Under international and EU law, there are several human rights reasons for which people who do not qualify for asylum cannot be deported. These include the principle of non-refoulement, the protection of family and private life, the best interests of the child and the prohibition of arbitrary detention. In addition, several circumstances that are outside of an individual’s control can make deportation or return impossible.

For people who for whom return is impossible, or undesirable, many EU countries foresee residence permits that go outside the scope of international protection.

But in recent years, EU migration policies have been consistently focusing on increasing returns and closing access to these national residence permits. Such an approach rests on the mistaken belief that for undocumented people, the only option is to return – either by force or “voluntarily”. The EU Pact on Migration and Asylum is built on this assumption and attempts to entrench it throughout the EU’s immigration and asylum procedures.

Three recent proposals, the Recast Return Directive, the Screening Regulation and the amended Asylum Procedures Regulation go one step further in this direction, by assuming that all people who arrive or reside in the EU irregularly and whose asylum applications are unsuccessful should immediately return or be deported.In reality, people continue to reside irregularly for a wide range of reasons, and may indeed have other grounds for residence than an asylum application. According to official estimates, every year 300,000 people cannot return from the EU for different reasons, including human rights and factual considerations.

60 national protection statuses exist in the EU, in addition to international protection (i.e. asylum and subsidiary protection). The Pact proposals would risk practically closing access to these and other national-level residence permits.

At least seventeen EU member states provide residence permits based on humanitarian reasons. In addition, specific statuses based on the principle of non-refoulement exist in at least seven EU member states.

In addition, twelve EU member states provide a temporary residence permit on medical grounds; at least five member states have legislation granting special permits for undocumented victims of domestic violence; at least eight member states have regularisation mechanisms accessible to children, young people or families; and at least six member states have procedures for stateless people.

Some countries also provide access to residence permits based on factors such as length of residence, employment, school attendance of children and other local social ties.Read our briefing paperSome member states grant residence permits to some victims of crimes (e.g. domestic violence, trafficking in human beings or particularly exploitative working conditions), to allow them to seek protection and report abuse in a safe way and to access remedy. The EU legal framework requires or encourages permits to be granted in some circumstances, in particular for victims of domestic violence with a dependent status (Citizens Directive and Family Reunification Directive), victims of human trafficking (Residence Permit Directive) and labour exploitation (Employers’ Sanctions Directive).

These various permits are based on criteria which are often not assessed in the asylum procedure. At least half of the 60 national protection statuses existing in the EU are currently examined by other authorities than those handling asylum applications, and in many instances are not part of the international protection procedure. The refugee status determination procedure, which is the core of asylum procedures, evaluates whether the person has been or has a risk of persecution because of their “race, religion, nationality, membership of a particular social group or political opinion,” or would suffer serious harm as defined by article 15 of the EU Qualification Directive.

What is usually not considered is: whether it’s in the best interests of the child’s development and long-term well-being to live in the country or a third country; whether people might face risks of serious harm when they are deported or return to a country of transit or another third country; whether their health condition might prevent their return; whether they might have strong private or family ties in the country (in particular, but not only, for people who have been living in the EU for years); and whether they might qualify for other national-level residence permits.

A migration system that respects the fundamental rights of everyone ensures people can access residence permits granted at national level. A fair and efficient system does not leave hundreds of thousands of people in limbo.

We recommend member states to comprehensively assess fundamental rights considerations (including but not limited to the right to health care, private and family ties, best interests of the child and non-refoulement) and whether third country nationals fulfil the criteria to apply for an autonomous residence permit or other authorisation granting a right to stay before a return decision is issued. For children, this means including a formal, individual and fully-documented procedure examining all aspects of a child’s situation and considering all options in order to identify which durable solution is in the best interests of the child.To learn more about this topic, please read our briefing paper.

The renewed EU action plan against migrant smuggling (2021-2025), presented by the European Commission at the end of September, risks exacerbating all the reasons why migrant smuggling happens in the first place.

At the EU level, migrant smuggling is defined as the facilitation of irregular entry, transit or stay into a country, and is often portrayed as a very lucrative business operated by powerful criminal networks that exploit migrants. In reality, research has shown time and time again that most people convicted for smuggling are in fact individuals, often helping friends and family, or migrants themselves trying to reach a certain country. We also know that people who want to reach Europe often have no other way to get here in a regular manner, and have to rely on other people who help them cross irregularly.

The Action Plan furthers these common misconceptions and uses them to justify measures that are actually counter-productive and harm the fundamental rights of migrants. Crucially, it fails to recognise that restrictive migration policies often incentivise smuggling activities: the more limited the regular pathways, the more people will be forced to rely on smugglers to access Europe.Read our briefingIn line with such biases, the Plan focuses on stemming irregular migration through stepping up returns, and on increasing pressure on third countries to prosecute and punish smugglers, with little consideration for basic safeguards.

No attention is paid to the root cause of smuggling, which evidence shows is linked to the lack of regular pathways to cross borders. International calls to create such regular pathways, also included in the Global Compact for Migration, are not heeded either.

Cooperation with and sanctions of third countries

In the Action Plan, the European Commission aims at incentivising cooperation with third countries to fight against migrant smuggling outside the EU, including by linking it to development cooperation funds and stepping up cooperation on return and readmission agreements. This is very much in line with trends of so-called “externalisation” of migration policy, whereby the EU passes the buck to third countries to manage/prevent migration, and crucially fill the gaps of our failing migration system.

The Action Plan does not only address cooperation with third countries, but also sanctions towards countries involved in “artificially creating and facilitating irregular migration”, which is equated to migrant smuggling. The Commission devotes a section to Belarus, which has been allowing migrants to cross its territory and pushing them to the borders of EU countries like Lithuania and Poland in retaliation to economic sanctions. Labelled as a “hybrid attack to destabilise Europe” which “instrumentalises” migrants, the Commission urges EU states to put pressure on Minsk through concerted action on a number of policy fields, including visas, trade, development, and financial assistance.

This approach reinforces an extremely problematic narrative which, on the one hand, presents migration as a threat, while, on the other hand, legitimises serious fundamental rights violations at the EU external borders.

Increasing returns

The Action Plan endorses and builds on several key tenets of the 2020 Migration Pact, which sets out priorities in EU migration management for the years to come, mainly by increasing detention and returns.

In this line, the Plan repeatedly stresses the need to increase returns to reduce incentives to irregular migration. Just like the Migration Pact, this Action Plan also foresees a big role for the EU’s border control agency Frontex in stepping up returns. This is no good news for human rights, as the agency has been investigated for multiple allegations of complicity in human rights violations at the borders.

Surveillance and digital technologies

The Plan foresees measures that increase surveillance on people arriving to Europe in several ways.

On a micro-level, the Plan endorses measures in the Migration Pact which allow border guards to interrogate migrants about smuggling activities. Crucially, the Plan explicitly suggests that information collected in reception centres and during the asylum interviews should be shared with prosecutors, which risks leading to abuses of power and disregard of procedural safeguards.

The Plan further suggests increasing monitoring around asylum reception centres to prevent asylum seekers from being reached by smugglers. This measure will likely lead to more controls and restrictions to the freedom of movement of people in the centres.

On a macro-level, the Plan features digital technologies as further tools to survey and fight against migrant smuggling, including by developing artificial intelligence programmes and brushing up on old plans to increase social media surveillance through Frontex. The use of artificial intelligence in the public sphere presents high risks of discriminatory profiling, which have been denounced by various civil society organisations.

Weak protection for people in vulnerable situations

To detect and protect people in situations of vulnerability, the Action Plan only relies on screenings done at the borders (so-called “pre-entry screenings”). These screenings are introduced by the EU Migration Pact and essentially focus on identity and security checks for anyone arriving at EU borders. Assessments of individual vulnerabilities are possible but not mandatory, which raises serious doubts about how effective this process can be in detecting vulnerabilities.

The very few references to assistance to vulnerable migrants are limited to campaigns to dissuade irregular migration, existing instruments on trafficking in human beings, and a short mention of the EU Strategy on the Rights of the Child.

Criminalisation of humanitarian assistance

The fight against irregular migration and migrants’ smuggling often rhymes with criminalisation of solidarity with migrants. Humanitarian acts such as providing food and shelter can be seen as aiding irregular entry or outright smuggling operations. On this aspect, the Plan reiterates that acts which are “mandated by law” (for instance lifesaving operations by specific NGOs) should never be criminalised. However, it also explains that a different set of rules applies to what the Plan calls “humanitarian acts not mandated by law” (e.g. providing food, shelter, car lifts or information). With regard to these acts, member states are merely “invited” to make use of the possibility to amend their national legislations to exempt them from criminalisation.

The criminalisation of people helping migrants as a result of the fight against irregular entry is not new. In 2017, the European Commission already hinted at risks of criminalisation of humanitarian assistance when evaluating EU legislation on the facilitation of irregular entry. In 2018, a study funded by the European Parliament found that the same EU legislation had “resulted in the policing of citizens and civil society”.

Today, the new Action Plan optimistically claims that previous studies show that policies related to the facilitation of irregular entry are effective, “although some aspects should be clarified”.

The European Commission has committed to re-evaluating the Action Plan in 2023. We hope this will be an opportunity to rethink the whole approach to migrants’ smuggling, and put migrants’ rights front and centre.Cover image: danmir12 – Adobe Stock

On Monday 14 June 2021, the EPSCO Council unanimously adopted the Council Recommendation establishing a European Child Guarantee. In a clear signal to both children and governments, the Council’s text states that all children in need must be able to benefit from the Child Guarantee actions, irrespective of their migration status. This momentous step forward cannot be underestimated, as activities supporting undocumented people have long been excluded from EU funding in the past. But with member states now tasked with developing national Child Guarantee action plans, national governments and civil society must make sure that undocumented children in need can and will benefit in practice.

Opening up access to key services

According to the Council Recommendation, undocumented children and children in migration who are “at risk of poverty or social exclusion” should have effective and free access to high-quality early childhood education and care (ECEC), education and school-based activities, at least one healthy meal each school day and healthcare. They should also have effective access to healthy nutrition and adequate housing.

As shown in PICUM research, all of these areas of life are rife with difficulties and exclusion for undocumented children and families. Undocumented children and families often live in cramped, unhealthy housing, need to overcome financial or administrative barriers to go to school, are excluded from early childhood education and care, may not be eating healthy because of a tight family budget and, depending on where they live, may only be able to benefit from emergency health care.

The Council Recommendation sets a precedent because with it, member states commit to prioritising children’s needs over their residence status. For children in migration, and especially undocumented children, this recognition is hard-won and far from self-evident. As was made clear in the child guarantee feasibility study, undocumented children face more barriers than other migrant children when accessing the services targeted by the Child Guarantee.

The Child Guarantee could also open the door for undocumented children and families to receive benefits connected to accessing ECEC, education, school-based activities, healthcare and one healthy meal per school day because ‘free access’ is to be understood as services being “provided free of charge, either by organising and providing such services or by adequate benefits to cover the costs or the charges of the services, or in such a way that financial circumstances will not pose an obstacle to equal access.”   

Prioritising children’s needs over their residence status

The European Child Guarantee is part of a broader trend by the EU institutions to prioritise people’s needs over residence status in its social policies. For instance, the EU Strategy on the Rights of the Child (2021-2025) clarifies that all children are targets of the strategy and Commission representatives have confirmed that that includes undocumented children. The EU Action Plan on Integration and Inclusion (2021-2027), too, differs from its predecessor, the 2016 Action Plan on the integration of third-country nationals, by not limiting its scope to regularly-residing people. The European Pillar of Social Rights Action Plan, of which the EU Child Guarantee is a deliverable, also sets the goal of lifting at least 5 million children out of poverty by 2030. This recent trend of inclusive policies is very positive, and we hope it will continue.

However, we see a very different trend in Europe’s approach towards migration. Both at member state and EU-level, the trend towards more detention and fewer safeguards for children and adults continues to gather support. Most concerningly, the 2020 Migration and Asylum Pact does not adequately safeguard or protect children even though key European and global institutions have recognized that migrant children are highly vulnerable members of our society and their best interests overrides migration management considerations.

This contradiction of recognizing a child’s needs and rights over their residence status in one policy field while not doing so in another is not sustainable. Especially when we know that undocumented children’s vulnerability and social exclusion is partly caused by their residence status, restrictive migration policies and the lack of options to regularise their stay. If the proposed Migration and Asylum Pact will prevent migrants from accessing in-country residence procedures, set up a return sponsorship scheme that rips undocumented families from their support networks to drop them in an unknown country, or cause trauma and additional vulnerability through the widespread use of detention – children will not be set up for success. Nor will the proposed Migration and Asylum Pact create the necessary preconditions for a successful integration policy because it erodes migrants’ resilience and trust in the system.

Leveraging EU funds to tackle child poverty and exclusion

Because the Child Guarantee activities would complement existing national-level actions and funding, several EU funds will be financing its implementation. After months of negotiations, the European Parliament, Council and Commission, agreed that member states will earmark an “appropriate amount” of the European Social Fund Plus (ESF+) to tackle child poverty and exclusion, and member states with an above-average number of children living at risk of poverty or social exclusion earmarking at least 5%. For the 2021-2027 financing period, these countries are Bulgaria, Cyprus, Greece, Ireland, Italy, Lithuania, Luxemburg, Malta, Romania, Spain and Sweden.

It will soon become clear how committed member states are to lifting children out of poverty. A clear indicator will be seeing what member states consider an “appropriate amount” and whether they target more difficult-to-reach populations, like undocumented children and families.

Going beyond the recommended actions

Member states should understand the recommended activities listed in the Council Recommendation as a first step. For instance, regarding access to healthcare, the Council only recommends to member states that they facilitate early detection and treatment of diseases and developmental problems; implement accessible health promotion and disease prevention programmes targeting children in need and their families; and provide targeted rehabilitation and habilitation services for children with disabilities. It is evident that these do not, alone, equate to effective and free access to health care for children in need. That is why member states must go beyond what is recommended by the Commission or the Council and consider the effective needs of children and what hampers them from enjoying these services.

Member states should immediately appoint a national Child Guarantee Coordinator. Member states now have until March 2022 to present national actions plans that are adapted to national, regional and local circumstances, and identify children in need and the barriers they face in accessing and taking-up the services above.

Member states cannot do this alone, however. Because they are often invisible, there is a lack of understanding of the barriers undocumented children and families face, what they need and even how many undocumented children are living in specific country. It is up to civil society, specialists and migrant-led organisations to assist member states in developing national action plans that target and effectively benefit undocumented children. And it is up to member states to ensure they are consulted and involved in the drafting of the plans.

As PICUM, we are glad to see the route taken by this Commission and the Council with their recognition that children’s interests are primordial – including when children have irregular migration status. We hope that the national action plans will reflect the intent of the Parliament, the Commission and the EPSCO council and ensure that undocumented children can fulfil their potential.

Employment, Social Policy, Health and Consumer Affairs Council (EPSCO)

A.o. by the European Court of Human Rights in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium and Tarakhel v. Switzerland.

The UN Committee on the Rights of the Child, underlined that “non rights-based arguments such as, those relating to general migration control, cannot override best interests considerations.” in General Comment no. 6, Treatment of unaccompanied and separated children outside their country of origin

Cover: Unsplash – Mi Pham 

On 27 April 2021, the EU Commission published its first EU Strategy on voluntary return and reintegration. The strategy is envisaged by the New Pact on Migration and Asylum as an integral policy for a common EU system for returns. It conceives actions in seven areas with the aim of increasing the number of voluntary returns. If, on paper, the text recognizes voluntary return as being more efficient, cost-effective and preferable to forced return, in practice this is contradicted by several ongoing legislative proposals which make access to voluntary return more difficult. The text highlights the role of “swift and efficient return border procedures” to encourage migrants to take up voluntary returns, including for people in administrative detention and those whose asylum application is still pending. The Strategy increases the role of Frontex in promoting voluntary returns, despite the growing scrutiny into the lack of accountability and the potential involvement of the agency in human rights violations.

 “Voluntary” returns?

Increasing the rate of returns is one of the main objectives of the European Pact on Migration and Asylum. The term “return” appears nearly 100 times in the Commission Communication on the Pact alone – while the term “rights” only 14. While forced return remains a central component of the EU return system, the objective of this strategy is to develop a more uniform and coordinated approach that acknowledges the potential of voluntariness within the return process. Even though the number of returnees is still considered a strong indicator for the effectiveness of any return policy, this strategy recognizes that “it is important to not only consider the return rates but also the situation of the individuals concerned, enabling their return in a dignified manner and taking into account their reintegration prospects once they return to their country of origin”.

On paper, the strategy – a non-binding instrument – prioritises voluntary over forced return, but in practice this is contradicted by several binding legislative proposals which make access to voluntary return more difficult. For instance, the Commission proposal for a Recast Return Directive prohibits EU Member States from granting a period for voluntary departure in a broad number of circumstances which legitimise a risk of absconding. Moreover, migrants are openly encouraged to return from the very moment they arrive in the EU through return counselling – which can be provided by Frontex – even during their asylum application, and by the constant threat of swift and efficient return procedures, including at borders, for those who do not agree to return voluntarily. Encouraging voluntary returns through “swift and efficient return border procedures” confirms the EU “carrot and stick” approach, for which “an efficient return border procedure will also facilitate and encourage voluntary returns since people will be available and more willing to cooperate with the authorities” (EU Strategy on voluntary return and reintegration,p.7).

Frontex will have an increasing role in voluntary returns

With its reinforced mandate, Frontex will play a crucial role in the activities of return and reintegration assistance to returnees. In mid-2022, Frontex will take over the activities of the European Return and Reintegration Network (ERRIN). The full operationalisation of the Agency’s mandate is a gradual process that started in May 2021 with a first Frontex pilot for individual joint reintegration support to returnees from the EU. In collaboration with ICMPD, the Agency will also be involved in the development of a common curriculum for return counsellors, which aims at providing practitioners with teaching modules on all aspects of return policy and practice. Frontex will support Member States by deploying return experts trained in return counselling as part of the standing corps. In addition, it will have an increased role in “pre-return counselling (e.g. outreach campaigns to migrants), post-arrival support and monitoring the effectiveness of reintegration assistance.

Further technical support and the new roles on return foreseen by the Pact

The strategy indicates that additional technical support will be guaranteed by the Return Coordinator and the High Level Network for Return, including representatives from Member States. They will assist the coordination of national authorities on voluntary return and reintegration strategies and programmes, to promote uniformity between national actions and this strategy, and to promote the exchange of best practices among Member States. This support aims at achieving a comprehensive governance framework as set out in the proposal for a Regulation on Asylum and Migration Management.

Prioritising voluntary over forced returns is a welcome step, but it is not sufficient

On the Roadmap published on 15 December 2020, the European Commission describes “shaping returns to respond to the needs of the individual” as one of the main objectives for the EU and EU agencies and the Member States. If, on the one hand, this strategy recognizes voluntary return as being more efficient and preferable to forced return, the EU Commission commitment to respond to the needs of the individual remains on many levels unclear in the document published in April 2021.

Firstly, it is crucial to acknowledge that return is not the best option for all. Secondly, when voluntary return is possible, EU policies should ensure that people and their choices come first. Human choices are not pre-packaged products, but rather the result of accurate evaluations that require time and services to allow people to explore all different options, including the possibility to remain regularly in the EU. While the Commission’s efforts to prioritise voluntary over forced returns are a welcome step, encouraging people to return by all possible means and from the very moment they arrive at borders is far from being a strategy that meets migrants’ freedom of choice nor their needs.

Present data on voluntary returns are not clear. According to the EU Commission, “the share of voluntary returns is currently 27% of all departures from the EU”. Frontex Risk analysis 2020, instead, reported that 49 % of returns are voluntary (table 13, p. 67).

Cover: Unsplash – Nathan Dumlao