The European Union Returns Directive and its Compatibility with International Human Rights Law
Analysis of Return Decision, Entry Ban, Detention, and Removal
Series: - Immigration and Asylum Law and Policy in Europe, Volume: 45
The book undertakes a thorough human rights assessment of the EU Returns Directive. The overarching human rights framework, which circumscribes states prerogatives in the context of expulsion, builds upon obligations derived from the principle of non-refoulement; the right to life, respect for family and private life, effective remedy, basic social rights; the prohibition of torture and ill-treatment; and protection against arbitrary detention and collective expulsion. Based on this assessment, Majcher explores several protection gaps in the EU return policy which may result in violations of migrants’ rights and highlights how the provisions of the Directive should be implemented in line with member states’ human rights obligations. Informed by this assessment, the book discusses amendments to the Directive, proposed by the European Commission in September 2018.
“By examining the European Union (EU) Returns Directive in the light of international and European human rights law, Izabella Majcher thoroughly explores and analyses the requirements the EU member states’ authorities must guarantee migrants in an irregular situation when they adopt and implement return decisions, entry bans, pre-removal detention, and removal.” Marie-Laure Basilien-Gainche, Professor of public international law, University Jean Moulin Lyon 3, Honorary member of the Institut universitaire de France
“By examining the European Union (EU) Returns Directive in the light of international and European human rights law, Izabella Majcher thoroughly explores and analyses the requirements the EU member states’ authorities must guarantee migrants in an irregular situation when they adopt and implement return decisions, entry bans, pre-removal detention, and removal.” Marie-Laure Basilien-Gainche, Professor of public international law, University Jean Moulin Lyon 3, Honorary member of the Institut universitaire de France
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Izabella Majcher, Ph.D. (Graduate Institute of International and Development Studies, Geneva, 2017), is a researcher at the Global Detention Project and visitor to immigration detainees in Geneva with the Ligue Suisse des Droits de l’Homme. She has published widely on the EU returns policy and has experience in various international fora (UN system, diplomatic representations, and NGOs).
Acknowledgements
Abbreviations and Country Codes
Part 1
Introduction
1 The Returns Directive against the Background of International and EU Human Rights Law: Setting the Scene
1.1 The Returns Directive
1.1.1 Presentation of the Returns Directive
1.1.2 Instruments Required for the Implementation of the Returns Directive
1.1.3 The Returns Directive within the EU Asylum and Immigration Policy
1.2 Sources of the Human Rights Protection in the Context of Expulsion
1.2.1 International Human Rights Law
1.2.2 EU Human Rights Law
1.3 The Need for a Human Rights Assessment of the Returns Directive in the Context of the Recast Process
Part 2
Return Decision
Introduction: The Scheme of Return under EU Law
2 Human Rights Impediments to Return
2.1 Introduction
2.2 The Principle of Non-Refoulement
2.2.1 The Scope of the Principle of Non-Refoulement
2.2.2 Implementation of the Principle of Non-Refoulement
2.3 Family and Private Life
2.3.1 The Scope of the Concepts of Family and Private Life
2.3.2 The Implementation of the Right to Respect for Family and Private Life
2.4 Conclusion
3 Procedural Safeguards
3.1 Introduction
3.2 Prohibition of Collective Expulsion
3.3 The Right to Be Heard Prior to Adoption of the Return Decision
3.4 Effective Remedy
3.4.1 Accessibility of Remedy
3.4.2 Effectiveness of Remedy
3.5 Additional Child-Specific Safeguards
3.5.1 The Right to Be Heard
3.5.2 The Guardianship Assistance for Unaccompanied Children
3.6 Conclusion
4 Social Rights Pending Return
4.1 Introduction
4.2 Health Care
4.3 Education
4.4 Adequate Standard of Living
4.4.1 Basic Conditions of Subsistence Addressed in the Preamble of the Directive
4.4.2 Can Destitution Entail a Duty to Regularise?
4.5 Conclusion
Conclusion: Legal Limbo for Non-Deportable People
Part 3
Re-Entry Ban
Introduction: Entry Ban as Pan-European Effect of Return Decision
5 Entry Ban in the Light of the Principle of Proportionality
5.1 Introduction
5.2 The Nature of Entry Ban
5.3 The Schengen-Wide Character of Entry Ban
5.4 Conclusion
6 Human Rights Impediments to Entry Ban
6.1 Introduction
6.2 The Principle of Non-Refoulement
6.2.1 Endorsement of the Principle of Non-Refoulement in Relation to Entry Ban
6.2.2 Implementation of the Principle of Non-Refoulement in Relation to Entry Ban
6.3 Family and Private Life
6.4 Conclusion
7 Protection of Personal Data Stored in a SIS Alert
7.1 Introduction
7.2 The Right to Data Protection
7.2.1 The Right to Information
7.2.2 The Right of Access
7.2.3 The Right to Correction and Deletion of Data
7.2.4 The Right to a Remedy
7.3 The Right to Private Life
7.4 Conclusion
Conclusion: Schengen-Wide Entry Ban: a Triple Peine?
Part 4
Pre-Removal Detention
Introduction: Immigration Detention in the Light of the Prohibition of Arbitrary Detention
8 Permissibility of Detention
8.1 Introduction
8.2 Lawfulness of Detention
8.2.1 Procedural Requirements: the Rights of the Defence
8.2.2 Substantive Requirements: the Grounds for Detention
8.3 Necessity and Proportionality of Detention
8.3.1 Alternatives to Detention
8.3.2 The Rule of Non-Detention of Children
8.4 Length of Detention
8.4.1 The Maximum Permissible Duration of Detention
8.4.2 Risk of Re-Detention upon the Expiry of the Permissible Length of Detention
8.5 Detention at the Border: Out of the Directive’s Safeguards?
8.6 Conclusion
9 Procedural Safeguards
9.1 Introduction
9.2 Review of Detention
9.2.1 Accessibility of Review
9.2.2 Effectiveness of Review
9.3 Compensation for Unlawful Detention
9.4 Conclusion
10 Conditions of Detention
10.1 Introduction
10.2 Place of Detention and Separation of Different Categories of Detainees
10.3 Treatment in Detention and Material Conditions
10.4 Specific Categories of Detainees
10.4.1 Children
10.4.2 Other Vulnerable Persons
10.5 Contact with the Outside World and Independent Monitoring
10.6 Complaint Mechanisms and Effective Investigation
10.7 Conclusion
Conclusion: Externalisation of Immigration Detention
Part 5
Enforcement of Return
Introduction: Enforcement of the Return Decision as the Final Stage of the Return Process
11 Mandatory (“Voluntary”) Return
11.1 Introduction
11.2 “Voluntary” Departure Period
11.3 Assisted Voluntary Return Programmes and Ambiguous Role of the IOM
11.4 Conclusion
12 Forcible Return
12.1 Introduction
12.2 Removal
12.2.1 Returnee’s Medical Condition
12.2.2 The Use of Force and Means of Restraint
12.2.3 Deportation Personnel
12.2.4 Independent Monitoring
12.2.5 Complaint Mechanisms and Effective Investigation
12.3 Joint Removal Operations
12.3.1 Joint Removal Flights under the Council Decision 2004/573
12.3.2 Joint Return Operations Coordinated by Frontex
12.4 Conclusion
13 Removal to a Transit Country Based on Readmission Agreements
13.1 Introduction
13.2 Indirect Refoulement
13.2.1 The Concept of Safe Third Country
13.2.2 Removal to a Transit Country under the Returns Directive
13.3 Collective Expulsion
13.4 Conclusion
Conclusion: Post-Return Monitoring: a Missing Element
Part 6
Conclusion
14 The Returns Directive: Effectiveness of Return vs. Human Rights Protection
14.1 Critical Overview of the EU Return Process
14.2 Return Procedures against the Backdrop of International and EU Human Rights Law
14.2.1 Risks to Human Rights Protection
14.2.2 Upholding Human Rights Protection
14.3 Way Forward
14.3.1 The Recast of the Returns Directive
14.3.2 The Implementation in line with States’ Human Rights Obligations
Annexes
Annex 1 Ratifications of International Instruments: United Nations
Annex 2 Ratifications of International Instruments: Council of Europe
Annex 3 Reservations
Annex 4 Domestic Legislation Transposing the Returns Directive
Annex 5 Return Decisions 2012–2018
Annex 6 Entry Bans 2009–2013
Annex 7 Entry Bans in 2013
Annex 8 Detention Orders in 2013
Annex 9 Maximum Length of Detention Prior to and after the Transposition of the Directive
Annex 10 Removals 2012–2018
Annex 11 Voluntary Returns (Numbers and Percentage) 2014–2017
Annex 12 Assisted Returns (Numbers and Percentage) 2014–2017
Annex 13 Forcible Returns (Numbers and Percentage) 2014–2017
Annex 14 Frontex’s Return Operations 2006–2017
Bibliography
Index
Abbreviations and Country Codes
Part 1
Introduction
1 The Returns Directive against the Background of International and EU Human Rights Law: Setting the Scene
1.1 The Returns Directive
1.1.1 Presentation of the Returns Directive
1.1.2 Instruments Required for the Implementation of the Returns Directive
1.1.3 The Returns Directive within the EU Asylum and Immigration Policy
1.2 Sources of the Human Rights Protection in the Context of Expulsion
1.2.1 International Human Rights Law
1.2.2 EU Human Rights Law
1.3 The Need for a Human Rights Assessment of the Returns Directive in the Context of the Recast Process
Part 2
Return Decision
Introduction: The Scheme of Return under EU Law
2 Human Rights Impediments to Return
2.1 Introduction
2.2 The Principle of Non-Refoulement
2.2.1 The Scope of the Principle of Non-Refoulement
2.2.2 Implementation of the Principle of Non-Refoulement
2.3 Family and Private Life
2.3.1 The Scope of the Concepts of Family and Private Life
2.3.2 The Implementation of the Right to Respect for Family and Private Life
2.4 Conclusion
3 Procedural Safeguards
3.1 Introduction
3.2 Prohibition of Collective Expulsion
3.3 The Right to Be Heard Prior to Adoption of the Return Decision
3.4 Effective Remedy
3.4.1 Accessibility of Remedy
3.4.2 Effectiveness of Remedy
3.5 Additional Child-Specific Safeguards
3.5.1 The Right to Be Heard
3.5.2 The Guardianship Assistance for Unaccompanied Children
3.6 Conclusion
4 Social Rights Pending Return
4.1 Introduction
4.2 Health Care
4.3 Education
4.4 Adequate Standard of Living
4.4.1 Basic Conditions of Subsistence Addressed in the Preamble of the Directive
4.4.2 Can Destitution Entail a Duty to Regularise?
4.5 Conclusion
Conclusion: Legal Limbo for Non-Deportable People
Part 3
Re-Entry Ban
Introduction: Entry Ban as Pan-European Effect of Return Decision
5 Entry Ban in the Light of the Principle of Proportionality
5.1 Introduction
5.2 The Nature of Entry Ban
5.3 The Schengen-Wide Character of Entry Ban
5.4 Conclusion
6 Human Rights Impediments to Entry Ban
6.1 Introduction
6.2 The Principle of Non-Refoulement
6.2.1 Endorsement of the Principle of Non-Refoulement in Relation to Entry Ban
6.2.2 Implementation of the Principle of Non-Refoulement in Relation to Entry Ban
6.3 Family and Private Life
6.4 Conclusion
7 Protection of Personal Data Stored in a SIS Alert
7.1 Introduction
7.2 The Right to Data Protection
7.2.1 The Right to Information
7.2.2 The Right of Access
7.2.3 The Right to Correction and Deletion of Data
7.2.4 The Right to a Remedy
7.3 The Right to Private Life
7.4 Conclusion
Conclusion: Schengen-Wide Entry Ban: a Triple Peine?
Part 4
Pre-Removal Detention
Introduction: Immigration Detention in the Light of the Prohibition of Arbitrary Detention
8 Permissibility of Detention
8.1 Introduction
8.2 Lawfulness of Detention
8.2.1 Procedural Requirements: the Rights of the Defence
8.2.2 Substantive Requirements: the Grounds for Detention
8.3 Necessity and Proportionality of Detention
8.3.1 Alternatives to Detention
8.3.2 The Rule of Non-Detention of Children
8.4 Length of Detention
8.4.1 The Maximum Permissible Duration of Detention
8.4.2 Risk of Re-Detention upon the Expiry of the Permissible Length of Detention
8.5 Detention at the Border: Out of the Directive’s Safeguards?
8.6 Conclusion
9 Procedural Safeguards
9.1 Introduction
9.2 Review of Detention
9.2.1 Accessibility of Review
9.2.2 Effectiveness of Review
9.3 Compensation for Unlawful Detention
9.4 Conclusion
10 Conditions of Detention
10.1 Introduction
10.2 Place of Detention and Separation of Different Categories of Detainees
10.3 Treatment in Detention and Material Conditions
10.4 Specific Categories of Detainees
10.4.1 Children
10.4.2 Other Vulnerable Persons
10.5 Contact with the Outside World and Independent Monitoring
10.6 Complaint Mechanisms and Effective Investigation
10.7 Conclusion
Conclusion: Externalisation of Immigration Detention
Part 5
Enforcement of Return
Introduction: Enforcement of the Return Decision as the Final Stage of the Return Process
11 Mandatory (“Voluntary”) Return
11.1 Introduction
11.2 “Voluntary” Departure Period
11.3 Assisted Voluntary Return Programmes and Ambiguous Role of the IOM
11.4 Conclusion
12 Forcible Return
12.1 Introduction
12.2 Removal
12.2.1 Returnee’s Medical Condition
12.2.2 The Use of Force and Means of Restraint
12.2.3 Deportation Personnel
12.2.4 Independent Monitoring
12.2.5 Complaint Mechanisms and Effective Investigation
12.3 Joint Removal Operations
12.3.1 Joint Removal Flights under the Council Decision 2004/573
12.3.2 Joint Return Operations Coordinated by Frontex
12.4 Conclusion
13 Removal to a Transit Country Based on Readmission Agreements
13.1 Introduction
13.2 Indirect Refoulement
13.2.1 The Concept of Safe Third Country
13.2.2 Removal to a Transit Country under the Returns Directive
13.3 Collective Expulsion
13.4 Conclusion
Conclusion: Post-Return Monitoring: a Missing Element
Part 6
Conclusion
14 The Returns Directive: Effectiveness of Return vs. Human Rights Protection
14.1 Critical Overview of the EU Return Process
14.2 Return Procedures against the Backdrop of International and EU Human Rights Law
14.2.1 Risks to Human Rights Protection
14.2.2 Upholding Human Rights Protection
14.3 Way Forward
14.3.1 The Recast of the Returns Directive
14.3.2 The Implementation in line with States’ Human Rights Obligations
Annexes
Annex 1 Ratifications of International Instruments: United Nations
Annex 2 Ratifications of International Instruments: Council of Europe
Annex 3 Reservations
Annex 4 Domestic Legislation Transposing the Returns Directive
Annex 5 Return Decisions 2012–2018
Annex 6 Entry Bans 2009–2013
Annex 7 Entry Bans in 2013
Annex 8 Detention Orders in 2013
Annex 9 Maximum Length of Detention Prior to and after the Transposition of the Directive
Annex 10 Removals 2012–2018
Annex 11 Voluntary Returns (Numbers and Percentage) 2014–2017
Annex 12 Assisted Returns (Numbers and Percentage) 2014–2017
Annex 13 Forcible Returns (Numbers and Percentage) 2014–2017
Annex 14 Frontex’s Return Operations 2006–2017
Bibliography
Index
Academics researching EU policy targeting undocumented migrants and their rights and practitioners, including lawyers, experts, non-governmental and inter-governmental organizations, and domestic and EU policy-makers in the field of migration law and policy.