Cleared from scrutiny; drawn to the attention of the Home Affairs Committee
(a) Commission Communication on a more effective return policy in the European Union—A renewed Action Plan
(b) Commission Recommendation of 07.03.2017 on making returns more effective when implementing Directive 2008/115/EC
(b) Article 292 TFEU
(a) (38578), 6943/17 + ADD 1, COM(17) 200;
(b) (38592), 6949/17, C(17) 1600
38.1Despite increased migratory pressures at the EU’s external borders, the rate at which irregular migrants who do not qualify for international protection within the EU are returned to their countries of origin remains stubbornly low—only around 40% of those required to leave actually do so. In its 2015 Communication, A European Agenda on Migration the Commission stated that the implementation of a more effective policy on return was necessary to reduce the incentives for illegal migration and to ensure a “fair, robust and realistic” EU migration policy. It believes that the systematic return of individuals who do not (or no longer) have a right to remain, whether by voluntary means or by compulsion, is essential to maintain public trust in the EU’s asylum system and public support for individuals in need of international protection. The Commission put forward an Action Plan on Return in 2015 consisting of 36 immediate and mid-term measures which were intended to make the EU return system more effective and to “achieve a coherent framework for action, backed by strong operational cooperation between the Member States, EU Agencies and countries of origin of migrants”.
38.2The impact of the Action Plan on Return has been limited. Return rates have not improved and the Commission considers that “more resolute action is needed to bring measurable results in returning irregular migrants”. In March, it proposed a renewed Action Plan—document (a)—to give further impetus to the measures set out in the 2015 Action Plan, assist Member States in strengthening their national return systems, improve coordination and operational delivery and “substantially improve” return rates. The renewed Action Plan also seeks to fulfil the mandate given by EU leaders in the Malta Declaration (agreed in February) to make the EU’s migration policy more resilient to future crises, identify potential barriers to return and enhance return capacities while respecting international law. It is accompanied by a non-binding Commission Recommendation—document (b)—which provides guidance to Member States on how to implement more effectively the EU Return Directive, an instrument establishing common standards and procedures for the return of illegally staying third country nationals.
38.3Launching the measures, the EU Commissioner for Migration (Dimitris Avramopoulos) explained:
“We need to give protection to those in need, but we must also return those who have no right to stay in the EU, in full compliance with fundamental rights and the principle of non-refoulement. Ensuring that irregular migrants are returned swiftly will not only take pressure off the asylum systems in Member States and ensure appropriate capacity to protect those who are genuinely in need of protection, it will also be a strong signal against taking dangerous irregular journeys to the EU in the first place. With today’s Action Plan and Recommendation, the Commission is providing support to Member States in their efforts to step up returns, as called for by the EU leaders at the Malta Summit.”
38.4The Commission intends to publish a progress report on the implementation of the renewed EU Action Plan and Recommendation by December 2017.
38.5The UK does not participate in the EU Return Directive—the main EU legislative instrument underpinning the renewed Action Plan and Recommendation—but the Government supports its effective implementation by other participating Member States and agrees on the need to achieve a substantial increase in the rate of returns across the EU. The Government told our predecessors that it supported the continued implementation of the measures set out in the 2015 Action Plan on Return and broadly endorsed the additional measures proposed in the renewed Action Plan.
38.6As our predecessors noted, the renewed Action Plan and Recommendation are illustrative of the EU’s efforts to ensure a more coordinated and “pragmatic” approach to returns and to assuage public concern by drawing a clear distinction between the treatment of individuals in need of international protection and economic migrants. They recalled that a number of the actions and recommendations proposed by the Commission built on ideas put forward by the former Home Secretary (Mrs Theresa May) at the October Justice and Home Affairs Council in October 2015, in particular the use of accelerated asylum and border procedures in cases likely to be considered inadmissible and the increased use of detention prior to removal. They asked the Government to:
38.7The Immigration Minister (Brandon Lewis) explains that, as a matter of law, unaccompanied minors may only be detained in a short-term holding facility for a maximum period of 24 hours. As a matter of policy, an unaccompanied child or young person will only be removed from the UK if “the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed”. A return decision must be consistent with the duty imposed by section 55 of the Borders, Citizenship and Immigration Act 2009 to “safeguard and promote the welfare of the child”. In the case of accompanied minors, the Government’s policy is not to separate children from their parents during the removals process.
38.8The Minister says that no further progress has been made on the policy options put forward by the UK in October 2015, but adds that the EU “continues to explore further options to reduce the flows into Europe and to reduce the need for migrants to embark on long and perilous journeys to Europe” and that “the UK continues to actively engage with the EU”.
38.9In separate correspondence with the House of Lords European Union Committee, the Minister confirms that the UK’s participation in EU Readmission Agreements with third countries will lapse once the UK leaves the EU. These Agreements establish procedures for the return to their countries of origin of third country (non-EU) nationals who are not entitled to enter or stay in an EU Member State. He adds that the Government will consider “what, if any, further action is required in due course”.
38.10We thank the Minister for clarifying the Government’s policy on the detention and return of unaccompanied minors. We note that the EU has often struggled to achieve a consensus on measures to manage the flows of irregular migrants—whether asylum seekers or economic migrants—reaching Europe. The lack of appetite amongst Member States for “the more radical options on return” mooted by the UK in October 2015 is therefore to be expected.
38.11We are content to clear the Commission Communication and Recommendation from scrutiny but ask the Minister to inform us of any developments. We also ask him to identify the EU Readmission Agreements which will lapse on the UK’s exit from the EU and to explain what action the Government intends to take to put alternative arrangements in place. We draw this chapter to the attention of the Home Affairs Committee.
(a) Commission Communication on a more effective return policy in the European Union—A renewed Action Plan: (38578), + , COM(17) 200. (b) Commission Recommendation of 07.03.2017 on making returns more effective when implementing Directive 2008/115/EC: (38592), , C(17) 1600.
38.12The Report listed at the end of this chapter provides a detailed overview of the renewed Action Plan and Recommendation on returns and summarises the Government’s position.
38.13The Immigration Minister first updates us on the “the more radical options on return” put forward by the UK at the October 2015 Justice and Home Affairs Council. Our predecessors asked whether any progress had been made in discussions with other Member States on the possible creation of multi-purpose centres and safe zones outside of Europe, where they should be located and how they should be resourced. He responds:
“The EU continues to explore further options to reduce the flows into Europe and to reduce the need for migrants to embark on long and perilous journeys to Europe, risking their lives and falling victim to smugglers and traffickers. Discussions since October 2015 have not resulted in progress on such policy options, although the EU-Turkey Statement of March 2016 was implemented as a new policy option, under the safe third country concept, to return illegal migrants, including asylum seekers from Greece to Turkey. The European Council on 22–23 June recommitted to a comprehensive approach to the migration crisis. This included dealing with the drivers of migration, whilst doing more to stem the flows. The summit focused on the Central Mediterranean route and the Prime Minister announced a UK bilateral commitment of £75 million to meet urgent humanitarian needs while also facilitating voluntary returns of migrants. The UK continues to actively engage with the EU.”
38.14Our predecessors noted that the Commission Recommendation urged Member States to keep open the possibility of detention of minors where “strictly necessary” to enforce a return decision and where other less coercive measures would not be effective. Whilst the Government had made clear that “the best interests of the child” were a primary consideration” and that “treat[ing] children with care and compassion” was a priority, it had not commented on the use of detention for minors pending their return. The Government was asked to clarify its position.
38.15The Minister explains:
“An unaccompanied minor may only be detained in a short-term holding facility and not an Immigration Removal Centre, and for a maximum period of 24 hours. The provisions governing this are a matter of primary legislation and are set out in Schedule 2 to the Immigration Act 1971, as amended by the Immigration Act 2014.
“The Home Office has a policy commitment that no unaccompanied child or young person will be removed from the UK unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed. In addition, the decision to return must be consistent with the section 55 duty to have regard to the need to safeguard and promote the welfare of the child, including that their best interests are taken into account as a primary consideration in the decision.
“In relation to accompanied minors, the Government’s policy is not to separate children from their parents during the removals process. A family returns process has been developed which begins with a conference with the family in order to provide support. If a family is to be detained prior to departure, detention is in specially designed pre-departure accommodation, with self-contained units for each family and with welfare support available on the premises.
“Independent oversight of the family returns process is provided by a specially appointed Family Returns Panel made up of experienced social workers and a medical adviser. The Family Returns Panel was placed on a statutory footing in the Immigration Act 2014.”
491 See our Second Report HC 342–ii (2015–16), (21 July 2014).
492 See p. 2 of the 2015 Commission , EU Action Plan on Return.
493 See p.2 of the Communication, A renewed Action Plan.
494 See p.13 of the Communication.
495 See the of 3 February 2017 on the external aspects of migration.
496 See the Commission’s of 2 March 2017.
497 See p.2 of the Commission Communication.
498 See the of 12 January 2016 from the then Immigration Minister (James Brokenshire) to the Chair of the European Scrutiny Committee and the former Home Secretary’s of 15 October 2015.
500 See of the Act.
501 See the Minister’s of 13 July 2017 to the Chair of the European Union Committee (Lord Boswell).
502 See the and the .
1 December 2017