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by Galina Cornelisse, Vrije Universiteit Amsterdam & Madalina Moraru, Masaryk University Brno, authors of Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union (Hart Publishing, 2020)

The concept of judicial dialogue that is central to our book Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union shows that in times characterised by legislative stalemate and crisis driven governance, courts and judicial interactions serve as important guarantors for the rule of law. As such they also set standards for policy-making that the institutions would be wise to engage with in the ongoing legislative process.

 

The Covid and perceived refugee crisis have seen a relapse of asylum and immigration policies across Europe towards executive driven policy making – both on the European level as on the level of the Member States. In this context the role of courts becomes especially salient and as such, a close look at the contribution of courts to the implementation of the Return Directive is more than timely. The contributors to our book show that European and domestic courts have played a crucial role in transforming the Return Directive from a ‘Directive of Shame’ to a positive normative example for legal orders around the globe. Judicial interactions in particular have been key for this policy transformation by giving the courts tools to act as gatekeepers for human rights protection and effective implementation of the Directive.

This has not been easy, since the task of those courts involved striking the right balance between competing objectives: they have been required to reconcile the demands of an effective return policy with the protection of the human rights of third-country nationals, or they had to find a compromise between traditions of judicial deference to administrative prerogatives over migration and the enhancement of legal accountability that is the direct consequence of introducing European legislation in this area. The 2018 Proposal for the Recast of the Return Directive put forward by the European Commission has brought back the debate on the design of return management and the vertical and horizontal allocation of powers.

Recast of the Return Directive: one step forward two steps backwards?

In September 2018, the European Commission put forward a proposal for a targeted amendment of the Return Directive. This proposal builds on recommendations the Commission had included in previous soft law measures such as: the Renewed Action Plan, Recommendation and Return Handbook that were issued in 2017. Enhancing the effectiveness of return procedures seems to be the primary reason for the proposed legislative changes. For that reason alone it is highly surprising that the Commission did not conduct an impact assessment which has been carried out by the European Parliament in the form of a substitute impact assessment.

Effectiveness of return policies as the primary driver for legislative changes raises a number of fundamental questions. Most crucially, it should be highlighted that return policies address a problem that Member States to a certain extent create themselves. Against that background the persistent absence of any obligations on the part of Member States about returnees who cannot be removed is particularly unfortunate and needs to be reconsidered (for an indepth analysis, see Farcy chapter in the book).

In addition, while EU action might be necessary to address problems associated with irregular migration, it is doubtful if the proposal has added value to respond to the problems encountered by the Member States in returning irregular migrants. External action, which should emphatically not be solely focused on arrangements with third countries regarding forced return, may be more appropriate. Moreover, sustained analysis of national case law on the Directive as carried out by the contributors to the book, shows that increased procedural harmonisation as foreseen in the proposed changes will not always be the answer to many of the problems faced by the Member States in the area of return. Instead, it may result in ever more complicated procedures as states need to incorporate new procedural requirements in very diverse national legal systems and when it comes to detention, not only administrative, but civil and/or criminal law as well, see more in Part II of the Book).

The main changes that are proposed to the Directive relate to voluntary departure (Article 9); entry bans (Article 13); remedies (Article 16); and detention of returnees (Article 18). A new provision on the definition of the risk of absconding including a non-exhaustive list of objective criteria is introduced (Article 6), as well as an obligation to cooperate for irregularly staying third country nationals (Article 7). Another significant change concerns the introduction of a border procedure to speed up the adoption of certain return decisions (Article 22).

In reaction to the Commission Proposal, the European Parliament issued a draft Report in early 2019, but due to the 2019 parliamentary election it was not submitted for voting in plenary; a second report was subsequently issued in early 2020, but due to the COVID crisis, this report has also not yet been adopted in the plenary (see the legislative track). In it assessment of the Return Directive implementation, The Parliament show that several persistent shortcomings, such as: 1) the lack of a systematic assessment of the risk of refoulement by the authorities during return procedure; 2) insufficient legal remedies to protect the principle of non-refoulement, since in most countries, an appeal against return is not automatically suspensive; 3) limiting the scope of application of the Return Directive in favour of informal return procedures; 4) voluntary returns are still an exception; 5) too much reliance on pre-removal detention, due to a broad definition of the risk of absconding.

In its 2020 Draft Report, the European Parliament put forward many amendments of the Commission Proposal, among which: 1) the deletion of the Commision definition of the risk of absconding, which includes a non-exhaustive list of 16 objective criteria; 2) eliminating the increased number of derogations from the scope of application of the Directive; 3) maintaing the minimum duration for voluntary return and the Member States option to decide whether to confer or not voluntary return in certain circumstances; 4) codification of European and domestic courts’ caselaw on the returnees’ right to be informed (see amendment to Article 7), right to be heard (amendments to Article 8), and right to an effective remedy (see in particular amendment to Article 16).

Lessons learned from judicial dialogue

 

  • Prioritisation of voluntary return

The prioritisation of voluntary return over forced departure is a key principle governing return procedures. Almost all ECJ’s preliminary rulings touching on the Directive have emphasised the requirement to give third country nationals staying illegally in the EU the possibility to leave voluntarily. Furthermore, the ECJ requires the public authorities to carry out a careful individual assessment of circumstances when they consider limiting or refusing voluntary return on the basis of a ‘risk to public policy’ or a ‘risk of absconding’. In Zh and O, the Court held that Member States should avoid refusing voluntary return on the basis of automatic findings of the ‘risk to public policy’ solely related to past suspicion of criminal offence or committed criminal offence.

The following circumstances were mentioned by the ECJ as part of the individual assessment which has to be carried out: the nature and seriousness of the criminal offence; the time which has elapsed since a criminal offence was committed; and any matter which relates to the reliability of the suspicion that the third country national committed a crime. Judicial dialogue has further clarified that the finding of a ‘risk of absconding’ should be based on ‘the intent of the person concerned to escape from someone or to evade something’ (see Jawo, para 56). However the Commission Proposal new definition of the risk of absconding includes several circumstances which are not connected to this intention to escape (e.g. see Article 6(1)(a-(c)).

As regards the period of voluntary departure, the current Directive provides for a minimum of 7 days and maximum of 30 days for voluntary return. Different contributors to the book (see Part I of the book) show that in practice, several Member States favor the conferral of a voluntary departure period closer to the maximum, especially if the individual is genuinely engaging in the departure process. This pragmatic approach avoids the administrative conundrum of subsequent prolongation decisions and has proved to have higher chances of compliance by third-country nationals. The Commission’s proposal on voluntary return amendments reverses the logic of prioritisation by eliminating the minimum period for voluntary return, and requiring Member States to refrain from voluntary return in certain circumstances (see Article 9(4)). Given the above mentioned empirical findings and that Member States already have the power to set lower voluntary departure periods than the seven days minimum under current Article 7(1)(2), it is questionable that the reform will actually ensure effective enforcement, instead it might function as favouring forced over voluntary returns.

  • Effectiveness of return cannot trump the principle of non-refoulement

The Return Directive requires that throughout all the various phases of return procedure, the Member States should take into account the principle of non-refoulement (see Article 5). Although the Commission proposal refers more often to the protection of this principle, proposed procedural changes, such as elimitation of appeal mechanisms and suspensive effects in cases of return procedure following a rejection of an asylum application raises concerns on procedural efficiency trumping the protection of the principle of non-refoulement.

These amendments are pedalling back from the judicial developments of the principle of non-refoulement under the Return Directive, in particular for seriously ill migrants, which was a matter that fell wholly outside of EU law before the ECJ case in Abdida. The Court held that the obligation of Member States to respect non-refoulement on the basis of Article 5 could be breached if they would “remove a migrant suffering from a serious illness to a country in which appropriate treatment is not available.” (see Carlier and Leboeuf ‘s chapter in the book). Other contributions in the book further show how courts and judicial dialogue have driven enhancement of the principle of non-refoulement by securing effective procedural guarantees. By ensuring a right to be heard, a right to good administration and suspensive effects of appeal, courts have indirectly shielded the principle of non-refoulement from prioritisation of procedural efficiency. Across jurisdictions, legal systems, culture and judicial configurations, a common judicial agreement has developed requiring individual assessment of circumstances as basis for adopting return related decisions, which ensure that the principle of non-refoulement is observed.

 

  • Legal remedies

Over the last decade, judicial interactions – most prominently in the form of the preliminary reference procedure – have yielded important case law with regard to judicial protection of the rights of third-country nationals in return procedures. In-depth analysis of the relevant case law and implications for practical issues faced by Member States can be found in Part III of the book. One of the most prominent findings that can be drawn from the case law by the Court of Justice is its heavy reliance on the EU Charter when called upon to interpret a specific provision of the Return Directive. The recent case FMS provides a particularly apt example of the role courts may play in a policy area that is traditionally left to administrative discretion. In this case, the Court essentially set aside the part of Article 13 on remedies that presented administrative appeal against a return decision as an alternative to judicial review. Instead it held that Article 47 of the Charter obliges Member States judicial review of every return decision (para 129). The Commission seems to have anticipated this interpretation of the legal obligations of Member States under the Charter as the proposal for the recast replaces the right to legal remedy with the right to a judicial remedy (Article 16).

The other changes that the Commission proposal introduces with regard to legal remedies announce a potential negative evolution. For example, Article 16 limits judicial review of a return decision if that decision is based on the rejection of an application for international protection, to a single level of jurisdiction and introduces the strict time limit of five days for the third-country national to lodge such an appeal in those circumstances (48 hours in the border procedure, see Article 22). Apart from the fact that introducing obligations for Member States to limit possibilities for appeal raises serious questions regarding subsidiarity in view of the procedural autonomy of Member States, these changes can be questioned for other reasons as well.

Limiting appeals may at first sight fit with the Commission’s wish to limit the length of return proceedings. However, this strategy may also lead to lengthier procedures. Migrants willing to contest their return after their appeal has been dismissed could be inclined to file a new application, either for asylum (see the case FMS), or on other grounds. In the former case this means that a possible measure of detention will have to be ordered on a different legal basis (asylum acquis), and different rules apply there (see the case Gnandi). This leads to more complicated procedures, also before the judicial authority controlling the lawfulness of the detention.

Moreover, limiting appeals to a single level of jurisdiction may lead to fragmented national case law. In this regard it should be recalled that over the last few years EU law has increasingly carved out a “space between asylum law and irregular migration” where Member States’ obligations regarding non-refoulement go beyond the obligations that they have on the basis of the asylum acquis, as can be seen from cases such as Abdida and MP. It seems counterintuitive to leave decisions over this space to national judges deciding in first instance without the possibility for appeal, and certainly not adding to an effective and coherent return policy. Limiting appeals to a single instance could also result in a higher number of preliminary questions referred to the Court of Justice, seeing that national courts deciding in first instance are in this case highest courts and thus obliged to refer if the CILFIT exceptions do not apply.  The net result may be increased judicial dialogue, the outcomes of which will undoubtedly stress the requirements of the Charter and the protection of the rights of the individual.

  • Detention

With regard to detention some of the most conspicuous changes relate to its duration (Member States would be obliged to set a maximum duration that cannot be less than 3 months by Article 18(5), additional grounds for detention relating to public order considerations by Article 18(1)(c) and changes in the concept of the risk of absconding by Article 6). To start with the latter, persistent problems with the definition of the risk of absconding have plagued the implementation of the Directive, with Member States adhering to a long and open-ended list of ‘objective criteria’ (see more in Moraru’s chapter in the book). Here judicial dialogue has contributed to a de facto narrowing down of the number of objective criteria by the ECJ’s insistence on an individual assessment of each and every case, stressing that decisions on the basis of the Return Directive should be based on more than the mere fact of illegal stay.

Our book shows that, as a result of judicial dialogue, illegal entry or stay and lack of identity documents are now less likely to be accepted by domestic courts as objective criteria, in particular as grounds for pre-removal detention. Moreover, in many jurisdictions a criminal record cannot automatically lead to a risk of absconding, but this circumstance has to be joined by proof of a genuine and present risk. Vertical judicial dialogue has contributed to the coherent implementation of the risk of absconding at domestic level, following jurisprudentially crafted principles, such as: derogations should be strictly interpreted; respect of fundamental rights should be ensured at all stages of return procedures; and importantly, the principle of proportionality should be ensured.

Here again it should be noted that legislative changes cannot negate the obligations that Member States have on the basis of the EU Charter (including the EctHR, see Tsourdi ’s chapter in the book). It will be especially interesting to see how courts will assess the proportionality of a detention measure based on public order considerations, not in the least when they are asked to reflect on implications of the ECtHR case law such as A. and others v the UK. Seeing that the Commission has justified the proposed changes to the Directive by referring to the ineffectiveness of return procedures, it is striking that a sound assessment of the relationship between the use of detention and return rates is lacking as a basis for the proposed changes. More sustained research is definitely needed here – which could benefit from the empirical turn in contemporary legal studies.

In conclusion, the development of a prolific judicial  dialogue between domestic courts and the European Court of Justice  on  the  implementation  of  the  Return  Directive  has produced real effects at both the EU and domestic level, such as limiting the criminalisation of irregular migration, prioritising  voluntary  departure  over  pre-removal  detention, increasing the protection of the principle of non-refoulement by requiring ex officio assessment of potential risks of refoulement, and providing for more judicial control over administrative detention and forced returns. Judicial dialogue may further provide domestic courts with the critical tools needed to ensure that EU return policy is shaped as it was intended to be from the outset: based on the rule of law, firm but proportionate, humane but not hostile (as emphasised by Lutz in his Prologue in the book).