Immigration detention and returns in the EU Migration Pact: how we can correct course

Last September, the European Commission published the new European Pact on Migration and Asylum to reform the EU migration and asylum system. The Pact, which consists of five legislative proposals and four recommendations, heavily focuses on restricting access to Europe and on stepping up returns of people who are unable to get international protection.

To achieve these goals, the proposals reduce safeguards, set unrealistic timeframes to have fair procedures, and increase detention, including for children – with little or no consideration for human rights, well-being or inclusion. We believe Europe can do better – both for our societies and for the children and adults who are migrating – and have identified key issues that need to change in the different Pact proposals.

The ‘Screening Regulation’ introduces a ‘pre-entry’ procedure to identify people who crossed an external border without authorisation or who disembarked after a search and rescue operation. In short, this means detaining everyone, including children of any age, unaccompanied or with their families, for up to five days (ten in situations of crisis), during which the border personnel (read Frontex or national border guards) will decide whether people should undergo a vulnerability and health screening or not. What’s more, undocumented people who are already on the EU territory could also be apprehended and detained for three days while they undergo the screening procedure – independent of how long they have been living on the territory and with no right to see a lawyer, appeal their detention or even inform their families.

The ‘Asylum Procedures Regulation’ introduces mandatory asylum and return procedures at borders – despite broad evidence of the harmful impact of these procedures and that they lead to de facto detention. As border procedures will also apply to children, the proposal stands at odds with global commitments and repeated calls by the European Parliament (in 2018, 2019, 2020 and 2021) to end child detention in light of the extremely harmful impact it has on children health and development. Moreover, the Regulation proposes to link the asylum and return procedures – a controversial reform already proposed, but not agreed yet, in the context of the ongoing negotiations on the Recast Return Directive. If adopted, this would narrow or even close access to residence procedures on other grounds under national and EU legislation.

The ‘Asylum and Migration Management Regulation (RAMM)’ sets out a common framework for the management of asylum and migration in the European Union, clarifies which Member State is responsible for reviewing an asylum application, and proposes a complex and inadequate solidarity mechanism. A key tenet of this mechanism is the controversial possibility for Member States to contribute to returning people, rather than relocating them. In case the return isn’t carried out within 4 to 8 months from the Member State of departure, people will be transferred to the sponsoring Member State. Through this mechanism, people, including families and children, will be uprooted from the country in which they have been living potentially for years. This is in clear contrast with the Regulation’s claim that the best interests of the child will always be a primary consideration.

The ‘Crisis Regulation’ provides specific derogations to the timelines and safeguards set by the other three instruments in situations of crisis, risk of crisis or force majeure. Amongst others, people will be detained for longer periods of time, creating grave concerns around well-being and safeguards.

Although the Pact touts being child-rights-compliant, children will suffer if the proposals are adopted as they are now. It is difficult to see when and how children will have their best interests assessed or their well-being safeguarded when they may not have access to legal assistance, unaccompanied children may not be appointed a guardian, when children will automatically be detained at the border, and will not have access to a documented best interests procedure before a return decision is issued. For each instrument, we identified changes that are necessary to safeguard children.

In addition, the proposals contribute to dividing people between those who are deserving of stay and those who are not; between those who may be able to receive international protection and those whose cases are not so clear and are automatically turned down and forced away. This strict division erases any possibility for accessing residence procedures based on children’s rghts, as workers, on medical grounds or as victims of trafficking or crime, to name a few. It also removes important safeguards related to non-refoulement, child rights, the protection of family and private life and the right to fair trial.

Lastly, if these proposals are adopted without change, the space for civil society to provide key services to migrants and asylum seekers will continue to shrink, creating a situation in which migrants and asylum seekers alike are misinformed, risk having their fundamental rights violated without oversight, and a Europe in which solidarity is increasingly criminalised and policed. We can do better.


For an overview of our concerns, read More detention, fewer safeguards: How the new EU Pact on Migration and Asylum creates new loopholes to ignore human rights obligations.





Cover: methaphum – Adobe Stock

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