The EU's New Approach on Returns: More Externalisation, Less Protection and Safeguards
The new common approach on returns: more externalisation, less fundamental rights protection.
On the 11th of March, the European Commission presented the latest piece in the sinister puzzle of derogations and attacks against the fundamental rights of people on the move – a new common approach on returns. If the Pact on Migration and Asylum was the legacy of the previous Commission, returns are the obsession of the current one.
The new proposal for a Regulation establishing a common system for returns was presented as a way to make returns faster, simpler, and more predictable, and would substitute the current EU Return Directive of 2008. As anticipated however, the proposal contains several worrying elements that reflect the wider EU approach on migration of the latest years: more focus on externalisation and outsourcing, less focus on protection and safeguards inside EU borders. Among the worrying elements introduced, the proposal foresees an expanded use of detention (up to 24 months), expands the factors determining the risk of absconding, introduces the legal obligation for third country nationals to cooperate on return decisions – or face negative consequences if they don’t – and severely restricts criteria for voluntary departure. At the same time, the proposal foresees an expansion of countries where third country nationals could be returned to beyond countries of origin, to countries of formal habitual residence, third countries with which the EU has bilateral agreements or ‘arrangement’, third countries where the person has a right to enter and reside... and the list goes on. Essentially, the Commission gave in to Member States’ pressure of externalising returns, and introduced a legal framework for the much debated ‘return hubs’ in third countries to be implemented.
Return hubs: externalising, once again.
That the EU is trying to solve its migration ‘problems’ by looking externally, at countries outside its borders, is nothing new. Indeed, the constant refrain of calling these proposals “innovative solutions” is misleading. The idea of hubs in third countries for externalised processing has existed for years: already in 2018, the Commission published a legal assessment on external processing of asylum/return where the option was discouraged, due to significant legal and practical challenges. The Italy-Albania model has often been portrayed as an example in this regard, despite its repeated failures. As detailed in the report recently released by a coalition of Italian organisations, including Action Aid, the centres in Albania present several criticalities: from de-facto detention being used from the pre-screening in the sea to the centres of Shengjin and Gjader, to inaccurate vulnerability assessments, restriction of liberties and lack of clear communication to the applicants on their rights and access to lawyers. On top of that, the model has consistently failed: since it became operational in October, all the three attempts to implement accelerated procedures in the centres in Albania ended up with the applicants being brough back to Italy because their detention was not validated by the judges.
In Tuesday’s press conference, Commissioner Brunner adamantly repeated that ‘return hubs’ are nothing like the Italy-Albania model, because they won’t be centres for externalised processing, but places to send people who already received a return decision. Despite this distinction, however, the key practical, legal, and moral concerns of these ‘hubs’ remain. Indeed, these models present severe risks of fundamental rights violations, from chain refoulment, arbitrary detention, accountability and human rights monitoring challenges, while also being costly and difficult to implement – as they are ultimately dependent on third countries willingness to take part in the scheme.
The complexity of return migration, beyond policy “easy fixes”
Beyond the proposal itself, it is also important to challenge the key narratives that have accompanied it, and that were based on the arguments of deterrence and boosting low return rates. Deterrence, because higher number of returns and externalised hubs would allegedly scare off would-be migrants; and boosting return rates, whose low numbers are seen as the Achille’s heel in EU migration policy. However, as Action Aid’s research shows, return migration is vastly more complex than this: deterrence arguments are not supported by valid evidence and the accuracy of return rate calculations is questionable.
Return migration is a vast and heterogenous phenomena, but in the EU policy jargon it is reduced to (”voluntary” or forced) repatriation. Third countries’ cooperation with return policy and programmes has largely impacted EU development cooperation: both in the EU Trust Fund for Africa and in the current NDICI-Global Europe, ODA is linked to countries’ cooperation on migration management, border control and readmissions – effectively introducing the principle of aid conditionality. At the same time, this poses thorny political and economic considerations in countries of origin, where cooperation on returns is politically unpopular also due to the crucial role played by remittances sent by migrants abroad. As our research in The Gambia shows, the high number of repatriations stirred up heated political debates and preoccupations on their politically destabilizing impact. Returns are therefore never simple and their impact on the socio, economic and political situation in a country, the potential of re-migration as well as the impact at the individual, family and community level can never be underestimated.
This proposal, seen as the remaining piece in the puzzle set forth with the EU Pact on Migration and Asylum is one step further in the restriction of fundamental rights, shrinking human rights accountability and access to protection and safeguards. With negotiations on the Proposal starting next, we call for a serious commitment to human rights-based migration policy that protects the rights of people on the move also – and especially – in the area of returns.