EU Asylum Returns Policy throughout the years: a move towards restriction or harmonisation?

Photo by Markus Spiske, Unsplash

Maria Milova, 89 Belgium

The information and views presented in this article are those of the authors only, and do not reflect the positions and opinions of their former or current employers, or of any organisation they were or are affiliated with.

Executive summary

Return Policy in the EU has been one of the most controversial and contentious, yet fundamental components of the Common European Asylum System. Negotiations between the co-legislators on the Recast Return Directive have been ongoing ever since 2018. Meanwhile, the new package of initiatives as part of the New Pact on Migration and Asylum is still in its initial phases of negotiations. This has raised many questions about the coherence of different policies under the CEAS, while the overwhelming focus on Returns has attracted criticism from academia, NGOs and International Organisations alike. The following policy brief considers the key developments and novelties of the recent proposals on Return, Voluntary Return and Reintegration of irregular migrants, while also providing an overview of EU Return policy over the years and the key criticisms it has faced.

What is the Return Policy in the EU?

The aim of Return Policy in the EU is to increase the rate of returns of irregularly staying third-country nationals by making the procedures at the border as quick and as efficient as possible – in order words, creating a quick and regular returns procedure.

Ever since the outbreak of the refugee crisis in 2015, public opinion on EU asylum policy has been divided and has often been described with the phrase “Fortress Europe” – an impenetrable fortress, secured with surveillance systems and strict border procedures coordinated by border-guards at the external borders and often associated with unlawful pushbacks.

When it comes to the Return Policy in the EU, however, many have also stated that it is a necessary and, in fact, very fundamental component of the Common European Asylum System (CEAS). Yet, the Vice-President for Promoting our European Way of Life – Margaritis Schinas, himself admitted that EU return policy has continued to fail Europe in the past year with extremely low return rates [1]. To combat this and to strengthen fragmented and inefficient procedures within the EU, the European Commission has vowed to put in place an EU-wide returns system which would help improve return rates of rejected asylum applicants and would encourage cooperation with third countries on identification and readmission of returnees.

And indeed, while Returns may not be explicitly mentioned in the title of the current Pact of Migration and Asylum, they are the common denominator of all legislative and non-binding proposals put forward this year, most notably the Screening Regulation , Asylum Procedures Regulation,  Asylum Migration Management Regulation and Crisis Mechanism.

It is said that a key novelty in the current approach is the more humane policy, ensuring higher levels of re-integration and a dignified return [2]. Nevertheless, many have continued to question whether such a central focus on returns and border security will be positive. It is instead argued that a focus on building more legal pathways should be chosen as this would help reduce irregular migration to Europe.

How has Return policy changed over the years?

Return Directive, December 2008

The European Parliament and the Council of the European Union adopted the Return Directive on 16 December 2008. The negotiations behind the Directive were difficult and lengthy – it took three years to agree on the text of the Directive. Some of the most contentious points for the European parliament included the personal scope of the directive, re-entry bans, the period of voluntary departure, detention, procedural rights and the situation of children [3]. It took several trilogues between the co-legislators to agree on a compromise text.

The negotiations surrounding the Directive and the provisions in it attracted widespread criticism from academia, international organisations, experts and other stakeholders. Notably, the United Nations High Commissioner for Refugees expressed that it could not support the directive, as It did not provide the necessary safeguards to ensure dignified returns,while also putting in place mandatory entry bans and an 18 – month detention period [4]. An appeal ‘No to the Outrageous Directive!‘ had also been signed and by numerous NGOs. Academics also criticised the new return provisions, questioning the extent to which they are compatible with international and EU human rights law. [5] [6]

Evaluation of the Return Directive, 2013

An evaluation of the Directive was carried out by the European Commission concluding that while it did streamline the return practices of Member States in certain ways, it also did not have any significant influence on procedural safeguards or the postponement of removal which had been a key aim of the Directive.

Action Plans on Return, September 2015 and 2017

In September 2015, the European Commission developed an ‘EU action plan on return‘, with the aim of increasing the efficiency of the returns system through tools such as the first Return Handbook with guidance for national authorities. Nonetheless, there were very limited results and actions following the first action plan and as a result, in 2017, the Commission presented a ‘renewed action plan on a more effective return policy in the European Union‘.

Proposal for a Recast Return Directive (2018)

In September 2018, the European Commission published a recast proposal of the Return Directive which put forward a mandatory return border procedure, linking return and asylum policy together for the first time – a common administrative decision would be issued for both the rejection and return decision, thus speeding up the process. The aim of the recast was to promote effective and efficient returns by establishing common standards across Member States.

Nevertheless, it immediately attracted strong criticism as it was published without an accompanying impact assessment. In response, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) requested the European Parliamentary Research Service (EPRS) to conduct a substitute impact assessment and later an implementation report, released in February 2019 and June 2020 respectively. The assessment outlined numerous protection gaps which posed the risk to lead to fundamental rights violations for irregular migrants. Additionally, it was stated that the proposal was likely to generate substantial costs for Member States and the EU and more generally, raised questions about the coherence with other EU legislation.

The negotiations on the recast Return Directive are still ongoing as the Council reached a partial agreement but the European Parliament is negotiating a common position.

New Pact on Migration and Asylum, September 2020

The New Pact is based on the assumption that the current returns procedures are ineffective. Yet this was also the same assumption which was underlying the recast Return Directive which is still under negotiation. [7]

More specifically, the pact outlines numerous challenges to effective returns such as certain procedural loopholes, inefficiencies and fragmentation in national return systems and general lack of effective cooperation with third-countries. [8] In response, the Pact suggests a more coordinated approach and introduces the new position within Frontex of EU Return Coordinator which would ensure effective monitoring and protection of fundamental rights would be upkept.

The Pact follows from the Recast Return Directive by linking asylum and return procedures even further – when an asylum application rejection is issued, the return decision would be issued under the same administrative act, or at least on the same day. [9] Additionally, the appeal procedure for asylum and return would be merged with the border procedure. This has received mixed responses from stakeholders and experts as, while on the one hand this may result in faster asylum decisions, it could also negatively impact the right to asylum as the right to appeal becomes more limited. Similarly, detention is linked to pre-removal detention in border procedures. This automatically makes asylum seekers who have had their application rejected, considered as returnees.

Numerous policy developments, such as the extended scope of application of return border procedure to search and rescue operations and relocations, pose the risk to actually weaken the right to asylum and thus threaten numerous fundamental human rights. Nevertheless, the strategy outlined in the New Pact also encourages more humane return border procedure than that of the 2018 Proposal for Recast of the Return Directive by limiting its application and excluding children and vulnerable groups [10]. Additionally, the Pact also comes with further guarantees for fairer procedure including mandatory voluntary returns [11].

The key novelty of the Pact is the introduction of “Return Sponsorships” as a form of solidarity and assistance to other Member States who carry out returns. This complements the other possibility for solidarity through relocation of asylum seekers and includes a sponsorship scheme where Member States commit to support returns from another Member State [12]. The Solidarity mechanism and Return Sponsorships are further discussed in our forthcoming policy brief.

Strategy on Voluntary Return and Reintegration, 2021

Voluntary return
Voluntary return is defined as the assisted or independent return of an irregular migrant who does not have the right to remain in the EU, to their country of origin or transit, based on their own free will. Member States may offer to cover the travel expenses of an applicant to assist their return and provide financial assistance for a short period of time upon arrival. Voluntary Return is considered more sustainable – as it helps ensure the effective reintegration of the migrant, and is less costly for Member States.
Source: brusselstimes.com

It is following the principles of proportionality and fundamental rights that voluntary return is preferred to forced return [13] yet neither the Return Directive nor international law provide a clear framework for setting up such assisted return programmes focusing on the reintegration of irregular migrants.

As a result, the European Commission put forward a new strategy on Voluntary Return and Reintegration which is described as a key goal under the new pact. This strategy is the first time the Commission has presented an initiative focused on voluntary return. As based on the Regulation on Asylum and Management and the proposal for a Recast of the Return Directive, the strategy sets the basis for a coherent approach between national return programmes and reintegration, thus aiming to reduce absconding and improve migrants’ rights. The proposed approach would reduce the length of return procedures, make the process less costly and more effective while still ensuring the successful integration and dignified return of migrants.

The Strategy sets out a wide range of measures which are based on seven Pillars covering:

Why are returns so central to the Common European Asylum System?

Discussions on returns have become a central objective of the CEAS, and the preferred solution to migration crises, while the international obligation to protect refugees has been overshadowed [14] [15]. The strong focus on Returns is based on the assumption that only a third of irregular migrants who are rejected for asylum are effectively returned to their country of origin. This is often due to cases of absconding and the highly fragmented returns approach in the EU.

The proposed merger of the asylum and return procedures has been criticised and analysed by numerous stakeholders and European Institutions. Most notably, European Union Agency for Fundamental Rights and the European parliament have presented studies outlining shortcomings in the implementation of a merged asylum and return procedure.

With regards to the promotion of Voluntary Returns and Reintegration, while the strategy could be interpreted as a sign of a more humane approach to returns [16], it has also raises numerous challenges to the protection of non-refoulment as cases of such returns are often neither voluntary nor humane [17]. This poses a serious danger to the right of asylum.

Additionally, from a more administrative point of view, the new return procedures may result in even more complicated processes for Member States, many of which currently have very fragmented and diverse national legal systems. Nevertheless, as Return Policy in the EU has been an increasingly controversial and contentious topic, and as negotiations have been stalled for years – this increased nexus between the procedures will likely be maintained as it has helped move negotiations on the CEAS reform forward.

Overall, while the New Pact on Migration and Asylum does address some of the key critiques of the 2018 Recast Return Directive, it has also opened the door for many new concerns and shortcomings.

What is next?

The Recast Return Directive is currently still under negotiation, where the Council has reached a partial agreement and the file is currently being reviewed by the Parliament. On the other hand, the proposals under the New Pact are still in their initial phases. Given the nexus between Asylum Procedures and Return Procedures and the centrality of Returns to the New Pact, many have questioned whether an agreement can be reached on the recast while the proposals under the New Pact are still pending [18]. It is yet to be seen how the co-legislators will ensure coherence between the different files and whether the Recast Return Directive will take a new shape.

Nevertheless, one could safely assume that one of the key developments will be the increased role of Frontex and the full operationalisation of its mandate on voluntary returns and reintegration. The Agency was set to have its first pilot for individual joint reintegration support to returnees in May 2021 and is scheduled take over the activities of the European Return and Reintegration Network by the third quarter of 2022 [19].

[1] euractiv 2021. EU adopts strategy on sending irregular migrants back. [online] Available at: https://www.euractiv.com/section/justice-home-affairs/news/eu-adopts-strategy-on-sending-irregular-migrants-back/ [Accessed 05 June 2021].

[2] Moraru, M., 2021. The new design of the EU’s return system under the Pact on Asylum and Migration – EU Immigration and Asylum Law and Policy. [online] Eumigrationlawblog.eu. Available at: https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/ [Accessed 7 June 2021].

[3] European Parliamentary Research Service, 2020. The Return Directive 2008/115/EC – European Implementation Assessment. [online] Brussels: European Union. Available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2020/642840/EPRS_STU(2020)642840_EN.pdf [Accessed 8 June 2021].

[4] UNHCR, 2008. UNHCR Position on the Proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals. [online] UNHCR. Available at: https://www.unhcr.org/4d948a1f9.pdf [Accessed 7 June 2021].

[5] Majcher I., 2020. The European Union Returns Directive and Its Compatibility with International Human Rights Law, Brill | Nijhoff, p. 64.

[6] Peers, S., 2008. Statewatch Analysis: The Returns Directive [online] Available at: https://www.statewatch.org/media/documents/news/2008/jun/eu-analysis-returns-directive-june-2008-final.pdf [Accessed 7 June 2021].

[7] Strik, T., 2021. The recast Return Directive: helping or hindering returns? | Tineke Strik. [online] Tinekestrik.eu. Available at: https://www.tinekestrik.eu/blog/recast-return-directive-helping-or-hindering-returns [Accessed 10 June 2021].

[8] European Commission, 2020. Commission Staff Working Document Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management. pp. 41 and 88 [online] Brussels: European Union. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1601291023467&uri=SWD%3A2020%3A207%3AFIN

[9] European Commission, 2020. Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU. [online] Brussels: European Union. Available at: https://ec.europa.eu/info/sites/default/files/1_en_act_part1_v3_1_0.pdf

[10] refer to Art. 41a(5) of the Asylum Procedure Regulation proposal

[11] Refer to Art. 41a of the Asylum Procedure Regulation

[12] European Commission, 2020. Regulation on Asylum and Migration Management. [online] Brussels: European Union. Available at: https://ec.europa.eu/info/sites/default/files/proposal-regulation-asylum-migration_en-1.pdf

[13] European Commission, 2021. Migration management: New EU Strategy on voluntary return and reintegration. [online] Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1931 [Accessed 8 June 2021].

[14]Council of the European Union, 2019. Migration policy: Council agrees partial negotiating position on return directive. [online] Available at: https://www.consilium.europa.eu/en/press/press-releases/2019/06/07/migration-policy-council-agrees-partial-negotiating-position-on-return-directive/

[15] European Commission, 2018. Remarks by Commissioner Avramopoulos following the Home Affairs Council. . [online] Available at: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_18_6706

[16] Moraru, M., 2021. The new design of the EU’s return system under the Pact on Asylum and Migration – EU Immigration and Asylum Law and Policy. [online] Eumigrationlawblog.eu. Available at: https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/ [Accessed 7 June 2021].

[17] HUDOC, 2019. HUDOC – European Court of Human Rights. [online] Available at: https://hudoc.echr.coe.int/eng#{%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-198465%22]} [Accessed 7 June 2021].

[18] Strik, T., 2021. The recast Return Directive: helping or hindering returns? | Tineke Strik. [online] Tinekestrik.eu. Available at: https://www.tinekestrik.eu/blog/recast-return-directive-helping-or-hindering-returns [Accessed 10 June 2021].

[19] European Commission, 2021. Migration management: New EU Strategy on voluntary return and reintegration. [online] Available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_21_1931 [Accessed 8 June 2021].

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