The European Union Returns Directive and its Compatibility with International Human Rights Law: Analysis of Return Decision, Entry Ban, Detention, and Removal(45 Immigration and Asylum Law and Policy in Europe)

The book assesses the EU Returns Directive against international human rights norms and standards. Izabella Majcher explores protection gaps in the EU return policy and highlights how the provisions of the Directive should be implemented in line with member states’ human rights obligations. Informed by this assessment, the book discusses draft amendments to the Directive, proposed by the European Commission in September 2018.

Table of Contents:
Acknowledgements Abbreviations and Country Codes Part 1 Introduction 1 The Returns Directive against the Background of International and EU Human Rights Law: Setting the Scene  1.1 The Returns Directive   1.1.1 Presentation of the Returns Directive   1.1.2 Instruments Required for the Implementation of the Returns Directive   1.1.3 The Returns Directive within the EU Asylum and Immigration Policy  1.2 Sources of the Human Rights Protection in the Context of Expulsion   1.2.1 International Human Rights Law   1.2.2 EU Human Rights Law  1.3 The Need for a Human Rights Assessment of the Returns Directive in the Context of the Recast Process Part 2 Return Decision Introduction: The Scheme of Return under EU Law 2 Human Rights Impediments to Return  2.1 Introduction  2.2 The Principle of Non-Refoulement   2.2.1 The Scope of the Principle of Non-Refoulement   2.2.2 Implementation of the Principle of Non-Refoulement  2.3 Family and Private Life   2.3.1 The Scope of the Concepts of Family and Private Life   2.3.2 The Implementation of the Right to Respect for Family and Private Life  2.4 Conclusion 3 Procedural Safeguards  3.1 Introduction  3.2 Prohibition of Collective Expulsion  3.3 The Right to Be Heard Prior to Adoption of the Return Decision  3.4 Effective Remedy   3.4.1 Accessibility of Remedy   3.4.2 Effectiveness of Remedy  3.5 Additional Child-Specific Safeguards   3.5.1 The Right to Be Heard   3.5.2 The Guardianship Assistance for Unaccompanied Children  3.6 Conclusion 4 Social Rights Pending Return  4.1 Introduction  4.2 Health Care  4.3 Education  4.4 Adequate Standard of Living   4.4.1 Basic Conditions of Subsistence Addressed in the Preamble of the Directive   4.4.2 Can Destitution Entail a Duty to Regularise?  4.5 Conclusion Conclusion: Legal Limbo for Non-Deportable People Part 3 Re-Entry Ban Introduction: Entry Ban as Pan-European Effect of Return Decision 5 Entry Ban in the Light of the Principle of Proportionality  5.1 Introduction  5.2 The Nature of Entry Ban  5.3 The Schengen-Wide Character of Entry Ban  5.4 Conclusion 6 Human Rights Impediments to Entry Ban  6.1 Introduction  6.2 The Principle of Non-Refoulement   6.2.1 Endorsement of the Principle of Non-Refoulement in Relation to Entry Ban   6.2.2 Implementation of the Principle of Non-Refoulement in Relation to Entry Ban  6.3 Family and Private Life  6.4 Conclusion 7 Protection of Personal Data Stored in a SIS Alert  7.1 Introduction  7.2 The Right to Data Protection   7.2.1 The Right to Information   7.2.2 The Right of Access   7.2.3 The Right to Correction and Deletion of Data   7.2.4 The Right to a Remedy  7.3 The Right to Private Life  7.4 Conclusion Conclusion: Schengen-Wide Entry Ban: a Triple Peine? Part 4 Pre-Removal Detention Introduction: Immigration Detention in the Light of the Prohibition of Arbitrary Detention 8 Permissibility of Detention  8.1 Introduction  8.2 Lawfulness of Detention   8.2.1 Procedural Requirements: the Rights of the Defence   8.2.2 Substantive Requirements: the Grounds for Detention  8.3 Necessity and Proportionality of Detention   8.3.1 Alternatives to Detention   8.3.2 The Rule of Non-Detention of Children  8.4 Length of Detention   8.4.1 The Maximum Permissible Duration of Detention   8.4.2 Risk of Re-Detention upon the Expiry of the Permissible Length of Detention  8.5 Detention at the Border: Out of the Directive’s Safeguards?  8.6 Conclusion 9 Procedural Safeguards  9.1 Introduction  9.2 Review of Detention   9.2.1 Accessibility of Review   9.2.2 Effectiveness of Review  9.3 Compensation for Unlawful Detention  9.4 Conclusion 10 Conditions of Detention  10.1 Introduction  10.2 Place of Detention and Separation of Different Categories of Detainees  10.3 Treatment in Detention and Material Conditions  10.4 Specific Categories of Detainees   10.4.1 Children   10.4.2 Other Vulnerable Persons  10.5 Contact with the Outside World and Independent Monitoring  10.6 Complaint Mechanisms and Effective Investigation  10.7 Conclusion Conclusion: Externalisation of Immigration Detention Part 5 Enforcement of Return Introduction: Enforcement of the Return Decision as the Final Stage of the Return Process 11 Mandatory (“Voluntary”) Return  11.1 Introduction  11.2 “Voluntary” Departure Period  11.3 Assisted Voluntary Return Programmes and Ambiguous Role of the IOM  11.4 Conclusion 12 Forcible Return  12.1 Introduction  12.2 Removal   12.2.1 Returnee’s Medical Condition   12.2.2 The Use of Force and Means of Restraint   12.2.3 Deportation Personnel   12.2.4 Independent Monitoring   12.2.5 Complaint Mechanisms and Effective Investigation  12.3 Joint Removal Operations   12.3.1 Joint Removal Flights under the Council Decision 2004/573   12.3.2 Joint Return Operations Coordinated by Frontex  12.4 Conclusion 13 Removal to a Transit Country Based on Readmission Agreements  13.1 Introduction  13.2 Indirect Refoulement   13.2.1 The Concept of Safe Third Country   13.2.2 Removal to a Transit Country under the Returns Directive  13.3 Collective Expulsion  13.4 Conclusion Conclusion: Post-Return Monitoring: a Missing Element Part 6 Conclusion 14 The Returns Directive: Effectiveness of Return vs. Human Rights Protection  14.1 Critical Overview of the EU Return Process  14.2 Return Procedures against the Backdrop of International and EU Human Rights Law   14.2.1 Risks to Human Rights Protection   14.2.2 Upholding Human Rights Protection  14.3 Way Forward   14.3.1 The Recast of the Returns Directive   14.3.2 The Implementation in line with States’ Human Rights Obligations Annexes Annex 1 Ratifications of International Instruments: United Nations Annex 2 Ratifications of International Instruments: Council of Europe Annex 3 Reservations Annex 4 Domestic Legislation Transposing the Returns Directive Annex 5 Return Decisions 2012–2018 Annex 6 Entry Bans 2009–2013 Annex 7 Entry Bans in 2013 Annex 8 Detention Orders in 2013 Annex 9 Maximum Length of Detention Prior to and after the Transposition of the Directive Annex 10 Removals 2012–2018 Annex 11 Voluntary Returns (Numbers and Percentage) 2014–2017 Annex 12 Assisted Returns (Numbers and Percentage) 2014–2017 Annex 13 Forcible Returns (Numbers and Percentage) 2014–2017 Annex 14 Frontex’s Return Operations 2006–2017 Bibliography Index

About the Author :
Izabella Majcher, Ph.D. (Graduate Institute of International and Development Studies, Geneva, 2017), is a researcher at the Global Detention Project and visitor to immigration detainees in Geneva with the Ligue Suisse des Droits de l’Homme. She has published widely on the EU returns policy and has experience in various international fora (UN system, diplomatic representations, and NGOs).