Return regulation: ice-cold prospects for human rights in Europe

On the 1^st of June, the Council and the European Parliament reached an agreement on a viable text for the proposed Return Regulation, designed to complete the European Asylum and Migration Pact. The European Commission swiftly welcomed the event, as 'Bringing our European house in order', Commissioner Brunner said. The European Parliament approved the agreement on 17^th of June. The proposal is deeply concerning for its implications on human rights and fundamental freedoms.

Common border control is fundamental to the functioning of Schengen, particularly for countries either facing high migration pressure (such as the Mediterranean Member States) or hybrid forms of warfare that include the weaponisation of migrants at border points, as Member States bordering Russia know well, or both. In the past, this border control has often lacked coordination, leaving Member States at the EU borders to deal with the problem and often outsourcing control to the other side of the border, where external countries 'did the dirty work' for the EU in exchange for money and eventually political leverage. Those non-EU countries have configured an ineffective, expensive and often violent system that regularly ignores fundamental rights.

Against these challenges, an effective policy that gives the EU tools to manage migration effectively and humanely would be very welcome. Regretfully, this is not what we have here, as the EESC already warned. The repeated calls for legal, safe migration pathways for Europe have been ignored. The first and foremost duty to protect human rights is left as an afterthought of an assurance. The responsibility is even more outsourced to third countries.

Even more disturbing, the proposal brings this elusive concept of 'return hubs' in supposedly ‘safe’ third countries. What are return hubs? They are detention camps for people who have, in principle, committed no formal crime. The afterthought of respect for fundamental rights is evidently there. The same applies to the classification of “safe third country” which has repeatedly been shown not to guarantee actual safety. Nevertheless, there are serious doubts on the ability (or even interest) of Member States in monitoring said rights and standards, creating legal back holes instead. If detention centres within the EU already have a dubious human rights track record, one can wonder what the result will be in third countries, which have often a very poor records on democracy and freedom, away from public and civil society scrutiny. 

The proposal also blurs the border between voluntary and compulsory return, bordering on coercion. Moreover, the conditions put migrant workers particularly under pressure, as losing one's job might mean finding oneself at risk, and makes changing jobs much more complex. This adds to the already difficult situation migrant workers face in terms of labour market access and gives unscrupulous employers plenty of leeway to exploit them under the threat of expulsion. Worse enough, all these measures not only pose an impossible human cost, bringing the possibility of ICE-style raids to our streets, schools and workplaces, and allowing for long-term imprisonment of people who have committed no crime in principle, it will also not work.

The European Economic and Social Committee already warned the legislators in its opinion on the proposal, underlining the lack of strong ex ante impact assessment, the importance of keeping human rights at the centre, the need of establishing effective, independent and transparent control mechanisms, a well as opposing the detention of children, forced return as a systematic procedure, and the establishment of return hubs. For the EESC, the proposal may lead to a serious erosion of fundamental rights. 

Commenting on the proposal, Workers' Group President Lucie Studničná said:

“Experience has shown that relying on third countries to manage migration on Europe’s behalf has often generated significant human rights concerns and increased political dependence. There is little reason to believe that this proposal will overcome those shortcomings. Europe needs a migration policy that is humane and fully consistent with its values and international commitments.”