Tineke Strik (Greens/EFA, Netherlands) is the European Parliament rapporteur on the Returns Directive amended in 2018 (see EUROPE 12258/1). While return policy has taken on a major dimension in the ‘Pact on Migration and Asylum’, she explains the difficulty of combining the different texts and says in passing what she thinks of ‘return sponsorships’, a new avenue of solidarity which she believes is doomed to fail. (Interview by Solenn Paulic)
What is your message on the Returns Directive amended in 2018? Will it be difficult to negotiate with the EU Council?
The negotiations are ongoing (in the Committee on Civil Liberties), so I can’t say too much, but with S&D, The Left and, to some extent, Renew Europe, we are more or less on the same line: we need to look at what is really effective and we need a much more nuanced approach. More comprehensive measures always seem to be more fruitful than longer detention periods or less voluntary departures which can have counterproductive effects.
What we see now is that the Commission is proposing to affect the core elements of the Returns Directive, this is the prior authorisation of voluntary return.
In the current Directive, there is always at least a minimum period of seven days, there is the principle that everybody should be able to benefit from voluntary return and in some cases, Member States can indeed refrain from it if there is a risk of absconding or if an application has been declared inadmissible or unfounded.
In the new Directive, it is actually the opposite: it says that in all cases, Member States can refrain from allowing voluntary returns and even have to do so in very specific cases if there is a risk of absconding and this means that if you don’t get such a time limit for departure, you have immediately an entry ban.
This can encourage flight more than cooperation. The entry ban was rather intended to encourage returnees to cooperate; with a measure imposed immediately, you lose that leverage. And without voluntary departure, you may also not have access to some basic services. So this is a far-reaching decision.
The definition of the risk of absconding will also be very controversial. This definition is interpreted by Member States in different ways. The Commission proposes to establish a list of criteria to harmonise the definition, but it is not exhaustive and Member States can add their own national criteria, so what is the point! The risk is that larger groups will be defined as flight risks and therefore never be able to obtain a period of voluntary departure and will be immediately denied entry. The whole system has developed in a very repressive direction.
When can you submit your report? How does your work fit in with the new Pact?
It has become more problematic; there are a lot of provisions and new issues that have an impact on return policies. You can already see that the border procedure has been removed from the recast Directive and is now included in the new Regulation on asylum procedures and in the Regulation on pre-screening.
And in the border return procedure, it is now also possible for Member States not to apply the Returns Directive. The current Directive already stipulates that Member States can choose not to apply the Returns Directive in border areas.
In the recast, there are far fewer for those who have already gone through an asylum procedure. We don’t know what all this will look like after the negotiations.
As for ‘return sponsorships’, I am not sure what we can do with them either. The EU Council wants immediate adoption of the revised Returns Directive and on everything else in the Pact, they continue to disagree with each other even though the Returns dimension is all over the Pact! So can we just follow our process? Or should we treat it as an integral part of the Pact, which would of course lead to a delay? So we still need to decide how to proceed.
On the subject of ‘return sponsorships’ , is this a good or bad proposal?
It was creative! In my mind, it should lead to an immediate distribution of asylum seekers and a sharing of responsibility for those who have to be sent back. But we only want to relocate those who have the best chance of getting asylum. If we did this independently of the chances of obtaining asylum, we would already have a shared responsibility for the return as well and in a much healthier way, because we will have people in detention in the frontline country while another Member State negotiates with a third country. I don’t think that works.
This kind of bargaining with third countries is not very healthy either, because Member States can choose certain nationalities on the basis of their good links with their neighbours or transit countries. We risk having a situation where more people who have been refused asylum will simply be handed over to a transit country without the appropriate guarantees.
And I think that in terms of guaranteeing solidarity, you will still not convince Hungary and Poland with this proposal because they know very well that they will have to relocate these people after eight months and they will still not want them.
And if we leave these people with no chance of getting asylum in the frontline countries, they will not be able to send them back because the burden will be too heavy. In the end, we will end up with longer periods of detention for example for these people. This is not the solution we need.
The Commission has tried to have a proposal that can be supported by all Member States, but in the end it falls short of the ambition of Hungary and Poland. We have a qualified majority to vote. The Commission should have had more courage to say “we are going to make a proposal with more obligations, with a more binding system of responsibility sharing”. But this is not the case. And we know that the negotiations will further weaken the level of the proposals.
The thinking in general should be less focused on returns. The Member States only see through this. This is also what Commissioner Ylva Johansson says when she says that 2/3 of asylum seekers should be returned. These figures are not correct, in fact. Almost 60% of people are granted the right to stay.
But with this narrative, it also legitimises the need for stronger and more repressive return policies with fewer guarantees. Return policy becomes a tool of deterrence and much less a real help to return.
The Commission is due to propose a Strategy on voluntary return and reintegration on 27 April. What do you expect from it?
I am very much looking forward to it because the Commission, in the recast Directive, has more or less undermined the principle that voluntary return should prevail.
Perhaps we could have guidelines saying that Member States should do more to help people return home, but the Commission would have done better to put it in the recast Directive with obligations.
My answer is always the same: if you want more sustainable returns, you should focus on countries of origin rather than transit countries. We send people back to Turkey, to Morocco, to neighbouring countries who then become responsible for their return.
But in practice, we see that when they are sent back to a transit country, people try to return because they have nothing there to build a future. So I don’t know how useful it will be; it depends on the obligations of the Member States, if they are obliged to set up a system with more individual support but also more support to the countries of origin. But it’s a communication.
You are also the one who will draft the report of Parliament’s enquiry group on Frontex; how is this work going? Are you satisfied with the Commission’s action?
We have asked Frontex again this week for documents and sent questions, we will judge the level of cooperation according to these answers. I am not convinced by the last report of the Management Board which dismissed the facts of violations and refoulements. It studied 13 cases when in reality there are many more. We really need to know how Frontex is analysing all these facts and cooperating with the Greek authorities.
This raises the question of the use of Article 46 (on the early withdrawal of Frontex activities in case of a risk of violation, editor’s note). There must be a much more proactive attitude on the part of Frontex.
We saw that Frontex withdrew from Hungary recently, but the Frontex adviser on fundamental rights had already prescribed this withdrawal in 2016! So we will have to take a closer look at the criteria of this Article 46 and see how the reporting obligations are respected and whether they are really followed up, like complaints.
The Commission is quite disappointing on this issue of refoulements; it relies on what the national authorities say and just says it has to believe them.
I think it is in a difficult situation with the Member States and the Pact in a difficult exercise of powers, but she could also rely more on Parliament in general and not lose sight of the fact that she has an ally on all these issues.