THE IMPACT OF THE RECAST RETURN DIRECTIVE
ON MEMBER STATES’ PRACTICE: AN ANALYSIS
OF ARTICLE 18
Author: Ana Tulia Barrera Sepúlveda (12833533)
Supervisor: Dr Jeremy Bierbach
Master thesis
LLM European Union Law (International and European Law)
Abstract
The aim of Directive 2008/115/EC (the Return Directive) is to remove, as soon as possible, all third-country nationals staying illegally on the territory of Member States. However, despite the use of coercive measures, such as detention, and contrary to what the EU legislator expected, the return rate of irregular third-country nationals has not increased: the average EU observed return rate in 2016 was 45.8 % and in 2017 was 36.6%. Consequently, the European Commission published in 2018 a proposal for a recasting of the Return Directive as a necessary instrument to ensure the effectiveness of returns of irregular aliens. One of the most controversial amendments is Article 15 (recast 18), which mandates the pre-removal detention of third-country nationals. This recast provision adds a new ground for detention (Article 18(1)(c)) and sets a minimum period of detention of 3 months (Article 18(5)).
The aim of this thesis is to study the possible impact of recast Article 18 on Member States’ practice with regard to irregular aliens through an inter-disciplinary legal research and using the theoretical framework proposed by Juliet Stumpf1 of crimmigration. To answer this research question I first compared the maximum pre-removal detention periods in 24 Member States’ legislation and their return rates in order to explore whether Member States will be required to apply stricter detention policies and whether there is a positive correlation between longer detention periods and higher return rates. Based on the findings, I concluded that only Spain, Portugal and Norway will be obliged to increase their maximum detention legislation and that there is no correlation between higher detention periods and higher return rates. Thus, it appears that the recast Article 18(5) will likely comply with the principle of subsidiarity, but not with the principle of proportionality. Secondly, by analysing the CJEU’s case law regarding the concept “public policy, public security or national security” as included in recast Article 18(1)(c), it appears that the Court’s jurisprudence is inconsistent and does not provide a clear definition of these risks, and therefore, possibly leading to arbitrary decisions. Finally, I have concluded that with the inclusion of Article 18(1)(c), the EU legislator is seeking to override the Kadzoev case, which specifically excluded the possibility of detaining a third-country national for reasons of public order or national security.
1 Juliet Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’ (2006) 56 American University Law Review 367.
INDEX:
1. INTRODUCTION ... 4
2. METHODOLOGY ... 6
2.1. Research question ... 6
2.2. Thesis overview, research design & methodology ... 6
3. THEORETICAL FRAMEWORK ... 8
3.1. Crimmigration: criminalisation of migrants ... 8
4. EU INSTRUMENTS, TREATY BASIS AND LEGAL PRINCIPLES ... 10
4.1. Directives: minimum and maximum harmonisation ... 10
4.2. The development of EU migration on the Treaties ... 10
4.3. The concept of proportionality and subsidiarity as legal principles ... 12
5. LEGAL AND POLITICAL BACKGROUND OF THE RETURN DIRECTIVE ... 13
5.1. The legislative process: co-decision procedure ... 13
5.2. The scope of the Return Directive ... 16
5.3. The aim of Article 15 ... 17
5.4. From Article 15 to recast Article 18 ... 19
6. THE IMPACT OF ARTICLE 18 OF THE RECAST RETURN DIRECTIVE ON MEMBER STATES’ PRACTICE ... 21
6.1. Maximum length of detention in national law ... 21
6.1.1. Does Article 18(5) respect the principles of subsidiarity and proportionality? ... 29
6.2. A new ground for detention: Article 18(1)(c) ... 31
6.2.1. Is there a common EU standard regarding “public policy, public security or national security”? ... 33
6.2.2. What effect will Article 18(1)(c) have on the current CJEU case law? The Kadzoev case. ... 38
7. CONCLUSION ... 39
1. INTRODUCTION
One of the main concerns of the European Union (hereinafter “EU”) is irregular migration, and the management and control of migrant flows. Article 67 of the Treaty on the Functioning of the European Union (hereinafter “TFEU”) establishes a common policy on asylum, immigration and border controls; however, EU competence in the area of irregular migration has so far mainly been exercised to harmonise administrative procedures of removals, specifically with Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals2 (hereinafter “the Return Directive” or “the Directive”). The Directive requires Member States to “issue a return decision to any third-country national (hereinafter “TCN”) staying illegally on their territory” and carry out the removal as soon as possible. The negotiations for the Directive, which started in 2005 between the European Parliament and the Council were complicated and lengthy as there were many competing and invested interests at stake on both levels.3
One of the main provisions, which departed significantly from the Commission’s proposal was the detention regime. The final agreement established two grounds for detention, namely when there were serious grounds to consider the risk of absconding and when there was the risk of avoiding or hampering the preparation of the return process. Likewise, the duration of the detention was widened from a maximum of six months to a possible maximum of eighteen months. In line with these provisions, Member States have included in their administrative procedures the use of criminal sanctions, such as detention, as a tool of repression. For over 10 years, this Directive has been one of the most controversial in the area of migration policy, leading to constant litigation in the Court of Justice of the European Union (hereinafter “CJEU”), not only regarding its interpretation, but also because of wrongfully implementation.
2 Council of the European Union and European Parliament, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals 2008.
3 Diego Acosta, ‘The Good, the Bad and the Ugly in EU Migration Law: Is the European Parliament Becoming Bad and Ugly? (The Adoption of Directive 2008/15: The Returns Directive)’ (2009) 11 European Journal of Migration and Law 19.
Despite the use of coercive measures and, contrary to what the Commission expected, irregular migration return rates have been decreasing. For example, the average EU observed return rate in 2016 was 45.8 %, decreasing to 36.6 % in 2017.4 As a consequence of the low rate of returns and the increase in asylum applications (partly because of the ongoing armed conflict in Syria), the political discourse across Europe changed in 2015. The Commission adopted the 2015 Action Plan on Return5 and the 2017 Action Plan6 where it stated that in order to comply with their obligation to enforce returns, Member States should use detention and other enforcement measures. Additionally, the European Commission defended that to ensure the effectiveness of returns of third-country nationals (hereinafter “TCNs”) it was necessary a revision of the Return Directive.7
In 2018, the European Commission published a proposal for a recasting of the 2008 Return Directive. This proposal has amended Article 15 (recast Article 18), the detention regime of TCN, adding a new ground for detention (Article 18(1)(c)), and setting a minimum period of detention of 3 months and a maximum of 6 months (Article 18(5)). This paper has its main focus on this provision since it restricts free movement of migrants within the European Union. It was one of the most controversial measure during the negotiations of the 2008 Return Directive, and it has become again one of the most contentious measure during the negotiations that started in 2018.
The purpose of this thesis is to analyse whether this amended article will lead to stricter detention policies in Member States’ legislation, taking into account the principles of subsidiarity and proportionality, and whether the inclusion of a minimum detention period of 3 months will lead to higher return rates. Furthermore, I will study the new ground for detention (Article 18(1)(c)), namely a risk to public policy, public security or national security, and provide a comprehensive analysis of the interpretation of the above concepts in EU migration law, with the aim of examining the legal consequences of this new addition.
4 European Commission, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) 2018, pag. 2.
5 European Commission, ‘EU Action Plan on Return’ (2015), pag. 4.
6 European Commission, ‘A More Effective Return Policy in the European Union - a Rewed Action Plan’ (2017).
7 European Parliament, ‘The Proposed Return Directive (Recast). Substitute Impact Assessment’ [2019] European Parliamentary Research Service 172, pag. 1.
2. METHODOLOGY
2.1. Research question
What possible impact will Article 18 (migrant detentions) as regulated by the recast Return Directive have on the existing Member States’ practice with regard to third-country national migrants?
In order to answer this question, it is necessary to determine the following sub-questions: 1) Do Member States have more favourable provisions relating to migrant detentions than Article 18(5) of the recast Return Directive?; 2) Will the prolongation of the detention period increase the effective removals of third-country national migrants from Member States?; 3) Is Article 18(5) of the recast Return Directive in compliance with the principles of subsidiarity and proportionality; 4) Are there common EU standards regarding “public policy, public security or national security” as mentioned in Article 18(1)(c) of the recast Return Directive?; 5) What effect will Article 18(1)(c) of the recast Return Directive have on the current CJEU’s case law?
2.2. Thesis overview, research design & methodology
This thesis seeks to highlight the impact that the recast Return Directive will have on Member States’ practice with regard to TCNs. The scientific framework within which the thesis is conducted is through an inter-disciplinary legal research as other research tools, such as quantitative research, have been used within a descriptive legal research. This paper is structured in three parts.
The first part is organised in a dynamic and historical legal and political analysis of the legislative process of the 2008 Return Directive. Furthermore, a broad overview of the 2008 Return Directive and its aim are provided. This will be followed by a study in detail of the specific provision of detention (Article 15). Finally, I will finish by analysing the reason the Commission has proposed a recast of the Return Directive and how and why Article 15 has become Article 18.
In the second part, an inter-disciplinary research has been used as the research will be based in part on empirical facts. I will contrast the maximum length and the average length of pre-removal detention in 24 Member States in order to explore whether Member States have more favourable provisions relating to migrant detentions than article 18(5) of the recast Return Directive. In order to answer this question, I have collected through desk based research and document reviews relevant national immigration legislation, which I have then organised and summarised in a table (Table 1).
I will then study whether setting a minimum period of detention of 3 months will increase the effective removals of TCNs. In order to analyse this, I have applied a quantitative approach making use of desk-research. Therefore, the main research tool for this part is a thorough content analysis of quantitative data offered by the Eurostat database. I have used the following two indicators: a) the effective returns given the annual data of TCNs ordered to leave; and b) the annual data of TCNs returns following an order to leave. Using these two indicators, I created three graphics to better illustrate the percentage of effective returns in 24 Member States. Once gathered all the data, I have carried out comparative analyses between the maximum length of detention set by national law (Table 1) and the percentage return rates of TCNs in order to answer the initial question.
I will finish this second part by exploring whether Article 18(5) of the recast Return Directive complies with the principles of subsidiarity and proportionality.
The third and final part’s objective is to analyse whether there are common EU standards regarding “public policy, public security or national security” as mentioned in Article 18(1)(c) of the recast Return Directive. To analyse this, a detailed legal research of the most crucial CJEU’s case law surrounding this issue will be made. Subsequently, the Kadzoev case will be examined with a view to assess the extent to which the new ground for detention of TCN complies with this judgement.
Overall, the data that I have used are official EU documents, EU and national legislation, CJEU’s case law, reports by NGOs and the Eurostat database. Furthermore, I have also used journal articles and other research papers for the purpose of better answering the research question.
3. THEORETICAL FRAMEWORK
3.1. Crimmigration: criminalisation of migrants
One of EU instruments to fight against irregular immigration is detention and deportation of migrants to their home country.8 It is thought it is one of the best ways of controlling migration in the EU; however, the EU faces a unique challenge that differs from other places: the geographical and legal landscape as the EU is composed of 27 countries applying their own national law and interpreting EU law in different ways.
This thesis examines, from both a legal perspective and an empirical viewpoint, article 18(5) of the recast Return Directive in order to analyse whether this amended article will lead to stricter detention policies taking into account the principles of subsidiarity and proportionality and whether the 3-month minimum detention period will increase the effectiveness of the return rate. Also, Article 18(1)(c) will be deeply examined so to provide will the legal consequences of this new addition.
For these purposes, this thesis will be examined through a theoretical framework that has gained significant academic importance in the last years: the crimmigration approach.
The term crimmigration was first coined by Juliet Stumpf9, who defended that there was an increase convergence between immigration law and criminal law, through the expansion of policing enforcement inside the country and its borders. The author concluded that starting in the 1980s, immigration laws in the United States and elsewhere, including Europe, Australia, and Canada, shifted towards the criminalisation of certain immigrants with the purpose of securing the nation from outside threats.10 States started to approve legislatives reforms targeting migrants, merging crime control and immigration control.11
8 Commissioner of Human Rights, ‘Criminalisation of Migration in Europe: Human Rights Implications’ [2010] Issue Papers, pag.10.
9 Stumpf (n 1). 10 Ibid
11 Maria João Guia, Maartje Amalia Hermina van der Woude and Joanne van der Leun, Social Control and
Although criminal and immigration laws are systematically different, both of them are part of a larger system of exclusion/inclusion (i.e. who is or is not a deserving citizen, who belongs).12 In many countries where violations of immigration law were considered civil offenses, such violations are not treated and merged with criminal law.13
Some of this “criminal” law has been used with the detention and deportation instruments. As Bosworth & Guild argued14, detention and deportation affect not only immigrants who have committed crimes, but also those suspected of committing a crime or threatening the nation, creating a system of mass surveillance and deportation. Using incarceration as a major instrument to control migrants15 is normal in all major immigrant‐receiving countries16. For example, non‐Western European immigrants in the EU are exposed as threats based on a “security and control” perspective.17 In our specific case, since the 1970s the importance of the phenomenon immigration has increased in EU Member States political speeches by placing them as a problem for the security of the Member States as they related migration to crime cross-border and its ability to destabilize internal security. This has contributed to the increased imprisonment rates of immigrants and to the creation of immigrant detention centres.18 In most EU Member States, immigrant detention is framed as non‐punitive and solely an administrative procedure.
For all of the above, I consider that this theoretical approach fits well. Under the Return Directive, immigration detention is applied to TCNs in two main circumstances: first, when an asylum seeker is given a negative decision on his/her application or when his/her right of stay as an asylum seeker has entered into force as they become TCNs staying illegally on the territory of a Member State (Recital 9 of the Preamble of the Directive 2008/115/EC); second, when immigrants are undocumented and, therefore, subject to removal orders.
12 Stumpf (n 1).
13 Maartje van Der Woude, Vanessa Barker and Joanne van Der Leun, ‘Crimmigration in Europe’ (2017) 14 European Journal of Criminology 3.
14 Mary Bosworth and Mhairi Guild, ‘Governing Through Migration Control’ (2008) 48 The British Journal of Criminology 703.
15 When the term “(im)migrant” is used it refers to non-citizens of the European Union (also known as third-country nationals in the EU).
16 Ibid.
17 Alessandra Buonfino, ‘Between Unity and Plurality: The Politicization and Securitization of the Discourse of Immigration in Europe’ (2004) 26 New Political Science 23.
4. EU INSTRUMENTS, TREATY BASIS AND LEGAL PRINCIPLES
4.1. Directives: minimum and maximum harmonisation
Article 288 TFEU establishes that “To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions”. A directive is a legislative act that lays out a goal that all EU countries must achieve without dictating the means for achieving that result. Directives can set out minimum rules, but they can also set out maximum rules. Each Member State will have to transpose the directive into their national law, but they will have a certain amount of leeway as to the exact rules to be adopted.
Directives have different types of harmonisation, which can be classified into two main techniques of harmonisation: minimum and maximum.19
On the one hand, full harmonisation occurs when national laws are replaced by a single EU rule, leaving no space for Member States to exceed the terms of the legislation. Therefore, once the EU acts in a shared competence field, using this type of harmonisation, Member States cannot legislate unilaterally by imposing additional standards. On the other hand, with minimum harmonisation, the EU sets out minimum standards but Member States are free to impose stricter rules, so they are given space to accommodate national diversity.
4.2. The development of EU migration on the Treaties
The Maastricht Treaty (1993) created a European Union based on three pillars: the European Communities (EC), the common foreign and security policy (CFSP) and cooperation in the field of justice and home affairs (JHA).20 One of the objectives of the JHA, the third pillar, was to control illegal immigration by intergovernmental methods. Nonetheless, the creation of the pillars did not have as a consequence a clear common
19 Christine Janssens, The Principle of Mutual Recognition in EU Law (Oxford University Press 2013), pag. 87.
20 European Parliament, ‘Fact Sheets on the European Union: The Maastricht and Amsterdam Treaties’ (2020).
migration policy.21 However, with the entry into force of the Treaty of Amsterdam (1999), the area of immigration was “communitarised”: it entered for the first time the Community competence as it was moved from the third pillar to the first pillar22;
therefore, the Council developed broad policies in order to establish progressively an Area of Freedom, Security and Justice (Articles 61-63).
Finally, the entry into force of the Lisbon Treaty (2009) did not bring any dramatic changes in the EU migration policy. The most important change of the TFEU is the replacement of the existing three pillars with one legal framework in a single legal text (the areas of judicial cooperation in criminal matters and police cooperation which fell in the third pillar were included in the Area of Freedom, Security and Justice).23 Asylum, immigration and border checks are now dealt in Chapter 2 of the TFEU under Title V called the Area of Freedom, Security and Justice (Articles 77-80).
Therefore, the TFEU provides for the adoption of legal acts directed in the harmonisation of immigration law with regard to certain areas considered crucial in the fight against irregular entry. Article 79(1) TFEU states that the EU “shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of TCNs residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.” As established in Article 79(2) TFEU, approximation shall be achieved by progressively adopting measures establishing conditions governing entry into and legal residence in a Member State, and laying down legal acts for combating irregular immigration, in particular by means of an effective return policy, in a manner consistent with fundamental rights.24
21 Marco Martiniello, ‘The New Migratory Europe: Towards a Proactive Immigration Policy?’ in Craig A Parsons and Timothy M Editor Smeeding (eds), Immigration and the Transformation of Europe (Cambridge University Press 2006), pag. 317.
22 Sara Iglesias, ‘Constitutional Identity and Integration: EU Citizenship and the Emergence of a Supranational Alienage Law’ (2017) 18 German Law Journal, pag. 1801.
23 Finn Laursen, The Rise and Fall of the EU’s Constitutional Treaty (Martinus Nijhoff 2008), pag. 81. 24 European Parliament, ‘Immigration Policy’ (2020).
Regarding irregular immigration, most of the legislation already existed before the Lisbon Treaty25, although several have already been revised. However, as the space is limited, I will focus on the Return Directive. According to the above, the competence of the EU to adopt the Return Directive is vested in article 79 TFEU, which has to be read simultaneously with article 4(2)(j) TFEU. This Directive sought to regulate and harmonise standards of return throughout the EU26; concretely, it sets out minimum standards on re-entry ban, the favouring of voluntary over forced return and coercive measures such as detention.
4.3. The concept of proportionality and subsidiarity as legal principles
Proportionality and subsidiarity are the two general principles of EU law, but they have some main differences which I will explain thereinafter.
Firstly, the principle of subsidiarity applies in cases where the competence of the EU is not exclusive; whereas, under article 5(3) TEU27, the principle of proportionality applies also where the EU enjoys exclusive competence.
Secondly, their aims are also different. On the one hand, the principle of subsidiarity establishes that the EU should only intervene if the objectives of the proposed actions cannot be sufficiently achieved by the Member State, and can be better achieved at the Union level. In order to analyse whether an EU act is justified in accordance with the principle of subsidiarity, the first step is to ensure directives succeeds the ‘necessity test’.28 This assessment is negatively formulated and asked why the objectives of an action cannot be sufficiently achieved by the Member States and whether the objectives can be better achieved by action by the EU.29 Consequently, it is necessary to
25For example, regarding expulsion decisions, Council Directive (EC) 2001/40 on the mutual recognition of decisions on the expulsion; regarding the facilitation of unauthorised entry and residence, Council Directive (EC) 2002/90 defining the facilitation of unauthorised entry, transit and residence [2002] 26 Jean-Pierre Cassarino, ‘The EU Return Policy: Premises and Implications’ [2006] MIREM/RSCAS Research Report.
27 Article 5(3) TFEU says: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” 28 European Commission, ‘Impact Assessment Guidelines SEC(2009) 92’ (2009).
hypothetically assess whether Member States have the capacity to enact a measure without infringing the Treaties, and whether the EU can better attain the objective due to its manifest advantages.30 On the other hand, the principle of proportionality determines that the content of the EU act should not exceed “what is necessary to achieve the objectives of the Treaties” (article 5(4) TEU). Therefore, it is always necessary to test and evaluate if the EU act complies with the principles of subsidiarity and proportionality, in this case, recast article 18 of the Return Directive.
The competence to harmonise, as explained before, implies the right for the EU to act in a shared competence, but with certain conditions. The fact that the EU has the competence to pursue harmonisation through the Return Directive under the terms of article 79 TFEU does not necessarily mean that Directive in issue satisfies the test of subsidiarity or proportionality. As we are in a field of shared competence, the question remains therefore whether it is necessary for the EU to recast the Returns Directive, and more concretely, recast article 18 of the Return Directive.
5. LEGAL AND POLITICAL BACKGROUND OF THE RETURN DIRECTIVE
5.1. The legislative process: co-decision procedure
The ‘Hague Programme’, adopted in November 2004 by the European Council, established migration lines and appealed the European Commission to present a proposal on minimum standards for return procedures31. It was clear that the EU needed a common immigration policy in this area; however, Member States differed on the content. The reason for this was the particular political context as the extreme right parties gained strength. The victory in Italy of Silvio Berlusconi and his ally, the Northern League, plus the agreement on immigration proposed by Brice Hortefeux32, inspired the Commission
30 Samantha Gernat, ‘Interpreting Subsidiarity – How to Develop into a Constitutional Principle?’ (2013) 4 Europeanisation of Private Law.
31 Council of the European Union, ‘The Hague Programme: Strengthening Freedom, Security and Justice in the European Union’ (2005) C 53/1 Official Journal of the European Union.
32 Brice Hortefeux was the Ministry of Migration in France, and in 2006, she proposed bilateral agreements with third countries as a way of combatting “illegal” immigration. From 2006 to 2014, France signed 13 agreements.
to propose as soon as possible a framework on immigration at the European level, as this would help to build mutual trust among Member States, facilitate the recognition of return decisions and increase cooperation.
On the 9th of September 2005, the European Commission published its proposal for a Directive which had as a goal to provide “fair common rules concerning return, removal, use of coercive measures, temporary custody and re-entry, which take into full account the human rights and fundamental freedoms of the persons concerned”.33 The Directive was the first legislation in the field of immigration to be decided under the co-decision procedure34, therefore, the European Parliament and the Council had equal footing during the negotiations. During the procedure, a lot of informal ‘trialogues’ took place between the Council, the Commission and the Parliament with the aim to find an early agreement between the Council and the Parliament.35
The negotiations on the proposal were difficult both at the Parliament level and the Council level. At the Parliament level, political groups couldn’t reach an agreement on a number of compromise amendments. The European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) Report of 200736 suggested some modifications to the Commission proposal, for example, the need to improve fundamental rights safeguards; however, it also proposed some other amendments such as allowing administrative authorities to issue detention orders and the possibility of extending detention to up to 18 months.37 At the Council level, it was particularly discussed the
33 European Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in the Member States for Returning Illegally Staying Third-Country Nationals, COM (2005) 391 Final’ (2005).
34 With the co-decision procedure, the Commission sends a proposal to both the Council and the Parliament which act as co-legislators, so they both need to reach a consensus for legislation to be adopted. It starts with the European Parliament and the Council reviewing the Commission’s proposal and proposing amendments. If the Council and the Parliament cannot agree regarding the amendments, a second reading takes place. In the second reading, the Council adopts a common position, and the Parliament can then make amendments to it, which then the Council can accept or reject. If there is no agreement, a Conciliation Committee will be set up with equal numbers of Council representatives and members of the Parliament. The agreed text will be voted on by qualified majority in the Council and by a majority of members in the Parliament.
35 Diego Acosta, ‘The First Decade of EU Migration and Asylum Law’ (Brill | Nijhoff 2011). Elspeth Guild and Paul Minderhoud, The First Decade of EU Migration and Asylum Law (Nijhoff 2011).
36 Committee on Civil Liberties Justice and Home Affairs (LIBE), ‘Report on the Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals (COM(2005)0391 – C6-0266/2005 – 2005/0167(COD))’ (2007).
scope of the Directive, the length of the detention period and the rules on judicial review. Unlike the LIBE Report, in the Council they aspired lowering human rights standards and procedural safeguards, and sought to increase the discretion of Member States in the handling of return.38
The reasons for the discrepancies between both EU institutions are diverse. On the one hand, the Council is an actor where decisions are made at different layers39, in which Member states play a dominant role.40 Each heads of state or government of the EU member states fought for their own interests. For example, the Czech Republic, France and Hungary did not agree with the voluntary return and wanted a smaller period than the minimum of seven days; Austria, Germany and Greece did not want to cover the cost of the free legal aid assistance. Furthermore, the negotiations were influenced by the ideas of the arguably populist and xenophobic parties such as the National Front in France, the Northern League in Italy or the former Pim Fortuyn list in the Netherlands.41 In addition, the Council Presidency played a central role because they set the agenda by organising it and by setting aside those issues in which they are not interested42. During the Finnish Presidency (2006) and the Portuguese (2008), a lot of informal trialogues took place and compromises were made. However, during the German Presidency (2007), there were no significant developments.43 On the other hand, as the European Parliament is faced with re-election, all the right-wing parties members, such as the European Popular Party (EPP), were extremely strict during the negotiations. As a general consequence, the Directive began to lean towards the consideration of irregular immigration as a punishable offence, which in turn has led to the detention and forced repatriation from the Member States.44
Finally, after lengthy and complex negotiations between the Parliament’s Rapporteur and the Council Presidency, in June 2008 they agreed on a text which substantially amended the Commission initial draft.
38 Fabian Lutz, The Negotiations on the Return Directive : Comments and Materials (Wolf Legal Publishers WLP 2010).
39 Esther Versluis, Paul Stephenson and Mendeltje Keulen, Analyzing the European Union Policy Process (Palgrave Macmillan 2011), pag. 37 - 39.
40 Georgia Papagianni, Institutional and Policy Dynamics of EU Migration Law (Martinus Nijhoff 2006), pag. 199-200.
41 Joao Carvalho, Impact of Extreme Right Parties on Immigration Policy. Comparing Britain, France and
Italy (Routledge 2013).
42 Versluis, Stephenson and Keulen (n 39). 43 Arcarazo (n 23), pag. 188-194.
Some of the amendments were the following: a) Regarding the scope of the Directive (Article 2), the Commission’s proposal, which was also the Parliament’s position, suggested that the Directive should be applicable to any illegally staying TCN regardless of the reason of the illegality so as to ensure them a good level of protection. In contrast, the Council wanted the possibility for Member States to exclude from the scope of the Directive large categories of TCNs (so they wouldn’t have to apply those basic standards). The final compromise leaned towards the Council’s position, widening Article 2 and leaving Member States with the option not to apply the Directive to any TCN who irregularly entered the territory of a Member State, unless that TCN obtained an authorisation or a right to stay in that Member State (although these TCNs would have a minimum protection as established in Article 4(4)); b) Concerning the issue of remedies, the Commission’s proposal granted the right to an effective judicial remedy with suspensive effects against a return decision and the right to legal aid for those who lacked sufficient resources. This point was the reason of most of the disagreements. They finally agreed that the suspensive effect and the legal aid free of charge was possible but not compulsory; c) The detention regime represents a significant departure from the Commission’s proposal, which provided that Member States had to keep TCN in “temporary custody”, for a maximum period of 6 months, where there were serious grounds to believe that there was a risk of absconding. However, the final agreement established another ground for detention, namely those cases in which there was a risk of avoiding or hampering the preparation of the return process. Likewise, the duration of the detention was widen as it could be ordered for six months and extended by up to twelve months.
5.2. The scope of the Return Directive
The Directive sets out common standards and procedures in Member States for returning irregular TCNs to their home country “in accordance with fundamental rights” (Article 1). The Directive defines “illegal stay” as “the presence on the territory of a Member State of a TCN who does not fulfil, or no longer fulfils the conditions of entry, stay or residence in that Member State” (article 3(3)).
Within the common rules, the Directive standardizes the issuing of return decisions (Article 6) and entry bans (Article 11), the possibility that irregular immigrants return
voluntarily to their home country before measures to carry out forced return are taken (Article 7). The Directive also sets out a number of procedural safeguards, for example, the right to appeal or seek review of decisions related to return (Article 13). Finally, the Directive sets out provisions on the detention of TCNs pending removal, including the maximum length of time during which a person can be detained (Article 15). In conclusion, the Directive foresees two stages for the return of irregular aliens: firstly, a period of between 7 and 30 days for voluntary departure; and secondly, if the immigrant does not voluntarily depart, a repatriation order might be issued with the use, as a last resort, of coercive measures.
5.3. The aim of Article 15
Article 15 regulates the detention of TCNs subject to return procedures. Paragraph 1 starts by saying that Member States may use detention “unless other sufficient but less coercive measures can be applied effectively in a specific case”. Member States have to use this provision taking into account EU law and the right to liberty established in Article 5 of the European Convention on Human Rights (ECHR), which states that detention for immigration issues can only be used as a measure of last recourse.45 Therefore, national authorities have to demonstrate that less intrusive measures have been tried and found insufficient in an individual case before the person is detained. However, Member States still seem to consider detention as the only way to ensure that deportation takes place.46 Nevertheless, existing research has demonstrated that alternatives to detention are “more cost-effective than detention itself”47, and that the “effectiveness of detention in terms of facilitating return decreases the longer detention lasts”48.
In any case, the Directive does not enumerate the grounds that can justify the detention of an irregular immigrant, and does not impose this obligation to the Member States. It
45 European Union Agency for Fundamental Rights, ‘Alternatives to Detention for Asylum Seekers and People in Return Procedures’ (2015), pag. 1.
46 EMN study enumerates the non-custodial alternatives to detention that are the most common in Europe: reporting obligations, residence restrictions, surrender of documents, and release on bail.
47 UNHCR, ‘Alternatives to Detention of Asylum Seekers and Refugees’ (2006).
48 ECRE, ‘Information Note on the Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, CO7/1/2009/Ext/MDM’ (2009).
uses broadly defined grounds for detention, such as the existence of a risk of absconding and to situations in which a TCN hampers or avoids removal.
Likewise, the CJEU has limited Member States’ practice. For example, in the Sagor case49, the CJEU stated that the risk of absconding must be assessed on “an individual examination”; in the Mahdi case50, the CJEU established that the fact that the immigrant does not have any valid identity document does not constitute by itself a risk of absconding and does not justify pre-removal detention. Nonetheless, it is for the national judge to determine the extension of the justification when deciding upon pre-removal detention.51
Article 15(1) enunciates that detention shall be for the shortest period possible and only maintained as long as removal arrangements are in progress. Article 15(5) establishes that detention should be for a maximum of six months, which could be extended for another 12 months in the event of uncooperative behaviour on the part of the alien or when there are delays in obtaining the necessary documentation from third countries (paragraph 6). One of the main obstacles included in the latter ground is when countries of origin do not accept their own nationals back.52 Consequently, many irregular aliens are detained for long periods because of the unwillingness or inability of their country of origin to provide documentation. In conclusion, after the entry into force of the Directive, some Member States had to cap their detention periods to a maximum of 18 months, but others used the Directive to increase them.53
The detention regime was one of the most controversial during the negotiations between the Parliament and the Council, and it is again one of the most controversial after the publish of the recast Return Directive.
49 C-430/11 Sagor [2012], parag. 41.
50 C-146/14 PPU – Mahdi [2014], parags. 68-70
51 Marie-Laure Basilien-Gainche, ‘Immigration Detention under the Return Directive: The CJEU Shadowed Lights’ (2015) 17 European Journal of Migration and Law 104.
52 Antje Ellermann, ‘The Limits of Unilateral Immigration Control: Deportation and Inter-State Cooperation’ (2008) 43 Government and Opposition 168.
53 Detention periods, before the Directive, varied between Member States: for example, Finland, Sweden, the Netherlands and Estonia had no limits in their national legislation for detention periods, Rumania had a maximum detention period of six months, France of 32 days, Hungary of one year and Latvia of 20 months.
5.4. From Article 15 to recast Article 18
The political discourse across Europe changed in 2015 with the increase in asylum applications because of the Syrian conflict. In December 2015, Donald Tusk (President European Council) stressed that irregular migrants who arrive in the EU should be detained for the maximum period necessary for the completion of return procedures.54 Likewise, the Commission adopted the 2015 Action Plan on Return55, and two years after, the 2017 Action Plan56 and the Return Handbook57, where it provided guidelines to correctly implement the Return Directive and stated that in order to comply with their obligation to enforce returns, Member States should use detention and other enforcement measures. Also, the Commission defended that to ensure the effectiveness of returns of TCNs it was necessary a revision of the Return Directive as the return rate had remained substantially unchanged for years.58
On the 28th June of 2018 conclusions, the European Council welcomed the Commission’s intention to propose a revision of the Return Directive.59 Therefore, the Commission published on the 12th September of 2018 a proposal for a recasting of the 2008 Return Directive, which specifies common standards and procedures in Member States for returning irregular migrants who are non-EU nationals.60 However, the proposal was not accompanied by an impact assessment due to the urgency of the legislative changes needed.61
The proposal would bring several modifications to the Directive as the Commission has proposed to amend the following provisions: voluntary departure (Article 9), entry bans (Article 13), remedies (Article 16) and detention of returnees (Article 18). It has also proposed the introduction of the following new provisions: defining the risk of
54 Izabella Majcher, Michael Flynn and Mariette Grange, Immigration Detention in the European Union:
In the Shadow of the ‘Crisis’ (1st edn, Springer International Publishing 2020), pag.5.
55 European Commission, ‘EU Action Plan on Return’ (2015), pag. 4.
56 European Commission, ‘A More Effective Return Policy in the European Union - a Rewed Action Plan’ (n 6).
57 European Commission, ‘Return Handbook, Annex to Commission Recommendation (EU) 2017/2338’ (2017).
58 European Parliament, ‘The Proposed Return Directive (Recast). Substitute Impact Assessment’ [2019] European Parliamentary Research Service 172, pag. 1.
59 European Council, ‘European Council Conclusions EUCO 9/18, 28th June 2018’, pag. 3. 60 European Commission (n 3).
absconding (Article 6), imposing an obligation to cooperate on returnees (Article 7), imposing an obligation to create a return management system on Member States (Article 14) and creating a border procedure to adopt certain return decisions (Article 22). Therefore, regarding the detention of TCNs, the proposal has changed both, the number of the provision (it has been moved from Article 15 to Article 18) and the substance.
Regarding the substance, Article 18(1) provides for the use of detention in cases of (a) risk of absconding, (b) the third-country national avoids or hampers the preparation of return and (c) threat to public order or national security. The recast article 18(4) requires a minimum and maximum detention period of three to six months, whereas the Directive currently allows Member States to establish a maximum detention period of less than three months. In other words, the new provision requires national legislation to provide for 3 months as an initial minimum period of detention.
The European Parliament has expressed its concerns on the proposal as it does not fully comply with its previous demands.62 For example, the proposal seems to put more emphasis on force departure and detention rather than voluntary departure as it hardly includes any provisions supporting voluntary returns other than Article 14.63 Furthermore, the Parliament rejects the duration of detention as it considers that lengthy detention periods are counterproductive to government’s objectives of achieving effective return decisions.64
62 The European Parliament has repeatedly called for return policies which involve sending migrants back to countries where they can be received safely and without being endangered (Resolution 25th October 2016 on human rights and migration in third countries). It has also reiterated that voluntary return should be prioritized over forced returns.
63 European Parliament (n 37), pag. 9.
64 Committee on Civil Liberties Justice and Home Affairs (LIBE), ‘Draft Report on the Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals(Recast)(COM(2018)0634–C8- 0407/2018– 2018/0329 (COD)’ (2019).
6. THE IMPACT OF ARTICLE 18 OF THE RECAST RETURN DIRECTIVE ON MEMBER STATES’ PRACTICE
6.1. Maximum length of detention in national law
As stated before, the Commission’s proposal requires Member States to provide for a detention period of minimum 3 months. The Commission considers that the only way to increase the return rate of TCN is by establishing a minimum detention period of three months so that Member States have enough time to obtain all the paperwork in order to successfully carry out return and readmission agreements with third countries.
This thesis will now examine whether this article will lead to stricter detention policies in Member State’s practices and what possible questions may arise with those Member States that have more favourable provisions. Likewise, I will analyse if there is a correlation between longer periods of detention and high percentages of immigrants removed.
For the following analyses, I have used all those Member States which adopted the Return Directive. Therefore, I will take into account all 27 EU Member States except for Estonia, Latvia, Malta65, and Ireland which opted-out of the Return Directive (Recital 27). I have also included Norway, which belongs to the four non-EU states participating in the Schengen acquis, and therefore applying the Return Directive (Recitals 28-30)66. In total, I will compare 24 Member States.
65 I have decided not to include Estonia, Latvia and Malta because they have almost a 100% of return rate as established in Eurostat which does not represent the average rate in the EU. Also, the number of third-country nationals are irrelevant compared to other Member States – they represent less than 1% (Estonia – 0,14%, Latvia – 0,29%, and Malta – 0,10%).
66 I have not included Iceland, Liechtenstein, and Switzerland because Eurostat does not offer enough data regarding TCNs returned following an order to leave and TCNs ordered to leave.
Firstly, it is necessary to analyse whether Article 18(5) will lead to stricter detention policies in Member States’ practices.
Except for Spain, Portugal and Norway, the rest of the EU countries present the 6-month maximum length of pre-removal detention, which can be extended by 12 additional months in cases where there is no cooperation from the TCN or delays from the country of destination in issuing travel documents.67 In the cases of Spain and Portugal, the maximum detention is 60 days, which cannot be extended further.
From Table 1, we see that countries such as Spain, Portugal, and Norway have lower detention periods for TCNs. This means that these Member States would be obliged to increase their maximum pre-removal detention. Concretely, Spain and Portugal will have to increase from a maximum of 60 days to a minimum of 3 months; and Norway will have to increase from 4 weeks periods to 3 months. As an immediate consequence, TCNs will probably have to stay detained for longer periods.
Furthermore, I also consider it necessary to examine the average length of pre-removal detention as it illustrates better the reality that TCNs face. As we can see in Table 1, the average length of pre-removal detention in almost all Member States, except Hungary, is below 90 days (3 months). This apparently implies that either Member States do not require more time to return TCNs to their country of origin, or that there is no prospect of obtaining sufficient documents for their removal. Therefore, the question is whether the minimum time limit of 3 months is really necessary.
Consequently, with the recast Return Directive, Member States will not only be obliged to prolong their detention practices because of Article 18(5), but it is also likely that the detention rate will increase as Article 6 has broadened the criteria related to “the risk of absconding”. Despite the above, the evidence suggests that detention periods of longer than one month do not increase the return of irregular migrants.68 Furthermore, a majority
67 Global Detention Project (GDP), ‘Immigration Detention in Slovakia: Punitive Conditions Paid for by the Detainees’ (2019).
of stakeholders have defended that there is no available data that suggest that shorter detention periods hinder removals.69
Secondly, taking into consideration Table 1, it is necessary to analyse whether the recast Return Directive will increase the effectiveness of the return decisions (as the Commission defends). In other words, whether there is a positive correlation between longer periods of detention and return effectiveness . As I have stated previously, the aim of the Commission has always been to increase the return rates as the trend in the last years have been just the opposite. For example, the observed return rate throughout the EU was 45.8 % in 2016 decreasing to 36.6 % in 2017.70
The following graphs (Graph 1, Graph 2 and Graph 3)71 represent the effective removals of TCNs to their country of origin in 2017, 2018 and 2019, respectively, in all Member States. Based on the information offered in Eurostat, I’ve calculated the percentage of effective returns given the annual data of third-country nationals ordered to leave and the annual data of third-country nationals returns following an order to leave.
69 Council of Bars and Law Societies of Europe, ‘CCBE Comments on the Commission Proposal for a Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals (Recast)’ (2019).
70 European Commission, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast) 2018, pag. 2.
71 Source: Own elaboration from the data provided by the Eurostat database.
18.24 48.08 11.17 35.01 46.27 39.4637.18 15.02 45.00 19.44 41.08 89.42 47.54 7.85 39.49 64.58 89.28 5.38 91.90 9.84 72.63 49.14 33.35 23.94
As we can see in Graph 1, Spain presented a return rate of 37,18% while other Member States which use the maximum permissible detention period presented far lower return rates; for example, the Czech Republic presented a return rate of 11.17%, Hungary of 7,85%, Slovenia of 9,84% and Belgium of 18,24%. Furthermore, other countries, which also use the maximum permissible detention period presented return rates only marginally higher: Germany presented a return rate of 46,3%, Cyprus of 41,08%, and Finland of 49,14%.
The high return rates of Lithuania, Poland, Romania and Slovakia are possibly due to several factors: first, their increased control on their borders; second, except for Poland, they are not important destinations or transit sites (comparatively, the number of arrivals are small); third, their immigration legislation includes grounds for detention that are not provided in the Return Directive, such as irregular stay or entry, national security and public order; fourth, their asylum legislation provides for detention of asylum seekers.72
Regarding the average length of pre-removal detention (Table 1), irregular immigrants in Luxembourg and Sweden were detained for 27 days and 31,5 days, respectively, while in Belgium and the Netherlands, they were detained for 35 days and 43 days, respectively. However, Luxembourg and Sweden presented return rates of 47,54% and 33,35%, while Belgium and the Netherlands presented return rates of 18,24% and 39,49%, respectively. Therefore, it does not appear possible to conclude that Member States that keep TCNs detained longer present higher increase rates.
In Graph 2, we see that Spain presented a fairly low return rate in 2018, only 21,37%. However, other countries which use the maximum permissible detention period presented similar return rates. For example, Czech Republic presented a return rate of 20,90%, Belgium of 18,98% and Denmark of 28,04%. The apparent discrepancy that can be observed for Portugal regarding its low percentage of return rate may be explained in part by the need to increase the country’s population due to negative population growth rates.73 Portugal’s socialist government has a very lax policy regarding immigrants, and has regularised the status of those who did not have any authorisation to work. Furthermore, Portugal is heavily agricultural and practically most of the work is done by illegal workers.74
Regarding the average length of pre-removal detention, TCNs in Austria were detained for 25.2 days, while in Bulgaria they were detained for 52 days, almost twice the duration. However, Austria presented a return rate of 63,66% while Bulgaria presented a return rate of 46,74%. This supports the hypothesis that Member States that have longer periods of detention do not necessarily present higher return rates.
73 Rui Pena Pires, ‘Portuguese Emigration Today’, New and Old Routes of Portuguese Emigration (1st Ed, Springer, Cham 2019).
74 “Welcome to Portugal, the European country desperate for migrants because its population is shrinking”, Agence France-Presse (2018),
https://www.scmp.com/news/world/europe/article/2153400/welcome-portugal-european-country-desperate-migrants-because-its 18.98 46.74 20.90 28.04 54.89 21.3719.91 14.63 34.09 20.74 45.77 85.25 32.35 10.12 49.23 63.66 87.49 6.10 81.97 11.63 83.80 52.44 30.70
Finally, in Graph 3 we have similar results as in Graph 1. Spain reached again a return rate of over 30%, while Belgium, Greece, Luxembourg and Hungary, all of which use the maximum period of detention, reached only 17,90%, 12,23%, 25,23% and 25,05%, respectively. Likewise, other countries such as The Netherlands or Austria reached return rates of 43,46% and 48,71%, which represents return rates only marginally higher than Spain.
In conclusion, as the European Commission has not published a proper impact assessment alongside the proposal, it is extremely challenging to analyse whether Article 18(5) is an appropriate measure to fight against the declining rates of expulsion. In this manner, the European Parliament and the majority of stakeholders appear to withhold that the 3-month minimum period of detention will not lead to higher returns of third-country nationals. Furthermore, the Council of Bars and Law Societies of Europe (CCBE) considers that it is not compatible with the prerequisite that detention should be used as short as possible.75 Thus, the right to individual freedom will most likely be affected as detention may become a more common and preferential criteria, while voluntary returns would become the exception.76
75 Council of Bars and Law Societies of Europe (n 75), pag. 3.
76 European Parliament, ‘The Proposed Return Directive (Recast). Substitute Impact Assessment’ (n 7).
17.90 47.79 6.48 37.24 52.89 12.23 30.42 12.6115.41 24.05 35.00 86.85 25.2325.04 43.4648.71 88.36 7.78 70.83 7.52 82.94 40.43 30.22
6.1.1. Does Article 18(5) respect the principles of subsidiarity and proportionality?
It is necessary to assess, to the extent that this is possible, the compliance of this prolongation of the detention period with the principles of subsidiarity and proportionality in the following section. Therefore, I will first analyse whether there is insufficiency of Member State action, and whether the EU is better prepared to increase the effective removals of irregular migrants of Member States.77 Second, I will analyse whether the proposal is disproportionate. This is done with a double verification: firstly, a verification of the suitability or appropriateness of the measure for the purpose of achieving its stated aims, and, secondly, a verification of the necessity or indispensability of the measure for the same aim.78
Regarding the principle of subsidiarity, the management of irregular migration has been a challenge for the EU, as well as the Member States. In relation to the return of irregular migrants, the return rates have frozen over the years and is one of the difficulties that most Member States are encountering.79 As stated by the European Parliament, the difficulty to return migrants has clear cross-border implications because those irregular TCNs who are no returned will move undetected within the Schengen border.80 The EMN study showed that Member States have several challenges regarding TCNs, such as the risk of absconding during the period of voluntary departure, the difficulty in arranging voluntary departures in the timeframe defined, the application of standards on detention and the resourced needed to detain them.81
Taking the above challenges into account, it is possible that an EU level intervention has the potential to bring clear benefits in the area of return by establishing EU coordination mechanisms.82 Therefore, the Commission has defended that a minimum period of detention of 3 months is necessary as it is in the interest of all Member States to increase the return rates, and that the best way to achieve this is through coordination between national authorities and the cooperation of third countries.
77 European Parliament (n 39), pag. 47. 78 ibid.
79 ibid.
80 ibid, pag. 48.
81 European Migration Network (EMN), ‘The Effectiveness of Return in EU Member States: EMN Synthesis Report’ (2018), pag. 1.
Regarding the principle of proportionality, the Commission has justified this measure as it considers that some Member States lack the time to ensure the implementation of the return of the TCN.83 Likewise, some national authorities have stated that the 3-months minimum period of detention could be a suitable measure to achieve the objective of reducing secondary movements.84
However, as we have analysed in the previous chapter, the available data in Table 1, Graph 1, Graph 2 and Graph 3 do not support this argument as there is no correlation between the maximum period of detention and the effectiveness of return. Furthermore, the average length of pre-removal detention in all Member States, except Hungary, is less than 90 days. Austria, where irregular immigrants are detained for an average of 25.2 days, has one of the highest return rates, over 60%. On the contrary, in Bulgaria, immigrants were detained for an average of 52 days, and their return rate was 46,74%. In conclusion, Member States do not require 90 days to return TCNs, and having longer periods of detention does not necessarily mean that these will result in more effective return rates.
Additionally, other stakeholders, such as European Union Agency for Fundamental Rights (FRA)85, the European Council on Refugees and Exiles (ECRE)86 and Statewatch87, have pointed out that detention constitutes a severe sanction for people that have committed no crime and therefore it should only be exercised if no other alternative is possible and for the shortest period possible. For these reasons, they call for the deletion of the proposed extension in Article 18(5). Therefore, it does not appear that increasing the minimum detention period will be an appropriate or necessary measure for the purpose of increasing the return rate, and there is reason to believe that this change will breach the principle of proportionality.
83 Commission, ‘Proposal for a Directive of the European Parliament and of the Council on Common Standards and Procedures in the Member States for Returning Illegally Staying Third-Country Nationals, COM (2005) 391 Final’ (n 19), Recital 29.
84 European Parliament (n 39), pag. 58.
85 European Union Agency for Fundamental Rights, ‘The Recast Return Directive and Its Fundamental Rights Implications. FRA Opinion 1/2019’ (2019).
86 European Council on Refugees and Exiles, ‘ECRE Comments on the Commission Proposal for a Recast Return Directive COM(2018) 634’ (2018).
87 Statewatch, ‘Analysis: The Revised Returns Directive: A Dangerous Attempt to Step up Deportations by Restricting Rights’ (2019).
In conclusion, Article 18(5) will most likely comply with the principle of subsidiarity as the management of irregular migration has EU-wide relevance and Member State has difficulties when conducting an effective return policy. Therefore, the EU is better prepared to increase the effective removals of TCNs on Member States. However, increasing a minimum period of detention of at least three months to achieve the objective of increasing return rates does not appear to be proportional as the available data suggests.
6.2. A new ground for detention: Article 18(1)(c)
Although researchers and stakeholders have disagreed with the use of administrative detention of irregular immigrants in the EU88, this measure has arguably now become a standardised response to discourage TCNs from entering the EU89. This can be observed in the proposal of the Commission to include Article 18(1)(c), which introduces a new ground for detention of irregular immigrants, namely those “who pose a threat to public order or national security”. According to the Commission, this ground is necessary because of the “new risks [that] have emerged in recent years, which make it necessary that illegally staying third-country nationals who pose a threat to public order or national security can be detained.”90 However, it does not offer further explanations of what is understood by new risks.
Indeed, in the Commission proposal for the Return Directive in 2005, the debate regarding whether the Directive should address the expulsion/removal of a TCN for reasons of public and national security was already on the table.91 The Commission decided not to include any specific provisions dealing with this issue for three reasons: firstly, because all other directives adopted in the field of immigration already contained public order clauses, which allowed Member States to withdraw residence permits and to expel TCNs who constituted a threat to public policy or public security; secondly, because it was not always in the interest of the Member State to expel such TCNs as it may be preferable to bring their case before a court; and thirdly, because if further harmonisation
88 Carmine Conte & Valentina Savazzi, ‘Addressing the Systematic Use of Immigration Detention in the EU: Recommendations and Policy Options’ (2019) Research Social Platform on Migration and Asylum. 89 Detention Action, ‘Without Detention. Opportunities for Alternatives’ (2016).
90 European Commission (n 19), pag.8.
91 G Cornelisse, ‘Case C-357/09 PPU, Proceedings Concerning Said Shamilovich Kadzoev (Huchbarov), Judgment of the European Court of Justice (Grand Chamber) of 30 November 2009’ (2011) 48 Common Market Law Review 925.
is found desirable, this harmonisation should take place in the context of Directives that regulated the conditions of entry and stay of legal residence. Nevertheless, the Commission stressed that “once the legal stay of a third-country national has been ended for reasons of public order, this person becomes a third-country national staying illegally in the territory of a Member State for the purposes of the present Directive and the provisions of this Directive will be applied to this person”.92
Furthermore, the Commission has stated in the Return Handbook93 that the legitimate objective of detention under the Return Directive is “to prepare the return and/or to carry out the removal process”94, rather than to protect society from irregular aliens that constitute a threat to public policy or security. Therefore, it could be argued that if Member States wanted to protect society from security threats, they should use “other pieces of legislation, in particular criminal law, criminal administrative law and legislation covering the ending of legal stay for [reasons of] public order”95.
The new Commission’s proposal is clearly not in line with its own reasonings from 2005 and the recommendations in the Return Handbook of 2017, as it has decided that the new objective of the recast Return Directive will be to protect society from persons that can constitute threats. Consequently, Member States may be able to take into account the past behaviour/conduct of the irregular immigrant, and, if they consider that that person will not act in compliance with the law, this may justify the decision of detention on the basis of Article 18(1)(c).96
The European Parliament has disagreed with this new ground and has supported the option to delete Article 18(1)(c), as proposed by most stakeholders. It further affirms that in the case that the new ground for detention is maintained, the concepts of public order and national security should be interpreted narrowly, in compliance with the CJEU’s case law (which I will discuss in the next section).97 Nevertheless, it is important to take into account that even if detention of TCNs is possible on the ground of public order or
92 European Commission (n 19), pag. 5.
93 European Commission, ‘Return Handbook, Annex to Commission Recommendation (EU) 2017/2338’ (n 57).
94 Ibid., pag. 69 95 Ibid.
96 Ibid. pag. 70
national security, the principle of proportionality must still be respected. This implies that Member States should ensure that the detention lasts as short as possible and as long as removal arrangements are in progress. Therefore, detention, even for public order reasons, will not be justified if there is no reasonable prospect of removal for legal or other reasons.98
6.2.1. Is there a common EU standard regarding “public policy, public security or national security”?
The main problem regarding this new ground is that there isn’t a clear definition of public policy, public security or national security. None of these vague concepts are defined in EU law, so they require interpretation, leaving a wide room for discretion to Member States99; and which poses the question of the type of conduct the TCN needs to have so as to threaten public order or national security. The CJEU has attempted to define this concept through its case law; however, as we will see it is still far from consistency.100
Before analysing these concepts through the CJEU’s case law, it should be noted first that EU legislators use diverse terms in relation to national security and public order, causing confusion in the terminology throughout secondary legislation101. For example, in regard to entry bans, the Return Directive uses the following concept: “a threat to public policy, public security or national security” (Article 11(3)). In Directive 2003/109/EC (Long-Term Residents Directive)102 concerning the status of TCNs who are long-term residents, the EU legislators used the term “a threat to public policy or public security” to exclude the acquiring and maintaining of long term resident status. Likewise, in Directive 2003/86/EC (Family Reunification Directive)103 on the right to family reunification, the EU legislators permitted to withdraw a family member’s residence permit if they presented “a threat to public policy or public security or public health”. Therefore, it is
98 Ibid., pag.70.
99 European Association of Administrative Judges, ‘Striking a Balance between Protecting National Security and Ensuring Public Order on the One Side and Human Rights on the Other’, 2007.
100 ACA Europe, ‘Seminar Organized by the Supreme Administrative Court of Poland and ACA-Europe: Public Order, National Security and the Rights of the Third-Country Nationals in Immigration and Citizenship Cases’.
101 Ibid.
102 Council, Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents.
