In keeping with the current fixation on returns as the ultimate factor in migration management in Europe, the EU institutions have chosen to move forward with one of the most punitive and dangerous migration instruments in recent EU history. Despite overwhelming evidence, repeated legal warnings and sustained opposition from civil society, human rights experts and international bodies, a political agreement has now been reached between the Council of the EU and the European Parliament on the Return Regulation proposal.
The final agreement on the Return Regulation proposal operates by perpetuating coercion, expanding detention lengths and grounds, weakening procedural safeguards and opening the door to serious violations of fundamental rights – all in the name of “efficiency”.
The agreement allows for the systematic and prolonged use of detention, including for families and potentially children, despite overwhelming evidence that detention neither increases returns nor produces sustainable migration outcomes. It risks subjecting thousands of people to deprivation of liberty for up to 30 months, and, in practice, potentially indefinite periods, in situations where return may not even be realistically feasible.
Even more alarming, the agreement further weakens the suspensive effect of appeals, meaning that individuals could be deported before courts have had an opportunity to properly examine the risks they may face upon return, including persecution, ill-treatment or refoulement.
The agreement also normalises increasingly aggressive enforcement practices, including intrusive powers allowing authorities to conduct raids in people’s homes, the homes of their relatives and in shelters operated by humanitarian actors. Such measures represent a dangerous escalation in the securitisation and criminalisation of migration that will create widespread fear, intimidation and social division.
Another major issue is the continued push towards the externalisation of responsibility through deportations to third countries (so-called “return hubs”) with which individuals may have no meaningful connection and where safeguards remain highly questionable.
What makes this moment particularly alarming is that none of these consequences has come as a surprise. Concerns have been repeatedly raised by legal experts, academics, UN special rapporteurs, the Council of Europe Commissioner for Human Rights, practitioners, academia, civil society organisations and even the Council of the EU’s own legal service. Unfortunately, they have been systematically ignored.
This is not balanced policymaking. It is the institutionalisation of deterrence, detention and deportation at the expense of human dignity and legal certainty.
Comments from ECRE Director Julie Lejeune: