This report has examined ongoing initiatives that seek to expand the role of EU institutions and agencies in managing and enforcing deportations. Those who advocate for these initiatives tell a simple story – not even half of those issued with a deportation order are removed and for the EU and its member states to retain their ‘credibility’, that number needs to go up. The legal and operational initiatives examined in this report thus have a twofold aim: first, to make it easier for states to hand down removal orders; and second, to expand the means available to enforce those orders, in the form of large-scale databases and the resources of the EU’s border agency, Frontex.
The logic behind this narrative of efficiency is simple enough to understand. However, it obscures a host of important issues that this report has tried to elucidate and wilfully ignores the fact that any substantial increase in the EU’s ‘return rate’ will require vast financial and material expenditure. As such expenditure would likely be impossible to sustain in the long-term, especially in view of the emerging socio-economic crisis caused by the novel coronavirus pandemic, the policy may very well fail to achieve its goal, whilst using precious resources that would be better-directed elsewhere.
Should the measures discussed here be fully implemented, they will lead to a significant expansion of state power over the lives of people who are already frequently marginalised, excluded and unable to effectively exercise their rights. As highlighted in the introduction to this report, if liberal democratic states are to do more than simply pay lip service to human rights and the rule of law, then the power to forcibly remove individuals from a state’s territory should be used only in cases of the utmost urgency and with stringent control and oversight, if it has to be used at all.
The EU initiatives examined here point in the opposite direction – towards swifter, less ‘troublesome’ legal proceedings at national level, with detection and deportation aided by interconnected databases and information systems, and operations instigated, coordinated and overseen by an agency, Frontex, whose powers have increased far more swiftly than the necessary oversight and accountability mechanisms.
Should the limited legal protections afforded to people at risk of deportation be removed even further in the hope of increasing the EU’s ‘return rate’? When the Returns Directive was originally approved in 2008, critics – including Statewatch – warned that it set a dangerously low bar for migrants’ rights, as well as placing detention and deportation firmly at the heart of the EU’s migration regime. More than a decade later, the European Commission has not undertaken any formal, public evaluation of the Directive. Instead, it has asserted, without any evidence and in absence of an impact assessment (in the name of ‘urgency’), that a more punitive regime is required to increase the rate of removals.
The 2018 proposal for the recast Return Directive, which remains under discussion within the Council of the EU and European Parliament, would remove many of the protections contained within the 2008 Return Directive and subsequent case-law, in an attempt to appease the vicious xenophobic sentiment that has resurfaced across European societies in recent years. There has been no consideration of alternatives – or, if there has, those considerations have not been presented to the public. This focus on removal at all costs seems wilfully blind to the ongoing vast disparities in asylum recognition rates across the EU, as well as the fact that many people are ‘non-removable’ for a variety of reasons beyond their control. It also remains the case that many people have to enter EU territory clandestinely – and later become subject to removal orders – because of a lack of legal migration routes. Now more than ever, there is a need to address these long-standing issues. The proposed revamp of the Returns Directive does no such thing.
Is the ongoing transformation of the EU’s justice and home affairs databases – justified by intermingled references to migration and security – necessary, proportionate, feasible or desirable? While some legislation remains under discussion, leaving room for migrants’ rights and data protection advocates to make their case, the direction of travel is clear – the ‘general-use’ availability of the personal data of non-EU nationals for a wide variety of purposes, including deportations.
Wojciech Wiewórowski, now the European Data Protection Supervisor, reportedly said in February 2019 that there is “no way to fight” the ‘interoperability’ of state databases and information systems, “since this is the natural development of future IT systems”. However, IT systems do not ‘naturally develop’ – they are designed and constructed by individuals and institutions. To suggest otherwise is merely to aid those who have succeeded in introducing dramatic changes to personal data processing in EU justice and home affairs policy by presenting political choices as mere technical ones. While many of those choices, in terms of legislation, have already been made, a broader understanding of the new systems amongst civil society organisations, journalists and elected officials is crucial if there are to be effective interventions in the debates still to come.
What role should a European border agency have and what controls and limits should be in place to ensure fundamental rights, democratic accountability, and access to effective remedies? The fundamental question of whether a European border guard is needed at all has largely been removed from public discussion. At the same time, it is clear that the checks and balances that apply to Frontex in the realm of deportations remain inadequate to address the human rights issues inherent in such operations. The new powers afforded to the agency by legal reforms in 2016 and 2019 have not been matched with sufficient powers of oversight, scrutiny and remedies for those who may have their fundamental rights breached by Frontex itself, or by national officials participating in a Frontex-coordinated operation.
The agency has significant powers with regard to deportation operations. Its European Centre for Returns is able to gather information necessary for issuing return decisions and for the identification of those subject to those decisions; acquire travel documents; organise and coordinate deportation operations and ‘voluntary’ return flights; provide information on destination countries; and advise on the implementation of EU legislation and measures to prevent absconding. Where agreed with a member state, Frontex can launch “return interventions” through the deployment of officials to assist with deportation proceedings, and the agency will seek to deepen its engagement with non-EU states on Collecting Return Operations and other matters concerning cooperation on deportations. These activities will likely be propelled by a massively-increased budget (€13 billion over seven years has been proposed), although negotiations on the EU’s future financial framework are ongoing.
Although there is still no role for the agency in national decision making leading to deportation orders, its enhanced role increases the possibility of involvement in breaches of fundamental rights, especially since return operations can now take place on the agency’s own aircrafts and vessels with the agency’s own return escorts. It may coordinate deportations from EU states with dismal records in protecting the rights of migrants and asylum-seekers, such as Greece and Hungary. The massive discrepancies in asylum recognition rates across the EU indicate a significant risk that a Frontex-coordinated flight may remove refugees to countries where they are at risk of torture or persecution. The agency’s new data-gathering powers and control of EU-wide information networks give it an increasingly proactive role in the instigation of deportation operations, raising the possibility of increased raids and detention based on ethnic profiling.
Some new and expanded safeguards have been introduced alongside the new powers, but they remain incomplete and inadequate. Frontex now has recourse to an increased number of fundamental rights monitors for observing deportation operations. Nevertheless, providing Frontex itself with the responsibility for employing, training and managing the new cohort of forced returns monitors means they cannot be considered independent. The complaints mechanism for individuals affected by Frontex’s activities has also been improved upon, but remains a long way from providing a genuinely effective remedy. The agency’s Fundamental Rights Officer has been granted more staff and a greater degree of independence from the Executive Director, but the new legislation remains silent on the powers they will be granted to undertake investigations, while questions still remain as the adequacy of the resources at her disposal. Crucially, it is still practically impossible for an individual to bring legal action against the agency, a problem that could be solved by EU accession to the European Convention on Human Rights – but that stop-start process has now been under discussion for over four decades.
Responsibility for ensuring that the agency is held accountable in the exercise of its new powers will thus have to be more holistic and include solutions beyond legal cases. Pursuing other means of accountability should not be seen as a substitute for formal legal and political accountability, but rather a means for ensuring it is introduced and enforced. The agency’s own Consultative Forum on Fundamental Rights will continue to have a role, given the privileged (albeit limited) access it has to the agency’s internal workings. The 2019 Frontex Regulation also includes the possibility of establishing a Joint Parliamentary Scrutiny Group made up of national and European parliamentarians. Depending on its composition and rules of procedure, this could provide a useful forum for critical inquiry into the agency’s activities. The work of journalists, researchers, campaigners, NGOs, and informed citizens will also remain crucial as the agency’s role in a number of areas – from deportations, to border management strategies, to border control operations – continues to grow.
Above all, there has to be a shift in the political direction of the EU and its member states. It is not going to be possible for the EU to deport its way out of the situation in which it finds itself – the financial, moral and human cost of removing all those currently in Europe who are deemed to have no right to remain is impossible to pay. As the coronavirus pandemic slowly begins to recede and leaves a dramatic social, economic and political impact in its wake, this impossibility may become increasingly-apparent – but that in itself will not automatically lead to any positive changes. It will require significant work to alter the direction of public policies that have been developed over the last three decades.
Nevertheless, the need to push for those changes has never been clearer. The initiatives that have been introduced or are under discussion to try to appease xenophobic and anti-migration sentiment in governments and societies are undermining the liberal democratic basis of the EU. That ultimately threatens not just the rights of non-citizens, but of everyone living in the EU. Reversing the trend is an urgent task for the years ahead.
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