EU Return Directive: a Race to the Bottom for Standards

On 26 March, the European Parliament adopted its position on the reform of the Return Directive, the legal framework governing the return of “irregular” third-country nationals. The approved text introduces substantial changes to the European Commission’s initial proposal, raising numerous concerns among experts in international law and organisations working to protect human rights. As early as last September, sixteen UN Special Rapporteurs and the Council of Europe Commissioner for Human Rights had expressed alarm at the proposal’s restrictive approach, highlighting the risk of a gradual erosion of fundamental safeguards.

One of the most significant aspects concerns the broadening of the grounds for detention. The new wording extends the grounds for detention, linking these to a broad definition of ‘risk of absconding’ and stringent obligations to cooperate with the authorities.  Under these provisions, people subject to a return order could be detained for up to two years, or longer.  Unlike international standards – which recommend detention only as a last resort – there are no explicit exclusions for unaccompanied minors, families with children or vulnerable individuals.  On the contrary, the text expressly provides for the possibility of detaining minors and stipulates that migrants may also be held in ordinary prisons.

The UN Convention on the Rights of the Child, ratified by all Member States, establishes that detention is never in the best interests of the child.  Numerous international bodies have highlighted that the detention of children for reasons related to their migration status constitutes a violation of the fundamental principles of child protection.

A second critical issue concerns the balance between forced and voluntary returns. The available evidence indicates that voluntary returns represent the most sustainable, ‘cost-effective’ and least harmful solution for those involved. The new approach, however, clearly favours a coercive approach, reducing the time allowed for voluntary departure and limiting access to independent counselling and reintegration support services.

In terms of procedural safeguards, the European Parliament’s position introduces elements that raise questions regarding compliance with the principle of non-refoulement (non-return), a cornerstone of international refugee law. The absence of automatic suspensive effect for appeals, combined with the reduction in the time limits for challenging decisions, could lead to situations where deportations take place before the judicial authority has ruled.  Such a scenario exposes people to the real risk of being returned to countries where they could face treatment contrary to fundamental rights.

Particular attention should be paid to the provision concerning so-called ‘return hubs’, i.e. detention centres located in third countries. The approved wording leaves open the possibility of entering into agreements with non-EU states for the transfer of migrants, even in the absence of an actual link with the country of destination.  Previous experience with similar mechanisms has highlighted significant risks: arbitrary and prolonged detention, gaps in judicial protection and exposure to human rights violations in contexts lacking adequate safeguards.  The provisions themselves do not rule out the possibility that families with children may be sent to such facilities.

A further aspect highlighted by various parties concerns the so-called ‘investigative measures’ envisaged for the enforcement of returns.  The text authorises the authorities to carry out home searches, access electronic devices and inspect personal belongings.  Organisations working to protect civil rights have highlighted how such powers, given their broad scope, may lead to risks of racial profiling and may deter people in an irregular situation from accessing essential services such as healthcare and humanitarian support.

The process leading to the adoption of the parliamentary position has also raised procedural concerns. The alternative proposal tabled by MEP Bellamy (EPP), supported by the ECR, PfE and ESN groups, was adopted swiftly and without an impact assessment on fundamental rights being carried out. This was despite repeated calls for such an assessment from over 250 civil society organisations and numerous UN bodies. The original rapporteur for the dossier, MEP Malik Azmani (Renew), was sidelined in the final stages of the negotiations.

The reform of the Return Directive now enters the decisive phase of the trilogues, the negotiations between the Parliament, the Council and the Commission aimed at finalising the text. The positions on the table still show some differences, particularly regarding the scope of the investigative measures proposed by the Council and the safeguards to be attached to outsourcing mechanisms.

Experts in international law and European human rights institutions have repeatedly drawn attention to the need for any reform on return to be accompanied by adequate impact assessments, independent monitoring mechanisms and full compliance with obligations under international conventions. The challenge in the coming weeks will be to determine whether the new regulatory framework will be able to balance the need for administrative efficiency with the protection of fundamental rights, a founding principle of the European legal order.