Barriers to return: protection in international, EU and national frameworks

In recent years, EU migration policies have consistently focused on increasing the rate of returns. Yet such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”.

In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

This report analyses the main human rights reasons for which people who do not qualify for asylum cannot be deported, as well as the external circumstances that can make deportation or return impossible. It concludes by advocating for the need to abandon the exclusive focus on return procedures in favour of a more holistic, comprehensive approach which takes into consideration a broader range of solutions. To do so, it analyses different policies adopted by EU member states to provide rights and protection for people with barriers to return, through the comparison of ten national level case studies from eight different countries (Cyprus, France, Germany, Greece, Italy, the Netherlands, Spain, Poland).

Human rights and other barriers to return

Under international and EU law, there are several human rights reasons for which people who do not qualify for international protection cannot be deported, such as the principle of non-refoulement, protection of family and private life, the best interests of the child, the prohibition of arbitrary detention and protection on the grounds of statelessness. In most countries, these considerations fall outside of the scope of the asylum procedure.

In addition, there can be practical reasons, outside of individual control, for which return and deportation might be practically impossible. For instance, people might not be able to obtain a valid passport, or they might be unable to travel due to medical reasons.

Residence permits for people with barriers to return

Policies which focus on deportation and return as the only possible outcome for people in an irregular administrative situation are bound to create situations of socio-economic exclusion, discrimination and human rights violations, whether in the country of origin, when people are forcibly returned, or in the country of residence, when people are excluded from accessing pathways to regularise their situation and are forced into living in irregularity, often for years.

For this reason, it is key to work towards a paradigm shift in the EU migration policies, from considering return, or deportation, as the primary – or often only – option for people in an irregular administrative situation, to considering different options for case resolution, including pathways to obtain a permanent or temporary residence status.

Permits and statuses available to people with barriers to return vary greatly from country to country, and can range from full-fledged residence permits (e.g., Italy, Spain, Poland) to temporary suspensions of deportation orders (e.g. Greece, Germany). However, the dividing line between the two sub-groups is often very thin, and the categories are far from being homogeneous or well-defined. Permits and statuses can be better described as being placed along a continuum which ranges from residence permits granting full access to labour and social rights, stability and protection from deportation; to mere suspensions of deportation with no rights nor security attached.

This report identifies four key elements which need to be fulfilled in order to ensure that people with barriers to return are granted rights and protection:

• Initiation of the procedure: permits and statuses accessible to people with barriers to return should be evaluated automatically by the authorities (ex officio) on an individual basis, before the issuance of a return decision or a refusal of entry. This is the case, at least for certain permits, in Italy, Spain, Poland, the Netherlands and Germany. In addition, individuals should be able to apply independently as well, as the authorities might not be aware of their specific barriers to return. In the countries examined in this report, individuals can apply independently to certain permits or statuses in Italy, Spain, Cyprus, the Netherlands and France.
• Right to work and access to social services: access to the labour market and to social services should be automatic for any of these permit holders or statuses. Currently, the right to work is granted automatically only in five out of the ten case studies (Italy, Spain, Poland, France, the Netherlands), and full access to social services in four (Italy, Spain, France, the Netherlands).
• Pathways to more secure status: as barriers to return are often continuous, it does not make sense to limit access to secure, long-term permits. Secure permits allow people to acquire more certainty over their future, plan their lives and gain full access to social and labour rights. All countries except two (Greece and Cyprus) analysed in this report grant the possibility to apply to more secure, long-term permits.
• Protection from deportation for the whole duration of the permit / status. This is the case for all of the case studies considered, with the exception of the “no-fault” permit in the Netherlands and the “Duldung” in Germany.

Preventing limbo situations

Despite different national-level policies which provide rights and protection for people with barriers to return, in practice many people still fall through the cracks. This can happen, for instance, because the criteria to apply are too stringent or completely arbitrary; and because of administrative or legal barriers to access these permits. In addition, several states still fail to grant any kind of permit to people who cannot be deported or return, and many others even fail to provide an official acknowledgement that the person cannot be deported, which is in breach of the EU Return Directive.

When this happens, undocumented people with barriers to return find themselves in a limbo, often for years, unable to access healthcare, housing, education, and justice, and are often pushed into undeclared work and exploitation.

To prevent this, it is essential for the European Union and member states to set an obligation to comprehensively assess fundamental rights considerations (including the right to health, private and family ties, best interests of the child, non-refoulement and the protection of stateless people) and whether third country nationals have the possibility to access an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued.