by the given deadline for voluntary departure or is a security risk.”
The new return rules proposed by the Commission set out “clear conditions for detention” if there is a risk of absconding. Detention may be up to 24 months, compared to 18 months currently. There are also specific rules for people “posing security risks”: Member States will be required to check in advance – it will eventually have to be worked out how – “whether a person presents a security risk. Once identified, such individuals become subject to strict rules.”
Moreover, the Commission points out that “all measures related to return must be carried out in full respect of fundamental and international human rights standards.” “This is ensured through clear procedures such as the right to appeal, support for vulnerable persons, strong safeguards for minors and families and the adherence to the principle of non-refoulement.”
It is now for the European Parliament and Council to agree on the Commission’s proposal.
