For far too long, the conversation around migration in Europe has been framed as a zero-sum game. We are told we must choose between a system that is “tough” and one that respects human rights. In recent years, I have watched this false choice take centre stage in the political discourse, with many claiming that states’ human rights obligations are the primary roadblock to effective returns.
I am here to say that this narrative is not only wrong, but it is counterproductive.
As I recently told the Ministers of Justice, the European Convention on Human Rights does not prevent the return of individuals who do not have the right to stay. States have a clear, sovereign right to control their borders and manage migration. However, they must do so within a rules-based, democratic framework. Treating human rights as an obstacle to be bypassed does not increase efficiency; it leads to protracted litigation, undignified practices and a loss of public trust.
In my discussions with governments across Europe, I see the logistical and political challenges they face in managing complex return procedures. But we must be honest about where the delays truly come from. They do not come from “too much” human rights protection. The reality is that only a tiny fraction of removals is ever halted on human rights grounds. We won’t “magically” increase return numbers by tearing up the rulebook.
The real danger lies in the current trend of testing the boundaries of the law to see how far they will bend. This “testing” creates self-inflicted delays. It leads to endless court battles and administrative uncertainty, which undermines the goal of having a functioning system. It also increases the risk that people are returned to danger, in violation of states’ clear and non-negotiable obligations.
I am convinced that only a return policy that is lawful, fair, and dignified can actually deliver results. Why? Because legitimacy matters. When a procedure is transparent and fair, people are more likely to accept the outcome. When the public trusts that rights are being respected, civil society becomes a partner rather than an opponent. Treating people with dignity help us to maintain the trust of the international partners we need to make returns possible. If we dehumanise their citizens through our procedures, we should not be surprised when they do not cooperate.
We are now hearing a great deal about “return hubs” - a concept that was, until recently, considered legally and practically off-limits and that is now sold as a “quick fix”. While states look for “innovative solutions”, they must not create human rights black holes.
If European states are to move towards externalised return hubs, they have to show their homework, especially by carrying thorough risk assessments. They need legally binding safeguards, effective remedies and clear stay limits. Such hubs must never be used for children, families, or individuals whose asylum appeals are still pending. Furthermore, we must ensure that no one is stranded indefinitely in legal limbo. If a return cannot be completed within a set timeframe, responsibility remains with the European country that sent them. This is not a matter of preference, but of law and dignity.
Finally, states must resist the urge to make detention and coercion their first instincts and to limit access to remedies. Investing in voluntary returns and alternatives to detention is more humane, more cost-effective and more aligned with European values. What is more, the detention of children because of their migration status violates their rights and causes significant harm. Europe must cease the practice.
The choices Europe’s leaders make in the coming months, including regarding the upcoming EU Returns Regulation, will define our character as a continent of laws and values. If they continue to prioritise "tough" rhetoric over our values, I predict a triple loss: more human suffering, a blow to our international credibility, and no real increase in return numbers.
We can do better. By placing human rights at the heart of our policies, European leaders can establish a return system that is both humane and effective. It is time to lead with human rights, not around it.
- Michael O'Flaherty