Today marks three years since the EU activated the Temporary Protection Directive (TPD), which provided a safe pathway to protection for millions¹ of people fleeing the war in Ukraine. It was a powerful demonstration of the EU’s unity and solidarity in the face of a humanitarian crisis, and proved to be an effective emergency mechanism for responding to large arrivals of people in a humane and orderly way. It alleviated pressure on national asylum systems and provided displaced people with immediate and collective protection, including the right to reside, work, study, and access health care and social support in the EU.

The temporary protection regime is due to expire in March 2026, just one year away. Of the many challenges faced by people displaced from Ukraine, uncertainty about their legal status in the EU is among the most pressing. This lack of clarity impacts nearly every aspect of life: from securing stable employment and arranging long-term housing, to planning children’s education. Predictability is necessary for people to rebuild their lives with dignity and stability. It is promising to see that post-TPD solutions are a priority for the Commission and the Polish Presidency of the Council of the EU. Three years on, it is essential that the EU’s response to the needs of people displaced from Ukraine shifts from emergency measures to longer-term strategies and solutions.

In the meantime, some Member States – including Poland, the Czech Republic and Italy – have started developing pathways for people to transition out of temporary protection. However, many of these exit plans primarily rely on labour-based residence permits. Labour-based permits alone cannot be the answer, as many people covered by the TPD will not be able to meet the requirements. Not only does the proportion of temporary protection-holders who are employed vary greatly across Europe (from 8% in Hungary to 55% in the Netherlands), but it will leave many people in a vulnerable situation behind, including some people with disabilities, students, the elderly, third-country nationals and stateless persons granted refugee or complementary protection in Ukraine, people who experience discrimination in the labour market (for example, people who have been racialised), and those who cannot work full-time because they are caring for children or infirm family members.

The ad-hoc solutions proposed by Member States also risk overlooking the status of individuals who may be displaced from Ukraine after March 2026, as they may not fall within the scope of any post-TPD measures, including family members of those already in the EU.

Unless these gaps are addressed, Member States’ asylum systems could be overburdened once temporary protection ends, even though the TPD’s express purpose is to prevent this. The fact that some Member States have frozen asylum applications from people who fall under the TPD increases this risk. An EU-wide and coordinated approach would be beneficial not only for people displaced from Ukraine, but also for the countries and communities where they live – limiting the financial and administrative burdens associated with individually determining the status of the more than 4.3 million people who currently benefit from temporary protection.

• We are calling on the EU to go beyond repeatedly renewing temporary protection and propose a coordinated and collective solution that would offer a more durable status and pathway to long-term residence. An EU-wide approach with strong EU leadership and coordination is vital to prevent a fragmented approach and people falling into irregularity, with vulnerable groups being disproportionately affected.

Post-TPD solutions are long overdue. A collective of more than 130 civil society organisations welcomed the EU’s previous extension of the temporary protection regime through to March 2026 to provide time for policymakers to define durable solutions while ensuring short-term stability for displaced people. However, unless work starts now to make tangible progress in implementing a coordinated transition out of temporary protection, another one-year extension may be the only option.

• Another one-year extension of the temporary protection regime beyond March 2026 must be considered as an exceptional and interim measure to ensure the continuation of protection and to prevent displaced individuals from becoming undocumented, or falling into uncertainty and losing their jobs, education, housing, or healthcare. If this interim arrangement is necessary, we urge the European Commission to propose as soon as possible a Council Implementation Decision extending the TPD until March 2027, while offering clarity on the future protection and residence status of people displaced from Ukraine.

Despite recent diplomatic discussions on the potential for renewed peace talks, the humanitarian situation in Ukraine remains dire. There are daily reports of shelling and airstrikes, even in cities and villages hundreds of kilometers from the frontline. Should the ceasefire be achieved any time soon, the damage to Ukraine’s critical and civilian infrastructure and widespread contamination from explosive ordnance will take years to repair, restore, and clear before the situation permits safe, truly voluntary, and durable returns. In this context, it is worrying to see that some host countries have begun or are
considering scaling back their support to people displaced from Ukraine – for example, by limiting the duration of government-sponsored housing support, or by restricting its scope to people who come from specific regions in Ukraine.

• We call on Member States not to roll back support to people displaced from Ukraine, and to fully implement the provisions enshrined in the TPD. This includes ensuring full access to the rights and basic services it guarantees. It is essential that Member States respect their obligations regarding non-refoulement and avoid any measures that could directly or indirectly result in premature returns, jeopardising the safety and well-being of those in need.

Signatories:

• All-Ukrainian NGO Coalition for People with Intellectual Disabilities
• Amnesty International
• Animus Association Foundation
• Anti-Discrimination Center “Memorial-Brussels”
• ARSIS Association for the Social Support of Youth
• Association for Integration and Migration
• ASTI Luxembourg
• ASTRA-Anti trafficking action
• Blue Door Education
• Bridges over Borders e.V.
• Caritas Bulgaria
• Caritas Española
• Caritas Europa
• Caritas Hellas
• Center for Legal Aid Voice in Bulgaria
• Centre for Peace Studies
• Centrum pro integraci cizinců, o. p. s.
• Churches´Commission for Migrants in Europe CCME
• Clare Immigrant Support Centre
• COFACE Families Europe
• Cohort
• CoMensha
• Consortium of Migrants Assisting Organizations in the Czech Republic
• Cultúr Migrant Centre
• CUSBU
• Danish Refugee Council
• Defence for Children In. Greece (DCI Greece)
• Diakonie ČCE – středisko Západní Čechy
• Diakonie Deutschland im Evangelischen Werk für Diakonie und Entwicklung e.V.
• Dutch Council for Refugees
• Ecumanical Council of finland
• ELIL – European Lawyers in Lesvos
• ENSIE
• Eurodiaconia
• EuroMed Rights
• European Association of Service Providers for Persons with Disabilities (EASPD)
• European Federation of National Organisations Working with the Homeless (FEANTSA)
• European Network on Statelessness
• FairWork
• Fenix – Humanitarian Legal Aid
• Finnish Refugee Advice Centre
• Forum réfugiés
• Foundation for the Ukrainian Community of Malta
• Greek Council for Refugees (GCR)
• Greek Forum of Migrants
• HIAS Europe
• Hook Peninsula Friends of Ukraine
• ICMC Europe – Share Network
• Immigrant Council of Ireland
• Iniciativa Hlavak
• Inter Alia
• International Rescue Committee
• Jesuit Refugee Service (JRS) Europe
• Jesuit Refugee Service Germany | Jesuiten-Flüchtlingsdienst Deutschland
• Jesuit Refugee Service Malta
• JRS France
• JRS Portugal
• JRS Romania
• Kerk in Actie
• La Cimade
• La Strada International
• LDH (Ligue des droits de l’Homme)
• LGBT Ireland
• Médecins du Monde International Network
• Migrant Voice
• Migration Consortium
• Migration Policy Group
• Migrationsrat Berlin
• Missing Children Europe
• Monde des Possibles ASBL
• Mujeres Supervivientes
• NESEHNUTÍ
• Neue Richtervereinigung – Zusammenschluss von Richterinnen und Richtern,
• Staatsanwältinnen und Staatsanwälten e.V.
• NewBees
• Nordic Ukraine Forum
• Nowegian Refugee Council
• OpenEmbassy
• OPORA Foundation
• ORBIT
• Oxfam
• PATCHWORK, Association for immigrant families of persons with disabilities
• Payoke
• People in Need
• PICUM – Platform for International Cooperation on Undocumented Migrants
• Podilsky Centr Genderna Rada Khmelnytska Oblasna
• PRO ASYL
• Red Cross EU Office
• Refugees Welcome, Denmark
• Right to Protection Charitable Fund
• Romodrom, o.p.s.
• Save the Children
• Scholars At Risk Europe
• Slovene Philanthropy
• Social Platform
• SOFT tulip Foundation
• SOLIDAR
• SolidarityNow
• SOS Children’s Villages International
• South Tipperary Development Clg
• Stichting LOS
• Stichting voor Vluchteling-Studenten UAF
• Terre des Hommes Deutschland e.V.
• The Council of African and Caribbean Churches
• The Open Doors Initiative
• Ukraine Civil Society Forum (Ireland)
• Vatra Psycho-Social Centre
• West Limerick Resources CLG
• Yoga and Sport with Refugees
• Громадська Организация ” Жіночій центр ” Підтримка Захист та Турбота”

1. According to the European Commission, as of December 2024, slightly more than 4.3 million
   non-EU citizens, who fled Ukraine as a consequence of the war were under temporary protection in
   the EU. ↩︎

1. How many undocumented migrants are there in Europe?
2. How does one become undocumented?
3. How many people are being detained across Europe?

How many undocumented migrants are there in Europe?

There is no reliable updated estimate of the number of undocumented migrants in Europe; the most robust source was made more than a decade ago. In 2008, between 1.9 and 3.8 million irregular migrants were estimated to reside in the EU. The majority arrived through regular pathways – with a permit to study or work, to seek family reunification or to seek asylum – and later lost that status*. Irregular border crossings are a very small proportion of the overall migration towards the EU: in 2019, EU countries issued a total of 15 million Schengen Visas, while the number of detected irregular border crossings was 141,846. 20.9 million third country nationals were regularly residing in the EU in 2019.

Sources: Frontex, Risk Analysis for 2020, p. 9; European Commission, Visa statistics for consulates, 2019

*Data, reports and available updates can be found at http://irregular-migration.net/. A recent attempt in 2019 by the Pew Research Center to update these figures is based on flawed data and methodology since the estimates include people with various different statuses, including asylum seekers, who are regularly residing in Europe.

How does one become undocumented?

The most common ways of becoming undocumented are to lose a job or other grounds for a residence permit or to be born to undocumented parents. Some people are also undocumented if they enter the EU without a visa.

Entering in the EU regularly can be particularly difficult depending on one’s country of origin. Under EU law, individuals from all but two African countries (Mauritius and the Seychelles) and most Asian countries need a visa to enter in the Schengen area, even if they come for periods below 90 days.

In addition, one’s country of origin strongly affects the likelihood of being issued a permit for remunerated activities (including work permits and researchers): in 2018, 51 % of the permits issued for remunerated activities were issued to nationals of ten countries from Central and Eastern Europe (non-EU), while only 5 % were granted to nationals of 55 countries in Africa.

*An Airport Transit Schengen Visa enables travellers to change flights at a Schengen airport, but does not allow them to leave the international transit area.

How many people are being detained across Europe?

Data collected by the Global Detention Project shows that more than 100,000 people are detained for immigration reasons each year in the European Union. However, it is difficult to identify trends as most countries only publish data every two to three years, and some countries never publish them. Based on the available data, 149,406 people were detained for immigration reasons in 2016 in 23 EU countries. In 2017, 20 countries detained 151,664 people, suggesting that the number of immigration detainees may be increasing.

These numbers include children, families, and individuals with pre-existing situations of vulnerability, such as physical or mental health diseases, disabilities, and psychological traumas. Detention is imposed, often for repeated or prolonged periods, with the more or less explicit purpose of deterring irregular migration and in order to increase returns – despite broad evidence on both its harmfulness and ineffectiveness.

The Regulation on Community statistics on migration and international protection (as amended in June 2020) invites EU Member States to establish pilot studies collecting data on the number of people in return procedures in immigration detention or subject to alternative measures (art. 9(3)(g)).

How many children are detained for immigration reasons?

In the 2019 Global study on children deprived of liberty, Independent Expert Manfred Nowak found that at least 330,000 children are detained throughout the world for migration-related purposes per year.

In Europe, 6,555 children were detained in 2016 in the 14 EU countries that provided data. In one case, a child was detained for 195 days. The EU Fundamental Rights Agency has found that EU member States which tend to detain children more often (France, Greece, Malta, Poland and Slovenia) witnessed an increase in child detention between 2018 and 2019.

However, countries often do not collect adequate data, and even when they do, the methodologies adopted differ greatly, making any comparison very hard. For instance, in some countries, children who are detained with their parents are not counted separately.

What does the EU say about the detention of undocumented migrants?

The EU Returns Directive (2008) – currently under review – states that alternatives to detention should always be applied whenever possible- In addition, the European Commission clarified that EU member states should develop and use alternatives to detention, including providing individual coaching (case management).

The Court of Justice of the European Union further clarified that detention can only be applied based on the analysis of individual circumstances and is only legitimate as long as there is a reasonable prospect of removal. Entering or staying in Europe irregularly, or the lack of identity documents, is not a sufficient ground for detention.

What does the law say about the detention of children?

Children should never be detained. UN experts agree that detaining children based on the children’s or their parents’ migration status is a human rights violation and is never in the best interests of a child. Moreover, well-established evidence shows that even short periods of detention have a long-lasting impact on children’s physical and mental health and their development.

The EU is still far from implementing these recommendations in its law, and a number of existing and proposed instruments, including the new EU Pact on Migration, still allow child detention, including potentially for prolonged periods of time.

Are there any alternatives to detention? Do they work?

Alternatives to detention which allow people to remain in the community while working on their migration procedures are more effective, humane and cheaper than detention. Individuals are more likely to comply with migration decisions if they are treated fairly, they can meet their basic needs and all available options have been considered. Case management allows migrants to receive holistic support and receive the information they need to take active steps towards case resolution. The evaluation of three pilot projects applying casemanagement-based alternatives in Bulgaria, Cyprus and Poland has showed positive results in terms of compliance, with 86% of individuals remaining engaged with immigration procedures and 99 % reporting improved ability to participate in informed decision making.

How many people have been returned to their countries of origin?

In 2019, 162,278 people were returned from EU member states to third countries (EU28).*

The European Border and Coast Guard Agency (Frontex), assisted EU member states in the deportation of over 50,000 people between 2007 and 2019, including to conflict-ridden countries such as Afghanistan and Iraq. There are plans for Frontex to coordinate the deportation of 50,000 people per year from 2024 onwards. To make it possible, Frontex’s budget has been constantly increasing over the past years, from 6 million Euro in 2005 to 460 million in 2020. In 2027, it is expected that Frontex will have received 5,6 billion Euro by European taxpayers.

See Eurostat datasets on Asylum and Managed Migration. Please note that the dataset on voluntary returns (migr_eirt_vol) does not include the people who leave on their own accord/outside of assisted voluntary return programmes.

What does the EU say about the returns of undocumented migrants?

Over the past years, the EU has been consistently focusing on increasing returns. To give an example, the term “return” appears more than 100 times in the Commission Communication on the EU Pact on Migration and Asylum – while the term “rights” appears only 14 times.

This approach fails to recognise that for many undocumented people, return is not the only option – in fact, in some cases it cannot be an option at all. According to European Commission estimates, every year 300,000 people cannot be returned. This can be for a number of reasons, including because of:

• Prohibition in international law to return people to countries where they risk irreparableharm (principle of non-refoulement),
• Family reasons (the right to private and family life),
• Children’s rights,Health reasons,People not being recognised as a citizen by any state (statelessness), and
• Practical reasons (including lack of travel documents, when the third country doesn’t accept returns).

The EU focus on returns is not a realistic response to the complexities of migration, and will likely only lead to an increase in irregularity.* On the contrary, ensuring access to alternative ways to solve their migration status is key to address a complex reality, allow people to integrate in the community and avoid situations of legal limbo and exclusion from basic rights.

Providing individualised support and counselling (case management) can help people assess the different options and solve their migration status, be it through return, moving to a third country or regularising their position. A programme in Utrecht, The Netherlands, that supports undocumented people to solve their migration case, has shown that 91 % of participants have resolved their status: 59 % were regularised and integrated in the local community, and 19% were returned.**

*This has already happened in Italy, where the abrogation of the humanitarian permits by the Salvini Decrees in 2019 pushed 120.000 to 140.000 people into irregularity.

**Jan Braat (2019), Presentation at the International Conference organised jointly by the Council of Europe, the European Commission and the European Migration Network, 4 April 2019, in Agora, Council of Europe, Strasbourg, France. Available here.

What happens after forced returns?

Forced return (or deportation) is an extreme and often harmful measure that breaks economic, social and family ties. Civil society organisations and researchers have noted a major gap in understanding of what happens to people after they are deported*.

What we do know is that the experience of deportation has an impact on the lives of parents and children, on future choices and opportunities. PICUM has collected testimonies of people who have been returned from the EU to African countries. This collection includes stories of children deported alone to countries they have no memory of, people sent to countries where they had never been in their life, and parents left unable to provide for their children.

*Existing research almost exclusively focuses on voluntary returns. See, for instance: World Bank Group (2019) “Supporting the Effective Reintegration of Roma Returnees in the Western Balkans”, available here.

The EU Pact on Migration and Asylum is built on the assumption that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported. This aligns with the EU’s ongoing effort to boost the rate of returns via EU migration policies.

In reality, people may have other grounds for residence than international protection, including on compelling human rights grounds that do not allow for any derogation, exception or limitation, such as the principle of non-refoulement. Yet, the proposed recast Return Directive and EU Pact on Migration and Asylum would practically close or heavily restrict pathways through which people who cannot be deported could access a residence status, in line with non-refoulement and other human rights considerations.

What is the principle of non-refoulement?

Non-refoulement is a cornerstone of international human rights law, which prohibits states from removing people from their jurisdiction to a place where they would be at risk of serious human rights violations, including persecution, torture, ill-treatment or other fundamental rights violations. Non-refoulement is also enshrined in in Article 78 (1) of the Treaty on the Functioning of the EU, and in the EU’s fundamental rights regime, as reiterated in articles 18 and 19 of the Charter of Fundamental Rights of the European Union. Non-refoulement is also specified in secondary EU law, such as the EU asylum legislation and the EU Return Directive.

Non-refoulement is an absolute principle, which cannot be breached for any reasons. It requires cases to be examined individually by the state. Each deportation decision should be reviewed in light of this principle and the appeal against a return decision which could lead to a violation of this principle should always have a suspensive effect. Non-refoulement also prohibits the return of people back to states which could further deport them to a country where they could be at risk of such violations.

In addition to the prohibition of ill-treatment and torture, human rights jurisprudence clarifies that the principle of non-refoulement also requires states to assess the impact of return procedures on individuals’ medical condition and overall health situation, including mental health. The principle of non-refoulement also precludes states from deporting individuals when there are risks of breaches of different human rights violations, including serious forms of gender-based violence, prolonged solitary confinement and degrading living conditions.

What makes people who cannot qualify for asylum non-returnable?

The principle of non-refoulement is broader than the grounds for obtaining international protection under EU asylum legislation. According to the EU Qualification Directive, individuals applying for international protection under EU law can be granted either refugee status or subsidiary protection. Refugee status, which is also enshrined in international law, is granted if a person has been or has a risk of persecution because of their “race, religion, nationality, membership of a particular social group or political opinion.” In addition, EU law protects people who could suffer serious harm as defined by article 15 of the Qualification Directive. However, there remain certain circumstances under which a person might be considered non- returnable, yet they are unable to access refugee status and subsidiary protection.

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. For all this reasons, it is crucial to conduct an additional separate assessment before a return decision is issued.

How could the EU Pact on Migration and Asylum affect the principle of non-refoulement?

The EU Pact on Migration and Asylum is built on the assumption that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported. The proposals for a Screening Regulation and the amended Asylum Procedures Regulation (APR), as well as the recast Return Directive proposed in 2018, go one step further in this direction, attempting to entrench and operationalise this principle throughout the EU’s immigration and asylum procedures. The proposals are currently in the final stages of the negotiations between the European Parliament and the Council. When adopted, they will become binding EU law. If the provisions currently negotiated are adopted, the full application of the principle of non-refoulement will be at risk.

Among the novel elements introduced by the Pact, the main setbacks in terms of non-refoulement concern:

• the new rules on return decisions for people who are refused entry or whose asylum application is rejected (see question 4 below);
• the proposed return border procedure, which creates disparities and differential treatment for rejected applicants (see question 5 below);
• the limited procedural guarantees that would make it easier for affected people to lodge an appeal in order not to be deported or access an alternative status under human rights law and national law (see question 6 below).

Why is the push to link asylum and return procedures problematic?

Two key proposals in the Pact on Migration and Asylum and the proposed recasting of the Return Directive foresee asylum or return as the only two procedures applicable to undocumented people:

• The Screening Regulation introduces mandatory pre-entry screening at the EU external borders. In the Commission’s proposal, which is maintained in the Council’s position, individuals who do not apply for international protection or do not fulfil entry conditions should be subject to return or refusal of entry (Art. 14).
• The Commission’s proposal and Council position on the amended Asylum Procedures Regulation (APR) also require Member States to issue a return as part or at the same time of the decision rejecting an application for international protection (Art. 35a).

The European Parliament (EP) presented amendments on both the Screening Regulation and the amended APR that, if adopted in the final text, would uphold non-refoulement. The EP clarifies that issuing a refusal of entry or a return decision should be without prejudice to the possibility to authorise entry on humanitarian grounds, on grounds of national interest or because of international obligations, foreseen in the Schengen Borders Code and under national law. It also recalls that return should not lead to risks of violations of the principle of non-refoulement and other fundamental rights under the Charter of Fundamental Rights and other EU and international obligations.

Adopting the EP position would represent an essential safeguard to ensure that national permits on humanitarian, medical or other compassionate grounds remain accessible to people who are not eligible for international protection. However, this does not substitute a full assessment of the person’s protection needs and eligibility for other permits prior to issuing return decisions.

• The Commission proposal for a recast Return Directive also introduces the obligation to issue a return decision in the same act or at the same time as any decision ending a legal stay of a third-country national, including the decision rejecting an application for international protection (Art. 8(6)). While one could argue that art. 6(4) of the Return Directive, which foresees the possibility to grant at any stage a permit for humanitarian, compassionate or other reasons would still apply, in practice this would only apply after a return decision has already been issued, because states would be obliged to do so in conjunction with asylum application rejections.

In all of the cases mentioned above, unless there is an ex-officio assessment, the only way for the applicant to demonstrate the risk of refoulement and prove eligibility for other permits would be to lodge an appeal against a return decision, which presents substantial practical challenges. Member states should comprehensively assess fundamental rights considerations before a return decision is issued, including establishing whether third country nationals fulfil the criteria to apply for an autonomous residence permit or other authorisation granting a right to stay. This would vastly reduce the number of unenforceable return decisions and prevent human suffering.

Non-refoulement and the ‘return border procedure’

The Commission’ proposal for the amended Asylum Procedures Regulation (APR) envisions an expanded and, in some cases, mandatory use of border procedures, despite the existence of fundamental rights and feasibility concerns. Individuals whose application for international protection is rejected in the context of the asylum border procedure (art. 41) will be issued a return decision or a refusal of entry and channelled into a ‘return border procedure’ (art 41a), which will likely entail prolonged detention with fewer safeguards and no access to alternative permits. Applicants continue being subject to the ‘fiction of non-entry’ (although individuals may be physically present within a member state’s territory, they are not regarded as having officially entered that territory). This remains unchanged in the Council’s general approach.

The introduction of a return border procedure in the APR raises several serious concerns. Firstly it introduces differential treatment between applicants whose application is rejected in the context of the asylum border procedure – who would be automatically channelled in the return border procedure – and all the other rejected applicants who fall under the scope of the Return Directive. A return border procedure as the one proposed, carried out under the fiction of non-entry and in detention or detention-like conditions, raises serious concerns as to the possibility to apply adequate safeguards to ensure that applicants have access to remedies and legal assistance to challenge a return decision or demonstrate the risks they would face upon return. The European Parliament’s position introduces limited improvements, including a mandatory period of voluntary departure of 25 days, and limiting detention only where a reasonable prospect of return exists.

The scenario in which people whose application is rejected in the context of the asylum border procedure are issued a refusal of entry is equally problematic. According to the Commission proposal and Council position, they could be returned with an even lower set of safeguards, corresponding to the minimum standards set by art. 4(4) of the Return Directive. This would deprive the applicants of crucial safeguards, such as the possibility to have a suspensive effect in case they appeal against the refusal of entry. The Parliament’s position is the only one that requires member states to fully apply the Return Directive (and therefore the regular return procedure) also to people who have been issued a refusal of entry. This would be a fundamental guarantee for people who have already been on the EU territory for almost three months (during the pre-entry screening and the asylum border procedure).

Which changes in the procedural guarantees might harm non- refoulement?

In scenarios in which people are issued a return decision without a procedure to examine their protection concerns outside of international protection, the only way to access other permits would be to appeal against the return decision. Forcing people to seek judicial remedies as the only way to enforce their rights goes against the principle of efficiency and will likely drain the already-limited resources of many judicial systems. Yet, the Pact proposals restrict access even to this last-resort option.

• During the Screening Procedure it will be almost impossible to access a lawyer, especially if the screening is conducted only in proximity to the border or remote locations (this is exacerbated for unaccompanied children, who may not be appointed a guardian during the screening procedure);
• The proposed Asylum Procedures Regulation and recast Return Directive introduce extremely short time limits for appealing against the rejection of the asylum application and the issuance of a return decision. In addition, these proposals do not provide for the automatic suspensive effect of the appeal, which means that people could be deported before a decision on their appeal is taken.

Being able to remain in the country is an essential part of the right to remedy against a return decision. If applicants were to be sent back to third countries, this would clearly hinder their right to be heard, to legal assistance and information. Moreover, there are risks that this would lead to irreparable harm whereas the return leads to violations of the principle of non-refoulement, to serious breaches of the right to health or to violation of the right to family life.

What are other reasons for which voluntary return and deportation might be impossible?

There are various reasons and obstacles that can prevent the removal of individuals from a country in addition to non-refoulement.

Considerations relating to the protection of private and family life, in line with the European Convention of Human Rights (ECHR – art. 8) and the EU Charter of Fundamental Rights (art. 7), could override a return decision. Both the European Court of Human Rights and the Court of Justice of the EU have an established jurisprudence that requires states to assess the existence of family ties and particularly the interest of children against immigration considerations.

Under the UN Convention on the Rights of the Child (art. 3) and the EU Charter on Fundamental Rights (art. 24), before issuing a decision on return, states are required to consider, as a primary consideration, the best interests of each child affected by the decision. This is the precondition to any return of any child, whether they are unaccompanied, separated or within a family, and requires specific procedures to be implemented in every decision-making process.

Statelessness is another factor to consider. According to the UNHCR Handbook on Protection of Stateless Persons (2014), if a stateless person cannot acquire or reacquire nationality through a simple, quick, and non-discretionary procedure, or if they do not have permanent residence status in a country of previous habitual residence where immediate return is possible, their return would be considered unlawful.

Practical reasons or technical obstacles, such as the lack of travel documents, may impede the removal process. Medical reasons can also be a hindrance. Frontex’s “Code of Conduct for return operations and return interventions coordinated or organized by Frontex” (art. 8) states that return operations can only occur if the returnees are “fit to travel” and requires member states to provide a medical examination of the returnee prior to the return.

Additionally, protection concerns arise when individuals face the prospect of being returned or pushed back to a country that is not their country of origin or prior habitual residence, such as in cases of refusal of entry at the EU external borders. Such returns would violate the principle of non-refoulement, which prohibits the return of individuals to places where they may face persecution, torture, or inhuman treatment. Other fundamental rights considerations may also play a role, on the basis of a risk of fundamental right violations other than the prohibition of torture and ill-treatment. In Othman v. UK, the European Court of Human Rights found that the deportation of an individual to a country in which they would face a violation of article 5 ECHR (right to liberty and security) and article 6 ECHR (right to a fair trial) would represent a breach of the European Convention on Human Rights.

What are the alternatives for people who don’t qualify for international protection?

The EU focus on returns is not a realistic response to the complexities of migration, and will likely only lead to an increase in irregularity. On the contrary, ensuring access to alternative ways to solve their migration status is key to address a complex reality, allow people to integrate in the community and avoid situations of legal limbo and exclusion from basic rights.

The obligation to issue a return decision while rejecting an asylum application closes access to residence permits outside asylum which are currently available under national law. For instance, more than half of EU member states provide a temporary residence permit on medical grounds; at least five countries have legislation granting special permits for undocumented victims of domestic violence; and at least eight countries have regularisation mechanisms for children, young people or families. As a consequence, several people who would have access to options for regularisation under national legislation (including humanitarian permits) would risk being deported nonetheless, leading to risks of violations of fundamental rights including family life and non-refoulement.

Ensuring that a return decision can only be issued after it is assessed that the applicant does not fulfil the conditions to apply for a residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons under Member States legislation and that their return would not lead to risks of violations of the principle of non- refoulement, the best interests of the child, and other fundamental rights obligations under the Charter of Fundamental Rights and other EU and international obligations.

If I would like to know more, what can I read?

• PICUM, 2022, Barriers to return: Protection in international, EU and national frameworks
• PICUM, 2021, Why is the Commission’s push to link asylum and return procedures problematic and harmful?
• PICUM, 2020, Insecure Justice? Residence permits for victims or crime in Europe

Do you have any question?
Please contact Silvia Carta (silvia.carta@picum.org).

What’s the EU Pact on Migration and Asylum?

The EU Pact on Migration and Asylum is a policy document that sets out the EU’s agenda on migration for the years to come and a package of legislative proposals and recommendations. The Pact was presented by the European Commission in September 2020, with the purpose of “providing a comprehensive approach, bringing together policy in the areas of migration, asylum, integration and border management”.

What’s in the Pact?

The Pact includes five legislative proposals and four recommendations.

The legislative proposals, when adopted, will be binding EU law. They are:

• Screening Regulation,
  • amended Asylum Procedures Regulation,Crisis Regulation,Asylum and Migration Management Regulation, and
  • amended Eurodac Regulation

The four recommendations are non-binding instruments adopted by the Commission, which address:

• situations of crisis,
  • resettlement,humanitarian admission and complementary pathways,search and rescue operations by private vessels,
  • and facilitation of irregular entry” (as regulated by the so-called Facilitation Directive).

In addition, in April 2021, the European Commission adopted the EU Strategy on voluntary return and reintegration, which is envisaged by the Pact and foresees new EU actions to increase the number of voluntary returns.

What is the Commission proposing?

In short, the Commission is proposing that everyone who enters the EU irregularly, or was disembarked after a search and rescue operation, goes through a mandatory pre-entry screening at the EU external borders. In the pre-entry screening, border officials would carry out security and identity checks; health and vulnerability screenings are possible but are not mandated. This pre-entry screening would also apply to people already in the EU territory, if they entered irregularly.

Furthermore, the proposals introduce mandatory asylum and return procedures at the borders, which could last for a total of 24 weeks or even 40 weeks in “situations of crisis”.

During both the pre-entry screening and the border procedures, people will most likely be held in detention. In the pre-entry screening, detention will be automatic and apply to everyone, without any judicial overview or access to a lawyer, nor any decision on whether detention is necessary and proportional in the individual case. The pre-entry screening would apply to everyone, children and families included, and the border procedures would also apply to children above 12 if they are with their families, or independent of age for “national security” reasons.

The Commission also proposes complicated solidarity mechanisms to manage the arrivals, which would have to be agreed on an annual basis between countries. In particular, it proposes that states can choose to either relocate people in their own territory, or organising and paying for the deportation of people of specific nationalities (for instance, sponsoring states could select nationals of third countries with which they have a bilateral agreement) – a proposal which raises more questions than answers.

The Pact also proposes to reform the EU asylum system, and would replace the Dublin Regulation. See here for more detail from civil society organisations working on asylum.

Lastly, the Pact would exclude access to residence procedures and regular pathways besides asylum. In fact, states would be required to issue a return decision together with the rejection of an asylum application, and would automatically channel into return procedures everyone who does not qualify for international protection, with no possibility to apply for other permits. Default return decisions would also be applied to children, without any evaluation of whether return is in their best interests. Unsurprisingly, the Horizontal substitute impact assessment on the EU Pact on Migration and Asylum, conducted by the European Parliament, highlighted the lack of specific procedural safeguards to ensure the respect of the principle of non- refoulement and the risk of fundamental rights violations.

What does the Pact mean for undocumented people living in Europe already?

Undocumented people living in Europe will be subject to pre-entry screening if they cannot show that they entered Europe regularly. This means that, at any time, they can be apprehended and detained for up to three days, without any safeguards such as free legal aid, judicial review, nor the right to contact their family. At the current state of negotiations (October 2021), it is still unclear whether at the end of this screening undocumented people who have already been living in the EU and who do not apply for international protection (refugee status) will be subject to return procedures at the borders or in the country.

Moreover, people living undocumented in Europe might at any time be uprooted from the country they live in and be transferred to another EU country. This would be possible because of how the return sponsorships work: in fact, states can contribute to organise the return of undocumented people from other EU states, even before a return decision is taken. If the return does not take place within eight months from the beginning of the procedure, undocumented people will be transferred to the sponsoring state. It is still completely unclear what will happen to them in the new country, but the options are all grim: either being detained during a new return procedure, or being stuck in a limbo and forced to live as undocumented in a country where they don’t speak the language, have no social ties or support network. This will also apply to children.

As countries will be able to indicate the nationality of people they intend to return under this scheme, we can expect an increase in discriminatory policing and profiling of people and communities of colour.

What will happen to people who arrive irregularly in the EU and to people disembarked after a search and rescue operation?

They will be immediately detained during the pre-entry screening for up to 5 days (or 10 in “situations of crisis”). At the end of the screening, they will either have access to asylum procedures (which can be either in the territory or at the borders), be channelled into return procedures (in the territory) or be refused entry to the EU territory (although, in practice, they are already physically in the EU) and returned with an even lower set of safeguards.

Asylum border procedures will be applied to people who come from a country with a recognition rate for international protection of below 20%, if there are national security reasons or if they have withheld or provided false information. In this case, the so-called “fiction of non entry” will continue to apply. Asylum border procedures may also be applied to people coming from a “safe country of origin” or “safe third country”.

The only exceptions will be for children under 12 years old and unaccompanied children, except if there are national security reasons. People might also be excluded from the border procedures for medical reasons.

In the asylum border procedures, people can be detained for up to 12 weeks. If the asylum procedure is not completed by the end of this time, they will be allowed to enter the territory. If the asylum application is rejected within the 12 week period, they will be channeled to the return border procedure, during which they will remain detained for a maximum of another 12 weeks. If they are not deported within this time, the return procedure will continue on the territory, where people will be detained under the Return Directive (according to which the maximum duration of detention can be no longer than 18 months in total).

Quite worryingly, the amended Asylum Procedures Regulation proposes that people whose application for international protection is rejected in the context of the asylum border procedure can be “refused entry”. This means that they can be returned at the external borders, with a lower set of safeguards. In this case, article 14 of the Schengen Border Code and the minimum standards set by art. 4(4) of the Return Directive would apply . Notably, an appeal against the refusal of entry does not have a suspensive effect. The possibility to apply this provision to people who have already been on the EU territory for almost 3 months (during the pre-entry screening and the asylum procedure regulation) is extremely concerning.

What about people who don’t qualify for international protection?

Under national legislation, some people who do not qualify for international protection may be entitled to a residence permit or would have access to regularisation procedures or national protection measures different from asylum, including for medical, family, humanitarian or other reasons.

But the Pact foresees the right to asylum as the only possible pathway to regular residence, assuming that everyone else should leave the European Union.

So, in practice, those people who are not granted asylum but who could be entitled to a residence permit other grounds would nonetheless risk being deported, in clear breach of fundamental rights like family life, of the best interests of the child and of the principle of non- refoulement.

At the moment, at least twelve EU member states provide a temporary residence permit on medical grounds; at least five have legislation granting special permits for undocumented victims of domestic violence; at least eight have mechanisms that can regularise children, young people or families; and at least seven have dedicated procedures for stateless people. In practice, the Pact fails to mention when and how any of these permits would be accessible during the new procedures, or indeed that these other residence procedures exist. As the grounds for these permits are not assessed during asylum procedures, hundreds of thousands of people risk either being issued a return decision in violation of their fundamental rights, or pushed into living irregularly .

What is the “return sponsorship” mechanism?

Under the “return sponsorship” mechanism, the “sponsoring” state will facilitate the voluntary return or deportation of an undocumented person living in another country (“benefitting state”), including through return counselling, reintegration assistance, liaising with third countries, and chartering flights. Should the return or deportation not be carried out within 8 months (4 months in situations of “crisis” or risk of crisis), people will be relocated to the “sponsoring country”. Until then, the “benefitting” country will remain responsible for the obligations and responsibilities set out by the Return Directive. States might commit to sponsor returns even before a return decision has been taken.

What will be the main changes in situations of crisis?

The Crisis Regulation foresees different rules, mainly concerning timelines, which would apply in so-called “situations of crisis” and “force majeure”. Situations of crisis are defined as an exceptional situation of “mass influx” compared to the GDP and the population or the risk of an exceptional situation of “mass influx”.

In such situations:

• the pre-entry screening could last up to 10 days (instead of-5 days),
  • the border procedures would be applied to people coming from countries with up to 75% recognition rate (instead of 20%), and could last for a total of 40 weeks (instead of 24),
  • the grounds for detention are further expanded (for instance, including all situations in which migrants are not cooperating or express intent not to comply with the return measures);
  • In the return sponsorship, people would be transferred to the sponsoring state after four months (instead of eight).

Furthermore, in case of force majeure states would be able to suspend the asylum registrations for up to 4 weeks.

How do the proposals protect children in migration?

The new mechanisms and procedures proposed may end up causing great harm to migrant children living and arriving in Europe.

The proposed Screening Regulation does not guarantee, or even mention, that children would have access to legal assistance or that unaccompanied children would be appointed a guardian. Alarmingly, no provisions are included that safeguard children whose age is disputed. In addition, all children would be detained during the screening procedure.

The Asylum and Migration Management Regulation grants children in families fewer safeguards than unaccompanied children on the assumption that having parents sufficiently protects them from harm. The return sponsorship mechanism would apply to both, but while Member States would have to assess whether the intra-European transfer is in the best interests of an unaccompanied child, no such obligation exists for children in families. Similarly, Member States would have to ensure that an unaccompanied child is “adequately protected” in the sponsoring state, but not so for children in families.

Children will also be detained to a much wider degree than is currently the case. Adolescent children in families may be detained for the same length of time as adults (maximum 40 weeks and 10 days if they go through a screening and an asylum and return border procedure in times of crisis), while international consensus is clear: no child should be detained. The Pact also goes far beyond what is currently allowed by EU legislation (Returns Directive) and jurisprudence, which limit the detention of children for immigration purposes to specific situations (last resort, adapted facilities and for the shortest amount of time possible).

Importantly, the proposals do not ensure that children would only be returned when a return is in their best interests. As with adults, the Pact proposals offer just two possibilities: asylum or return. While return should (in theory) only happen when there is no risk of refoulement, the impact on a child’s rights and wellbeing are not assessed before a return decision is issued or implemented.

Lastly, while the Eurodac proposal includes important safeguards protecting children, important dangers to child rights and children’s wellbeing remain. The safeguards require that:

• personnel that registers the biometric data of children be trained for that purpose;
  • child-friendly information be provided to children;
  • children’s personal data can be accessed, rectified and erased by the child and/or their

legal guardian;

• children are accompanied throughout the registration process by an adult family member or guardian or by an independent official trained in safeguarding children’s best interests and their general wellbeing.

However, all children older than six would be fingerprinted and photographed, including for the purpose of (forced) returns. Children may be coerced into complying, although the level of coercion must “respect the dignity and physical integrity of the child” and not include

force. These provisions contradict UN guidance that arguments based on migration control cannot override the best interests of the child and the FRA position that children should not be fingerprinted for return purposes. In addition, the proposals do not include anything on what happens when a child’s age is unclear or contested even though their age will determine whether they are fingerprinted, and whether the above-mentioned safeguards are put in place.

It is clear that the Pact does not adequately protect undocumented and migrant children from harm, and more and better safeguards need to be integrated throughout the proposals and mechanisms they put in place.

For more detailed information, see our Recommendations on Safeguarding Children’s Rights in the Migration And Asylum Pact Proposals.

What about labour migration and social inclusion?

While the Pact includes some promising elements towards inclusion, the significance of labour migration for European economies and societies is not reflected in the Pact, whether we look at the political messaging, resources, proposals, actions, or even word count. On balance, the plans in the area of labour migration are timid and over-shadowed by the focus on returns.

Since the Pact’s publication, the European Commission has been working to fulfil commitments set out. It has held consultations on the next steps on regular migration. A Skills and Talent package, including a revision of the Long-term Residents Directive and a review of the Single Permit Directive, and setting out options for developing an EU Talent Pool is expected in late 2021. Negotiations between the European Council and European Parliament on the Blue Card Directive have also concluded.

The EU needs to take real action to increase decent labour migration pathways across sectors and skill levels, including in those sectors currently characterised by low wages, where many migrant workers are carrying out essential work and unable to access permits. It needs to tackle labour exploitation.

Until now, the legislative proposals that accompanied the Pact are rather counterproductive to these objectives, increasing precarity of migrant workers as described above. But it remains to be seen if the forthcoming actions – in particular the review of the Single Permit Directive – will be ambitious in achieving the EU’s potential to address these challenges and promote decent work for labour migrants in the European Union.

What does PICUM recommend?

PICUM has developed extensive recommendations on the different files, as well as separate recommendations on the impact of the Pact on children’s rights. Our recommendations are available in English, French and Spanish at this link.

In short, our recommendations focus on the following:

• Preventing the automatic detention of asylum seekers and undocumented people at the external borders. PICUM advocates for the end of immigration detention. People in an irregular situation should have access to community-based solutions and support through case management.
  • Maintaining access to existing residence permits regulated at national level. Asylum and return are not the only options. National legal frameworks foresee a number of different permits, for instance for humanitarian, medical, family or other reasons: these permits should remain accessible in law and practice.
  • More and better safeguards for children are necessary. Children should not be detained; unaccompanied children and children in families need to be protected to the same degree; children whose age is unclear or disputed must be given the benefit of the doubt unless and until conclusive proof confirms their (adult) age; unaccompanied children should be assisted by a guardian as soon as they are found; and children should only be returned when return is found to be in their best interests through a best interest procedure.
  • Ensuring NGOs’ right to access border areas and preventing criminalisation.
  • Upholding the right to effective remedy, including an automatically suspensive appeal.
  • Compulsory health and vulnerability screening and access to health care during the screening procedure.
  • Preventing discriminatory policing and apprehensions.
  • Deleting the return sponsorship scheme.