On the 12th of September 2018 the President of the European Commission, Mr. Jean Claude Juncker, pronounced the State of the Union Address of 2018 before the plenary session of the European Parliament. The State of the Union’s speech prepares the ground for the debate which will involve the highest EU Institutions the year ahead. It normally includes a report on the Union’s activities of the past year, as well as a letter of intent for the forthcoming one with the aim of underlining the priorities of the Union. While migration was included in the agenda, one might have expected a more far-sighted approach from the EU institutions. This post aims to see how the current -still improvable- EU policy on migration, as emerged from the 2018 State of the Union Address and its attachments, could act as a useful starting point for a more ambitious project in the future.
The 2018 Address: the responsibility of solidarity
‘We cannot continue to squabble to find ad hoc solutions each time a new ship arrives. Temporary solidarity is not good enough. We need lasting solidarity – today and forever more’.
‘Responsibility’ and ‘solidarity’ were two of the most frequent concepts the President Juncker made reference to in his speech. The first mention of the perpetual responsibility of the European Union comes at the very beginning of the speech together with a reference to the EU’s well-known role as the guardian of peace. As for solidarity, the President reminds how the EU operations have rescued more than half a million of people at sea since 2015, The Address brings to light several ambitious proposals linked to the main criticalities of the EU’s migration policy at the moment: the improvement of equipment and means for the European Border and Coast Guard; the reinforcement of the European Agency for Asylum; a more effective European return policy; the improvement towards more effective legal migration policy through the opening of legal pathways ( based on humanitarian reasons as well as on labor market needs) to the Union.
All of these tasks are planned according to the updated version of the project for a Common European Asylum System, which includes a stronger protection of the European external borders and a sharper distinction in terms of status between irregular and legal migrants among the EU priorities. In all fairness, the reinforcement of the European Agency for Asylum should also serve the scope of making the support of the EU to Member States more effective in order to comply with the international protection principles. At the same time, however, strengthening the European Border and Coast Guard would probably mean for the EU to stay focused on a short-term ‘border defence’ purpose rather than on a long-term management and regulation of third nationals’ inflows. On the one hand, the improvement of a EU Border and Coast Guard might lead eventually to reconsider the broad responsibility which the EU has partially discharged through the externalization of the migration management at its external borders counting on its neighbours, such as Turkey and Libya; on the other, however, the priority accorded to such a defensive objective makes extremely clear which direction has been chosen by the EU for the benefit of a certain idea of sovereignty. Besides any possible uncertainty, it is worth to bear in mind that a number of European Mediterranean countries at the border of the EU, particularly affected by the Balkan and the Central Mediterranean Route, have managed a huge humanitarian crisis since 2011 and, because of the lack of resources and obsolete EU and domestic legislation, they have faced it through all but a far-sighted approach. This has resulted in the implementation of many emergency measures within the EU, instead of a long-term and perspectival reform for a fair and common migration management.
The reform of the 2008 Return Directive: from a liberal approach to more restrictive definitions
In 2008 the EU States agreed upon several common rules for the return and the removal of irregularly staying migrants which have been transposed in the Directive 2008/115/EC of the European Parliament and the Council (hereinafter the ‘Return Directive’). Nowadays the enforcement of an amended European return policy should be considered the most significant point among the proposals announced by the EU Commission (or the Commission) on the occasion of the State of the Union: it resulted in the presentation of a Proposal for the reform of the Return Directive).
The Proposal, contrary to the more liberal case law of the Court of Justice of the European Union on the 2008 Return Directive,  embraces the more restrictive current approach of the Commission. In the Explanatory Memorandum attached to the Proposal, the Commission underlines that an update of the EU return policy is needed due to the increasing migratory pressure on the Member States and the Union. In the past few years, Member States have indeed struggled in implementing the EU framework. They also have faced numerous difficulties in managing return procedures and complying with return decisions against irregular migrants allegedly because of their lack of cooperation in doing so.
The most delicate issues of the EU return policy deal with the relationship between the rules on detention (Article 15 of the 2008 Return Directive) and the functional definition of the “risk of absconding” (Article 6 of the Proposal), which is a condition to apply detention. The definition of the ‘risk of absconding’ has been set through the not exhaustive list of objective criteria provided by the Proposal: this parameter shall be used in the overall assessment of the specific individual case in migration-related procedure (administrative or criminal) in order to evaluate the need of preventing secondary movements of an individual within the EU. The list of criteria refers, in some cases, to extremely broad issues (such as the a risk for public security or national security), and in others to grounds that might potentially correspond to the commission of crimes (or single elements of crimes), depending on the system (e.g. see, among others, (from the list provided by the new article 6 of the proposal): (a) lack of documentation proving the identity; (b) lack of residence, fixed abode or reliable address; (c) lack of financial resources; (d) illegal entry into the territory of the Member States; (e) unauthorised movement to the territory of another Member State; (f) explicit expression of intent of non-compliance with return-related measures applied by virtue of this Directive) etc. The ‘risk of absconding’ itself could frequently be included, as occurs in the Italian criminal system, among specific procedural requirements for custody against suspects of crimes. For that reason, the use of such an ambivalent concept could create significant ambiguity in the law instruments that every Member State is requested to adopt.
After reminding that the new Directive Proposal aims at guaranteeing the principle of non refoulement, as well as the supreme protection of fundamental rights, the EU Commission turns to the use of detention (Article 18 of the Proposal) against illegal migrants. The Commission rates as a new emerging risk the fact that some third country nationals -supposedly considering the massive inflows- have posed or might pose a threat to public order or national security.
In the same way as in the externalization policy implemented and regulated by the EU and Turkey statement and the agreement between EU and Libya, the notions of public order and national security risk also in this case to appear to be empty boxes to store every undefined conduct so as to detain individuals who might be classified as ‘suspects’ of law breaching (such as irregular migrants, suspects of crimes, reported as suspects against national security). Moreover, like in the 2008 Directive, the Proposal does not refer to the precise field of law within which the detention of “irregular” migrants should find its own regulation: that is probably due to the fact that Member States apply either administrative or criminal measures depending on the risk assessment.
The unbearable uncertainty of the criteria on which the application of detention measures is based in the case of illegal migrants (i.e., irregulars, individuals affected by an order of expulsion or by a denial of international protection, “suspects” of not defined crimes) has therefore even got worse as a consequence of the undefined nature of the measures adopted. The latter might also affected the remedies at migrants’ disposal against a first instance denial of international protection or against an expulsion order, which are, again, differently-defined depending on the Member States’ legislative and judicial orders.
To sum up, notwithstanding the ambiguity in referring to the administrative or the criminal dimension indifferently has allowed every Member State to regulate freely the matters of detention against ‘illegal migrants’ according to its own legal system, a step forward in the perspective of a complete reform of the Return policy with the aim of ensuring harmonization among Member States’ practices could and should have been planned.
The 2018 State of the Union Address by the EU Commission promotes a ‘necessary’ switch of perspective allegedly caused by, on the one hand, an increasing pressure of migration on Member States’ boarders and, on the other, an ineffective return practice within the EU. Notwithstanding the urgency of setting out several key points – which the Proposal did meet, – such as the improvement of equipment and means for the European Border and Coast Guard, the reinforcement of the European Agency for Asylum and the reform of the return policy, the Address seems to leave behind several permanent criticalities in terms of de-harmonisation.
The protection of an idea of sovereignty of the European Union should have brought to light a more ambitious proposal, much more ambitious than a mere ‘defensive’ approach in terms of return policy and individual guarantees. The EU could have proposed the establishment of the principle of the EU sovereignty in the migration matters on the Member States’ practice through the creation of a long-term common operative équipe of experts dealing with migration within the EU by applying EU regulations and fundamental principles. This in order to erode progressively and slowly national sovereignty in a field which cannot be handled by single competent national authorities, normally politically linked to the national Government in charge (such as the Ministry of Home Affairs in Italy). This long-term revolution would ensure a far-sighted harmonization of practices within the EU in order to ‘offer – As the Commissioner for Migration, Home Affairs and Citizenship, Mr. Avramopoulos, stated –more Europe where more Europe is needed’ and ‘to support Member States to take up their responsibilities’.
 See on this point the interesting contribution of S. Peers, Lock’em up: the proposal to amend the EU’s Return Directive, 12th September 2018 <http://eulawanalysis.blogspot.com/2018/09/lock-em-up-proposal-to-amend-eus.html>; for some examples on the more ‘liberal case law’ see Judgment of the Court (Grand Chamber), 18 December 2014 Mohamed M’Bodj v État belge, Judgment of the Court (Grand Chamber), 18 December 2014, Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida, Judgment of the Court (Second Chamber) of 26 July 2017 Criminal proceedings against Mossa Ouhrami, Judgment of the Court (Grand Chamber) of 7 June 2016 Sélina Affum v Préfet du Pas-de-Calais and Procureur général de la Cour d’appel de Douai.
 ibidem ; see also European Commission releases proposal to recast Return Directive, 14th of September 2018, <https://www.ecre.org/european-commission-releases-proposal-to-recast-return-directive/>.