In recent months, European Union Member States have come under increasing pressure to address a rapid increase in the number of refugees and migrants arriving in Europe – and tragic deaths en route – escaping wars and poverty.

In response to this, and following the adaptation of the European Agenda on Migration in May 2015, there have been a series of decisions and work plans announced by the European Union which will shape Europe’s immediate and medium-term immigration and asylum practices.

While much has been said about the negotiations over how those who are ‘in clear need of international protection’ should be relocated from external border Member States, there has been less scrutiny of the EU plan to strengthen its ability to return refused asylum seekers and other migrants who are unable to regularise their immigration status.

So far, two key documents have been published which directly touch on the issue of detention: the EU Action Plan on Return and the ‘Return Handbook’.

EU Action Plan on Return

The EU Action Plan on Return, published on 9th September 2015, mainly covers two topics: ‘increasing the effectiveness of the EU system to return irregular migrants’ and ‘enhancing cooperation on readmission with countries of origin and transit’. It also outlines a number of activities which the European Commission will be initiating over the coming months and years to support the above.

As well as indicating its aim of increasing Member States’ use of voluntary return programmes, the document stresses Member States’ ‘obligation to enforce return’ in line with EU Return Directive; it states ‘(i)n 2014, less than 40% of the irregular migrants that were ordered to leave the EU departed effectively’.

It asserts that ‘Member States should use detention, as a legitimate measure of last resort, where it is necessary to avoid that the irregular migrants abscond and to prevent them from moving on to other Member States (secondary movements).’

Importantly, it also reminds Member States that they ‘should explore new alternatives to detention and the use of less coercive measures, as appropriate’. However, the document only gives a very limited range of options: ‘placement of irregular migrants under electronic surveillance or the use of semi-closed facilities’.

Mid-term actions include ‘possible review of the Return Directive’, following the second evaluation of its implementation.

While the Return Directive has introduced significant safeguards for those who are at risk of and subjected to immigration detention, such as clarifying acceptable grounds for detention, introducing a maximum time limit on detention, setting procedural standards for detention decision-making and review and detention conditions, many IDC members have reported that practice on the ground sometimes does not follow the spirit of the Directive.

A general lack of reliable statistics and information with regards to Member States’ use of alternatives to detention has also made it difficult to advocate for more and better use of alternatives to detention.

We hope that there will be opportunities for civil society organisations, legal practitioners, ombudsmen and monitoring bodies to contribute to any such review of the Directive.

The ‘Return Handbook’

The ‘Return Handbook’, published at the same time as the EU Action Plan on Return (and still in draft format), is aimed at those who are tasked to implement return practices, including ‘police, border guards, migration authorities, staff of detention facilities and monitoring bodies’.

Thus, the tone is more practical and, while legally non-binding, it contains standards and procedures for implementing the Return Directive, including references to relevant ECJ judgements which clarify how the Directive should be applied in the national context.

About a fifth of this relatively lengthy document is dedicated to the issue of immigration detention, with detailed commentary and guidance on each article and clause of the Directive, including, in some cases, Q & A style concrete examples. It also includes extracts from international human rights standards, such as Council of Europe guidelines, CPT standards and European Prison Rules.

Interestingly, it has an expanded commentary on alternatives to detention:

Benefits and risks – alternatives to detention

The benefits of providing for alternatives to detention (examples include: residence restrictions, open houses for families, case-worker support, regular reporting, surrender of ID/travel documents, bail, electronic monitoring, etc.) may include higher return rates (including voluntary departure), improved co-operation with returnees in obtaining necessary documentation, financial benefits (less cost for the State) and less human cost (avoidance of hardship related to detention).

Risks include an increased likelihood of absconding, possible creation of pull factors (alternative detention facilities such as family houses may be perceived as attractive for potential irregular immigrants) and possible social tensions in the neighbourhood of open centres.

Recommendation: The challenge is to find intelligent solutions with an appropriate mix of rewards and deterrents. A complete absence of deterrents may lead to insufficient removal rates. At the same time an overly repressive system with systematic detention may also be inefficient, since the returnee has little incentive or encouragement to co-operate in the return procedure. Tailored individual coaching, which empowers the returnee to take in hand his/her own return has proven to be successful. A systematic horizontal coaching of all potential returnees, covering advice on possibilities for legal stay/asylum as well as on voluntary/enforced return from an early stage (and not only once forced removal decisions are taken) should be aimed at.

Both documents make it clear that detention can only be used as a last resort when less coercive measures are available, which should be welcomed. They seem to open up space for civil society organisations and others to advocate to governments for development of community-based alternatives to detention, which engage and support individuals so that they cases can be concluded without using detention.

The main theme of these documents, however, remains that of enforcement and returns. Their underlying assumption is encapsulated in the sentence ‘Fewer people that do not need international protection might risk their lives and waste their money to reach the EU if they know they will be returned home swiftly.’ As the locations of ‘Hotspots’ indicate, border countries such as Italy and Greece are seen to be holding the key to stopping more refugees and migrants entering Europe and could come under renewed pressure to increase their use of immigration detention in a bid to stop secondary migration. An additional difficulty is the unpredictability of the route and volume of the new arrivals into Europe, which will influence states’ immediate immigration and asylum policy and practices.

Advocating for better treatment for migrants and the reduction and ending of immigration detention under this climate is likely to be a huge challenge, and IDC will be speaking to member organisations over coming weeks and months to identify how best to work in collaboration at national, sub-regional and regional levels.