Returns in core of the EU Pact on Migration and Asylum and the leading role of Frontex
By Mariana Gkliati
Credit: Jonathan Stutz/ Fotolia, European Parliamentary Research Service Blog
In September 2020, the European Commission presented the new European Union (EU) Pact on Migration and Asylum. This following reflects what we can expect to see in the coming years with respect to returns and the role of Frontex, the European Border and Coast Guard Agency (EBCG). In the New Pact on Migration and Asylum, the Commission reaffirms returns as one of the main priorities of migration management. The proposed initiatives aim at further efficiency and intensification of returns with Frontex playing an ever more active role in this field.
The 500 pages of proposed legislation need to be read in combination with the 2016 Recast Proposal for the Returns Directive, and the 2019 amendment of the EBCG Regulation, which significantly expands the powers and budget of Frontex. What follows is a summary of the most important developments to be expected when all three amendments are read together.
Returns are one of the key elements of the pact. Along with returns, the pact introduces a new border procedure and a reform of responsibility sharing arrangements.
A first main change brought by the New Pact concerns the return procedure, which is now joined with the asylum determination. Specifically, a return decision will be automatically issued upon a negative asylum decision. As a result, the examination of the risk of refoulement, the best interests of the child and the protection of family and private life would not be extensively examined.
The return decision will be prepared by Frontex, as part of the operational and technical assistance provided by the agency to the member states in returns. However, Frontex may not enter into the merits of the return decision and does not have the mandate to review the asylum claim. While Frontex prepares the draft of the return decision, that will be finally adopted by the member state.
A second major change concerns the period of detention. After the return decision is issued, the migrant shall be deported within 12 weeks, during which period he or she may be detained. If we combine this with the proposed maximum of 12 weeks detention pending the examination of the asylum claim, the process could result to up to six months of detention at the external borders.
This is a worrisome development (already anticipated in the 2016 recast proposal of the Returns Directive). The pact contains a quite broad list of reasons to justify placing a person in detention. As the risk of absconding is far more broadly understood with this proposal, and alternatives to detention remain rare, a prolonged detention would now become the norm.
A further main point of focus is found in the introduction of returns sponsoring, as a form of solidarity from one Member State to another in case of migratory pressure. ‘Migratory pressure’ is determined by the Commission with the support of the EU Asylum Agency and Frontex.
The option is given to Member States to support other Member States at the external borders either by allowing the relocation of a denied asylum seeker to their territory or by sponsoring their return to the country of origin. The sponsor State can offer support in carrying out the necessary activities for the return, including organisational and financial support. The sponsor State also can commit to return the person and carry out all the necessary activities for the return.
Until now this role has been given to Frontex, which organises and carries out return operations for the Member State. With return sponsorship, the European Commission introduces a procedure coordinated autonomously by Member States that will work in parallel to that of Frontex. As a consequence, this procedure will lack the fundamental rights safeguards that, even though inadequate, are present in Frontex operations.
In an attempt to manage this confusing picture concerning returns, the New Pact calls for an EU Return Coordinator supported by a network of return representatives from the Member States.
Moreover, it also calls for further engagement with third countries to achieve their cooperation in readmissions. The pact envisages a much deeper involvement of Frontex in forming and supporting new partnerships with third countries, including making such cooperation operative and efficient. More generally, the Commission announces a ‘leading role’ for Frontex on returns and wants it to become the operational arm of the EU return policy.
An expanded role for Frontex in return operations was already evident in the 2019 amendment of the EBCG Regulation. This mandate included the conduct of operations with the agency’s own forced-return escorts and human rights monitors, an increased role in pre-return and return related activities, enhanced data management capabilities, and the acquisition of its own aircrafts and vessels to be used in returns.
With the New Pact, the agency is also called to specifically appoint a Deputy Executive Director for Return.
These developments collectively contribute to the priority goal of intensifying returns. The intention proclaimed by the Commission in 2019 is that Frontex facilitate the return of 50,000 persons each year. For this purpose, the agency will receive 1,8 billion EUR until 2027 for its return activities. This represents an increase of almost 300%, while excluding the additional, significant budget for the acquisition of aircrafts and vessels.
Finally, it is important to note that despite the immense political emphasis on returns, it remains to be seen whether these ambitions will indeed come to fruition in the coming years. Returns can be uncertain to realise in practice. They are a highly sensitive issue, touching upon human rights and political concerns such as the cooperation of destination countries. Such concerns are not easily resolved despite budgetary increase and political intentions.
For further information on the developments on Frontex and return operations see:
M. Gkliati, Frontex Return Operations and their Human Rights Implications, in Soysüren Ibrahim and Nedelcu Mihaela (eds), ‘Deportation of Foreigners: EU instruments, Nation-State practices and social actors’ involvement’, Bern: Peter Lang Editions, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3629129.
C. Jones, J. Kilpatrick, M. Gkliati, Deportation Union: Rights, accountability and the EU's push to increase forced removals, Statewatch, 2020, https://www.statewatch.org/deportation-union-rights-accountability-and-the-eu-s-push-to-increase-forced-removals/.
Mariana Gkliati is a researcher at Leiden University, and teaches on the MA in Refugee Protection and Forced Migration Studies at the Refugee Law Initiative (University of London) and at Roma Tre University (Migration Law Clinic). In her PhD, she has studied the legal responsibility and accountability of Frontex for human rights violations.