A new paper from PICUM (the Platform for International Cooperation on Undocumented Migrants), considers the implementation of the EU Returns Directive and its impact on migrants’ human rights. Entitled ‘Position Paper on the EU Return Directive,’ it aims to inform the debate on possible further development of the EU return policy by providing concrete policy recommendations concerning the situation faced by undocumented migrants within the return process.

The position paper underlines the importance of ensuring compliance with fundamental rights in migration control mechanisms. In particular, it highlights a number of shortcomings in several national practices (based on experiences in various member states in the EU), including systematic and prolonged administrative detention for the purpose of removal, the detention of children and their families, the lack of effectiveness of return policies and human rights violations in the context of removal procedures.

Regarding systematic administrative detention for the purpose of removal, the position paper states that “although the Return Directive stipulates that detention should be a measure of last resort, in practice, very few viable alternatives to detention have been explored by the European Union and its Member States and administrative detention for migration purposes is currently applied systematically across the European Union.”

Greece and Italy are highlighted as examples of opposing trends in relation to prolonged detention. Although the EU Return Directive stipulates that a maximum limit of detention shall be for 6 months (exceptionally extended to a max. of 18 months),  the Greek State Legal Council issued a Legal Opinion which allows for undocumented migrants who fail to cooperate in the process of return to be issued with a detention order beyond the initial 18 months limit. In contrast, Italy adopted a more evidence-based and realistic approach to migration management by modifying its immigration legislation: the maximum time limit of detention was reduced from 18 months to 90 days.

The Position Paper argues that there is a need to better define the “risk of absconding,” mentioning that in 13 Member States, the “lack of documentation” provided by returnees is the main grounds on which the risk of absconding is assessed.  The Return Directive stipulates that “objective criteria” should be used when assessing the risk of absconding, leaving the definition of “objective criteria” to the national legislations across Europe.

Regarding the detention of children and their families, the position paper emphasises that according to the United Nations Committee on the Rights of the Child children should never be detained for immigration purposes, and detention can never be justified as in a child’s best interests. Despite the strict limitations on the use of detention for children and families in the Return Directive, and although many EU member states’ legislation prohibits detention of vulnerable people or limits their detention to ‘exceptional circumstances’, the EU funded evaluation of the implementation of the Return Directive found that 17 EU member states reportedly detain unaccompanied children and 19 detain families with minor children.

The Returns Directive also establishes procedural safeguards aimed at ensuring migrants’ human rights in the process of return. For example, the directive provides that return decisions and re-entry bans shall be clearly motivated in law and in fact and should be issued in writing. However, experience shows that in many cases, access to just remedy and reparation in the case of undocumented migrants in detention and in removal procedures, is not ensured in practice.

In the conclusions, the paper argues that detention is not an effective deterrent of irregular migrants and asylum seekers in either destination or transit contexts. Research as shown that detention fails to impact on the choice of destination country and does not reduce numbers of irregular arrivals.

The paper provides seven recommendations concerning the situation faced by undocumented migrants within the return process for EU and national policy makers to take into account:

  1. Return policies should be focused on ensuring migrants’ fundamental rights through independent and systematic monitoring of return procedures.
  2. Viable alternatives to detention should be promoted.
  3. Children should never be detained.
  4. Procedural safeguards and access to justice shall be granted to all migrants in detention or within the return procedure.
  5. Unremovable migrants should not be detained and should be granted leave to remain.
  6. A clear firewall should be established in the process of detection and apprehension of undocumented migrants.
  7. Ensure the suspensive effect against removal of complaints challenging a detention decision.