As the European Union moves toward adopting a new Regulation on the return of third-country nationals staying illegally in the EU, the Council of Europe Commissioner for Human Rights, Michael O’Flaherty, says that the proposed framework risks undermining the human rights of migrants and asylum seekers.

In his Observations, published today, he acknowledges the EU’s objective of establishing a more effective common returns system, emphasising that relevant measures must not contravene international law, including the absolute prohibition of refoulement.

Key concerns and recommendations

•  Individual assessments: the Commissioner identifies a risk that people’s personal circumstances and the dangers faced upon return may not be adequately assessed under the new framework.
•  Remedy: the Commissioner recommends that co-legislators reject any proposals that weaken a person’s right to appeal return decisions or limit their ability to submit evidence against being returned to a specific country.
•  “Return hubs”: the Commissioner calls for caution on the proposal for “return hubs”. He lists safeguards that should be reflected in the Regulation and emphasises that any such engagement must be preceded by:
  •  Mandatory and comprehensive human rights risk assessments
  •  Robust risk mitigation strategies
  •  Effective transparency, monitoring and accountability mechanisms.

For the Commissioner, the Regulation should also explicitly prioritise voluntary returns over forced removals and limit the use of detention. He also calls for the proportionality of sanctions and law enforcement powers to be guaranteed, and to consider other alternatives to return when addressing irregular stay.

“The protection of human rights in not an obstacle to a functioning migration system, it is the foundation of one,” says the Commissioner. “We must ensure that in the pursuit of a common framework, we do not dismantle the safeguards that protect migrants and asylum seekers.”

• Read the Commissioner's Observations on the upcoming EU Returns Regulation