Simplify expulsions, speed up repatriations and limit irregular movements within the European Union. These are the objectives of the new repatriation legislation agreed this week by the European Parliament and the EU Council.
The new rules introduce the obligation for citizens of third countries without the right of residence to collaborate with the authorities, expand the possibilities of detention with a view to repatriation, allow the creation of “repatriation hubs” in third countries along the lines of the centers in Albania wanted by Giorgia Meloni’s government.
The rules also strengthen cooperation between member states through a new European return order. Brussels claims that the reform will make the system more effective in respecting fundamental rights but several civil society organizations fear an increase in detentions and expulsions to countries outside the EU where human rights are not always protected.
Increase repatriations
At the moment, a significant part of the people who receive an order to leave the territory of the Union are not actually repatriated: according to the European Commission, only around 20 percent of the people receiving a return decision actually leave the EU.
“Four out of five non-EU citizens who have received a formal return decision from a Member State do not leave the territory. This is not a functioning system. It is a failure”, denounced the Frenchman François-Xavier Bellamy, negotiator of the EPP group on this dossier.
Thanks to the agreement, he added, “we put an end to this situation by facilitating repatriations, extending detention periods, eliminating the automatic suspensive effect of appeals and providing a legal framework for repatriation centers in third countries”. For the Frenchman “it is not simply another legislative act, but the necessary condition to regain control of migration policy in Europe”.
The new regulation, which integrates the European Pact on Migration and Asylum and which now and will have to receive the formal approval of the two institutions, therefore aims to make the procedures “faster and more effective at EU level”. “With the new rules we have more control over who can enter the EU, who can stay and who must leave”, claimed the European Commissioner for Home Affairs, Magnus Brunner.
Obligation to collaborate
One of the main innovations is the introduction of more stringent obligations for people residing illegally in the Union. Anyone who receives a return decision will have to leave the country concerned immediately or within the deadline set by the national authorities.
The legislation also provides for an explicit obligation to collaborate with the authorities during the preparation of the repatriation. Concretely, the person will have to provide the information necessary for identification and collaborate in administrative procedures.
In case of failure to cooperate, governments may apply consequences such as the reduction of benefits or subsidies provided for by national law and the lack of access to economic incentives intended to encourage voluntary repatriation. Where permitted by national legislation, criminal sanctions may also be envisaged. In practice, a person who has been notified of the removal decision and who does not show up for appointments with the authorities or tries to escape control may find himself deprived of material assistance and, in extreme cases, criminally prosecuted.
More space for detention
The regulation also expands the tools available to authorities to prevent people from evading repatriation. The arrest may be made after an individual assessment, for example if there is a risk of flight, if the person does not cooperate or if he represents a security risk. The decision will have to be adopted by an administrative or judicial authority.
The maximum duration of detention may be up to 24 months, with a possible extension of six months in certain circumstances, for example if new information emerges or cooperation with the destination country improves. If the person moves to another Member State, a new period of detention may start again.
The text also provides for alternative measures, such as the obligation to periodically report to the authorities, to reside in a specific place, the payment of a financial guarantee or electronic monitoring.
Particularly controversial is the possibility of retaining families with minors and unaccompanied minors. The text allows it as a “measure of last resort and for the shortest possible period”, taking into account the best interests of the minor.
Repatriation hubs outside the Union
The most innovative and discussed aspect of the reform concerns the so-called “repatriation hubs”. The new rules will allow Member States to transfer some people subject to a repatriation order to third countries that have agreed to accept them on the basis of specific agreements. These centers may constitute the final destination or act as transit facilities awaiting the subsequent return to the country of origin or to another third country. Unaccompanied minors are excluded from this mechanism.
To avoid abuse, agreements can only be concluded with countries that respect human rights, international law and the principle of non-refoulement, which prohibits transferring a person to a place where they risk persecution, torture or other serious harm. Furthermore, member states will have to inform the European Commission and other EU countries before the agreements come into force.
The logic is similar to that of the Italian centers in Albania, even if the protocol signed by Meloni and Edi Rama was created mainly to transfer migrants intercepted at sea to the country and carry out asylum and detention procedures there under Italian jurisdiction. The new European “return hubs”, however, concern people who have already received a final repatriation decision. In fact, after the difficulties encountered by the Italian project, the government of Rome has already begun to reconvert the Albanian centers to detain migrants subject to expulsion. Several analysts therefore believe that the Shengjin and Gjader structures could become one of the first concrete examples of “return hubs” envisaged by the new EU legislation.
An order valid throughout Schengen
Another novelty concerns cooperation between Member States. Until now, an expulsion decision issued in France had no automatic value in Germany or Italy: anyone who was hit by a measure in one state and moved to another found themselves in a gray area.
Return decisions will now be included in a new “European Return Order”, a standardized form that will feed into the Schengen Information System, the shared database used by Schengen area countries to exchange information on border security and management.
The objective is to prevent a person receiving an expulsion order in a Member State from simply moving to another European country to avoid the procedure. For the moment, the recognition of decisions issued by other States will remain optional. However, the European Commission will have to evaluate the functioning of the system in the coming years and may propose to make mutual recognition mandatory.
The arrests
The regulation provides for the extension of detention periods and introduces sanctions, including entry bans, fines and possible criminal sanctions in case of non-cooperation. Authorities will be authorized to seize personal property, detain minors, collect biometric data and carry out house searches. The agreement also allows authorities to search migrants and “relevant premises”, a term that human rights organizations criticize as being overly broad and allowing house raids.
The regulation then introduces specific provisions for people considered a security threat. In these cases, Member States will be able to impose entry bans exceeding the normal limit of ten years. In the most serious cases the ban may even be indefinite. The French Green MEP, Mélissa Camara, argued that “the legalization of repatriation centers outside the European Union, the green light for the detention of minors, house searches inspired by ICE practices in the United States: the legal arsenal at the service of a xenophobic ideology is now complete”.
The criticisms
The reform has sparked strong protests from humanitarian organizations and associations that assist migrants and asylum seekers.
Silvia Carta, advocacy manager of the Platform for International Cooperation on Undocumented Migrants, defined the regulation as “a draconian detention and deportation machine”. Other organizations have also expressed concern about the extension of detention, the possibility of transfers to third countries and some investigative measures foreseen by the text.
