EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

By Madalina Moraru, Head of Research Group at the Centre for Judicial Cooperation of the European University Institute, and Senior Research Fellow at the Judicial Studies Institute, Masaryk University and ITFLOWS Project, Brunel University.

Returns do not feature in the Pact’s title, nevertheless they are a redline running across all of the Pact’s five legislative acts, and two non-binding proposals scheduled for 2021. These proposals aim to increase returns of irregularly staying third-country nationals from the EU by way of: introducing a mandatory, expedited return border procedure that could become the new regular return procedure; creating an EU Return Coordinator position to increase coordination among domestic return practices; increasing the links between asylum and return policies into a single integrated migration procedure; and introducing return sponsorship as a form of solidarity cooperation among the Member States. Some of these proposals are likely to increase solidarity among the Member States, and achieve more effective returns that also observe fundamental rights – such as a more humane return border procedure compared to the procedure included in the 2018 Recast Return Directive proposal of the European Commission. Nevertheless, the increased links between asylum and return policies, the extension of the scope of application of the return border procedure coupled with the limitation of procedural guarantees risk to weaken the right to asylum, the principle of non-refoulement and diminish the role of courts in favour of an executive dominated migration management system.

Against this background, this post examines:

• why returns feature so centrally in the Pact;
• how the Pact proposes to reform the EU policy design on returns, compared to the 2018 Proposal to Recast the Return Directive and the currently in force Return Directive; and
• what could be the future challenges for the new EU system of returns.

Effective returns as the main driving force for the reform of the Common European Asylum System (CEAS)

The reform of the CEAS has been stalled for more than four years mainly due to a lack of consensus among the Member States on the implementation of the principle of solidarity (Art. 80 TFEU). During this period, reform discussions have taken a turn towards returns as the preferred solution to deal with (future) migration crisis (see also Jessica Schulz post). The ‘fight against irregular migration’ seems to have become a key objective of the CEAS, overshadowing the international obligation of the Member States to protect refugees (see the Council June 2019 Conclusions). Prioritising returns appears to gather more consensus among Member States than the implementation of the international obligation to protect refugees (see 2018 Home Affairs Council meeting). Building on this consensus, the European Commission has made effective returns a key driving force for the new reform of the CEAS as proposed by the Pact on Asylum and Migration. This approach is novel to the solutions proposed, so far, by the European Commission to reform the EU’s return system. Upuntil March 2017, the Commission’s solution for returns’ inefficiencies was to adopt bi-annual non-binding acts putting forward concrete recommendations for how the Member States could improve domestic implementation of the Return Directive (see the Return Action Plans from 2015 and 2017). This Directive was already widely considered a normative example on returns for legal orders around the globe. It was thus thought that, unlike the CEAS instruments, there was no need for reforming it. The Commission’s approach changed in 2018, when it tabled with urgencya proposal amending the Return Directive. The Commission did not conduct an impact assessment, nor an updated evaluation of the Directive implementation, nevertheless both a substitute impact assessment and an evaluation of domestic implementation were done by the European Parliament (for a commentary of the proposal see Galina Cornelisse and Madalina Moraru post). The 2018 Recast Return Directive proposal put forward a new mandatory return border procedure, and linked return policies to asylum by requiring the issuing of a common administrative decision for both the rejection of an asylum claim and return decision. These two proposals are taken up by the Pact and substantially amended. The Pact enlarges the scope of application of return border procedure, increases the links between asylum and return policies so much so that return related provisions are inserted in all the new or amended legislative acts proposals on asylum: Asylum and Migration Management Regulation; Screening Regulation; amended Asylum Procedures Regulation; amended Eurodac; Regulation addressing situations of crisis and force majeure. While the Pact ensures an accurate cross-referencing between the proposed acts, nevertheless, the return legal framework will be made up of numerous new provisions that are scattered across six different legislative acts (those of the Pact and the Recast Return Directive), and additional cooperation agreements with third countries (see Paula García Andrade blog). This fragmented legal framework will further complicate an already dense return regulatory framework made up of norms pertaining to the global, regional (both Council of Europe and EU), and domestic legal orders (see Lilian Tsourdi chapter).

As justification for making returns an integrated part of the CEAS reform, the Pact refers to: the persistently low return rates, which seem to not match the Commission’s unrealistically high return rates (70% for 2020); changes in the migration flows, ‘as the arrival of third-country nationals with clear international protection needs in 2015-2016 [which] has been partly replaced by mixed arrivals of persons of nationalities with more divergent recognition rates’; the high proportion of rejected asylum seekers in the percentage of returnees (namely 80%) (see amended Asylum Procedure Regulation proposal, pp.10-11).

The Pact identifies various challenges to effectiveness of returns: procedural loopholes and guarantees in the EU asylum and return systems, which are ‘abused’ by third-country nationals to prolong their stay in the EU; inefficiencies in the national return system, and lack of harmonisation at EU level; and insufficient cooperation of third countries on readmission (see pp. 41 and 88 of the Commission Staff Working Document).These causes overlap to a certain extent with the shortcomings identified by this book. The recent jurisprudence of the CJEU confirms the still persistent deficient transposition of the Return Directive, 10 years since the entry into force of this instrument (see CJEU Zaizoune II on Spain; and JZ on Netherlands). Member States’ practices still diverge on: who should be returned (see Galina Cornelisse’s chapter); how the return should take place (see chapters in Part III of this book); and where to return safely (see the 2019 EPC Report on non-refoulement gaps in the EU return and readmission system). It remains to be seen whether the answer to the above challenges is the Pact’s increased procedural harmonisation and links between asylum and return policies. This new play-out may result, first, in ever more complicated return procedures which Member States may struggle to implement in very diverse national legal systems and, second, weakening of the right to asylum. Nevertheless, the increased nexus between returns and asylum policies is likely to be maintained as it has, so far, succeeded to move forward the long stalled discussions on the CEAS reform.

The Pact’s re-design of the EU’s return system

Five main pillars define the changes the Pact proposes to introduce to the EU’s current return system.

1. Reinforcing the EU’s role on returns coordination

The amended Asylum Procedure Regulation proposal mentions that ‘effective return of those who are not in need of protection, should not have to be dealt with by individual Member States alone, but by the EU as a whole’ (see p. 1). The Pact thus proposes a more EU-coordinated approach to returns by introducing a new position, that of an EU Return Coordinator, inside the European Commission, supported by a Deputy Executive Director for Return within Frontex anda network of high-level representatives. This should contribute to a ‘common strategic and coordinated approach on return and readmission among the Member States, the Commission and Union agencies.’ While enhanced coordination, cooperation and consistent return processes are paramount, the legal act appointing the EU Return Coordinator in 2021 should also provide for clear monitoring tasks. The Coordinator should thus ensure that Member States provide an accessible appeals mechanism, free legal advice, special protection for vulnerable groups and independent monitoring mechanism in both border and ordinary return procedures, as well as monitoring Frontex extended operational powers on returns.

2. Extending the links between asylum and returns policies

One of the main novelties introduced by the Pact is the creation of a ‘seamless link’ between asylum and return policies, which promises to contribute to a ‘quicker return of third-country nationals without a right to remain in the Union (amended Asylum Procedure Regulation proposal, p. 3). This linkage between asylum and return procedures is aimed to address the issue of ‘Member States’ asylum and return systems operat[ing] mostly separately, creating inefficiencies and encouraging the movement of migrants across Europe’. The Pact identified various loopholes in asylum and return procedures, notably, ‘return and negative asylum decisions being issued separately, inefficient rules in case of subsequent asylum applications or of applications submitted during the last stages of return are argued to facilitate absconding and unauthorised movement of migrants across the EU, hamper returns and put a heavy burden on national administrative and judicial systems’ (Commission Staff Working Document, p.5). The Pact thus proposes to link asylum and return procedures in three main ways.

First, an asylum application rejection should be issued within the same administrative act with a return decision, or if issued separately, then at least ‘at the same time and together’ (see Art. 35a of the Asylum Procedure Regulation). This combined administrative procedure endorses a procedural model which appears to be followed by a minority of Member States. The rationale behind this policy approach is thatmultiple hearings are merely delaying or even jeopardising effective returns (see governments’ observations in Gnandi). While the CJEU found this compressed model permissible under the Return Directive (Gnandi), its implementation has been found to fall short of good administration obligations, rights of defence and non-refoulement guarantees (see more in Valeria Ilareva and Serge Slama’s chapters). Among the reasons for this deficient play-out of the combined model, the European Parliament study referred to ‘risk of refoulement which is not systematically assessed by the authorities on their own initiative when contemplating the issuing of a return decision’ (2020 EP Study, p.30). An added value of the 2020 Asylum Procedure Regulation compared to the 2018 Recast Return Directive proposal is that the former clearly codifies the fundamental rights safeguards developed by the CJEU in Gnandi, whereas these are absent from both Articles 6 and 16 of the 2018 Proposal. Notably, Art. 54(1) provides that ‘the effects of a return decision shall be automatically suspended for as long as an applicant has a right to remain or is allowed to remain’. Nevertheless, the proposal should prevent situations of poor transpositions as identified by the European Parliament Study above, and codify in clearer terms the obligation to individually assess additional grounds for non-refoulement outside the protective grounds for refugee or subsidiary protection (as set out in Arts. 10 and 15 Qualification Directive). In Mukarubega and Boudjlida judgments, the CJEU held that a third-country national ‘mustbe able to express his/her point of view onthe legality of his or her stay;facts that could justify the authorities to refrain from adopting a particular return related decision; facts that justify exception(s) to the expulsion; social circumstances of the irregular migrant, including the best interests of the child, family life and the state of health of the third-country national concerned and risks of non-refoulement.’ These requirements should be respected by both the future Recast Return Directive and the amended Asylum Procedure Regulation.

Second, the Asylum Procedure Regulation merges the appeal procedure for asylum and return decisions within the border procedure within one single procedure. While this policy approach can have a positive effect on the right to asylum since third-country nationals may receive sooner a decision on their asylum claim and thus avoid prolonged situations of legal uncertainty (see B.A.C. v Greece), it can also negatively impact the right to asylum. Following the Pact’s approach thatprocedural rights serve mostly for prolonging rejected asylum seekers’ stay in the EU, the Asylum Procedure Regulation limits the levels of appeal to one, and turns automatic suspensive effect of appeals into an exception in border procedures (see Arts. 53 and 54 of Asylum Procedure Regulation). However, this theoretical model of swifter procedures has shown its shortcomings in the Greek practice. Notably, the limited one level of judicial appeal, brevity of judicial reasoning, and lack of automatic suspensive effect of appeal have not contributed to swifter asylum and return procedures, but to a series of fundamental rights violations found by the European Court of Human Rights against Greece (see Papapanagiotou-Leza and Stergios Kofinis chapter). While the suspensive effect of the joined appeal can be granted either ex officio or by individual application, the Italian practice illustrates the practical difficulties in applying such a system (see Alessia di Pascale chapter). Nevertheless, similar domestic legal procedures can lead to different results in practice, depending on various factors at play, such as: the legal system, culture, and type of competent courts to review the executive (see the Greek and German chapters here). Therefore, the EU procedural model should leave more space for accommodation to the national legal specificities, since transplanting one procedural model that works in one jurisdiction to another might not lead to the same favourable results.

Third, the Asylum Procedure Regulation links the detention of asylum seekers to pre-removal detention during border procedures. According to recital 40(i) and Art. 41a(5) of Asylum Procedure Regulation asylum seekers who have been detained during the border procedure ‘and who no longer have a right to remain and are not allowed to remain may continue to be detained for the purpose of preventing entry into the territory of the Member State, preparing the return or carrying out the removal process.’ Without effective legal aid this theoretical presumption of pre-removal detention risks becoming an irrebuttable presumption in practice.

The increased links between asylum and return procedures proposed by the Pact are making asylum seekers to be considered returnees as soon as administrative authorities have rejected their application, a compressed model which will entail systemic changes for many of the administrative and judicial systems, which treat the two procedures separately (2017 EMN Report on Effective Returns). Both the 2018 Recast Return Directive and the amended Asylum Procedure Regulation proposals should better address the shortcomings identified by the FRA Opinion and the European Parliament Study in the implementation of a merged asylum and return procedure. Notably, this procedure was found to lead in practice to ‘the reduction of safeguards which are necessary to ensure that Articles 18 and 19 of the EU Charter are not circumvented’ (FRA Opinion – 1/2019, p.32).

 3. Accelerating returns: mandatory border procedure as the new’ normal’

In order to prevent unauthorised entry into the EU and accelerate returns, the Pact introduces a novel screening procedure and a mandatory return border procedure. The Pact’s version is a compromise between the 2018 Proposal toRecast the Return Directive, which followed restrictive domestic border systems (e.g. by Sweden and Germany, see 2020 European Parliament Study, pp 43-45), and the current regular border procedure provided by the Return Directive.

The Pact introduces a streamlined border procedure which is based on two pillars: screening procedure and a two-phased border procedure, which have been described in more detail by Lyra Jakuleviciene and Jens Vedsted-Hansen in their posts to this series, here and here. The screening procedure is applied to both asylum seekers (who request international protection at border crossing points without fulfilling entry conditions) and irregularly entering third-country nationals (i.e. apprehended in connection with unauthorised crossing of external borders, disembarked following search and rescue operations). After the screening procedure, individuals are redirected to the border procedure, consisting of two stages: asylum, followed by an obligatory return border procedure, in case the asylum application is rejected.

The mandatory use of border procedure was one of the issues of dissent between Member States, during the negotiations of the 2016 reform package. The Pact introduces an amended border procedure for carrying out returns (see Article 41a of the  Asylum Procedure Regulation proposal), which replaces the model included in the 2018 proposal for a recast Return Directive (see Chapter V). There are two main changes introduced by the Pact to the 2018 model of return border procedure.

First, the Pact significantly changes the personal scope of application of return border procedures. On the one hand, it limits the application by excluding children and vulnerable groups, with the exception of national security cases, and third-country nationals that have no prospect to be removed for various legal or technical reasons (see Art. 41a(5) of the  Asylum Procedure Regulation proposal). On the other hand, the Pact extends the scope of application of return border procedures to the following categories of third-country nationals: apprehended at the external border and disembarked after the search and rescue operations; relocated from another Member State. Under Chapter V of the 2018 Recast of the Return Directive proposal, the return border procedure was to be applied only to the asylum seekers rejected within border procedure. Following these changes, the return border procedures risks becoming the new norm replacing regular return procedures.

In addition, the Pact’s model of accelerating return procedures could further weaken an already weak role of domestic courts in migration decision-making (see Torubarov, Poland [1]). The identification of third-country nationals’ legal status is attributed to administrative authorities, instead of being the result of a two-stage procedure where courts have confirmed the legality of administrative decisions-making. An individual will be considered already a returnee, immediately after the administrative rejection of an asylum claim. In such circumstances, the added value of judicial dialogue for safeguarding the rule of law and judicial independence in migration decision-making is of outmost importance as clearly shown in this book.

4. A new form of solidarity: Return sponsorship and relocation of returnees

The added value of integrating return policies in the Pact appears to be most significant for the implementation of the solidarity principle. The Pact introduces new possibilities for Member States to provide assistance to each other in carrying out returns, in the form of return sponsorship. The Pact complements the possibilities for solidarity through relocation of asylum seekers by including ‘return sponsorship’ schemes, under which a Member State commits to support returns from another one (Art. 45(1)(b) of the Regulation on Asylum and Migration Management). The return solidary scheme implies logistical, financial and counselling help provided by the supporting Member State (see Art. 55). If such efforts prove to be unsuccessful after 8 months, the sponsoring Member State must transfer the returnees and continue the efforts to return them in accordance with the Return Directive. The financial contribution for a returnee under a return sponsorship is of 10 000 Euros. Moreover, as part of the Solidarity Response Plan, Member States are allowed to choose the nationalities of the irregularly staying third-country nationals that they intend to sponsor (Art 52(3)). Although the Regulation encourages the mutual recognition of return decisions by the Member State under Directive 2001/40/EC, this principle is not made obligatory, meaning that Member States might continue with the current practice of issuing their own return decisions, even if such decisions were previously issued by other Member States. The fact that the Pact does not force the principle of mutual recognition of return decisions on the Member States is a welcomed policy approach. Thus, it avoids replicating the complex and ineffective functioning of the principle of mutual recognition of asylum decisions within the Dublin transfer system to the returns system (on Dublin system shortcomings, see Francesco Maiani’s blog).

The return sponsorship builds on bilateral forms of return solidary already followed by some of the Member States (e.g. Belgium and France, according to the Director of Operations at the Fedasil in Belgium). The Pact thus replaces the current piecemeal approach to return cooperation based on bilateral agreements with an EU system to be monitored by the Commission. However, this model faces two major challenges. While some Member States have already expressed support for the Pact’s new form of solidarity on returns (e.g. Austria), other Member States are strongly opposing this new form of solidarity. In addition, should the return sponsorship proposal pass in its current form, the EU return policy will risk being managed by fewer Member States. Those willing to engage in return sponsorships might be Member States with a track record of human rights violations in return procedures (FMS and others, see Jacek Bialas chapter on Poland), or Member States that will return on the basis of diplomatic relations they have with certain third countries instead of the ties existent between the returnee and the third country (Elspeth Guild blog). Given that third countries will face sanctions for lack of cooperation on readmission (The Recast Visa Code proposal, Article 25(a)), it is likely that returns will be accepted even in the absence of any connection between the third country and the returnee.

5. The promotion of Assisted Voluntary Return programmes: Challenges for voluntariness and non-refoulement

The Pact refers to Assisted Voluntary Return as the preferred mode of return, and will dedicate to it an entire Strategy in its 2021 programme. In theory, the promotion of Assisted Voluntary Return and reintegration programmes is the expression of a humane approach to returns. In practice, however, challenges for the protection of non-refoulementremain high, as shown by the recent jurisprudence of the European Court of Human Rights (ECtHR). The N.A. v Finland case shows that Assisted Voluntary Return programmes implemented by Member States with the help of International Organisation for Migration are sometimes neither ‘voluntary’, nor humane. The future Strategy on Assisted Voluntary Return programmes should prohibit Member States from requiring waivers of legal responsibility to be signed by returnees, and should require that such programmes are preceded by assessment of refoulement risks based on the family, private life, children rights, serious harm to health and life and dignity as developed by the European courts (for a list of these judicial standards, see Jean-Baptiste Farcy’s chapter).

Conclusion: Taking courts’ caselaw more seriously

While the Pact does remedy some of shortcomings of the 2018 Recast Return Directive proposal’s design of the return border procedure,it also raises several concerns regarding: the measurement of ‘effectiveness’ of returns; the protection of the right to asylum and principle of non-refoulement; and domestic implementation. For instance, the Commission preserves the controversial metric of increase in absolute numbers as a proxy for the ‘effectiveness’ of returns, although shortcomings in the collection and reporting of such data have been raised. It also seems to endorse some of the governmental views that procedural rights during asylum and return procedures serve mostly for prolonging rejected asylum seekers’ stay in the EU, rather than safeguarding fundamental rights and prohibition of refoulement. While it is unclear what data is used to reach this conclusion, European jurisprudence has shown that domestic implementation falls short of effective rights of defence standards in national systems that follow a merged asylum and return procedure (e.g. Addis, LM, B).

The Pact legislative and non-legally binding acts should also pay closer attention to both the CJEU and ECtHR case-law, which has repeatedly held that return procedures must include an individual and separate assessment of the principle of non-refoulement from asylum cases (see cases: LM, B). Closer attention should also be paid to the UN standards. While children’s rights are better protected in the Pact compared to the 2018 Proposal, the pre-removal detention of minors is nevertheless maintained, despite the repeated UN’s calls for eliminating migrant children detention (see the Report of the UN Special Rapporteur on the human rights of migrants).

In conclusion, while the focus on returns and border security is important, this should not be prioritised over a rule of law-based EU returns’ system. The European Commission’s policy consultations should extend beyond governmental proposals, and reconsider how the procedural models it proposes on paper will play-out in a context where the European Parliament, Fundamental Rights Agency and European and domestic courts have shown a reduction of fundamental rights safeguards for some of the merged asylum and return procedures. Moreover, increasing the administrative decision-making power over judicial ones risks to weaken judicial review in a context where courts at both national and European levels are facing increasing political pressures when giving effect to fundamental rights in asylum and return cases (see the paper of Judge Serge Bodart see the Separate Opinion of Judge Albuquerque in MA and others v Lithuania).

[1] Szulecka,‘The undermined role of (national) case law in shaping the practice of admitting asylum seekers in Poland’ in European Journal of Legal Studies’ Special Issue Migrants and Law. What European Courts Say, edited by Veronica Federico, Madalina Moraru and Paola Pannia (forthcoming in 2021).

Further reading

Madalina Moraru, Galina Cornelisse, Philippe De Bruycker (eds), Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union, (Hart 2020).

FRA Opinion – 1/2019 [Return], Vienna, 10 January 2019, ‘The recast Return Directive and its fundamental rights implications’.

European Parliament Research Service Study on the Implementation Assessment of the Return Directive (July 2020).

European Parliament Research Service Study on Asylum Procedures at the Border (November 2020).

Marco Stefan and Sergio Carrera (eds), Justicing Europe’s Frontiers: Effective Access to Justice in Bordering and Expulsion Policies (Routledge 2019).