Alberto Horst. Head of European Migration and Diversity and Senior Policy Analyst have drawn attention to an important dimension. He recalled that the European Commission pledged to deliver a "new common approach on the return of irregular migrants" within the first 100 days of its new mandate. It has suggested that the EU needs to replace the current Return Directive with a Regulation. The proposal followed calls by the European Council to put forward "as a matter of urgency" measures to "facilitate, increase and speed up returns".
With its proposal for a Return Regulation, the European Commission is apparently aiming to facilitate returns and harmonise standards and practices. However, according to Horst, bold and contentious ideas like 'return hubs' have already sparked heated debate, overshadowing core elements of the proposed reform and key political questions.
One needs to understand that the going back framework has had an argumentative history with analysts in the past questioning the manner through which safeguards were being strengthened for irregular stay of non-EU nationals.
Horst feels that there appears to be a rising dimension "for further tightening of the existing rules through measures including stricter procedures, stronger sanctions to incentivise cooperation of irregularly staying persons as well as mandatory mutual recognition of return decisions ".
Interestingly some analysts are suggesting that reforms should make it possible for EU Member States to remove irregularly staying non-EU nationals to any third country they wish, subject to an agreed "agreement" or "arrangement", which has compliance with human rights and a monitoring mechanism.
Though opinions on the reform differ, most stakeholders agree that the current return system has systemic deficiencies. The EU and member state representatives typically lay emphasis on the low number of actual departures (i.e., 'return rates') using this as an overall indicator of effectiveness. This continues to draw criticism from civil society in general. Meanwhile, recent violent attacks in Germany and France by non-EU nationals who had been ordered to leave appears to have also led to higher pressure to introduce stricter security measures.
Still, there are many more shortcomings in the current framework. Different approaches to transposition and implementation have led to divergent practices across the Union, with decisions by National Courts widening gaps. This undercuts predictability, as similar cases can lead to different outcomes in different Member States.
Meanwhile, rulings by the EU Court of Justice (CJEU) have identified major ambiguities in the efforts and have urged that efforts undertaken should avoid inconsistencies.
Besides polarising the debate, the disproportionate attention generated by the hubs also risks overshadowing other elements in the Commission's efforts, and the key question of whether these would help turn the common EU return system into a reality. It also sidetracks from key practical and political considerations, including the resources needed to ensure the reform's implementation, and its coherence with the updated rules governing the Common European Asylum System (CEAS) and the Schengen Area. In the meantime, EU Commissioners and MEPs from the European People's Party (EPP) have defended the hubs and argued that the proposed measures are necessary to show voters they have "put the European house in order".
Many analysts in the meantime have observed that the current framework also falls short on procedural safeguards and fundamental rights. Although detention should be a measure of last resort - with alternatives also foreseen under the current framework - authorities often use it systematically. Since the Directive does not specify time limits, some Member States are now setting short deadlines for lodging appeals, affecting the right to an effective remedy, while others are pointing towards longer ones. Monitoring obligations are also not being specified. Furthermore, States may, but not obliged to, grant rights to stay to those who cannot be returned, leaving many in legal limbo.
Analysts, persuaded by the emerging debate related to this issue, are now giving many observations. It is being pointed out that as the current efforts aim to create a common EU return system, the main question is whether the Commission's proposal moves closer to that objective than the current framework.
In this context it is being hoped that the proposed legal efforts will identify key components of such a common system- (a) a common procedure; (b) mandatory recognition of return decisions issued by other States; (c) an adequately resourced return system with trained personnel; (d) proper integration with digital systems; (e) effective cooperation between states; and (f) support from EU Agencies.
In this regard some analysts have drawn attention to the need for it to be mandatory to recognise a return decision issued by another Member State. Currently optional - and seldom used - mandatory mutual recognition represents a clear push for a 'seamless return process', establishing that the same decision must have effects across the whole of the EU. Member States would only be able to avoid recognition of a foreign return decision on "public policy" grounds or if the country of return differs from that in the original decision.
If adopted by the Council and Parliament, mandatory mutual recognition would imply a significant change in practice for many national administrations that typically issue new decisions, among others, because of concerns over accountability for decisions made by other States and the heavier administrative burden that recognition sometimes implies. Procedural safeguards are also taking centre stage during the negotiations.
The Commission's proposal expands detention grounds and increases the maximum detention period. It also sets time-limits for appeals. The proposed Regulation also defines special rules for individuals posing a security risk, aiming to speed up their removal.
On cooperation with third countries, the proposal seeks "to ensure their authorities' collaboration through obligations, incentives, and consequences for non-cooperation". Yet measures like visa sanctions or trade lie outside the scope of the return framework. This draws attention to the question as to how to create consistency of the return framework with other actions pursued by the Union: In this context it is being mentioned that without effective cooperation from third countries, the number of returns may remain low and create greater geopolitical tensions.
Such a perspective underlines that the Commission is facing a hard problem in deciding what kind of instrument to put forward -- either pursue a much-awaited, needs-based reform with greater chances of faster negotiations, or adopt a more political approach, risking protracted discussions within and between the Council and Parliament.
Connected to this, while the Council Presidency appears to regard the reform efforts as important, they also know that experience with past Pact reforms has shown that Member States' support may be hard to win, even with security-oriented proposals.
Alberto Horst has correctly also observed that "While it remains to be seen if and how fast an agreement will be reached between the co-legislators, three challenges and urgent goals are already apparent, with effects beyond return. These are --
a) as States have already taken steps toward implementing the New Pact and CEAS reforms adopted before summer, the negotiations could be an opportunity to ensure that a future EU return system follows a clear implementation agenda. Remarkably, the proposal does not contain few details on implementation or monitoring, nor does it explain how its negotiation and possible adoption will affect the Pact preparations" and this factor may end up with return being difficult.
(b) each of the recently adopted as well as prospective reforms will follow a different schedule, with new Schengen rules already applicable -- the New Pact reforms from mid-2026. Some parts of the return reform will be applicable immediately after the text is adopted, others later on - to give time to devise operational measures.
(c) many consider that Poland has contradictory stance on migration reforms and this remains a conspicuous issue. Despite voting against the New Pact, begrudgingly filing a national plan, and refusing to fulfill key obligations, Poland might now attempt to lead on maximising returns.
Analyst Alberto Horst feels that unless and until "Poland, alongside other EU countries with a similar stance, reconcile their contradictory positions", there are risks that there will be difficulties with regard to implementation of the Union's migration framework.
Such a scenario appears to have created quite a bit of anxiety among the EU Member States as to whether all will choose with liberty the CEAS elements they prefer. Such a scenario reflects that the migration policy receiving so much attention might not get the full support that many in the European Union desire.
Analyst Judith Kohlenberger has nevertheless observed that the debate on reforming the European asylum system has gained significant momentum following the agreement reached by EU Interior Ministers recently. Alongside questions of solidarity and distribution, the possibilities of establishing 'return hubs' outside the EU was at the heart of the meeting. Outsourcing asylum procedures - or at least those concerning rejected asylum seekers - has long been a desire of many Heads of State and government, and the European Commission now aims to make this possible by creating the necessary legal foundations, for example by scrapping the so-called connection criterion.
There is, therefore, still a long way to go before any concrete return hubs become reality. Not only because, in the usual trilogue process, the European Parliament must also give its approval - and some MEPs, including Birgit Sippel of the Socialists and Democrats group, have already announced their opposition.
Furthermore, a united Europe that wants to stand its ground against attacks from former allies must recognise societal diversity as one of its strengths, and acknowledge the indispensable contribution that migrants - from guest workers and refugees to highly skilled expats - have made to Europe's reconstruction and prosperity.
Muhammad Zamir, a former Ambassador is an analyst specialised in foreign affairs, right to information and good governance. muhammadzamir0@gmail.com