The EU’s Return System and The New Pact on Migration and Asylum

By: Ewa Romanowska

Photo by Sam Mann on Unsplash

I. Introduction:

The Lisbon Treaty grants the European Union (‘EU’) shared competence in the area of Freedom, Security and Justice, which by virtue of Article 79 of the Treaty on the Functioning of the European Union (‘TFEU’), provides for the development of policies that will prevent and combat illegal migration.[1] While the Common European Asylum System (‘CEAS’), prescribed by Article 78 TFEU has sown its seeds in Tampere with the adoption of six legislative instruments setting minimum standards for asylum, Directive 2008/115/EC on common standards and procedures for returning illegally staying third-country nationals (‘Return Directive’) was adopted in 2008.[2]

The CEAS instruments have encountered significant critique as to their legal gaps, low level of fundamental rights protection, as well as failure to implement the provisions in a harmonised manner.[3] Its dysfunctional nature was further uncovered when faced with the 2015 migration ‘crisis’.[4] While CEAS touches upon human rights issues, one of its main goals is the maintenance of EU security, specifically by countering illegal migration.[5]

One such means of maintaining EU security and countering illegal migration, by that overshadowing the international obligation of the Member States (‘MS’) to protect migrants, is the return procedure embodied in the Return Directive.[6] Returns are seen by the Commission as a mechanism for reducing the incentive for illegal migration and upkeeping the credibility of the EU.[7]

This post will elucidate the existing return procedure and its lack of conformity with international refugee law protection standards, as reflected in EU fundamental rights. It will then briefly mention the unsuccessful attempt to recast the Return Directive in 2018.

Finally, it will explore the newly proposed Pact on Migration and Asylum (‘New Pact’), from the perspective of incorporating and amending the notion of return without explicitly amending the Return Directive.[8]

It should be noted that at the time of writing of this post, the New Asylum Procedures Regulation (‘APR’, discussed in part IV), is still in the stage of negotiation, and the planned date for the Council’s adoption is set for June 2023.[9]

II. Analysis of the Return Directive

A. The definition of return and its implication on the principle of non-refoulment

The Return Directive legitimises the return of illegally staying third-country nationals, provided that fair and efficient asylum systems are in place that fully respect the principle of non-refoulment.[10] Its objective has been defined by the Court of Justice of the European Union (‘CJEU’) as an “effective removal policy for people to be returned in a humane manner and with full respect for their fundamental rights and dignity”.[11] El Dridi clarified that the Return Directive provides for a gradation of the measures to be taken to ensure the enforcement of a return decision ranging from voluntary departure to detention in a specialised facility.[12] The Return Directive defines “return” in Article 3(3) as the process of a third-country national “going back (…) to his or her country of origin, or a country of transit in accordance with Community or bilateral readmission agreements (…)”, and the return shall apply to “third- country nationals staying illegally on the territory of a MS”.[13] The term ‘return’ is used in the EU jargon as a euphemism for expulsion.[14] The specific issues arising from the Directive and its fundamental rights infringement will be analysed below.

B. The return procedure

The procedure itself consists of two steps: recognising that a person is illegally staying in the territory of the MS.[15] This two-step procedure can be circumvented by a MS by way of utilising Article 6(6) Return Directive, which allows for the issuance of a return decision and a decision on the ending of a person’s legal stay, a decision on removal and/or entry ban, all without prejudice to procedural safeguards, in one single decision.[16] This approach was adopted because of the MS’s reluctance to deal with the bureaucracy of issuing several decisions.[17]

The approach of Article 6(6) can hinder the maintenance of safeguards such as the right to an effective remedy prescribed by Article 13 Return Directive or Article 6 European Convention on Human Rights (‘ECHR’) and 47 Charter of Fundamental Rights (‘CFR’) by presupposing that the right was given due consideration by the framework which issued the previous decision.[18]

The combination of several decisions within a return decision can be further diluted if one takes into account the application of the principle of non-refoulment, which ranks as a principle of customary international law.[19] If the broader risk of refoulment, as per Article 3 ECHR and Article 5 Directive, is not included in one of the instruments under which an asylum decision is issued and a common decision is issued, it is liable to hinder the due examination and protection against non-refoulment.[20] The possible overlook by presuming that the examination of the non-refoulment principle occurred within the framework of issuing a previous decision, coupled with the fact that the Qualification Directive includes a narrower notion of protection against refoulment than the Return Directive, puts the migrant at risk of being exposed to refoulment.[21]

B. Protraction of non-deportability

Article 9(1) of the Return Directive provides for the postponement of removal in situations where a risk of violation of one’s fundamental rights exists. Article 9(2) of the Return Directive provides for the ground of the person’s lack of mental or physical capacity to be removed at the specific time.[22] The application of the aforementioned procedure has been found to protract non-deportability, as the postponement does not go in hand with the withdrawal of the return decision.[23] This leaves the migrant without a legal status under EU law, which then results in difficulties in access to basic social services.[24] The issue is then augmented by the lack of obligation set on the MS to afford the irregular migrant adequate living conditions by merely mentioning in the preamble that basic conditions of subsistence shall be maintained.[25] This, in turn, goes against the aim of the Directive, as identified by the CJEU, to grant an effective return policy executed in a humane manner.[26]

C. Exclusion of prohibition of collective expulsion

Even though the Preamble of the Return Directive implies that collective expulsion is prohibited, it does not explicitly state such a principle.[27] The omission of such a scale was found to be striking by the UN High Commissioner for Refugees.[28] This, in turn, can be problematic when utilising the standard form procedure of Article 12(3) Return Directive, which prescribes that irregular migrants who have entered the EU’s territory illegally, i.e. a negative asylum decision has been issued, can be granted a standardised return decision.[29] The standard forms were found to not grant sufficient individual consideration to each person’s situation by its very nature, and if used against a group of migrants, can amount to collective expulsion.[30] Even though, as mentioned, the preamble in Recital 6 does mention the prohibition of collective expulsion, the MSs are bound by the principle by virtue of several international law instruments (Article 19(1) CFR, Article 4 of the Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 13 ICCPR, Article 13 of the HRC General comment 15, etc.), collective expulsion does not fall within the scope of mandatory provisions under the Return Directive.[31] The CJEU asserted in Mahdi and Zh. and O that in light of MS’s international obligations, recital 6 should have a mandatory character.[32]

III. The Recast Directive

After publishing a Recommendation on Making Returns more effective in 2015 and a Recommendation establishing a “Common return Handbook”, the Commission continued its quest to up the number of returns and proposed the 2018 Recast of the Returns Directive.[33] The Recast, although initiated without an impact assessment and lack of references to the previously adopted implementation report, presupposed that one administrative decision is issued for both the rejection of the asylum claim and the return decision (the repercussions of combining those decisions were discussed in I.A), and introduced a new mandatory return procedure.[34]

The EP has analysed and criticised the possible impact of the recast Directive if adopted.[35] The Commission’s idea of broadening the grounds for detention to that of public policy, security or national security, which would allow for a broader interpretation of the detention justifications, was found to constitute a risk of arbitrary detention and not be an appropriate measure for reaching the goals set out by the Directive.[36] Additionally, the Commission tried to set a time limit for appeal at 5 days, which was found to limit the right of access to an effective remedy.[37] The Recast also touched upon the issue of suspensive effects, which it tried to restrict, and which will be further analysed in light of the New Pact.[38] Surprisingly, voluntary departure, advocated for by the Commission in its earlier statements, was also amended to oblige states to refrain from such a practice, results of such a draft would result in a lack of respect for the proportionality principle and individual assessment of the circumstances.[39] When it comes to the standard form used for returns, the Directive tried to make the form to be used as a new mandatory return procedure.[40]

IV. The New Pact on Migration and Asylum (‘the New Pact’)

While the New Pact focuses on the relocation of asylum seekers and on the change in border procedures, these by being linked to the return procedure impact the change of the return system.[41] It shall be noted that as seen by the freshly published “state of play of the EU legislative proposals” the “Return” proposal has still not made it to the EP’s negotiations and the date for such is unknown.[42] This time around, the Commission plans to address the notion of return by extending the links between asylum and returns policies, by providing for a “quicker return of third-country nationals without a right to remain in the Union” and inserting return into the asylum procedure.[43]

A. Issuance of an asylum application and the return decision within the same decision

The proposed APR provides that an asylum application shall be issued within the same decision as the return decision.[44] This is supported by the judgement in Gnandi, which permitted such an approach. However, it is the governments’ observations that show the true reason behind the combination of decisions approach, i.e. multiple hearings are delaying effective returns and jeopardising national judicial systems.[45] A return decision requires a broader examination than a decision on international protection; thus this proposal is criticised for lowering the procedural safeguards applicable to the migrant and the incompatibility with the right to an individual assessment.[46] Individual assessment is required by, inter alia Articles 2 and 3 ECHR, which provide for the right to life and the prohibition of torture.[47]

While the Return Directive utilises standard forms (which as mentioned in II.C does not provide enough of an individual assessment), the APR utilises reasoned decisions.[48] Further, the Return Directive provides for a 48-hour deadline for an appeal against a return decision, while the APR provides for a timeframe from one week to 2 months for an appeal against the international protection decision.[49] Once again, the merging of such is liable to utilise the remedies of the latter, and thus hinder the protection expressed in Articles 2 and 3 ECHR.[50] As was ruled in Ilias and Ahmed v. Hungary, even though the removing state may legitimately choose not to deal with the merits of the asylum request, it is not known whether those persons are at risk of their Article 3 rights being breached, and it is a duty of the removing state to examine such a claim.[51] Additionally, Article 3 ECHR, read in conjunction with Article 13 ECHR, requires independent and rigorous scrutiny of a claim where “there exist substantial grounds for fearing a real risk of treatment contrary to Article 3”. This would imply that the non-reliance on the individual assessment of one situation, as expressed by the proposal in the Asylum Procedure Regulation, is contrary to the standards set by those Articles.[52]

B. Merging the appeal procedure for asylum and return decisions within one procedure

The APR proposes that the appeal procedure for the asylum and return decisions be merged as well.[53] The time limit for lodging the appeal for two decisions is set at one week as per Article 53(7)(a) APR, and thus circumscribes the time to collect evidence and lodge an appeal.[54]

Additionally, Article 54 APR recognises automatic suspensive effects of appeals which were absent in the recast, however, proceeds in Article 54(3) to list circumstances in which suspensive effects should not apply.[55] These include the issuance of a decision under the Qualification Directive and the issuance of a decision on the inadmissibility of application, etc. This purports the view that the suspensive effects are to be used as an exception rather than a rule, thereby restricting the right to an effective remedy.[56]

Limiting suspensive effects, especially in situations where non-refoulment is concerned, i.e. suspension of the return decision upon appeal, is found to be in violation of Article 13 ECHR as per AC and Others v. Spain.[57] Lack of legislation on the suspensive effect on the EU level has however contributed to CJEU stepping in and recognising the automatic suspensive effect of appeal proceedings in Abdida.[58] From a practical perspective, the lack of suspensive effects prescribed by the APR can lead to a series of fundamental rights violations resulting from the lack of an effective remedy.[59]

V. Conclusion

It is clear that the provisions of the Return Directive lack adequate, effective remedies and safeguards and can lead to fundamental rights violations on the EU borders.[60] The unsuccessful attempt to recast the Return Directive has been followed by the proposal of the New Pact on Migration and Asylum, which as a whole is seen as more of an inclusive approach to migration, as followed by the Global Pact for Migration signed in 2018 by the EU.[61] However, as examined in this blog post, it still retains legal uncertainties as to the access to effective remedies and the non-refoulment examination in light of individual circumstances, showcasing the historical security-oriented approach of migration policy rather than effectiveness and fundamental rights violations.[62] Additionally, the lack of assessment done while recasting the Directive and upon the emergence of the New Pact proposal casts a shadow on the Commission’s legitimacy as the guardian of the treaties.[63] While the tangible outcomes of the New Pact adoption are yet to be discovered, one can only hope that it will revert the status quo tendencies of the EU migration policy, including the return policy, focused on the long-standing deterrence-led approach.[64]

[1] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/01, art 79. [2] European Commission, ‘Common European Asylum System’ (Directorate-General for Migration and Home Affairs) <https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system_en> accessed 15 April 2023; European Commission, ‘Towards a reform of the Common European Asylum System’(Directorate-General for Migration and Home Affairs) <https://home-affairs.ec.europa.eu/policies/migration-and-asylum/common-european-asylum-system_en> accesssed 15 April 2023. [3] Elspeth Guil and Violeta Moreno-Lax, Current Challenges regarding the International Refugee Law, with focus on EU Policies and EU Co-operation with UNCHR (CEPS Paper in Liberty and Security in Europe, CEPS, 2013), 2; Frances Webber, ‘The cradle or the grave? EU Migration Policy and human rights’ (2014) 23 Statewatch Journal 3, 3; Nika Bačić Selanec, ‘A Critique of EU Refugee Crisis Management: On Law, Policy and Decentralisation’ (2015) 11 Croatian Yearbook of European Law & Policy 73; Elspeth Guil and Violeta Moreno-Lax, Current Challenges regarding the International Refugee Law, with focus on EU Policies and EU Co-operation with UNCHR (CEPS Paper in Liberty and Security in Europe, CEPS, 2013). [4] Ariadna Ripoll Servent, ‘The EU’s refugee ‘crisis’: Framing policy failure as an opportunity for success’ (2019) 65 Politique Européenne 178, 191. [5] European Commission Press Release, ‘Joint Foreign and Home Affairs Council: Ten point action plan on migration' (20 April 2015) <https://ec.europa.eu/commission/presscorner/detail/en/IP_15_4813> accessed 15 April 2023. [6] Council of the EU Press Release, ‘Migration policy: Council agrees partial negotiating position on return directive’ (7 June 2019) <https://www.consilium.europa.eu/en/press/press-releases/2019/06/07/migration-policy-council-agrees-partial-negotiating-position-on-return-directive/; Madalina Moraru, ‘The new design of the EU’s return system under the Pact on Asylum and Migration’ (Odysseus Network, 14 January 2021) accessed 15 April 2023; Olivia Sundberg Diez, ‘Diminishing safeguards, increasing returns: Non-refoulment gaps in the EU return and readmission system’ (EPC, 2019) < http://aei.pitt.edu/101046/1/Diminishing_safeguards.pdf> accessed 15 April 2023. [7] EPC, ‘Assessment of the Current Situation’ (EPC, 2019 in eds Philippe De Bruycker Marie De Somer Jean-Louis De Brouwer) <www.epc.eu/content/PDF/2019/Tampere WEB.pdf> accessed 15 April 2023, 133. [8] European Commission, ‘New Pact on Migration and Asylum’ (Directorate General for Communication) <https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/promoting-our-european-way-life/new-pact-migration-and-asylum_en> accessed 15 April 2023. [9] European Commission, ‘State of Play: New Pact on Migration and Asylum Factsheet’ (European Commission 23 March 2023) (Factsheet on the New Pact) <https://ec.europa.eu/commission/presscorner/detail/en/FS_23_1850> accessed 15 April 2023. [10] Council Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/188 (Returns Directive), recital 8. [11] Case C-146/14 Bashir Mohamed Ali Mahdi (PPU) [2014] ECR 1320 (CJEU PPU), para 38; Case C-166/13 Sophie Mukarubega v. Préfet de Police and Préfet de La Seine-Saint-Denis [2014] ECR 2336, para 39; European Commission, ‘Proposal for Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast)’ (Proposal) COM(2018) 634 final (Recast Proposal), 2–3. [12] Case C-61/11 Hassen El Dridi, alias Soufi Karim (PPU) [2011] ECR I- 3015. [13] Returns Directive (n 10) art 2(1). [14] Jean-Pierre Cassarino, ‘Are Current “Return Policies” Return Policies? A Reflection and Critique’ in Tania Bastia and Ronald Skeldon (eds), Routledge Handbook of Migration and Development (1st edn Routledge 2020) 343–352. [15] Returns Directive (n 10) art 6; Case C-61/11 Hassen El Dridi, alias Soufi Karim (PPU) [2011] ECR I- 3015. [16] Returns Directive (n 10) art 6(6). [17] Recast Proposal (n 11) art 6(3), 7(3); Fabian Lutz, The negotiations on the Return Directive: Comments and Materials (1st edn Wolf Legal Publisher 2010) 49–50. [18] Izabella Majcher, The European Union Returns Directive and its Compatibility with International Human Rights Law (Brill Nijhof 2020) (Majcher) 90. [19] Izabella Majcher and Tineke Strik, ‘Legislating without Evidence: The Recast of the EU Return Directive’ (2021) 23 EJML 103 (Majcher and Strik) 110; European Union Agency for Fundamental Rights, Scope of the principle of non-refoulment in contemporary border management: evolving areas of law (Publications Office of the European Union, 2016). [20] Majcher (n 18) 90; Soering v the United Kingdom App No. 14038/88 (ECtHR, 7 July 1989), para 91. [21] Majcher (n 18) 90. [22] Returns Directive (n 1) art 9. [23] Majcher (n 18) 669. [24] Charles Gosme, ‘Trapped Between Administrative Detention, Imprisonment, and Freedom-in-Limbo’ in eds Maria João Guia, Robert Koulish, and Valsamis Mitsilegas Immigration Detention, Risk and Human Rights: Studies on Immigration and Crime (Springer, 2016)91–122; Katharine Weatherhead, ‘Removing “Non-Removables”’ (2015) 51 Forced Migration Review 75. [25] Majcher (n 18) 669. [26] CJEU PPU (n 11) para 38. [27] Majcher (n 18) p 147-148; Returns Directive (n 10), rctl 6. [28] The UN High Commissioner for Refugees (unhcr) recommended inserting a new article which would prohibit collective expulsion, see UNHCR Observations on the European Commission’s Proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals (COM(2005)391 Final), December 2005. [29] Returns Directive (n 10) art 12(3). [30] ECRE Information Note on the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying thirdcountry nationals, CO7/1/2009/Ext/MDM(ECRE 2009) p 17; Majcher (n 18) 152, 231. [31] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); UNHRC ‘General Comment No. 15: The Position of Aliens under the Covenant’ (1986) HRI/GEN/1/ Rev.9, para 10; Case C-554/13 Z. Zh. v Staatssecretaris van Veiligheid en Justitie and Staatssecretaris van Veiligheid en Justitie v I. O. (Mahdi and Zh. and O) [2015] ECR 377. [32] Majcher (n 18) 155. [33] European Commission, Commission Recommendation (EU) 2017/432 of 7 March 2017 on Making Returns More Effective When Implementing the Directive 2008/115/EC of the European Parliament and of the Council [2017] OJ 2017 L 66/15; European Commission, Commission Recommendation (EU) 2017/2338 of 16 November 2017 Establishing a Common ‘Return Handbook’ to Be Used by Member States’ Competent Authorities When Carrying out Return-Related Tasks [2017] OJ L 339/83; Commissioner Avramopoulos, ‘Remarks by Commissioner Avramopoulos following the Home Affairs Council’ (6 December 2018, Brussels) <https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_18_6706> accessed 15 April 2023; Recast Proposal (n 11). [34] Majcher and Strik (n 19) 108; European Commission, Staff Working Document: Better Regulation Guidelines[2017] SWD(2017) 350, ch II; Recast Proposal (n 11). [35] European Parliamentary Research Service, The Return Directive 2008/115/EC: European Implementation Assessment (BrusselsEuropean Union 2020) (EPRS Implementation Assessment). [36] European Union Agency for Fundamental Rights, The recast Return Directive and its fundamental rights implications: Opinion 1/2019, 13. [37] Majcher and Strik (n 19) 110; EPRS Implementation Assessment (n 35), 58. [38] Majcher and Strik (n 19) 11. [39] Majcher and Strik (n 19) 107, 112. [40] Majcher (n 18) 152, Recast Proposal (n 11) para 22. [41] European Commission, Communication from the Commission on a New Pact on Migration and Asylum [2020] COM(2020) 609 final (Communication on the New Pact), p 3; Madalina Moraru, ‘The new design of the EU’s return system under the Pact on Asylum and Migration (Odysseus Network ,14 January 2021) <https://eumigrationlawblog.eu/the-new-design-of-the-eus-return-system-under-the-pact-on-asylum-and-migration/ >, (Moraru), ch II. [42] Factsheet on the New Pact (n 9). [43] Communication from the Commission on a New Pact on Migration and Asylum (n 41) 3. [44] Communication from the Commission on a New Pact on Migration and Asylum (n 41) Council of the EU, Amended Proposal for a 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 (Brussels, 17 November 2021) (Asylum Procedure Regulation Proposal), art 35a. [45] Case C-181/16 Gnandi [2018] ECR 465. [46] Izabella Majcher, ‘The EU return system under the Pact on Migration and Asylum: A case of tipped interinstitutional balance?’ (2020) 26 European Law Journal 199 (Majcher New Pact) 219; European Council on Refugees and Exiles, Comments on the Commission Amended Proposal for an Asylum Procedures Regulation (ECRE, 18 December 2020) <https://ecre.org/wp-content/uploads/2020/12/ECRE-Comments-COM-2020-611-2-December-2020.pdf> accessed 15 April 2023 (ECRE Report), 35; The Spanish Commission for refugees (CEAR), New Pact on Migration and Asylum: Risks and Opportunities (CEAR Advocacy Department) <www.cear.es/wp-content/uploads/2022/05/INFORME-PACTO-EUROPEO EN.pdf> accessed 15 April 2023, (CEAR) p 18; Moraru (n 41). [47] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 2, 3. [48] Majcher New Pact (n 46) 218; CEAR (n 46) 18; Moraru (n 41). [49] CEAR (n 46) 18. [50] ibid. [51] Council of Europe, ‘Guide on the Case law of the Convention – Immigration’ (European Court of Human Rights, 31 August 2022) para 55. [52] Shamayev and Others v Georgia and Russia App No. 36378/02 (ECtHR, 12 April 2005) para 460; Gebremedhin [Gaberamadhien] v. France App No. 25389/05 (ECtHR, 26 April 2007). [53] Asylum Procedure Regulation Proposal (n 44) arts 53, 54. [54] Majcher New Pact (n 46) 206, 219; ECRE Report (n 46) p 37; CEAR (n 46) p 20. [55] Majcher New Pact (n 46) 219; ECRE Report (n 46) pp 39-40; CEAR (n 46) p 20. [56] ibid. [57] ibid; A.C. and Others v. Spain Application No. 6528/11 (ECtHR, 24 April 2014). [58] Case C-562/13Abdida [2014] ECR 2453. [59] ECRE Report (n 46) 41. [60] Majcher (n 18) 667. [61] Frédérique Berrod, ‘The Schengen Crisis and the EU’s Internal and External Borders: A Step Backwards for Security-Oriented Migration Policy?’ (2020) 1 Borders in Globalization Review 53, 60. [62] ibid; Majcher New Pact (n 46) 225. [63] Majcher New Pact (n 46) 219. [64] Lejla Hadj Abdou and Andrea Pettrachin, ‘Exploring the EU’s status quo tendency in the migration policy field: a network centred perspective’ 30 (2022) JEPP 1, 20.