The EU’s Proposed Migration Crackdown: Tougher Returns, Troubling Consequences

The EU’s proposed migrants and asylum-seekers return reform raises serious legal and human rights concerns. With extended detention periods, curtailed appeal rights, and returns to third countries with questionable human rights protections, the European Commission (EC) is seemingly teetering with serious international law and fundamental human rights violations.

Responding to European states’ political priorities and initiating corresponding legislation is part of the European Commission’s mandate, as is protecting the Union’s core values, such as the respect of fundamental rights and international law. Yet worries arise concerning the potential conflictual nature of these responsibilities as the EC proposes a new common European approach to the return of irregular migrants, which experts worry may flirt with serious human rights violations.

It is the European Council’s prerogative, representing the interests of member States, to request that the Commission initiate legislation. That is exactly what happened on 17 October 2024, as the European Council urged the EC to propose new legislation to increase and speed up returns from the EU of irregular migrants and asylum seekers.  This proposal takes the form of a new EU regulation, which would replace the current Return Directive from 2008. 

This request from the European Council, spearheaded by leaders from Sweden, Italy, Denmark and the Netherlands, seems to respond to a popular narrative gripping European politics, the so-called “migration crisis”. Indeed, far-right parties are gaining traction in Europe, and poll aggregators are adamant: the most salient issue for far-right voters is migration. 

Although European conservative and far-right parties often have different political objectives and priorities, they tend to share a common stance on migration: less is better. The three far-right European political groups (the Patriots, ECR and ESN) collectively hold 187 out of the 720 seats in the European Parliament (EP) since the last EU elections in June 2024. Meanwhile, Europe’s largest political group, made up of European centre-right and conservative parties, the European People’s Party  (EPP), is increasingly shifting its stance regarding migration towards that of the far-right. 

The so-called “migration crisis” is thus a salient issue in European politics. One could argue that the European Council and the EC are responding to the concerns of its citizens and Member States, yet when it comes to the respect of international law and human rights, the EU institutions are bound by legal and moral commitments clearly defined in the institutional treaties, which the EC presents itself as being the guardian of.  

The United Kingdom’s (UK) attempt to introduce return hubs in Rwanda for its asylum seekers and irregular migrants failed as the measure was contested and held up in court. These return hubs are facilities designed to process and deport asylum seekers or irregular migrants who are not granted protection or residency. In a 2023 ruling, the UK’s supreme court unanimously ruled the government’s plan as unlawful due to a real risk of human rights violations, notably due to the UK’s international law obligations towards the European Court of Human Rights (ECHR).

The EU faces similar legal issues as a party to the ECHR, and has integrated its provisions within its foundational treaties. Italy’s agreement with Albania to detain and process migrants outside the EU has not yet been blocked by Italian or European courts, but it is under legal scrutiny. Human rights groups are preparing challenges, and Italy’s opposition calls the deal unconstitutional. The European Commission has expressed concern, noting that Italy must comply with EU asylum law. Commissioner Ylva Johansson warned that EU asylum law applies only within EU borders, and any external arrangement must respect legal obligations, warning that outsourcing asylum procedures to a non-EU country could breach EU law.

The Commission has asked Italy to explain how the deal aligns with EU rules on asylum procedures, detention, and fundamental rights. As guardian of the treaties, it must ensure compliance with treaties like the Charter of Fundamental Rights, and with EU legislation like the Asylum Procedures Directive.

Despite criticizing Italy’s deal, the Commission is now proposing similar “return partnerships” and external processing hubs as part of broader EU migration reform, prompting criticism of double standards.

Through the proposal for a novel EU common approach on returns, the EC wishes to equip Member States with stricter rules and mechanisms to implement the return of migrants and asylum-seekers. Detention is to be extended from 18 to 24 months for individuals who present a risk of absconding to another Member State, who do not have a fixed address, are not cooperating with return procedures, or are using false or forged documents. These are a broad and non-exhaustive list of requirements that easily apply to irregular migrants and asylum-seekers, including minors, even if unaccompanied.  

Furthermore, the automatic suspension of returns during appeal procedures would no longer be guaranteed, except in cases of non-refoulement. This entails that when an individual appeals a return decision, it will be up to national authorities or courts to decide whether to suspend the return while the appeal is ongoing. The only situation where returns must be automatically suspended is when there’s a real risk of torture, inhuman or degrading treatment, or persecution in the country the person would be sent back to. 

Expansive derogations are to be applied to people considered a security risk including mandatory forced return, extended entry bans of 20 years (rather than 10 years under current legislation), detention in prisons (but separated from other prisoners), and the extension of detention beyond the normal 24 months upon order of a judge and with no provided time limit.  

Through this proposal, the EC provides Member States with the legal possibility to use Return Hubs. Allowing the return of people who are staying irregularly in the EU and have received a final return decision, to a third country based on a bilateral or EU-level agreement. This makes it possible to forcibly return migrants and asylum-seekers to countries where they have little to no connection. According to the EC, such agreements may only be concluded with third countries that respect human rights standards and principles of international law. Despite the EC’s guarantees, the enforceability of international law and human rights standards in third countries where migrants and refugees could be deported to remains questionable at best.

These measures, if adopted, are sure to incur tough legal battles, and their implementation risks setting a precedent which would undermine the EU’s commitment to international law and fundamental human rights.

Simon Rechsteiner is a Master’s Degree student in European Studies at the IEE.