On 26 September 2016, Izabella Majcher defended her PhD dissertation in International Law, entitled “The European Union Return Policy and Its Compatibility with International Human Rights Law”, at the Graduate Institute. Professor Andrew Clapham presided the committee, which included Professor Vincent Chetail, Thesis Director, and Professor Marie-Laure Basilien-Gainche, from Jean Moulin University Lyon 3. Ms Majcher shows that on many instances the EU instruments constituting the return policy do not offer adequate protection for non-citizens. When implementing the return policy, Member States should thus apply stronger protection safeguards in order to avoid breaches of their international human rights obligations.

Every year, around 400,000 persons born in non-EU countries are ordered to leave the European Union (EU) countries because of the lack of visa or other residence requirements. Roughly half of them actually leave the EU, most of whom are deported. Some of them are sent to countries through which they merely transited before reaching the EU. To speed up deportations, the EU border agency Frontex organises more than 40 charter removal flights per year. Approximately 150,000 migrants are also prohibited to return to the whole EU territory for up to five years, while around 100,000 are detained prior to removal. Migrant children, including unaccompanied children, are not shielded from forced return nor pre-removal detention. Migrants ordered to leave but not deported are frequently left in a semi-legal limbo situation, with precarious access to basic social rights.

These are the most salient elements of the EU return policy. This policy refers to a set of legislative and policy measures adopted under article 79(2)(c) of the Treaty on the Functioning of the European Union. The main legislative instruments setting out the return policy include the Return Directive, the Council Decision on the organisation of joint removal flights, the Regulation establishing the EU border agency Frontex, the Regulation establishing the Schengen Information System, and the readmission agreements. For the European Commission, the return policy is a “vital component” of the measures targeting irregular immigration, which in turn is the essential element of common asylum and immigration policy for the EU. The inherent vulnerability of migrants in irregular situation on the one hand, and the importance that the EU attaches to the swift removals, one the other, imply that return procedures may pose a prima facie risk of violations of fundamental rights. This assumption was an underlying driver for Izabella Majcher to analyse thoroughly the EU return policy from the human rights perspective.

The question that the thesis seeks to answer is whether the return policy is compatible with international human rights law. The thesis thus assesses the main elements of the EU return policy against human rights norms. In particular, it relies on the framework of human rights obligations binding on the EU Member States, rather than on the EU itself, because the return policy is in fact implemented by the latter. The most important sources of human rights obligations relevant in the process of expulsion include the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Convention against Torture and the Convention on the Rights of the Child.

Does the EU return policy contain adequate safeguards to ensure that the fundamental rights of non-citizens in the process of return (expulsion) are duly protected? Ms Majcher’s research shows that various return-related measures set out under EU law may fall short of the Member States’ human rights obligations:

• Member States are under duty to issue a return (expulsion) decision on every migrant in irregular situation; however, they are not under a parallel duty to refrain from such a decision if expulsion would violate the principle of non-refoulement or the right to respect for private and family life.
• The principle of non-refoulement and the right to private and family life may also be encroached by the prohibition issued to non-citizens to return (re-entry ban) to the whole EU territory within a time period of up to five years.
• In order for the re-entry ban to be effective outside the expulsing Member State, the personal data of the migrant is stored in a large-scale database called the Schengen Information System (SIS). The rules governing the storage and processing of personal data stored in the SIS contain several shortcomings in terms of data protection requirements.
• Member States are allowed to detain migrants prior to expulsion. The EU legislation allows such detention for up to 18 months and on grounds that are not precisely delimited. This may lead to systematic and prolonged immigration detention, contrary to the prohibition of arbitrary detention.
• The use of force during the process of deportation is not clearly circumscribed, which is deplorable in light of several reported instances of ill-treatment or even death during deportation carried out by the EU Member States.
• EU law facilitates removals by providing for joint removals by states or even coordinating and funding them through Frontex. These measures might amount to collective expulsion.
• Finally, under readmission agreements used in combination with the concept of “safe third country”, Member States may send the person back to a country through which he transited before reaching the EU, if that country is deemed “safe”. Expulsion to a third country may amount to a chain refoulement, prohibited under the principle of non-refoulement.

The main observation stemming from the research is that EU law provides for coercive measures that Member States may, or sometimes shall, apply, while, on the other hand, it fails to accompany these measures with adequate human rights safeguards. This gap may result in human rights breaches. Since the EU is said to be founded on the values of respect for human dignity, rule of law and human rights, inadequate human rights safeguards laid down in the EU return policy raise concerns. While it holds true that most of the EU measures provide for minimum standards and Member States are not precluded from affording stronger human rights safeguards, in practice the minimum standards frequently become common ones. The EU law provisions may thus encourage domestic measures in breach of human rights obligations. In particular, states may feel compelled to adopt stringent measures or to be excused for them, since the discourse and actions of the EU place an emphasis on coercion, at the expense of protection.

Indeed, in the context of the current refugee humanitarian crisis, the EU primarily financed and promoted stringent measures relating to the return policy, including encouraging Member States to detain migrants for the maximum permissible length under the Return Directive, transforming Frontex into a reinforced European Border and Coast Guard Agency, qualifying Turkey as a “safe country” in order to send asylum seekers back there, or financially coercing Afghanistan into agreeing to readmit its nationals.

Full citation of the thesis: Majcher, Izabella. “The European Union Return Policy and Its Compatibility with International Human Rights Law”. PhD thesis, Graduate Institute of International and Development Studies, 2016.