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Effective access to legal aid: key safeguard for migrants in return proceedings

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Effective access to competent legal assistance is a key safeguard to enable people in return proceedings to exercise their rights to an effective remedy and access to justice, finds a new report from the EU Agency for Fundamental Rights (FRA). It identifies current practices and issues, and suggests how national authorities could improve effective access to competent legal aid.

Some migrants who come to Europe are asked to return to their country of origin. While waiting for their departure and facing a potential ban on re-entering the EU they can be detained in pre-removal facilities. Still, they can challenge decisions related to their return, exercising their rights to an effective judicial remedy and access to justice. This is why legal aid is so important to them.

But access to free legal aid can be difficult, particularly for returnees deprived of liberty. It became harder still during the Covid-19 pandemic.

All EU Member States, as well as North Macedonia and Serbia, provide some form of free legal aid in pre-removal detention. But with various exemptions and restrictions, depending on the type of decision returnees wish to appeal.

Returnees may face a range of legal and practical challenges which affect how they can access competent free legal aid on time. This can be language barriers, access to information, strict deadlines and complying with strict legal requirements.

FRA’s report on ‘Legal aid for returnees deprived of liberty’ suggests steps national authorities could take to improve access to justice for people in return procedures. For example:

  1. Provide free legal aid to those in pre-removal detention for all return-related decisions, including detention, removal, and entry bans, as well as consultations in advance of court hearings.
  2. Review the impact of conditions, such as merit tests and short deadlines, on the right to access justice and free public legal aid.
  3. Consider flexible systems that combine public legal aid with support provided by NGOs.
  4. Ensure that returnees are well informed of their rights and facilitate swift and confidential consultations in detention conditions with legal service providers who are well trained on migration, refugee and EU law and able to access all their client’s files.
  5. Provide access to national and international detention-monitoring bodies to allow them to regularly assess the use and effectiveness of free legal aid for returnees.

The EU’s Return Directive requires EU countries to provide free legal aid to non-EU nationals pending return. This applies to all EU countries except Ireland.