On 11^th March, the European Commission published a proposal for a Returns Regulation, with the objective to increase and streamline removals of people staying irregularly from EU territory. Foreseen to replace the current EU Returns Directive, the text features several innovations in terms of ruthlessness people are treated with, and in terms of shifting responsibility to third countries. It expands the European deportation regime, disregarding and endangering fundamental rights and people’s well-being.  

Despite claims made in the explanatory memorandum, this proposal was not informed by broad stakeholder consultations. This means there was no open, transparent and meaningful consultation of civil society with sufficient time to prepare input. The absence of an ex-ante impact assessment also attests to the rushed and non-transparent nature of the proposal, as the conditions for sound policymaking have been left disregarded and unfulfilled. 

New options for sending people away from the EU territory 

An extremely concerning and novel aspect of the proposal is the expansion of the criteria for countries to which people can be returned. Under the new proposal, it will be possible to ‘return’ people to countries they have never set foot in, simply if they have the right to enter or based on a bilateral agreement. The Commission has unashamedly paved the way for Member States to set up so-called ‘return hubs’ – essentially deportation centres in a third country – in view of the subsequent return of people to their country of origin or a fourth country. How the Commission aims to tally such a practice with respect for fundamental rights and the non-refoulement principle is unclear. While the draft foresees unaccompanied minors and families with minors would be excluded from this, the mere concept of return hubs involves a huge risk that people would be pushed back (returned to an unsafe country), or that they would be left stranded in the country of the return hub for prolonged periods of time in case other countries do not (re)admit them. The European Commission itself underlined in 2018 that ‘it is questionable whether this scenario is in line with EU values’ as ‘the risk of infringing the principle of non-refoulement is high’.  

‘It is truly disappointing to witness the Commission giving in to Member States’ cruellest and most irrational demands, instead of acting as guardian of the Treaties and the overarching interest of the Union’, regretted Mikael Leyi, Secretary General. While the return hubs might be struck down in courts, its inclusion in a European Commission document legitimises it, expanding the Overton window even further to the right. Leaving the judges to dismantle harmful legislation rather than taking a bold stance to prevent it from becoming law also signifies acceptance that people’s rights will be violated in the process. 

‘Return hubs’ are a new low in the pursuit of ‘externalisation’, a decade-long but ever-intensifying trend in which the EU and its Member States evade their responsibilities by outsourcing both asylum and returns processing and refugee protection. The 2016 EU-Turkey deal, or more recently the Italy-Albania protocol and aborted UK-Rwanda plan are other avatars of this dangerous trend. In addition to jeopardising the respect of people’s fundamental rights, externalisation diverts much-needed funds from European asylum systems and disincentivises non-EU countries from respecting international refugee law. It calls into question the accountability and credibility of the EU. It risks creating a situation in which EU candidates and potential candidate countries are pressured into doing the EU’s dirty work by signing ‘return hub’ agreements in exchange for accession opportunities.  

While ‘return hubs’ are legitimately getting a lot of attention, the broadening of the definition of countries of return is another significant step in the EU deportation framework. That EU Member States would be able to return people to a country based merely on their right to enter and reside there without the need to establish any connection is in itself a shocking proposal, the gravity of which should not be overshadowed by the even worse possibility of ‘return hubs’. 

A notch up in the regime of repression 

Despite the intent expressed ahead of the release to focus the reform on voluntary, more humane returns,  the Commission is suggesting an expansion of the regime of forced returns with this proposal. Conditions for requesting a ‘voluntary return’ are tightened, making it highly unrealistic that such decisions would be carefully thought through and well-informed, and the subsequent return genuinely ‘voluntary’. On the other hand, grounds for and duration of detention are expanded, and though it is stipulated that families with children and unaccompanied minors should only be detained as a last resort, the last resort too often becomes the norm in practice. People who do not cooperate with their return will face more severe punishments, such as entry bans for up to 10 years, extendable to 20 for individuals presenting security risks. This doubling down on entry bans is not even as disproportionateas what some Member States would propose – nothing less than lifelong entry bans for deportees. 

Last and most alarmingly, the proposal’s failure to urge Member States to explore alternatives to returns reinforces the idea that people who are not eligible for a certain type of permit or status should be deported, with no regard for access to different permits. From 2027 onwards, the proposal also aims to make Member States enforce each other’s return decisions, further restricting avenues for people to find alternatives for regularising their stay in another EU country. Once the meagre options for ‘voluntary’ departures are exhausted, people with a return decision will face either a forced return entailing detention – potentially to a country they have no connection with – or they risk remaining in the EU in a legal limbo, facing precarity due to their irregular status across various areas of life: work, housing, health, to name only a few. As Silvia Carta, Advocacy Officer at PICUM, puts it, this proposal boils down to a punitive approach to any person in an irregular situation, with no consideration of measures that could foster social inclusion and regularisation. 

SOLIDAR will monitor developments of this proposal and urges co-legislators to prioritise fundamental rights. As a minimum, new options for countries of return, including ‘return hubs’, must be removed, alternatives to detention prioritised, and a minimum period for voluntary return introduced.