Proposal for an EU Return Regulation

The European Commission (EC) has published its proposal for a ‘Regulation establishing a common system for the return of third-country nationals staying illegally in the Union’, commonly referred to as the Return Regulation. If adopted, it will replace inter alia the 2008 Return Directive (Directive on common standards and procedures in Member States for returning illegally staying third-country nationals).

The main elements of the proposal, which was adopted by the College of Commissioners on 11 March and presented to the European Parliament (EP) by Commissioner for Internal Affairs and Migration Magnus Brunner later on the same day, are set out below.

Structure

The proposal consists of nine chapters:

1. General provisions
2. Return procedure
3. Obligations of third-country nationals
4. Safeguards and remedies
5. Prevention of absconding and detention
6. Readmission
7. Sharing and transfer of personal data
8. Common system for returns
9. Final provisions, including measures to be implemented in times of emergency

Return hubs

The proposal paves the way for the establishment of “return hubs” in third countries by providing a legal basis for EU member states (MS) to set them up if they reach an agreement with a third country. It also foresees a significant expansion of the possible countries to which third-country nationals can be returned against their will beyond their country of origin. This goes even further than the proposed idea of return hubs in countries where the people affected may have previously resided or where they have the right to enter.

European Return Order

A central element of the proposal is the introduction of a new “European Return Order” (ERO) and the mutual recognition of return decisions by MS. Under this provision, if an individual’s application for international protection is rejected in one MS and they receive a return decision but subsequently move to another MS, the second MS must recognise the return decision issued by the first and deport them from the EU. It will be  optional until 2027 when it will become mandatory. It is facilitated by the creation of the ERO: When a MS issues a return decision it must enter information into EU databases which creates ERO. The ERO requires all MS to recognise and enforce the return decision.

Voluntary return

The proposal also significantly limits the options for voluntary return by removing a minimum period during which the applicant can choose to return and instead imposing a maximum return period of 30 days. It introduces various circumstances in which people are excluded from voluntary return, including if they have not met an extensive list of obligations for co-operation or if they fall under a broad set of criteria for assessing the risk of absconding.

Detention

The proposal expands the grounds for detention, including to prevent absconding for which there is an extensive list of criteria for preventing absconding, such as the absence of a reliable address. It also extends the maximum detention period from 18 months under the Return Directive to up to 24 months. Even after this period, other coercive measures, such as electronic monitoring, may still apply to track people.

Entry bans

The proposal introduces new grounds and extended durations for entry bans. A significant number of people issued with a return decision may also receive entry bans lasting up to 10 years.

Appeal rights

Regarding legal remedies, the proposal weakens procedural safeguards. Notably, the suspensive effect of appeals is not automatic, meaning that people may be removed from the EU before a decision on their appeal is taken. This raises concerns about the right to an effective remedy.

Conclusion

The proposal introduces several restrictive measures and rules that could significantly impact the rights of third-country nationals and limit their access to legal remedies and assistance. However, it also includes some positive measures compared to the Return Directive, including strengthened provisions for assessing the risk of non-refoulement and the bolstering of an independent monitoring mechanism for forced return procedures.

Next steps

The proposal will now be scrutinised by the EP and the Council of the EU.

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