A Zombie Proposal: the Recast Return Directive
This Directive would fast-track asylum cases at the expense of fundamental rights. The EU should not resurrect it.
The previous Italian government blocked migration cooperation completely, out of a desire to block migration itself. It not only refused to take search and rescue ships into Italian ports, it sought to criminalise anyone who organised such rescue efforts.
With a new government in Italy, the Member States have sought to take the opportunity to deal with migration while it lasts. They formed a temporary agreement on disembarkations at a rotating series of EU ports.
The Finnish Presidency has also included migration in its programme, albeit not as a headline issue. They hint at resurrection of individual elements of the failed Common European Asylum System package.
That raises the spectre of the Recast Return Directive, a Commission proposal to reform the processes through which third country nationals who lack approval to stay are sent to other countries. Its reasoning was that the EU must act on migrant returns to maintain public confidence, and to reduce irregular migration. In 2018, of those ordered to leave the EU, 41.49% were physically returned (most of whom, but not all, were sent back to a third country.)
The Commission, therefore, decided they needed to change the law to improve the return rate. They, however, failed to carry out an impact assessment. The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) requested a substitute impact assessment from the European Parliamentary Research Service. This found that there was no clear evidence that the proposal would lead to more effective returns, while it would likely breach migrants’ fundamental rights. They highlight its effects on the right to liberty (through increasing use and length of detention) and the non-refoulement principle. The latter issue arises in cases where the reforms allow Member States to continue with deportations while appeals are in progress, leading to a clear risk of returning someone to face persecution.
It also explains the main changes to the Directive which can be found in the proposal. Primarily, it would create a wide-ranging, extensive list of factors that could determine the risk that an applicant will seek to evade the return process – known as the ‘risk of absconding’. It would force third-country nationals to cooperate with the Member State authorities. Member States would have to issue a return decision right after rejecting or ending someone’s legal stay, losing their discretion. It seeks to remove the minimum 7-day grace period for voluntary departure, and cap it at 30 days with the potential for extension.
Where a risk of absconding is present, the application deemed as ‘manifestly unfounded‘ or fraudulent, or the applicant is deemed to be ‘a risk to public policy, public security or national security’, Member States would have to refuse a voluntary departure period. The proposal also allows handing out entry bans to irregular stayers discovered when they travel from their EU country of residence to a non-EU country. Member States would have to set up a national return management system linked to European Border and Coast Guard systems. They would also have to set up voluntary return programmes that could include support for reintegration in the return country.
The proposal also reduces the time limits for appeals against return decisions. It falls to 5 days in the case of a final rejection of an application for international protection. A rejected applicant at the border with a final decision would have a mere 48 hours. It also severely restricts the circumstances when return is suspended pending appeal. Finally, it establishes posing ”a risk to public policy, public security or national security’ as grounds for detention.
There are numerous potential human rights abuses which could arise from this Directive. The European Union Agency for Fundamental Rights (FRA) and the European Council on Refugees and Exiles (ECRE) explain this in detail. To take just one issue, both groups call for the deletion of Article 22 on the Border Procedure.
This procedure would permit Member States to enact speedy returns after a fast-tracked analysis of the person’s case at the border. In a fast-track process, vulnerable people may be unable to build an effective enough case for asylum or international protection. Their case will no longer always automatically be suspended pending appeal, unless they introduce new, significant, situation-changing material since the first assessment, or the asylum decision did not receive effective legal scrutiny. Such people face a serious risk of wrongful removal. If they can access legal help, that service will have only 48 hours to travel to the border and produce a case.
According to the ECRE, reports from “hotspots in Greece illustrate that such an approach is unworkable in practice and results in massive human rights violations”. The FRA adds “it is not possible to suggest solutions that would re-design the proposed border procedure in the Return Directive to ensure its fundamental rights compliance.”
Worryingly, the FRA also states that “[I]t is not yet known whether it will apply only to persons apprehended directly at the border or if it will be possible, for example, to channel into the border procedure also persons apprehended elsewhere in the territory of a Member State, or if it can apply to all categories of applicants for international protection, including vulnerable persons.” In other words, an exceptional procedure could become the standard assessment mechanism. It has already happened in Hungary, where those caught elsewhere are taken to border detention.
Migrants from particular, disadvantaged, backgrounds stand to be the worst hit by this proposal. It would particularly harm women who have experienced Gender Based Violence (GBV) and LGBT+ people. Asylum-seeking and refugee women may not recognise GBV as GBV at first, for a variety of different reasons: including, but not limited to fear of deportation or of ostracisation from their communities. They may not want to share their experiences with interviewers or other professionals such as lawyers and interpreters. LGBT+ African asylum seekers in the UK reported disbelief and accusations of lying when telling Home Office decision makers about their sexuality. Some of them struggled to come out as LGBT+ out of fear or did not know it was a basis for claiming asylum. Both groups need time and assistance to handle their situation and produce as effective a case as they can.
Fast-tracked decision-making and return procedures, by definition, seek to deprive applicants of that time and space. Such reforms should be left in the past with the last mandate. The European Union should refocus on ensuring that all arrivals on its territory are met with dignity and the utmost respect for their rights and humanity. Such respect must be upheld at every stage of the international protection process from application through to acceptance or return. The recast Return Directive, in its current form, fails that test.