The European Parliament’s vote on deportation rules: Rushed negotiations make dangerous policies

Olivia Sundberg Diez is the EU Advocate on Migration and Asylum at Amnesty International. She previously worked as a Policy Analyst at the European Policy Centre and a Senior Policy and Advocacy Advisor at the International Rescue Committee.

In a vote on Monday 9 March, the European Parliament's Civil Liberties, Justice and Home Affairs (LIBE) Committee voted on its position on the contested Return Regulation proposal. This followed rushed negotiations, including the last-minute submission of an alternative compromise by the centre-right European People’s Party, which received final support instead of a compromise proposed by the rapporteur. The resulting text retains most of the problematic elements of the Commission’s proposal and paves the way for a deeply harmful final agreement with the Council that strips away the rights of people subject to ‘returns’, or deportations, in Europe.

A false sense of urgency

From the outset, the Return Regulation proposal has been dominated by a constructed sense of urgency. It was tabled last March to coincide with the first 100 days of the European Commission’s current mandate, though was not preceded by a human rights impact assessment or formal consultations. Rather, it was prompted by substantial pressure from member states for an urgent, more restrictive legal framework, enabling, among other things, the establishment of ‘return hubs’ in EU law.

This same urgency has permeated every step of negotiations, culminating in a rushed and chaotic vote last week in the LIBE Committee on two different compromise texts: one by the rapporteur Malik Azmani MEP, from the liberal Renew Europe group, and an alternative text proposed by the European People’s Party’s Xavier Bellamy MEP, supported by parties further right along the spectrum. In a vote divided along clear political lines, the latter alternative compromise was adopted. Both texts had only been presented days prior, without adequate scrutiny, full deliberation, or meaningful consultations with civil society and other experts. 

Deportation policies such as these carry vast human rights risks and social implications, and require particularly careful attention. The accelerated negotiations and resulting vote did not sufficiently take this into account, nor did it address the unanimous concerns over the proposal’s compliance with international legal obligations raised by a broad group of UN rapporteurs and mechanisms, OHCHR, the Council of Europe Human Rights Commissioner, the EU Fundamental Rights Agency, and over 250 civil society organisations.

The politics around the file reflect an unprecedented cooperation with anti-immigration parties and groups including France’s National Rally, Germany’s Alternative for Germany, and Hungary’s Fidesz. This exemplifies an acceleration of deeper, more insidious trends towards increasingly harmful, exclusionary, and draconian policies and narratives on migration. 

A punitive and coercive approach

The resulting Parliament text follows the core logic of the Commission’s original proposal, and retains a vast array of punitive, coercive and disproportionate measures on people subject to deportation. It weakens effective remedy, procedural safeguards, and protections from refoulement. Blanket obligations for member states to issue deportation decisions overlook situations where human rights, humanitarian and other grounds would warrant regular stay. Far from addressing irregularity, these proposals will lead to an accumulation of deportation orders, artificially inflating the number of deportation decisions issued, even when return is not appropriate or even feasible. This risks trapping people in precarity and uncertainty across Europe, leaving them unable to enjoy their rights or contribute to the societies in which they live. 

The Parliament’s text vastly expands detention in length and in scope, with grounds so vague and difficult to rebut that they may plausibly cover most people in an undocumented situation. This departs from international human rights law requirements that immigration detention be applied as a measure of last resort, for the shortest possible time, and subject to individualised assessments as to its necessity and proportionality. It also fails to exclude groups for whom detention can never be appropriate, including children and families, ignoring international standards stating that detention can never be in the best interests of the child.

The text puts forward a vast set of sanctions and restrictions on people issued deportation decisions, which risk punishing undocumented people for circumstances beyond their control, including lack of documents, vulnerabilities, or homelessness. It also foresees expansive derogations, including detention beyond an otherwise two-year maximum limit, for people who pose a threat to ‘public policy’, ‘public security’ or ‘national security’ – vague grounds, lacking objective criteria, which risk being applied broadly, discriminatorily, and abusively by states, resulting in arbitrary sanctions and further conflating migration and security policies. States, too, will retain the possibility to lay out even further derogations, sanctions or coercive measures in national law.

Civil society organisations have, moreover, been raising the alarm that new ‘detection’ and ‘investigative’ measures, in particular as proposed by the Council in their general approach, also risk exacerbating racial profiling and discriminatory policing, home raids and surveillance, and undermining access to rights, essential services and the justice system for racialised and migrant communities at large.

‘Return hubs’ or offshore deportation detention centres

The text provides a legal framework to deport people to ‘return hubs’ in countries where they may have no connection or have never set foot. In Amnesty International’s assessment, return hubs cannot be implemented in a human rights compliant manner, and should be rejected in full.

As a global body of research has documented, previous attempts to externalize asylum or return responsibilities to third countries have resulted in a highly predictable pattern of human rights violations. By their very design, they entail a risk of automatic, and therefore arbitrary and unlawful, detention in third countries, violating the right to liberty and the prohibition on refoulement, as well as risks of torture, inhuman and degrading treatment, indirect refoulement, and protracted situations of limbo and uncertainty in third countries.

These inherent risks are exacerbated by the lack of enforceable safeguards in the texts being negotiated. No credible attempt has been made to set binding standards or even approximate the guidance outlined by numerous regional and global human rights bodies. Challenges concern the reliance on informal arrangements which may not be legally binding, and the lack of due diligence provisions and safeguards: these include human rights risk assessment obligations, individualised assessments and effective remedies to challenge a transfer, mitigation measures, effective independent human rights monitoring and complaint mechanisms after return, and clear criteria on reception conditions in the third country. The risks are further heightened if the scope of return hubs is expansive, for example, including asylum seekers whose claims are rejected on admissibility grounds without being examined on substance, children and other groups with specific vulnerabilities.

Given the lack of respect for human rights in the EU’s existing cooperation with third countries – such as in Tunisia, Libya or Egypt – there are few indications that references to human rights guarantees or safeguards will translate in practice. This complex, sensitive, impracticable, costly, and legally dubious exercise, too, may come at the expense of a rights-compliant migration diplomacy with third countries, as well as of investments into effective asylum and migration systems at home.

Next steps

Last week’s vote reflects a challenging new paradigm for policymaking on migration, a mounting securitisation of migration and attacks on migrant rights. This comes alongside a shrinking willingness or ability across EU institutions to resist pressure from member states on short-termist policies that will harm people, sow fear in communities, and result in rights violations, enormous costs, and lengthy litigation.

The text still needs to be endorsed by the full European Parliament in plenary, before negotiations begin with the Council. In line with recent negotiations on new EU asylum rules, trilogues are expected to move extremely quickly and land in a compromise very close to the Council’s deeply flawed position.

It is worth noting that humane and effective alternatives to deportations exist. Spain’s recent regularisation law shows there are smart, workable and human rights compliant ways to manage migration. Such policies give people an opportunity to build more stable lives, become more self-sufficient, and access secure housing and basic rights. These schemes are nothing new – governments in Europe and across the political spectrum have repeatedly introduced such programmes to reduce irregularity, raising working standards and conditions across entire core sectors of the economy. A sustainable, comprehensive and human rights compliant approach should reflect and encourage them, rather than pursuing deportations through ever more draconian measures and at seemingly any cost.

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