/Changes to Asylum Returns: an Excuse for Detention?

Changes to Asylum Returns: an Excuse for Detention?

The EU is pushing for stricter asylum seeker directives, including a new directive on returns, but experts say human rights are a guaranteed casualty.


Since the 2015 migrant crisis, the EU has been working to update its directives and policies on asylum seekers and irregular immigrants. With the rate of returns for rejected asylum seekers and irregular migrants falling yearly, the European Commission has presented its new asylum seeker policies, and the Parliament hopes to vote on it before elections next May.

The new directive changes redefine the reasons for detention; give more strength to border ‘hotspots’ in the Mediterranean, as well as linking asylum procedures with orders for irregular immigrants to return to their country of origin. Supporters of the changes say that this will streamline the asylum seeker process, decreasing detention times, and increasing the EU’s falling rates of return. Critics of the new policies worry that the proposed changes will lead to more arbitrary detention, and more returns issued, without a thorough asylum procedure being completed.

One of the most vocal critics is Dutch MEP and member of the Dutch GroenLinks (green left) party, Judith Sargentini. She says that voluntary returns need to be prioritised to increase the EU’s return rates, without violating human rights.

“I think a lot of member states actually don’t have a system in place to help people with voluntary returns. If you want to convince someone that it’s better they go home, you need to allow them to go home with dignity, to have a chance in life, to have a place in society,” she says.

“So what can we put in place in all member states for people to have a dignified way of leaving? That’s what I want to formulate, it’s clearly not in the text yet.”

Connecting returns to the asylum procedure is something that many politicians, NGOs and lobbyists are concerned about. If the proposal changes are passed, an asylum seeker will be issued an order to return to their country of origin when a negative asylum seeker decision is issued. The European Council for Refugees and Exiles (ECRE) is concerned this will lead to a complication for asylum seekers trying to appeal their rejected claim. Claire Rimmer Quaid, a senior project and policy officer from ECRE, says that if an asylum seeker is trying to appeal a rejected claim for asylum, they cannot comply with any part of the return order, which could lead to detention.

“This recommendation that return decisions are issued at the same time or immediately after an asylum decisions on the asylum application, now there could be a situation whereby somebody is appealing their asylum rejection at the same time as being in a return procedure,” she says.

“As an asylum seeker whose final appeal hasn’t been decided you can’t be contacting your country of origin for travel documents because you could be seen removing yourself of protection and that could be dangerous,” Rimmer Quaid says.

European Commission policy officers have refuted the issue of appeals that Claire has presented. They say if there is a potential for an asylum appeal, a return directive will not be issued, as the asylum process is ongoing, though this clarification is not written into any of the proposed legislation. Critics have highlighted more than just this as an issue in the legislation.

The changes to asylum seeker procedures redefine the reasons for detention, and this is something many, including Ms Sargentini have expressed concern about. According to Sargentini, the change will lead to an increase in asylum seekers being detained, as almost every asylum seeker will qualify for detention under the new law.

“The reasons why somebody could be locked up on return, is for instance, if you do not have enough money to sustain yourself. Well you name me an irregular migrant or an asylum seeker who has enough money to sustain themselves,” Sargentini says.

“If you entered the [European] Union irregularly, well that happens a lot as well, if you try to find asylum. If you do not have a home address, and if you do not have ID papers. Well those are four criteria, that a country could use to say ‘ it’s better that we lock you up in the process to return you. And tell me which irregular migrant or asylum seeker would not hit one of those criteria?” she asked.

When asked whether she thought it was likely that states would press the directive to this extent if changes were passed, Ms Sargentini said, “as you can see, take Hungary, it’s a horrible example but they actually detain everybody that enters Hungary to ask for asylum. So they lock them with the first request. “

“And the hotspot procedures in Italy and in Greece, that’s basically detaining people at the request for asylum. Now I’m not saying you should never detain somebody when they need to be returned, but you need to figure out what is most effective, and what is in line with fundamental rights, and this is clearly not,” she says.

Ms Sargentini is not the only one concerned that the changes will sacrifice human rights for arbitrary detention if the directive reforms pass; this is also a major worry for ECRE’s Claire Rimmer Quaid.

“This has quite a punitive approach to people who come with no documents, which is a large number of not only people who seek asylum, but undocumented migrants, by their very nature, don’t come with documents already in place,” she says.

“And that’s linked to the risk of absconding, which becomes a very broad ground for detention then, so it will significantly increase detention,” Claire says.

Sargentini and Rimmer say the proposed changes to the EU’s asylum seeker directives will lead to more detention, for longer periods of time, and less asylum seekers granted refugee status, as well as complications for appeals. With this proposal being put forward by the Commission, the Parliament has not yet had the chance to vote on the potential changes to the directive, or to propose their own changes to the directives.

With Elections imminent, will the European Parliament get the chance to vote on these proposed changes?

Some at the European Commission believe the parliament is delaying this vote purposefully, so that the proposed changes are lost when the new European government takes charge after next years May elections. Judith Sargentini, who is staunchly against these proposed changes, remains confident that the parliament will be able to vote on the directives before the elections.

“I’m in charge of the timetable, and I’m aiming for a vote in [European] parliament. Of course it is realistically possible,” she says.

With the European Parliament set to vote on these asylum seeker proposals, it remains to be seen whether border protection will trump human rights.