OP-ED: EU Return Policy at a Crossroads

By Reshad Jalali

The existing EU Return Directive (2008) – although far from perfect (see ECRE’s previous analysis) – does contain a number of safeguards intended to prevent arbitrary decision-making, guarantee access to justice and protect individuals from being returned to situations where they may face serious harm.

Efforts to reform the Directive have been skewed from the start. From the outset, the process of drafting the proposed Return Regulation was driven by a sense of unnecessary and unhelpful urgency. No comprehensive impact assessment took place to inform the proposal and none of the numerous empirical studies on return was taken into account (see examples here, here and here). The European Commission’s (EC) proposal raised serious concerns regarding its implications for fundamental rights, the erosion of procedural guarantees, its complexity and the inclusion of measures aimed at outsourcing responsibilities (see ECRE’s detailed analysis  here and a shorter version here).

This was followed by hurried discussions between EU member states (MS), an unprecedented race to the bottom regarding fundamental rights which led both the Council of the EU’s Legal Service and a large group of civil society organisations (CSOs) to raise concerns – which were ultimately ignored.

This week, the European Parliament (EP) delivered another blow. On 9 March, the Committee on Civil Liberties, Justice and Home Affairs (LIBE) adopted its position on the Return Regulation proposal. However, in a striking turn of events, it was not the position proposed by the rapporteur, but an alternative compromise introduced by the Group of the European People’s Party (EPP) and supported by far-right political groups consisting of national parties such as Fidesz – Hungarian Civic Alliance, Alternative for Germany (AFD) and France’s National Rally (RN).

The position adopted by in the LIBE Committee is deeply alarming. It removes the very limited safeguards that were included in the EC proposal and represents a significant step backwards for the protection of fundamental rights in EU law.

The most damaging aspects are:

• Obligation on EU MS to issue return decisions even where removal is not realistically feasible: This will leave individuals in prolonged legal limbo, unable to return or regularise their status. It is compounded by the option to designate none, one or multiple potential countries of return, which undermines legal certainty and the right to an effective remedy, making it difficult for individuals to understand or challenge the decisions against them.
• Significant restriction of access to voluntary departure: Experience across many EU MS has consistently shown that voluntary return, when properly designed and supported, can be more effective, more humane and less costly than forced return procedures. Limiting access to voluntary departure risks pushing more cases into coercive enforcement measures even in situations where individuals might otherwise be willing to leave voluntarily.
• Removal of the provision of access to basic services for individuals whose return has been postponed: In many cases, removal cannot take place for legal, practical or humanitarian reasons. Restricting access to essential services, including healthcare, during this period risks creating unnecessary hardship for individuals and families.
• Expansion of obligations placed on individuals and linking non-compliance with increasingly punitive consequences: Many individuals face genuine obstacles beyond their control. These may include the absence of travel documents, the lack of a reliable address or difficulties in proving identity. Penalising individuals for circumstances outside their control risks undermining fairness and may ultimately prove counterproductive.
• Weakening of the suspensive effect of appeals: The right to an effective remedy is a cornerstone of European legal systems. If individuals can be removed before courts have had an opportunity to fully examine potential risks such as persecution, ill-treatment or indirect refoulement, the effectiveness of this right is severely compromised.
• Expansion of the grounds for detention and continuation of the possibility of detention for up to 24 months, including for families and potentially children: Detention is a severe restriction to the fundamental right to liberty. It must be based on an individualised assessment and it is a measure of last resort. Evidence across Europe shows that prolonged detention neither increases return rates nor produces sustainable policy outcomes, while imposing significant costs and human suffering.
• Introduction of mechanisms that could externalise return responsibilities, including deportations to third countries or “return hubs” with which individuals have no prior connection: These measures raise serious concerns about safeguards, accountability and protection standards, shifting responsibility away from the EU while exposing individuals to uncertainty.

Beyond these substantive concerns, the political dynamics surrounding the adoption of the alternative compromise proposed by the EPP and adopted with the support of the far-right groups are equally significant.

The EP has traditionally played a critical role in ensuring that EU migration legislation reflects a balance between ever more restrictive policy objectives and respect for fundamental rights. This role relies on a legislative process that allows for negotiation, compromise and careful scrutiny of proposals. The sudden introduction and adoption of an alternative compromise text, supported by right-wing and far-right political groups, undermined this process. It effectively hijacked the negotiations.

Of course, it is the responsibility of all EU institutions to take into account properly the Charter of Fundamental Rights of the EU in the way in which EU policies and laws are drafted so that they are grounded in EU values as well as being informed by evidence.

In the case of the Return Regulation, the irony is that there has been no shortage of analysis. Academic institutions, CSOs, practitioners working in return procedures and international human rights experts have all carefully examined the proposal. No fewer than 16 United Nations special rapporteurs and the Council of Europe Commissioner for Human Rights raised concerns about its potential human rights implications. However, none of these concerns have been sufficiently reflected on either in the Council or in the EP.

The EP will soon have the opportunity to revisit this issue when the file moves to a plenary vote in late March. This vote will be a crucial moment and the LIBE mandate adopted on 9 March must be rejected.

There is still time for parliamentarians, including those from the EPP, to reconsider both the substance of the LIBE mandate, which contravenes respect for human rights, family unity, children rights and the rule of law, and the alliance that it has formed with far-right groups.

Europe’s migration policy needs to be effective and fair. However, effectiveness should not be confused with the weakening of human rights standards. Increasing detention, removing safeguards and restricting rights does not produce better migration management. In effect, the opposite is true. What has been agreed in the LIBE Committee will subject more people to situations of despair, isolation and destitution without offering sustainable options for return.

If the EU wishes to remain credible as a community founded on the rule of law, migration policy must be guided by evidence, legal obligations and respect for human dignity. For this reason alone, the Return Regulation deserves careful deliberation rather than political shortcuts.

Human rights are not an obstacle to return policy. They provide the framework that gives it legitimacy.

Reshad Jalali is ECRE’s Senior Policy Officer.