Debate: Implementation of the Return Directive
Date: MONDAY, 14 DECEMBER 2020
Speaker: Tineke Strik
Country: Poland
Language: EN

The more salient a policy area is, the more we need an evidence-based policy. We therefore deplore the lack of a recent evaluation, which the Commission is obliged to undertake every three years, but its last report dates back to 2014. As we have to judge and negotiate on a recast proposal with fundamental amendments on the current Returns Directive, this omission is not responsible. This has led the Committee on Civil Liberties, Justice and Home Affairs to decide to undertake a study ourselves on the implementation of the Return Directive, and that study has led to this report.  The objective of the Return Directive is twofold. On the one hand, it promotes the return of migrants who are not entitled to stay on our territory and, on the other hand, it ensures that this return goes hand in hand with legal safeguards in line with fundamental rights, and that enforcement measures are applied in a proportionate manner. This also means that implementation cannot be properly assessed by only looking at the return rates. We also need to see if the return is sustainable and if the legal safeguards have been complied with. I will just go through some highlights of the report. One is that voluntary returns should be prioritised over forced returns as they are more sustainable, less costly and less cumbersome for the states, and more apt to respect the fundamental rights of the person concerned. This requires that we have sufficient voluntary departure terms, but also sufficient assistance and return programmes. We found a big lack of this in many Member States. The directive requires that decisions concerning return are based on an individual assessment and are open to appeal. Legal safeguards imply that the return may never lead to refoulement and that the return is automatically suspended as long as an appeal is still under the examination of a judge. In many Member States, however, this is still not the case. Detention must remain a measure of last resort, meaning that it has to be necessary, proportionate and for the shortest time possible.  Longer detention does not automatically increase the chance of return. It is generally more costly than alternatives to detention. The report therefore calls on Member States, as a matter of urgency, to offer effective community—based alternatives to detention. Many Member States do have alternatives in their legislation, but they have often made it unavailable in practice. According to our Charter of Fundamental Rights, the best interests of the child should always be a primary consideration. A significant number of children, however, are still detained in the European Union as part of return procedures. This implementation report expresses agreement with the UN Committee on the Rights of the Child, which has clarified that children should never be detained for immigration purposes and that detention can never be justified in a child’s best interest. As the report highlights several gaps in the implementation of the Return Directive, we call on the Member States to make sure that they do comply, and we call on the Commission to ensure timely and proper monitoring and support for its implementation, and to enforce compliance if necessary. After all, the Commission is our only guardian of the Treaty.