On 9th March, Members of the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) voted on the EU’s controversial new deportations bill (draft EU Return Regulation).

The vote followed the collapse of negotiations between Renew (liberals) rapporteur Malik Azmani and the Progressive Alliance of Socialists and Democrats (S&D). In response, the centre-right European People’s Party (EPP) tabled an alternative version of the bill, backed by far-right groups including Europe of Sovereign Nations (ESN), European Conservatives and Reformists (ECR) and Patriots for Europe (PfE).

Critics had already warned that Azmani’s compromise text differed little in substance from the harder-line proposal and contained few meaningful safeguards to prevent fundamental rights violations in the law’s implementation.

In this vote, both texts were put to MEPs. The S&D ultimately rejected both versions, as did The Left and the Greens/EFA groups. The EPP’s proposal therefore secured a majority with the backing of far-right groups.

Silvia Carta, Advocacy Officer, Platform for International Cooperation on Undocumented Migrants, said: “This vote seals a toxic alliance between centre-right and far-right forces, after weeks of backroom deals to kill the last remaining safeguards. It puts hundreds of thousands of people, including children, at risk of detention across Europe and allows member states to tear families apart, sending them to deportation centres in countries they have never set foot in. The proposals grant sweeping powers to restrict people’s movements, search belongings, impose disproportionate “security” measures, and share personal data with countries that lack safeguards. After the outrage over ICE operations in the United States, this text opens the door to similarly violent immigration enforcement across Europe. Human dignity, freedom, equality: this vote betrays the very values the EU claims to uphold.”

The text that was voted:

• Opens the door for member states to set up deportation centres outside the EU – including for families with children – leading to automatic arbitrary detention, accountability and human rights monitoring challenges, risks of chain deportations towards unsafe countries and numerous other violations of human rights and international law;
• Turns forced returns (deportations) into the default option for people found in an irregular situation, despite the higher risk of violence and fundamental rights violations, further restricting people’s agency and options.
• Massively expands the use and duration of immigration detention (from 18 to 24 months, with restrictive measures possible after the 24 months, including electronic monitoring and reporting obligations), including for children – despite a global commitment from governments to eradicate locking up children for immigration reasons;
• Requires member states to impose geographical restrictions or reporting obligations for all people in the return procedure, or any other restrictive measures defined in national law;
• Despite creating the conditions for overcrowded detention centres, it introduces “emergency” possibilities for member states to disregard safeguards during detention such as limiting judicial review of detention decisions, including for families and children, when there are “exceptionally large numbers” of people awaiting their deportation.
• Introduces severe punitive measures, such as entry bans of undefined duration that could be determined at national level (including “permanent” in cases where security risks are invoked), financial penalties, reduction of financial assistance to rebuild a life after their deportation, and even criminal sanctions for people who do not cooperate towards their deportation;
• Introduces specific derogations from fundamental rights for migrants who are considered a risk for national security and public policy, further blurring the lines between criminal law and migration while reinforcing dangerous stereotypes;
• Reinforces the false assumption that all people who are not eligible for asylum should be immediately deported, making it harder for people to access permits on other grounds, including humanitarian, family and work permits. 

1. What is the proposed Deportation (“Return”) Regulation?
2. What are some of the key elements in the Commission’s proposal?
3. What would happen to undocumented people if this becomes law?
4. Would there be any consequences for professionals, city level authorities and anyone supporting undocumented people?
5. What other policy choices do governments have besides deportations?
6. What is PICUM calling for?
7. What’s next in terms of negotiations on this proposal?
8. What can you do to oppose this?

What is the proposed Deportation (“Return”) Regulation?

The Deportation regulation (officially called “Return regulation”) is a legislative proposal that sets out the EU’s agenda on deportations of people who lack residence status. It was presented by the European Commission in March 2025, with the purpose of increasing deportation rates and allowing for swifter deportations. If adopted, it would replace the 2008 Return Directive.

Note on terminology: the Commission’s proposal uses the term “return” rather than “deportation” concerning this proposed legislation. PICUM, as many civil society organisations, prefers to use the term “deportation” as the proposal relies overwhelmingly on increased use of force and coercion in its various elements. Furthermore, what the proposal describes as “voluntary return” in fact corresponds to “voluntary departure”, meaning a person’s compliance with a mandatory return decision rather than a genuinely free and informed choice to return to their country of origin.

What are some of the key elements in the Commission’s proposal?

The Commission’s proposal strengthens the tools available to EU member states to identify, control, detain, and deport people in an irregular situation. It looks at deportations as the only possible way to reduce the number of people living irregularly in the EU, without considering any of the root causes that lead people to live without papers, or avenues that would allow them to regularise their status.

 The main proposed changes include:

• Expansion of countries where people can be deported and deportation centres outside the EU, including in countries where they have no prior ties. This includes the possibility for member states to conclude arrangements with any country that would be willing to accept their deportees. These arrangements – also known as “deportation hubs” – are likely to be based on detention and containment, such as Italy’s deal with Albania – and raise serious concerns about fundamental rights, discrimination, and democratic scrutiny.
• The proposal requires member states to deploy undefined broad detection measures. These might result in different measures and tools designed to “detect” people who have an irregular administrative status to facilitate their deportation. These practices could include police raids on workplaces and in public spaces, invasive and indiscriminate uses of surveillance technologies, racial profiling, and, in some cases obligations on public service workers in schools and hospitals to report anyone suspected to be undocumented. To learn more about detection measures, you can read PICUM’s explainer here.
• Vast expansion of immigration detention, both in terms of length (up to two years) and the criteria on the basis of which people could be detained. These include reasons such as having entered Europe irregularly, being homeless or not having documents – which could de facto cover all undocumented people. The proposal also allows for the immigration detention of children, despite international human rights standards indicating that it is always a child rights violation and never in a child’s best interests, and global commitment by governments to work to end the practice. 
• Limitations to access national permits and increased irregularity. More people would be pushed into irregularity and legal limbo as the proposal requires member states to immediately issue deportation orders alongside any decision ending regular stay, without prior consideration of other national-level status options (such as permits for humanitarian, best interests of the child, medical or family reasons, as well as during statelessness determination procedures or in other cases where deportation is not possible). The proposal also weakens protections for those who cannot be deported as it removes the current requirement to identify and assess other individual circumstances apart from the risk of refoulement, ignoring that in many cases “return” may not be appropriate or even possible.
• Harsh sanctions and punishment for living with irregular residence status. First, the proposal introduces extensive, disproportionate and unrealistic cooperation requirements on people issued a deportation order, such as having to provide identity documents they may not possess, having their bodies and belongings searched, or cooperating with third countries to obtain travel documents. These are coupled with punitive and heavy sanctions in cases of ‘non-compliance’, including financial penalties, entry bans, restrictions on voluntary departure, as well as refusal of benefits, allowances or work permits. Additional specific sanctions are also foreseen for people on “security and public order” grounds, which are vaguely defined and may be applied abusively.

A more detailed overview of the Commission’s proposal and PICUM’s concerns, can be found here.

What would happen to undocumented people if this becomes law?

The proposed Deportation Regulation would make everyday life more unsafe and unstable for undocumented people.

• Constant uncertainty and more precarious lives: Undocumented people will be more likely to live with the threat of a deportation order that could be enforced at any time, uprooting them from countries where they may have lived for years, worked, paid taxes, and built friendships and family ties. This uncertainty would also affect people who could not be deported due to human rights issues: they would receive only temporary “suspensions” of deportation that have to be reviewed every six months, instead of a longer leave to stay or a regular status that would allow them to rebuild their lives with stability and dignity.
• More fear and exclusion from essential services: Detection-driven policies could discourage people from accessing healthcare, education, housing support or reporting abuse, out of fear that seeking help may expose them to deportation procedures.
• Risks to the right to health: Health is a fundamental right under EU law. When people avoid medical care because of detection risks, or are placed in immigration detention, this harms individual wellbeing and weakens public health strategies.
• Punishment linked to migration status and chilling effect on solidarity: The proposal’s sanctions and restrictive approach risk pushing people further into homelessness, exploitation and isolation.

Would there be any consequences for professionals, city level authorities and anyone supporting undocumented people?

The proposed Deportation Regulation would also place significant new pressures for those providing support to undocumented individuals:

• Pressure on professionals and erosion of trust: If access to public services becomes formally linked to immigration enforcement, professionals such as doctors, teachers, social workers, and volunteers may face conflicts between their ethical obligations and expectations to cooperate with immigration authorities. This could undermine professional independence, weaken trust between service providers and communities, and ultimately make essential services less accessible.
• Chilling effect on community support: Individuals and organisations offering assistance – including neighbours, faith groups, and civil society organisations – may fear that providing basic humanitarian support could expose them or the people they assist to surveillance, checks, or investigations. Such concerns could discourage community solidarity and reduce access to informal support networks.

What other policy choices do governments have besides deportations?

The proposal reflects a false assumption that deportation should be the only option for people whose asylum application has been rejected or whose residence permits have expired or been revoked. To reduce the number of people trapped in irregularity, EU states should uphold access to existing human-rights-related permits, and expand avenues to a broad range of residence permits that allow people to plan their lives, engage in regular work, study, and fully participate in all the economic, social, and cultural facets of the societies in which they live.  For example, the Spanish government recently announced a broad regularisation programme which could benefit around 500,000 people. This shows that regularisation is not only possible – it works, and it’s the right thing to do to offer dignity, stability, and access to basic rights.

What is PICUM calling for?

Together with over 250 other civil society organisations, PICUM has called for the Deportation regulation proposal to be rejected. We believe the proposal would have such far-reaching consequences for the rights of undocumented people, as well as for the societies in which they live, that without a fundamental revision of its approach, no safeguard could make this legislation acceptable.

What’s next in terms of negotiations on this proposal?

EU governments have already agreed on a common position and pushed the proposal further, further expanding the use of detention, opening the door for further restrictive measures under national law, and introducing a new article which would enable authorities to conduct home raids. The European Parliament is now reviewing the proposal and is set to vote on its position in March 2026.

Even after the European Parliament vote, negotiations between the Parliament and the Council will continue to reach a final agreement.

This means there is still space to influence the outcome – and pressure now matters.

What can you do to oppose this?

This is a moment for collective action. Across Europe, people are already mobilising to oppose this legislation. You can add your voice and strengthen this momentum in different ways.

1. Join and support existing mobilisation against the deportation law

• Sign the WeMove petition: https://action.wemove.eu/sign/2025-12-no-deportation-petition-EN/ – More information and next steps will follow.
• Follow dedicated social media pages to stay aware and join campaign actions like @WeKeep_UsSafe (Instagram)

2. Help us spread the word

• Organise discussions in your workplace, organisation or community (you can print and share our leaflet on detection measures with all the information)
• Help make this information accessible by translating or adapting it for different audiences (contact us if you’d like support)

3. Put pressure on decision-makers

• Contact your Members of the European Parliament to let them know that we are watching and asking them to reject the law.

4. Act locally – in your city

• Contact your local City Council or city representatives and ask them to take a stand against this EU law and fulfil their mandate to guarantee services and protection to all inhabitants
• Mobilise with others in your community, including through public meetings, collective statements, or peaceful protest

Additional Resources:

• Joint Statement – Over 250 Organisations: Inhumane Deportation Rules Should be Rejected
• Joint Statement – No to EU law enabling home raids, policing of public services and racial profiling
• Briefing – Unprotected: How proposed EU rules on deportation threaten the universal right to health
• Explainer on detection measures
• FAQ on Reporting obligations and firewalls
• FAQ on Security and public order grounds in migration procedures: Impact on social exclusion and access to regular status

Key takeways

• Security and public order grounds are widely used in EU migration law but remain vaguely defined and inconsistently applied.
• Despite legal and judicial guidance, these grounds create legal uncertainty and carry severe consequences for migrants, especially undocumented people.
• The EU Pact on Asylum and Migration puts security at the centre of migration management, expanding state discretion and weakening safeguards.
• The proposed Deportation (“Return”) Regulation broadens the idea of “security risk,” enabling longer entry bans, indefinite detention and forced removals.
• Real-life cases (Italy, Hungary, Bulgaria) show how security narratives enable arbitrary detention, withdrawal of residence permits and rights violations.
• Blurring criminal law and migration law (“crimmigration”) leads to disproportionate punishment based on migration status, not conduct.

Introduction

Criminal law and other sanction-based approaches have increasingly been used to regulate and punish migrants. In recent years, these approaches have expanded beyond the national level and have become progressively embedded within the EU’s migration governance framework. The recent adoption of the EU Pact on Migration and Asylum has concretely consolidated this trend in EU legislation, particularly through measures justified on grounds of protecting “security” and “public order.” The proposed EU Deportation (“Return”) Regulation, if adopted, could mark a further step in this direction. Such developments risk having serious consequences, not only by reinforcing narratives that associate migration with criminality and security threats, but also by deepening discrimination on the basis of migration status and further restricting migrants’ opportunities to participate in society and to obtain regular status.

1. What are security and public order grounds?
2. What are the main novelties introduced by the EU Pact on Asylum and Migration?
3. What exceptions could be introduced by new reforms of the EU’s deportation policies?
4. What impact on social inclusion and access to permits?
5. Real-life cases of individuals stripped of residence and/or detained arbitrarily for security reasons
6. Why should criminal law be separate from migration (administrative) law?

What are security and public order grounds?

Across the EU legislative instruments on asylum and migration, references to nationalsecurity and public order appear across several instruments (see questions 3 and 4 below), but they are framed using different terms and are often not explicitly defined. Different terms can be found in different instruments: “public order”, “public security”, “national security” and “public policy” in EU and national law.

The European Court of Justice (CJEU) has clarified that “public order” requires not only a disturbance of social order, which is always the consequence of an infringement of the law, but a genuine, present and sufficiently serious threat affecting a fundamental interest of society (see Case C-601/15 PPU, para. 65). “Public security” encompasses both internal and external security, including threats to state institutions, essential public services, population survival, foreign relations, peaceful coexistence of nations, or military interests (para. 66). These grounds must be interpreted strictly and assessed on a case-by-case basis, and cannot be based solely on past criminal convictions.

Despite this guidance, security and public order grounds often remain legally uncertain and may have serious consequences for people who try to regularise their status, or who live undocumented. As a result, these concepts are central to asylum and deportation decisions and raise complex issues regarding legal certainty regarding their interpretation, the assessment of evidence, and how to balance them with the protection of fundamental rights.

What are the main novelties introduced by the EU Pact on Asylum and Migration?

Across Europe, governments increasingly rely on security and public order justifications to restrict the rights of migrants, turning what were once exceptional measures into central elements of legislation and political discourse.  This trend is further reinforced by the adoption of the EU Pact on Asylum and Migration in May 2024. The Pact’s legislative instruments place security and public order as the centre of migration management, creating a complex system of rules and exceptions that ultimately creates more flexibility for national authorities, while eroding rights and guarantees for people in migration and asylum procedures.

Screening Regulation

Security-driven procedures are embedded in several of the legislative instruments that constitute the Pact. First of all, the Screening Regulation – which establishes a new pre-entry screening procedure for people arriving irregularly to the EU territory – introduces  the possibility to verify not only the identity and vulnerabilities of people arriving to the European Union, but also whether they represent a threat for ‘internal security’. In practice, the security screening entails searching different international, EU and national law enforcement databases. This not only feeds into the narrative presenting irregular migrants as ‘criminals’ but could lead to different forms of abuse and incorrect profiling. For example, data on individuals who represent security threats can be fed to Europol or other datasets directly from third countries. The European Data Protection Supervisor, in one of its reviews of Europol data transferred by third countries, found multiple cases where children (under 15 years old) were flagged as suspects within the broader framework of an organised crime group while apparently having only been involved in relatively minor infractions, such as pickpocketing (at least two cases) or shoplifting. While this example was not in the context of the Screening Regulation, it nonetheless shows what kind of distortions are possible.

Asylum Procedure Regulation

The Asylum Procedures Regulation (APR) allows Member States to suspend the right to remain in the territory during procedures if an applicant is deemed a danger to public order or national security. National security and public order are also grounds that  require member states to apply accelerated procedures to evaluate asylum applications and assess them in a border procedure. This is based on the assumption that this category of people will most likely not receive international protection, and could be more easily deported by channelling them into a fast-track return border procedure. Moreover, border procedures are based on the notion of containment and it is highly likely that restrictions of freedom of movement imposed to applicants may amount to de facto deprivation of liberty.

What is even more concerning is that security and public order grounds can be used to apply accelerated border procedures to unaccompanied children – who should be excluded. Inclusion of ‘dangerous’ unaccompanied children is highly problematic. First of all: they remain children, with specific protection needs and a right to support.. Second, there is a high risk for these children to be detained, in violation of child rights’ international standards.

The APR provides for the possibility to deny access to information on an applicant’s file on grounds of national security. This is a particularly concerning element as it seriously undermines the right to an effective remedy for the person involved.

Under the APR, member states may use security and public order grounds to limit access of organisations that provide advice and counselling to people present at border crossings, detention grounds and detention facilities. While this cannot make access “severely restricted or rendered impossible”, this is particularly concerning, as it risks reinforcing administrative barriers that civil society providing support to people in detention or at the borders will have to overcome to effectively access people in need.

Eurodac Regulation

The revised Eurodac Regulation transformed Eurodac from a system with the purpose of supporting asylum procedures, into a much broader tool operating at the intersection of international protection, return policy, and mobility control. In parallel, Eurodac has been integrated into the EU’s interoperable migration database architecture, placing it at the crossroads of border management and security policies. These interoperable systems, including Eurodac, constitute a cornerstone of the security checks envisaged under the Screening Regulation, alongside Interpol and Europol databases. The revised framework significantly expands Eurodac’s scope to include comprehensive identification data – such as facial images, identity documents, and travel documents -with the explicit objective of facilitating returns.

Eurodac is also the only instrument within the Pact that provides a definition of certain situations in which a person may be flagged as a security risk. These include violent behaviour that would constitute a crime under national law, unlawful possession of weapons, and clear involvement in terrorism or other offences listed under the European Arrest Warrant framework. However, this definition is only part of the non-binding text and not of the regulation’s articles, leaving member states the ability to understand it more broadly and to base their assessment on perceived risk rather than concrete evidence.

Other Pact files

The examples above outline some of the major novelties introduced in the Pact in the areas of PICUM’s expertise, which is ensuring and protecting human rights for undocumented migrants. Therefore, provisions solely affecting the right to asylum are outside of the scope of this analysis, but national security and public order considerations are also embedded in the Regulation on Asylum and Migration management, including as a ground for detention. The Crisis Regulation is also a relevant example, as it introduces for the first time the concept of ‘instrumentalisation of migration’ in EU law, which is presented as potential threat to the internal security of the member states and can be used as a ground to request specific derogations from their asylum and reception responsibilities.

What exceptions could be introduced by new reforms of the EU’s deportation policies?

In Mach 2025, the European Commission presented a new proposal for a Deportation (“Return”) Regulation to replace the current Return Directive. The legislative review process for the regulation, which would replace the 2008 Return Directive, is currently ongoing. Yet, if adopted, they would have broad consequences in terms of further blurring the lines between migration governance and criminal law, further punishing and sanctioning people in reason of their migration status, and fostering dangerous stereotypes equating migrants with criminals.

Definition of ‘security risk’

The proposed Deportation Regulation introduces a specific provision establishing the conditions under which a person falling under its scope can be considered a “security risk”. Article 16 defines a security risk as a threat to public policy, public security, or national security (however it does not address the lack of a common definition of any of these concepts – see Question 1).  In particular when it comes to public policy grounds, practices across some member states show that in many situations states automatically determine if someone is a security risk without a case-by-case assessment.

The proposed Return Regulation indicates that states can decide that an individual poses a security risk if there are “serious grounds for believing” based on “clear indications” that the individual intends to commit an offence falling within the scope of the European arrest warrant (provided that the offence is punishable under national law by a custodial sentence of at least three years). Such offences include terrorism, participation in a criminal organisation, and the facilitation of unauthorised entry and residence. However, the evidentiary threshold for determining whether a person has been involved in, or intends to engage in, criminal activity under this definition appears notably weak, raising concerns about legal certainty and the risk that this provision is activated on the basis of broad or speculative assessments. This is a concrete possibility, as shown in question 4.

Moreover, hundreds of migrants who are accused or convicted every year as alleged smugglers or boat drivers could also be impacted under this definition. They are often accused on the basis of flawed evidence, in trials tainted by procedural irregularities and already face harsh measures under criminal law, including prolonged pre-trial detention. Many of these trials are also characterised by a lack of fair trial guarantees.

Security as a new detention ground

Another problematic aspect of this proposal is broad expansion of the grounds for detention (Art. 29). This includes the broad definition of security risks presented above. This goes way beyond the 2008 Return Directive, which allows the use of detention only when there is a risk of absconding or if the person is obstructing their deportation. In both cases, the person could only be detained for the purpose of “preparing” or “carry out” deportation. Moreover, in addition to extending the general duration of detention from a maximum of 18 to 24 months, the proposal appears to allow for indefinite detention of individuals deemed to pose “security risks”, by judicial decision (Art. 16(3)).

Other derogations on security grounds

Being considered a security risk under article 16 of the proposal also would lead to further punitive consequences. This includes mandatory use of forced removal, the possibility of being subjected to an entry ban for up to 20 years, and detention in prisons – even if separate from other prisoners (Art. 16, para 3).

Furthermore, the Regulation permits the sharing of personal and biometric data with non-EU countries that lack adequate data protection frameworks, with no effective oversight or redress mechanisms for the individuals concerned. This also includes the sharing of sensitive data, such as criminal records, of people facing deportation.

Weakened access to remedies

In addition to the unclear nature and application of what could constitute a security risk under the return framework, people falling under the scope of this provision would be deprived of fundamental safeguards when it comes to the right to an effective remedy.

First of all, under article 7(3) of the proposed regulation, competent authorities may decide not to provide or may decide to limit the right to information, where national law provides for the right to information to be restricted or where it is necessary to safeguard public order, public security or national security. In such cases, the person who is the object of the return decision can be informed of only the “essence” of the grounds on which the decision has been taken. The information provided should still allow for access to an effective remedy. However, research on national level practices already shows major gaps in accessing classified data for people considered a security risk, which prevents the full exercise of the right to defence in practice.

Moreover, people considered security risks under article 16 would be deprived of the suspensive effect of appeals against the enforcement of their deportation decision, unless there is a risk of refoulement. This would mean that people could be deported before a decision on their appeal is taken. PICUM maintains that 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. This is even more important in cases where people might have to challenge not only their deportation, but also the classification as a security risk on the basis of incorrect assessments, even more so when the information on their case is classified.

What impact on social inclusion and access to permits?

Measures grounded in national security and public order can significantly undermine the social inclusion of undocumented migrants in several ways:

• Reinforcing the stigma equating migrants to ‘criminals’ and depicting migration as a security issue, which fuels public hostility and discrimination.
• Authorities gain broader discretion to make decisions affecting migrants’ rights and status, often with limited accountability and without the obligation to disclose their reasoning and motivation, and without all the fair trial guarantees of criminal procedures.
• Expanding use of immigration detention, preventing individuals from living in the community, working, or being with their families.
• Erosion of procedural safeguards, which in turn increases the risk of deportations without adequate right to redress, and lead to weakened access to international protection and other residence permits.

There are several real-life cases that show what impact security and public order grounds reinforce national authorities’ discretion, often with serious impact on people’s lives (see next question).

Real-life cases of individuals stripped of residence and/or detained arbitrarily for security reasons

Italy

This case illustrates how security narratives can be instrumentalised to repress dissent. Mohamed Shahin, the imam of a mosque in Turin, has lived in Italy since 2004, has a family, no criminal record, and is widely recognised for his work in interfaith dialogue and community support. Despite this, he was arrested, stripped of his long-term residence permit, and threatened with expulsion to Egypt on grounds of national security and public order. The accusations against him were based on his participation in public demonstrations in solidarity with Gaza and on alleged statements expressing support for the Palestinian resistance. However, judicial investigations did not consider his statements to constitute a criminal offence, and he had no criminal record. Nevertheless, the Ministry of the Interior confirmed the expulsion order. After being transferred to a return detention centre, Shahin was eventually released, but only after applying for international protection. His case is currently pending in front of the Italian asylum authorities.

Cases involving the repression of dissent have become increasingly common across Europe, particularly in relation to solidarity with Palestine. Similar cases, such as that of US-based activist Mahmoud Khalil, can also be found across the Atlantic.

Hungary

Similar cases happened in Hungary. Two people from Turkey and Nigeria had been living regularly in Hungary for many years and had strong family ties there. One was married to a Hungarian citizen and had a Hungarian child. The other lived with his Hungarian partner and their two Hungarian children.

In 2020 and 2021, Hungary’s Constitutional Protection Office said, without giving reasons and keeping the information secret, that their presence threatened national security. Based on these confidential opinions, the immigration authorities took away one person’s permanent residence permit and ordered him to leave the country. The other person’s application for a settlement permit was also rejected. Neither the individuals concerned nor the immigration authority itself had access to the underlying information justifying the security assessment.

The Court of Justice of the EU later ruled this is not compatible with EU law, because authorities must examine each case individually, consider the dependency relation between parents and their children, whether the decision is proportional, and allow the person to know the reasons and defend themselves.

Bulgaria

Saudi human rights defender Abdulrahman AlBakr al-Khalidi has been held in immigration detention in Bulgaria since 2021 after seeking asylum. Bulgarian authorities rejected his asylum claim and issued a deportation order in 2024, labelling him a “national security threat” despite serious risks of torture and unfair trial if returned to Saudi Arabia. Despite appeals from Bulgarian courts, UN bodies international human rights organisations, and  Members of the European Parliament, his prolonged detention had detrimental consequences on his physical and mental health. The detention of Abdulrahman AlBakr al-Khalidi is clearly unlawful under the current Return Directive. However, if the Return Regulation is adopted as proposed, national authorities across Europe would have more discretion to prolong detention of people considered security risks indefinitely (see Question 3). 

Why should criminal law be separate from migration (administrative) law?

Criminal law and migration (administrative) law serve fundamentally different purposes and should therefore remain distinct. Migration law, which is part of administrative law, regulates the relationship between the state and non-nationals and is not intended to be punitive. Criminal law, by contrast, is inherently punitive and applies only to specific criminal acts, with sanctions based on an individual’s conduct rather than their residence status.

In migration governance, this distinction has increasingly been blurred through a process also known as ‘crimmigration’, whereby administrative migration infractions are criminalised and criminal law tools are used to manage migration. This results, first, in migrants being punished for their administrative status (such as irregular entry or stay), and second, in migration status disproportionately shaping the consequences of minor, non-migration-related offences. As a result, third-country nationals are more likely to be prosecuted, detained, or sanctioned more harshly than nationals for similar conduct.

For more details about the distinction between criminal and administrative law in the migration context, see PICUM’s study ‘Between administrative and criminal law: An overview of criminalisation of migration across the EU’.

Do you have any question?

Please contact Silvia Carta (silvia.carta@picum.org).

On 10th December, the European Parliament and the EU Council reached an agreement on the revision of the Victims’ Rights Directive, the EU’s law setting minimum protection and redress standards for victims of crime.  

The leaked draft shows that EU lawmakers agreed on a text that fails to protect undocumented victims from detention and deportation should they report abuse or violence to police.

Louise Bonneau, Advocacy Officer at PICUM, said “Across Europe, undocumented people already face the impossible choice between enduring abuse or risking detention and deportation if they seek help. This agreement reinforces that fear by signaling that some victims are less worthy of protection, undermining equality before the law and the fundamental rights the EU claims to uphold.” 

The Directive requires that victims should not be ‘discouraged’ from reporting and that their rights under the Directive must not be obstructed, yet it leaves it entirely to member states to decide whether to introduce concrete safeguards, such as guarantees that no personal data of undocumented migrant victims would be shared between police and immigration enforcement officials (e.g. “firewalls”). In practice, this means there will be no EU-wide guarantee of safe reporting mechanisms.

The text clarifies that member states can issue special residence permits for undocumented victims, but they are not required to do so. Only access to secure and autonomous residence status can ensure that victims can report crimes and seek redress without fear.  

Suzanne Hoff, International Coordinator of La Strada International, said “For trafficked and exploited people, one of the biggest barriers is the lack of safe reporting mechanisms, which are generally absent in Europe. We had hoped that the revision of the Victim Rights Directive would remedy this gap in the EU anti-trafficking law, but this did not happen. If the EU is serious about fighting human trafficking and other serve forms of exploitation and abuse it should ensure that reporting abuse does not lead to detention or deportation: without this guarantee, many victims will remain too afraid to come forward”.  

NOTES TO THE EDITORS:

• The political agreement reached by the European Parliament and the Council will then have to be formally adopted by both institutions, before it is published in the Official Journal and enters into force.
• The European Commission had proposed a minimal safeguard preventing authorities from sharing victims’ residence-status data with migration authorities until completion of the first individual needs assessment. Although far from a full safe-reporting guarantee, it acknowledged the risks faced by undocumented victims. Member states rejected even this limited protection, repeating the missed opportunity seen last year in the Violence Against Women Directive.
• These gaps must also be understood in the broader context of EU migration policy. Proposals such as the “Return Regulation” would further expand enforcement powers that already deter undocumented people – especially women and girls exposed to gender-based violence – from seeking help. Without binding safe-reporting safeguards across EU law, the rights set out in the Directive will remain inaccessible to many of those who need them most.

On 8^th December, the EU Council voted its negotiating position on the draft Return Regulation, the EU’s flagship initiative to escalate immigration detention and deportations of undocumented people, including to countries outside the EU. 

The Council has endorsed a position that further worsens the Commission’s original proposal: 

• A new article which would enable authorities to conduct home raids, investigations and further controls to enforce deportations. Searches would cover both the homes of people to be deported and ‘other relevant premises’, which would potentially open the door to police raiding houses of citizens suspected of sheltering migrants, as well as offices and shelters run by humanitarian organisations. 
• A massive expansion in the use and duration of immigration detention, up to 30 months (up from the current 18 and from 24 in the Commission’s proposal), including for children.  
• Expanded grounds for detention, including absence of family ties, engaging in irregular work and insufficient means of subsistence, de facto criminalising poverty and exclusion. 
• Possibility for member states to establish deportation centres outside the EU, leading to arbitrary detention, serious accountability and human rights monitoring challenges, risks of chain deportations to unsafe countries and numerous other violations of human rights and international law- including for children travelling with their families. 
• Extended derogations from fundamental rights for migrants considered a risk to national security and public policy, further blurring the lines between criminal law and migration and reinforcing dangerous stereotypes. 
• Entry bans of up to 20 years, extendable to an indefinite duration when security risks are invoked, as well as disproportionate obligations on people deemed non cooperative in the return procedure – non-compliance would result in fines, cuts to financial assistance intended to rebuild a life after deportation and even criminal sanctions. 
• Additional ‘flexibility’ clauses opening the door to further measures of punishment and containment at national level, including expanding the grounds for absconding and detention, extra obligations to cooperate and sanctions for non-cooperation. 

The regulation would enter into force two years after adoption, despite having been presented as “urgent”. However, provisions designed to shift responsibility and externalise deportations –such as return hubs – would be applicable immediately. 

QUOTE PACK:

Silvia Carta, Advocacy Officer at PICUM, said: “This so-called ‘Return Regulation’ ushers in a deportation regime that entrenches punishment, violence, and discrimination. Instead of investing in safety, protection, and inclusion, the EU is choosing policies that will push more people into danger and legal limbo. The Council’s position goes against basic humanity and EU values. Now it is up to the European Parliament to reject this approach. Migration governance must be rooted in dignity and rights – not fear, racism, or exclusion.” 

Sarah Chander, Director at the Equinox Initiative for Racial Justice, said: “European governments are seeking to change the law to deport people to places they are not from, and have no connection to. With the ‘Returns Regulation’, the EU is legitimising offshore prisons, racial profiling and child detention in ways we have never seen. Instead of finding ways to ensure safety and protection for everybody, the EU is pushing a punishment regime for migrants, which will help no-one.”  

Olivia Sundberg Diez, EU Advocate on Migration and Asylum at Amnesty International, said: “Today, EU home affairs ministers are expected to significantly worsen the Commission’s already punitive and deeply flawed Return Regulation proposal. Detention as a default, home raids, new sanctions and surveillance on undocumented people, and deportations at any cost – systematically dismantling rights protections and allowing for indefinite detention in some cases. Mirroring the dehumanizing and unlawful mass arrests and deportations in the US, these hardline policies from EU member states reveal a complete disregard for international law and human dignity.” 

Freek Spinnewijn, FEANTSA director said: “The new proposal not only further criminalises migrants but also threatens those who provide aid or essential services. EU policy must uphold a strict firewall between immigration enforcement and humanitarian support, and Member States must respect the human-rights-based principles, neutrality and independence of humanitarian actors. Homelessness services must be safe spaces, protected from raids or any form of immigration control targeting undocumented people.” 

Sofie Croonenberg, advocacy officer at Stichting Vluchteling, said: “This proposal further legitimizes the extremely harmful externalization policies of the European Union. Learning from similar practices of the past the so-called ‘return hubs’, we know these will lead to extensive human rights violations and even the detention of children. We urge the EU to abandon this concept and shift to human centred policies for people on the move. This is only possible when human rights and dignity are at its core.”  

Federico Dessi, Executive Director at Médecins du Monde Belgium said: “The potential damage that this legislation could cause to the health and well-being of undocumented migrants is too great to ignore. Limited safeguards regarding the sharing of health data have been further weakened, detention periods have been extended, even for children, and measures to ‘detect’ third-country nationals now extend to their own homes and to undetermined types of “relevant premises”. This represents a significant setback for the protection of fundamental rights and the right to health in Europe, and undermines the necessary barriers between service provision and law enforcement.” 

Alkistis Agrafioti, Advocacy Officer & Lawyer at the Greek Council for Refugees (GCR), said: “Greece has become one of the EU’s starkest experiments in detaining asylum applicants — marked by prison-like conditions, a lack of effective monitoring mechanisms, and repeated findings of rights violations. The ‘Returns Regulation’ threatens to replicate and entrench this model across Europe. Instead of learning from the profound failures of detention-based approaches, the EU is choosing to scale them up, turning border zones into sites of coercion and trauma for people seeking protection. This is a dangerous step backwards. A humane migration system must be built on dignity, transparency, and the right to seek safety.” 

Judith Sunderland, Acting Europe and Central Asia Deputy Director at Human Rights Watch: EU governments took a terrible proposal from the European Commission and made it immeasurably worse. The draft Return Regulation opens the door for arbitrary and abusive raids on and prolonged detention of migrants, including children, based on racial profiling, who then face being shipped off to detention centers in random countries they never set foot in, all with minimal legal oversight. This dystopian future is about as far as the EU can go from its founding values of equality and respect for human rights. 

NOTES TO THE EDITORS:

• Last September, over 250 organisations signed a joint statement calling on EU lawmakers to reject the proposed Return Regulation, highlighting human rights risks and opaque decision-making. 
• The European Parliament will adopt its own negotiating position in the next months. Both institutions, the Parliament and the Council, will then need to find a compromise to finalise the text. 

The European Ombudsperson has found the European Commission bypassed key transparency rules (Better Regulation guidelines) when preparing legislation to counter migrant smuggling (Facilitation Directive and Europol Regulation).

The inquiry followed a complaint by European Digital Rights (EDRi) and Platform for International Cooperation on Undocumented Migrants (PICUM) on behalf of the Protect Not Surveil coalition, whose mission is to challenge digital surveillance in migration contexts.

The Ombudsperson found that the Commission relied on an overly broad and poorly justified claim of “urgency” to skip Better Regulation requirements, including public consultations and evidence gathering, and concluded that these omissions amount to maladministration.

As the coalition representatives highlighted in their complaint, the European Commission failed to conduct a proper impact assessment of the two proposed instruments, despite a clear mandate to do so and despite a recent implementation study– commissioned by the Commission itself – recommending such an impact assessment for the Facilitation Directive. This study was only made public months after the publication of the proposed Directive, following a request for access to information by PICUM.

Most importantly, the Commission’s failure to conduct an impact assessment overlooks flagrant human rights risks linked to the two instruments.

The proposed Facilitation Directive risks further criminalising migrants and those who help them, despite at least 142 people being prosecuted across the EU in 2024 for offering assistance. The Directive is currently being negotiated in the European Parliament, where right-wing and far-right forces are undermining efforts to protect solidarity from being criminalised.

The Europol proposal would significantly expand the agency’s surveillance powers, putting at risk migrants, aid workers and human rights defenders alike. The Ombudsperson’s findings make it unmistakable that neither broad claims of “operational need” nor political promises at the highest levels justify setting aside essential democratic principles in EU policymaking. The decision underscores – and deepens – public distrust in a European policing agency that receives expanded surveillance powers with little accountability or transparency.

The Ombudsman urges the Commission to clearly define “urgency,” record all exemptions from Better Regulation rules with reasons and approvals, and explain them in legislative memoranda. It also recommends that procedures be put in place to ensure urgent proposals still meet EU standards for transparent, evidence-based, and inclusive law-making.

The Commission is required to send its opinion along with any action it has taken in relation to the Ombudsperson’s recommendations by 25 February 2026.

QUOTES

Silvia Carta, Advocacy Officer at PICUM, said “The Ombudsperson’s findings confirm a worrying trend towards opaque policymaking in the migration field, among others. These proposals carry serious human rights risks, yet they were rushed forward with no formal consultations and no clear assessment of their impacts on people and on EU finances. The European Commission must comply with the Ombudsperson’s recommendations without delay”.

Chloé Berthélémy, Senior Policy Advisor at EDRi, said “The Commission’s maladministration in the Europol reform confirms a concerning trend: political leadership overlooks fair, transparent and evidence-based processes while making laws, and people most affected by the laws – in this case, people on the move – end up facing the devastating consequences. The Ombudsperson’s assessment should be the last nail in the coffin for any legitimacy of Europol’s expanded powers.”

NOTES TO THE EDITORS:

• In addition to the migration file, the Ombudsperson also examined complaints concerning the Commission’s fast-tracking of proposals on corporate sustainability and due diligence and on the Common Agricultural Policy. In both cases, she found similar procedural failings – most notably the absence of impact assessments and inadequate justification for invoking urgency – which together point to a broader, systemic problem in the Commission’s application of its Better Regulation rules.
• More information on the human rights risks of the Facilitation Directive can be found in PICUM’s briefing How the new EU Facilitation Directive furthers the criminalisation of migrants and human rights defenders.
• Media requests can be addressed to PICUM’s Senior Communications Officer on gianluca.cesaro@picum.org

In March 2025, the European Commission proposed a Returns Regulation expanding immigration detention, deportation, externalisation, racial profiling, and surveillance of undocumented migrants. In a new report, Médecins du Monde International Network and PICUM warn that the proposal threatens the right to health and violates medical ethics, urging EU lawmakers to reject it and promote rights-based migration policies that protect people rather than punish them.

The European Commission’s proposal facilitates the collection, access and exchange of data on third country nationals’ vulnerability, health and medical needs, among other information, between EU member states (article 38), and between EU and non-EU countries to enforce deportation operations (articles 39 and 41).

Decisions on transferring personal data, including sensitive health data, of third-country nationals are left to national authorities and, where relevant, Frontex. No mention is made of independent medical professionals, data protection authorities, or judicial oversight in assessing the risks or justifying the data transfer. When data is shared outside the EU, people risk having their personal data being misused in countries where human rights protections are weak.

This proposal is in direct contrast with Article 8 of the EU Charter of Fundamental Rights and the General Data Protection Regulation (GDPR) which guarantee the right to privacy and the protection of personal data for everyone in the EU, including undocumented people.

In multiple judgments, since at least 2000, the European Court of Human Rights has held that collecting or storing health data by public authorities, even if not used, interferes with the right to privacy (Article 8 European Convention on Human Rights) and breaches medical confidentiality.

Medical professionals and civil society organisations have also contested EU and national migration enforcement and deportation policies that jeopardise the right to health and compromise medical professional integrity.

In 2024, the Standing Committee of European Doctors, which represents national medical associations across Europe, denounced how doctors have faced governmental pressure to break patient-doctor confidentiality and report names of patients seeking their care to identify undocumented migrants.

In Italy, campaigners are asking doctors to stop declaring anyone fit for immigration detention. In Belgium, Médecins du Monde and other NGOs appealed to the Constitutional Court against a law that allows physical coercion for mandatory medical examinations in return procedures during WHO-declared public health emergencies. In Sweden, over 4,000 health care workers pledged to commit civil disobedience and refuse to report their patients should the government introduce reporting obligations in the healthcare sector.

Besides concerns linked to the sharing of health data, the draft Regulation jeopardises people’s health and wellbeing in the following ways. The proposal:

• The proposal calls for an escalation of immigration detention across the EU, including for children (despite international standards indicating that immigration detention of children is never in their best interests), expanding the grounds for detention and extending its maximum length from 18 to 24 months. Research shows that any period in immigration detention harms people mental and physical state and various international bodies and courts have emphasised the disproportionate effects of immigration detention on physical and mental health .
• only requires the provision of “emergency health care” and “essential treatment of illnesses” (article 34) in immigration detention centres, and otherwise largely ignores detention standards beyond a general obligation to provide access to “open air space” (article 34).
• expands the grounds for forced deportation, including with coercive measures (article 12(4)), with little consideration of medical needs during the deportation procedures, and to countries where people may face torture or other forms of violence. The text also allows for the creation of deportation centres outside the EU, with unclear oversight over conditions and human rights standards.
• explicitly pushes for detection of people based on their residence status (Article 6) thereby promoting harassment, violence, and racial profiling.

PICUM and Médecins du Monde call on EU lawmakers to reject this text and instead uphold the universal right to health and respect medical ethics; promote safe and regular migration pathways; and ensure access to secure residence permits.

The European Parliament’s civil liberties committee should start discussing its negotiating position in November. The EU Council is expected to vote on its negotiating position by the end of 2025.

QUOTES:

Louise Bonneau, Advocacy Officer at PICUM, said: “Punitive migration measures have already cost lives. History shows where persecution leads, and this Deportation Regulation risks repeating those mistakes: it isolates people, blocks access to healthcare and undermines public health. EU lawmakers must stop it.”

Federico Dessi, Executive Director at Médécins du Monde Belgium, said: “Turning healthcare into a migration control tool is a profound violation of medical ethics and undermines patient safety. Doctors and health workers are bound by a duty of care and confidentiality, yet the use of sensitive health data for deportation and compulsory medical examinations directly undermines this duty. If patients fear that seeking treatment will expose them to deportation, they will delay or avoid care altogether, with devastating consequences for individual and public health. At the same time, expanding immigrant detention, despite the well-documented damage to mental and physical health, puts people at even greater risk.  We urge EU lawmakers to reject measures that compromise medical integrity and the right to health for all.”

NOTES TO THE EDITORS:

• An embargoed copy of the report can be found here.
• The number of people living in Europe irregularly is uncertain and estimates vary. Recent research suggests that between 2.6 and 3.2 million undocumented migrants resided in 12 European countries (including the UK) between 2016 and 2023. These estimates place migrants in an irregular situation at less than 1% of the total population and between 8% and 10% of those are born outside the Schengen Area (for EU countries) or the Common Travel Area (for Ireland and the UK).
• This report follows a recent statement by over 240 organisations calling on EU lawmakers and member states to reject the draft Return Regulation.

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?
4. How many children are detained for immigration reasons?
5. What does the EU say about the detention of undocumented migrants?
6. What does the law say about the detention of children?
7. Are there any alternatives to detention? Do they work?
8. How many people have been returned to their countries of origin?
9. What does the EU say about the returns of undocumented migrants?
10. What happens after forced returns?

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.