Documents considered by the Committee on 30 January 2019 Contents

8Stronger EU rules on the return of illegal migrants

Committee’s assessment

Politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee

Document details

Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third country nationals (recast)

Legal base

Article 79(2)(c) TFEU, ordinary legislative procedure, QMV


Home Office

Document Number

(40059), 12099/18 + ADD 1, COM(18) 634

Summary and Committee’s conclusions

8.1The European Commission’s proposal for a Directive responds to a request made by EU leaders in June 2018 to “significantly step up the effective return of irregular migrants”.128 The rate of returns across the EU—that is, the proportion of return decisions leading to the effective removal of illegally staying third country nationals—has fallen from 45.8% in 2016 to 36.6% in 2017.129 The proposed Directive sets out “targeted changes” to the 2008 EU Return Directive (in force since December 2010) which would make it quicker and easier for Member States to detain and remove failed asylum seekers and illegally staying third country nationals and prevent their re-entry into the EU. The main changes are described in our earlier Report agreed on14 November 2018.

8.2The UK does not participate in the 2008 Return Directive. The Government nonetheless shares the European Commission’s assessment that discrepancies in the way that it has been interpreted and applied by Member States have hindered effective returns. In her Explanatory Memorandum of 9 October 2018, the Immigration Minister (Rt Hon Caroline Nokes MP) indicated that the changes proposed would improve consistency and strengthen return processes in Member States lacking an effective return capability. She confirmed that the UK’s Title V opt-in Protocol applied to the proposed Directive and set out the factors which would inform the Government’s opt-in decision, highlighting in particular the importance that the Government attaches to maintaining the UK’s “sovereignty over returns procedures and management of UK borders”.130

8.3Whilst we considered that the Government was unlikely to opt into the proposed Directive, we asked the Minister to explain:

8.4We noted also that, post-exit (or at the end of any post-exit transition period), UK nationals found to be staying illegally in an EU Member State would be subject to the amended EU return procedures (and therefore more vulnerable to detention) unless the UK negotiated a future relationship agreement with the EU giving UK nationals a special status equivalent to that of an EU citizen. We requested a more detailed assessment of the safeguards and remedies that would be available to UK citizens subject to a return procedure governed by the proposed Directive.

8.5In her letter of 16 January 2019, the Minister explains that the UK chose not to participate in the 2008 EU Return Directive and developed its own return procedures geared to the UK’s needs:

The proposed Directive maintains key differences to UK procedures including on detention time limits. The proposed Directive’s fixed time limits may hinder effective returns and the UK would require primary legislation in order to implement this aspect of the Directive. On balance, although the provisions of the proposal may improve effectiveness of returns in other Member States, implementation of the Directive in this area does not reflect the UK position.

8.6The Minister confirms that the deadline for opting into the proposed Directive will expire on 16 January 2019. She does not anticipate that a decision not to opt in would have any bearing on the UK’s future relationship discussions with the EU, adding that “our position and policy on returns is well known to other Member States and the Commission”.

8.7Whilst recognising that statistical comparisons should be treated with caution—the Minister notes that “Germany vastly outnumbers the UK on asylum claims, particularly after 2015, making direct comparisons difficult”—she says that the UK’s return rate “compares favourably to other Member States”:

The UK has been within the top two Member States throughout, and until the 2015 Migrant Crisis, we carried out the highest number of returns in the EU. In 2016 and 2017, the UK’s total returns (Voluntary and Enforced) were second only to Germany.

8.8The Minister shares the European Commission’s expectation that clarifying existing EU rules to ensure consistency and maximise their effectiveness may help to reverse the recent downward trend in returns across the EU. She reiterates the Government’s aspiration to secure “an effective reciprocal partnership with the EU on illegal migration matters, including practical cooperation” post-exit, highlighting the commitment in the Political Declaration accompanying the draft EU/UK Withdrawal Agreement to “continue cooperation to tackle illegal migration through operational cooperation dialogue, cooperation in third countries and in international fora”, adding that specific details will be subject to negotiation.

Our Conclusions

8.9We ask the Minister to confirm our understanding that the Government has decided not to opt into the proposed Directive. We also ask her to provide the assessment we requested in our earlier Report of the adequacy of the safeguards and remedies that would be available to UK nationals (once they cease to be EU citizens post-exit) if subject to a return procedure governed by the proposed Directive.

8.10Pending further information and confirmation of the Government’s opt-in decision, the proposed Directive remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents

Proposal for a Directive on common standards and procedures in Member States for returning illegally staying third country nationals (recast): (40059), 12099/18 + ADD 1, COM(18) 634.

Previous Committee Reports

Forty-fourth Report HC 301–xliii (2017–19), chapter 12 (14 November 2018).

128 See the Conclusions of the European Council agreed on 28 June 2018.

129 See p.2 of the Commission’s explanatory memorandum accompanying the proposed Directive.

130 See para 12 of the Minister’s Explanatory Memorandum.

Published: 5 February 2019