Within the Shengen Zone the control of migration is an EU responsibility. Control is implemented by about 100,000 national border guards and an ever increasing number of EU "Frontex" forces. Until the EU passes its tough New Pact on migration the methods used to control migration are depending upon how much the EU turns a "blind eye" to national policies. The migration crisis in the Mediterranean has led to a steady switch from firmly enforcing the Return Directive, which permits most asylum seekers to stay for relatively long periods, to tacitly approving tough measures.
However, the Return Directive, Article 2.2, exempts EU states from applying any formal legal framework at their borders:
"2. Member States may decide not to apply this Directive to third-country nationals who:
(a) are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code, or who are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State;
(b) are subject to return as a criminal law sanction or as a consequence of a criminal law sanction, according to national law, or who are the subject of extradition procedures."
This anomaly was spotted by the EU Parliamentary review of the Return Directive: "Most Member States rely on Article 2(2)(a) of the Return Directive and do not apply the Directive in 'border cases'. The procedure applicable in such contexts affords fewer guarantees to the person concerned and typically involves the deprivation of liberty. This finding underscores the point in the external policy dimension that EU readmission agreements (EURAs) by themselves are not an issue, but rather the fact that they operate in increasingly informal contexts (or are indeed replaced by informal agreements). "
If EU countries can immediately turn round illegal migrants the EU can effectively wash its hands of the matter and avoid the worthy legality of the Return Directive. This means that so long as migrants are caught at the border they can be unceremoniously deported. As an example Italy has sent 40,000 migrants straight back to Libya over 3 years. This has had a remarkable deterrent effect on Mediterranean crossings and has saved thousands of lives.
However, even in the case of bona fide asylum seekers and migrants who are subject to the Return Directive, having escaped Article 2, the EU law allows the system to be "gamed".
Much of the enhanced deportation of asylum seekers has resulted from ignoring the "non-refoulement" principle of International Human Rights in which a person should not be deported if their rights are at risk.
In Italy, the share of refused asylum seekers increased considerably between 2012 and 2015, from around 18 to 53%. In most other countries asylum seekers are treated strictly according to the law and most are allowed to represent their case (except Poland with 25% return). The strict implementation of the law is not actually required by the Return Directive which only implies that Human Rights of migrants should be respected. In Italy and Poland deportation is implemented at the first level of the appeal process (ie: no further appeals).
However, even those treated strictly according to the law are often caught out by time limitations for appeals which vary between 2 days and 30 days and are modified depending on the circumstances, such as detention.
Detention as a deterrent is being used aggressively, especially in Greece. There were over 80,000 migrants being held in detention in the EU in 2018.
People might attempt to exonerate the EU by arguing that agreements with source countries such as Libya mean that just sending migrants back is acceptable but as Amnesty points out, this means being totally deaf to applications for asylum. What is remarkable about the EU management of migration is that it would be utterly unacceptable to UK journalists if it were implemented in the UK. "Just turn them round at the border and send them back" would be considered a slogan of the far right. The EU gets a free pass from UK journalists.
Many of our "liberal" journalists are also blind to way that stern measures have saved thousands of lives in the Mediterranean. Weak measures encouraged risky crossings of the sea and we are witnessing the same encouragement to cross the Channel by journalists who either don't realize that the road to hell is paved with what they consider to be good intentions or have evil motives.
3/7/2021
See EU Parliament: Evaluation of the implementation of the Return Directive
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