A new report by the EU Fundamental Rights Agency (FRA) illustrates that Member States are dragging their feet in the implementation of some of the protective provisions of the Returns Directive such as the monitoring of returns and the need to provide alternatives to detention. .

In particular, only 15 out of 27 Member States, including the UK which is not bound by the Returns Directive, provide for independent return monitoring. Of the 15 Member States, only seven (Austria, Belgium, Czech Republic, Denmark, Estonia, Luxembourg, UK) monitored a return flight in 2012, while in the other eight Member States, only the pre-departure process was monitored. Portugal and Sweden, whose monitors are not independent from the authority implementing the removal, also monitored return flights.

According to FRA, systems of forced return monitoring can be effective if they cover all activities undertaken in respect of removal (from pre-departure to arrival and reception in the destination country), and if they are carried out on an ongoing basis by an organization which is independent of the authorities enforcing return.

In 2012, 14 out of a total of 38 Frontex joint return operations were organized by countries that, according to FRA, lack an effective system of return monitoring: Italy, Spain and Sweden.

Under the Returns Directive, detention should only be used in order to prepare a return or removal, in particular where there is a risk of absconding or fear that the migrant would otherwise jeopardise his or her removal. In cases where no such risk exists, migrants should be allowed to continue to stay and live in the community. Where such a risk is found to exist, authorities must explore alternatives to detention, including measures such as the duty to report regularly to police, to see if the risk can be mitigated without detention. Though most European states have designated alternatives to detention, immigration detention remains widespread and alternatives to detention are still under used. FRA reports that Austria, the Czech Republic, and Romania do make use of alternatives to detention as regular practice.

In its report, FRA highlights the fact that detention led to violent incidents in 2012, resulting, for example, in the death of a Malian in Malta in June.

The deadline for the transposition of the Returns Directive was October 2010. The European Commission is due to report on the evaluation of

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This article originally appeared in the ECRE Weekly Bulletin of 21 June 2013
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