Dr. Izabella Majcher, Independent
Consultant
Photo credit: Alamy Stock Photo
On 11 March 2025, the European Commission published a proposal
for a Return Regulation to replace the 2008 Return
Directive. This new proposal also supersedes the Commission
2018 proposal to recast the Directive (discussed here
and here).
Negotiations on the 2018 recast proposal spanned several years, incurring
significant costs, yet they stalled at the European Parliament level before even
reaching interinstitutional negotiations between the Parliament and the Council
of the EU. This raises questions about the necessity of launching fresh
negotiations, their financial implications, and ultimately whether a
comprehensive revision is needed at all. Why will this proposal pass through
the negotiations if the previous one got stalled? In addition, opting for a
regulation rather than a directive could make negotiations even more complex,
as Member States recognize that a regulation’s provisions would be directly
applicable in their domestic legal systems.
The underlying aim of the proposal is to increase the number
of people returned, as it regrets that only around 20% of those issued a return
decision actually leave. The proposal links this objective to the effectiveness
of return. This objective is to be achieved through two main contributions of
the proposal.
First, the proposal aims to streamline and harmonise return
procedures, attributing the inefficiency of returns at the EU level to divergent
national approaches. To address this, the Commission proposes shifting from a
directive to a regulation and restricting the ability of Member States to
provide stronger safeguards at the domestic level. Notably, the proposal
criticises “significant room” the Directive leaves for national courts to
interpret EU rules and removes the option for “more favourable provisions”
option under the Directive (Art. 4). In the effort to create “modern, simplified
and common” procedures, there is a risk that essential human rights safeguards
will be eroded. It is crucial to remember that return procedures must comply
not only with the principle of effectiveness but also with human rights
standards. Second, the proposal upgrades “common standards and procedures” of return
to a “common system for returns.” Besides the return standards and procedures,
the “common system for returns” includes mutual recognition of return decisions
(see discussion below), necessary resources and personnel to be ensured by the
Member States, cooperation between Member States, support from EU bodies and
agencies, and digital management systems. These measures are neither
groundbreaking nor novel enough to justify an entirely new legislative
text—especially considering the costs of adopting a new law.
The lack of an ex-ante impact assessment makes these
questions even more pressing. Citing urgency and existing studies and
consultations (most of which have not been made public), the Commission chose
not to conduct an impact assessment for this proposal. None of these
explanations is convincing, especially in light of the importance of
evidence-based law-making. Under its own Better
Regulation Guidelines, for every initiative that is likely to have
significant economic, environmental or social impacts, the Commission should
conduct an impact assessment to demonstrate the added value of the proposed
measures and their coherence with key criteria—including impact on fundamental
rights.
The proposal introduces some stronger human rights
protections compared to the Directive, including the judicial form of appeal
(Art. 26(1)), expanded monitoring of forced returns (Art. 15), basic needs
provision during removal postponement (Art. 14(6)), and age assessment for
children (Art. 19). However, these safeguards are overshadowed by the
proposal’s overall coercive approach and several provisions that weaken rights.
This analysis examines five key measures that are particularly problematic from
a human rights perspective, questioning not only their human rights compliance
but also their effectiveness.
1) Mutual recognition of return decisions: Building upon the Commission Recommendation
from March 2023, the proposal enshrines the mutual recognition of return
decisions. Under this mechanism, a Member State that apprehended a person who
has already received a return decision in another Member State may (and in the
future shall) enforce that decision rather than issuing its own (Art. 9). This
is made possible through a “European Return Order” (a form listing main elements
of the return decision) made available among the states through the Schengen
Information System (Regulation
2018/1860) or other information exchange channels. In theory, mutual recognition
enhances efficiency, as only one state would conduct the return procedure. It
is therefore unsurprising that the Commission presents it as a key element of
the common system for return. However, this measure was already provided in a 2001 Council Directive,
yet it does not appear to be regularly used.
Recognizing another state’s return decision comes with
practical and legal challenges. Since grounds for legal stay are not harmonised
at the EU level, a person may be in an irregular situation in one state but not
in another. Although the proposal aims to harmonise procedures, Member States
will still be allowed to grant residence permits on humanitarian,
compassionate, or other grounds (Art. 7(9)). Since these residence permits are
not harmonised, situations may arise where a state is required to remove a
person who would otherwise qualify for a residence permit under its domestic
law. Additionally, despite formal harmonisation, there will remain the scope
for domestic interpretation of grounds for a legal stay (currently demonstrated
by discrepancies between asylum recognition rates for the same nationality across
the EU). So a state enforcing another’s return decision may face litigation,
even though appeals against the decision would have to be lodged against the
issuing Member State, according to the proposal. The enforcing state would also
bear the costs of removal and potentially detention. Although the proposal
provides for Frontex funding or compensation by the issuing state, accessing
this financing may be cumbersome to organise. Mutual recognition is thus
generally in the interest of the transit countries while disadvantageous for
the destination countries.
Crucially, mutual recognition of return decisions and entry
bans raises proportionality concerns as it effectively spreads across the EU the
most restrictive approaches. As demonstrated above, despite the proposal’s aim
to harmonise procedures, there will still be room for domestic non-harmonised
statuses (e.g., under Art. 7(9) of the proposal) as well as variations in the
interpretation of harmonised statuses (e.g., refugee or subsidiary protection
statuses). The Commission’s approach lacks coherence on this issue. It
glorifies the mutual recognition of return decisions as a key efficiency
measure, yet it makes no effort to introduce the mutual recognition of protection
statuses—exposing a clear double standard in EU migration policy.
2) Expansion of detention: the proposal significantly
expands the legal basis for detention. Under the Directive, states may only
apply detention unless other sufficient but less coercive measures can be applied
effectively in a specific case. The proposal removes this requirement (Art.
29(1)-(2)), making detention the first resort measure, which is at odds with the
CJEU case-law and HRC
jurisprudence. The proposal introduces three new grounds for detention
(Art. 29(3)), which are also questionable under international human rights law.
Among the new grounds for detention is the need to determine or verify the
person’s identity or nationality, even where there is no risk of absconding.
This ground could lead to unnecessary and prolonged detention of individuals whose
nationality is disputed, not recognized, or who are stateless.
Detention would henceforth also be allowed if the person
poses “security risks,” defined as a threat to public policy or public or
national security, the existence of serious grounds for believing that the
person has committed a serious offence, or a clear indication of their
intention to commit one (Art. 16). The proposal further provides for
derogations from the detention regime otherwise applicable. States will be able
to detain those covered by this ground in prisons (albeit separated from “ordinary
prisoners”) rather than in dedicated detention centres, and for a period longer
than the maximum permissible length under the proposal—potentially indefinite. Detention
based on “security risks” blurs the lines between (administrative) immigration
detention and criminal detention. Because it offers fewer guarantees to
detainees, immigration detention is an exceptional measure that should only be applied
on narrowly defined grounds related to imminent removal. Immigration detention
is by no means intended to address security risks; rather, criminal laws should
apply equally to anyone under the state’s jurisdiction. Criminal pre-trial and
post-conviction detention provide stronger due process guarantees and clearer time-limits.
The proposal thus intends to sideline the
CJEU case-law, as the court was adamant in stressing that detention on
public order or safety grounds cannot be based on the Directive.
The proposal extends the maximum permitted length of
detention in ordinary cases from 18 months to 24 months (Art. 32(3)). While
states are not required to maintain detention for the maximum period, in
practice, they often do. As a result, the proposal would lead to longer
detention periods across the EU. This stands in stark contrast to the Commission’s
previous stance, which claimed that the Directive had a beneficial effect
on detention lengths in Member States by generally shortening them.
Additionally, the proposal clarifies that these limits apply within a given Member
State. So, if a person is transferred between states (for instance, under the
mutual recognition mechanism), the detention period may start anew. The
proposal also facilitates extended and unnecessary detention by removing the
principle that detention shall only be maintained as long as removal
arrangements are in progress and executed with due diligence. However, this
requirement stems from the
ECtHR’s well-established case-law, so the Member States remain bound by it
in any case.
The expansion of detention thus conflicts with several
safeguards flowing from the right to liberty. Additionally, as pointed
out by the EPRS, detention is neither necessarily effective (since there is
no evidence to suggest that more detention leads to higher return rates) nor efficient
(due to the considerable costs involved).
3) Generalized restriction on freedom of movement: the proposal introduces five freedom-restricting measures
(including reporting obligations, residing in a specific place and electronic
monitoring), labelling them as “alternatives to detention” (Art. 31). However unlike
genuine alternatives to detention, these measures are not to be imposed instead
of detention (i.e., when detention would otherwise be lawful) but in addition
to detention – when detention is not or no longer justified (Art. 32).
Labelling such measures as “alternatives to detention” is therefore misleading
and creates confusion. Under the framework of detention and its so-called
alternatives, individuals risk being either detained or subjected to these
restrictive measures depending on the perceived level of the risk of
absconding. Given the expansive definition of the risk of absconding (Art. 30),
personal freedom would effectively become the exception rather than the rule.
Although the proposal includes some human rights safeguards flowing from the right to freedom of movement
within a State—such as individual assessment and proportionality
requirements—these may not be sufficient to counterbalance the broad scope of
restrictions.
Another set of
freedom-restricting measures introduced in the proposal relates to the new
obligation to cooperate and remain available for the return process (Art. 23).
To ensure a swift, efficient, and effective return, the proposal subjects
individuals to geographical restrictions (such as confinement to a designated
area or residence at a specific address) and/or reporting duties for the
duration of the return procedure. Notably, the proposal does not establish any
additional conditions for imposing these measures. Subjecting every person in
the return procedure to geographical restrictions is an indiscriminate and
disproportionate measure. It fails to meet the necessity requirement under the
right to freedom of movement, which demands that any restriction be necessary
in the individual case for achieving the legitimate objective.
4) The downgrading of “voluntary” departure/return: The
proposal rebrands “voluntary departure” (currently used in the
Directive) as “voluntary return,” which reduces clarity. A return
that follows a return decision is not truly voluntary, as it is not based on
the person’s informed and free consent. Even “voluntary departure” under
the Directive is misleading, with “mandatory”
or “accepted”
return previously suggested as more accurate. The shift to “voluntary
return” only deepens the confusion, likely aligning the language with
assisted voluntary return and reintegration programs run by the International Organization
for Migration.
Additionally, the proposal removes the priority currently
given to “voluntary” departure/return, making removal the default
option. The minimum 7-day departure period has also been eliminated, further
downgrading the role of “voluntary” departure/return (Art. 12–13). This shift
contradicts key legal principles and the Commission’s
own position. The CJEU in Zh.
and O. confirmed that “voluntary” departure/return is rooted in the
principle of proportionality. Furthermore, this form of return is in states’
interests—it is cheaper and easier to organize. As the Commission acknowledged
in its 2021
strategy, “voluntary” departure/return helps ensure more effective and
sustainable outcomes. The explanatory memorandum applauds the increase in the
uptake of “voluntary” departures/returns and, due to the absence of an impact
assessment, it remains unclear why this form of return is now being restricted.
While the proposal limits “voluntary” departures/returns, it simultaneously
promotes them by introducing a new provision dedicated to return and
reintegration assistance (Art. 46(3)). This inconsistency ultimately undermines
both legal principles and practical considerations.
5) Externalisation of return: The
proposal allows Member States to remove individuals—except unaccompanied
children and families with children—to a third country with which they have an
agreement or arrangement for return (Art. 17). This “return hub” would then be
responsible for the further removal. In effect, the proposal establishes a
legal basis in EU law for the externalisation of return. On paper, outsourcing
returns may seem attractive to Member States. However, as a recent migration deal
has shown, such measures often face legal challenges, operational hurdles, and
high costs for the outsourcing state. The Commission itself considered “externally-located return centres”
in 2018 but identified serious legal and practical challenges, including the
risk of violating non-refoulement and conflicts with EU values.
Return hubs raise
human rights concerns, particularly regarding detention and onward return.
While the proposal requires third countries to uphold international human
rights standards, including non-refoulement, it fails to specify how and by
whom compliance would be assessed. Similarly, although independent monitoring
is mandated, its scope and mandate remain undefined. Member States may not be
able to escape responsibility for human rights violations in return hubs. Under
the proposed framework, their involvement may be substantial enough to
establish jurisdiction, as seen in recent UN Human Rights Committee decisions.
Concluding thoughts
As this analysis has shown, several measures in the
Commission’s proposal risk violating fundamental human rights, including the
prohibition of refoulement, arbitrary detention, and torture or ill-treatment.
The generalised restrictions on freedom of movement and the downgrading of
“voluntary” departure/return are not in line with the EU law principle of
proportionality. At the same time, these measures are unlikely to improve the
effectiveness of return, even when effectiveness is reduced to the sheer number
of persons returned—let alone efficiency, which considers the human and
financial resources required. In fact, detention does not necessarily lead to
higher return rates, while being costly. Similarly, forced removal is more
expensive and complex to organize than “voluntary” departure/return. The
so-called “innovative solutions”—such as mutual recognition of return decisions
and return hubs—lack clarity and may prove far more difficult to implement than
envisioned on paper.
Moreover, the proposal fails to meet other
key criteria for EU policymaking as outlined in the Commission’s Better
Regulation Guidelines. The de-prioritisation of “voluntary” departure/return
contradicts the criterion of sustainability. The criterion of coherence is also
put into question. Internally, the downgrading of “voluntary” departure/return
is inconsistent with the promotion of “voluntary” assisted return and
reintegration. Externally, the use of “alternatives to detention” as standalone
restrictive measures distorts the concept, which is meant for people who would
otherwise be lawfully detained. Ultimately, the proposal disregards several
core criteria of EU lawmaking—shortcomings that could have been identified
through an ex-ante impact assessment.
The proposal fails to acknowledge that, despite its arsenal
of measures to increase return numbers, not everyone in an irregular situation
can or will leave EU territory. The obligation to issue a return decision for
every person in an irregular situation—without a mandatory prior assessment of
refoulement risks or other legal bars to removal (such as family and private
life or health conditions)—inevitably creates a group of unreturnable
individuals. This issue already existed under the Directive and is further
exacerbated by the proposal. Currently, Member States may issue a residence
permit for humanitarian or other reasons instead of a return decision, or
withdraw/suspend an existing return decision for such reasons (Art. 6(4)).
However, as the EPRS
observed, these considerations are not automatically assessed within the
return procedure.
Rather than addressing this gap, the proposal eliminates
this possibility from the list of exceptions. Member States will only be able
to withdraw or suspend a return decision (Article 7(9)); abstaining from
issuing a return decision on such considerations will not be an option anymore.
Impediments to return will be assessed only at the appeal stage of the return
procedure, which undermines the effectiveness and efficiency of return policies
let alone human rights compliance. Instead, an automatic assessment should be
conducted before issuing a return decision, and a regular status should be
granted to those who cannot be returned. Regular
pathways for stay are widely recognized as a viable alternative to return
and a normal feature of migration governance. A genuine “Common System for
Returns” should at least recognize regularisation measures for
unreturnable persons.
A legislative proposal based on coercion and restrictive
measures—without any supporting evidence due to a missing impact
assessment—would never see the light of day in the EU if its addressees were
not people whose voices are typically unheard. People fall into irregular
situations in many different ways and many have lived in and contributed to
European societies for decades. They remain invisible, and those who defend
their rights face increasing
criminalisation. In this context, responding to the demands of some Member
States, the Commission has enjoyed wide flexibility to propose unrestricted
coercive measures—with little accountability for their impact on those
affected. However, law-making without evidence sets a dangerous precedent. In
the future, such an untransparent approach could extend beyond undocumented
migrants, affecting asylum seekers, migrants in a regular situation, and
ultimately EU citizens. Now, it is up to the European Parliament and the Member
States in the Council to reaffirm the EU’s founding principles: democracy, the
rule of law, and human rights.
