Executive summary

The power available to states to deport non-citizens deemed unwanted, undesirable or unnecessary – the ‘deportation power’ – is, in historical terms, relatively recent, having only come into being around the turn of the 20th century.[1] Nevertheless, like many other punitive inventions of that era, it remains with us and continues to morph and expand in novel and dangerous ways. European nation-states have developed extensive sets of laws, policies, norms, practices and institutions concerned with regulating deportations, which are seen as a key part of contemporary migration policies. In recent years, such developments have taken on increasing prominence at EU level – the subject of this report.

Deportation Union provides a critical examination of recently-introduced and forthcoming EU measures designed to increase the number of deportations carried out by national authorities and the European Border and Coast Guard Agency, Frontex. It focuses on three key areas: attempts to reduce or eliminate rights and protections in the law governing deportations; the expansion and interconnection of EU databases and information systems; and the increased budget, powers and personnel awarded to Frontex.

There has long-been coordinated policy, legal and operational action on migration at EU level, and efforts to increase deportations have always been a part of this. However, since the ‘migration crisis’ of 2015 there has been a rapid increase in new initiatives, the overall aim of which is to limit legal protections afforded to ‘deportable’ individuals at the same time as expanding the ability of national and EU authorities to track, detain and remove people with increasing efficiency.

Changes to the law have a key role. In 2008, the EU ‘Returns Directive’ came into force despite significant opposition from campaigners, civil society organisations, social movements and critical MEPs, who opposed the EU-level legitimation of an 18-month detention period and entry bans of up to five years for those who were deported. A decade later, the European Commission proposed a ‘recast’ of the Directive – which is currently being debated by the Council of the EU and the European Parliament – which would lower standards even further. No evidence has been provided to demonstrate the need for a harsher regime, suggesting the proposal is little more than an attempt to placate the xenophobic and racist tendencies in European society and politics at the expense of migrants’ rights.

Of particular concern in the proposal to recast the Returns Directive are plans to increase the possibilities for pre-deportation detention.  An impact assessment carried out for the European Parliament’s civil liberties committee – which was requested following the Commission’s failure to conduct its own – found no evidence that increased detention would increase the number of deportations. Further measures under discussion include an increase in entry bans, limitations on appeal rights and a reduction in the possibilities for so-called ‘voluntary’ returns. While the MEPs responsible for guiding the file through the European Parliament have proposed some welcome amendments to the proposal that would better protect individual rights, it would be better to discard such harmful, unnecessary legislation in its entirety.

The political decision to step up expulsions from the EU has also led to the transformation of EU systems for the tracking and monitoring of migrants. Alterations to existing databases have been introduced or are under discussion and new systems will be developed in the coming years. The intention is to ensure the biometric registration of all migrants in, removed from or denied entry to the EU, and the systematic availability of that information to national authorities and EU agencies so that, where deemed necessary, individual movement can be controlled and restricted.

Changes to the Schengen Information System, for example, will require the systematic registration of expulsion orders in that database to try to ensure their mutual recognition by all EU states, while the proposed changes to the Returns Directive would vastly increase the number of entry bans stored in the system – ‘get out and stay out’ is the message. Changes proposed to Eurodac, the EU’s database on asylum-seekers, would transform it into a ‘deportation database’ holding an extended set of data on any ‘irregular’ migrant in the EU apprehended by the authorities, as well as all asylum-seekers. Changes to the Visa Information System – designed to help enforce the EU’s common visa policy – would see new data on travel documents stored in the system with the explicit aim of assisting with expulsions. Both these systems would also begin to hold data on children as young as six. Meanwhile, personal data stored in new databases currently under construction (the Entry/Exit System and the European Travel Information and Authorisation System) will be made available to immigration authorities to make it simpler to identify individuals subject to removal measures.

These vast increases in the collection of personal data and the repurposing of existing databases have been heavily-questioned by fundamental rights experts. Undermining the key data protection principle of purpose limitation – according to which data should not be used for purposes other than that which it was initially collected – is fundamental to the EU’s ‘interoperability’ agenda, which will see a range of policing and migration databases interconnected for the intermingled purposes of dealing with migration and security issues.

Frontex, the EU’s border control agency, has also been provided with new powers to implement and develop databases for the facilitation of expulsions, alongside a host of other new and expanded powers. The agency’s new activities will include developing information systems to monitor of the “stocks and flows” of persons in the member states liable for deportation, as well as providing means to coordinate the authorities and personnel required to remove them.

Since Frontex was established in 2004, its role in coordinating and organising deportations from member states has increased significantly. From one return operation deporting eight people in 2008, to 140 operations deporting over 6,000 people in 2018, the aim in the coming years is for the agency to coordinate the deportation of 50,000 people a year. Achieving this goal would mean Frontex assisting with the removal of almost as many people annually as the total of 53,000 people the agency helped to deport between 2007 and 2018, the period covered in this report.[2]

Frontex is now able to engage in the “collection of information necessary for issuing return decisions” and to assist with the identification of individuals subject to a removal order. While it is not responsible for taking the decision to order somebody’s deportation, its assistance in the implementation of those decisions, taken by national authorities, raises serious concerns. For example, given the disparity between national asylum procedures in the EU, refugees could be sent back, via Frontex-coordinated operations, to places where they are at risk of being tortured or persecuted. By engaging with and assisting in the implementation of dysfunctional national law and policy, it is complicit in unfair and unjust procedures that may violate fundamental rights.

The agency is due to be allocated a hugely increased budget in the 2021-2027 period in order to implement its new powers. The lack of transparency of the agency’s operations and the absence of meaningful political accountability are a matter of significant concern. It has consistently expanded its role beyond existing legal boundaries, with new and more permissive legislation following swiftly behind. The most recent reform does introduce some extended accountability mechanisms, but these are insufficient given the expansion of the agency’s role. Equally, while there are some new safeguards around deportations – such as increased monitoring of expulsion flights and a revised complaints mechanism – the independence of both these systems remain compromised. Fundamentally, it remains almost impossible for individuals to hold the agency itself legally accountable.

This report was finalised in the midst of the COVID-19 pandemic, which has seen unprecedented quarantine measures imposed in societies across the globe. Those measures, while drastic and disturbing, have also led to the emergence of hopes and ideas for more equitable, peaceful ways of living, including in the realm of migration policy. Measures such as the release of people held in detention centres or the granting of residence permits to all migrants[3] show that it is possible to do things differently; that those often deemed unwanted or undesirable may in fact be fundamental to the functioning of our societies.

Such actions are striking precisely because they go beyond the boundaries of what has long-been considered normal or possible. However, there is no indication that states in the EU or elsewhere are aiming for a less restrictive, punitive model of migration management in the long-term; and the introduction of even more restrictions on migration and migrants’ rights remains highly likely, as has been demonstrated by the closure of borders to those seeking asylum and rescued at sea.[4] Meanwhile, any release from detention or reprieve from ‘irregularity’ is intended to be temporary and exceptional. The European Commission, while strongly underlining the need to protect individuals’ health, is placing emphasis on the “continuity” of deportation procedures during the pandemic,[5] while the Spanish government explicitly used the EU’s 2008 ‘Pact on Immigration and Asylum’ to justify its alleged inability to undertake a mass regularisation of undocumented people.[6] The underlying premise is that when all this is over, we can go back to ‘normal’ – but that is neither necessary, desirable, nor perhaps even feasible.

The measures and initiatives being introduced by the EU to scale up deportations will require massive public expenditure on technology, infrastructure and personnel; the strengthening and expansion of state and supranational agencies already-lacking in transparency and democratic accountability; and are likely to further undermine claims that the EU occupies the moral high ground in its treatment of migrants. Anyone wishing to question and challenge these developments will first need to understand them. This report attempts to go some way towards assisting with that task.

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Introduction

 


[1] Nicholas de Genova, ‘The deportation power’, Radical Philosophy, December 2018, https://www.radicalphilosophy.com/article/the-deportation-power; Daniel Wilsher, Immigration Detention – Law, History, Politics, Cambridge University Press, 2012, pp.ix-xv

[2] The vast majority of the report was drafted in 2018 and 2019. Publication was subsequently delayed due to a number of factors. We will be issuing a future update to include analysis of more recent figures.

[3] Yurema Pallarés Pla, ´Partial relief: migrant regularisations during the COVID-19 pandemic´, Statewatch Analysis, June 2020, https://www.statewatch.org/analyses/no-363-migrant-regularisations-pandemic.pdf

[4] Yasha Maccanico, ‘Mediterranean: As the fiction of a Libyan search and rescue zone begins to crumble, EU states use the coronavirus pandemic to declare themselves unsafe’, Statewatch Analysis, May 2020, https://www.statewatch.org/analyses/no-360-malta-italy-eu-libya-pushbacks.pdf; Eric Reidy, ‘The COVID-19 excuse? How migration policies are hardening around the globe’, The New Humanitarian, 17 April 2020, https://www.thenewhumanitarian.org/analysis/2020/04/17/coronavirus-global-migration-policies-exploited

[5] European Commission, ‘COVID-10: Guidance on the implementation of relevant EU provisions in the area of asylum and return procedures and on resettlement’, C(2020) 2516 final, https://ec.europa.eu/info/sites/info/files/guidance-implementation-eu-provisions-asylum-retur-procedures-resettlement.pdf

[6] ´Partial relief: migrant regularisations during the COVID-19 pandemic´


 

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