Making returns more effective and steeping up the return rate throughout the EU has been a priority for EU institutions in the last years, as stated in the Commission’s European Agenda on Migration (2015), the EU Action Plan on return (2015), the Renewed Action Plan on return (2017) and the New Pact on Migration and Asylum (2020). However, while the number of return decisions issued by EU Member States has remained relatively constant at about 0.45 million a year since 2010, the number of effective returns has trailed behind at a yearly rate of 0.2 million. Aiming to increase those figures, the Commission presented a proposal to recast the Directive on common standards and procedures in Member States for returning illegally staying third-country nationals (Return Directive) on September 2018. The aims of the proposal are to:

• accelerate return procedures through the creation of a border procedure;
• oblige Member States to provide for appeals against return decisions before a court and establish common rules on the suspensive effect of those appeals;
• oblige Member States to set up voluntary return programmes and allow them to shorten the period for voluntary departure (currently, a minimum of 7 days);
• oblige returnees to cooperate through the return procedure, for example, when verifying their identity and acquiring travel documents for the return;
• introduce a new maximum detention period of returnees ranging from three to six months (possible extension for up to twelve months); illegally staying third-country nationals who pose a threat to public order or national security can be detained if deemed necessary; and a list of criteria for assessing the “risk of absconding” and detaining returnees is proposed.

At the Parliament, the Civil Liberties, Justice and Home Affairs Committee (LIBE Committee) was appointed as the Committee responsible for the proposal. Judith Sargentini was appointed as rapporteur for the proposal at the LIBE Committee and she presented her draft report on the 16 January 2019, but the report was not adopted by Parliament in the 2014-2019 term. After the 2019 May European elections, Parliament decided to resume work on this proposal and the LIBE Committee appointed a new rapporteur, Tineke Strik. Her draft report was published on the 21 February 2020, proposing to include several amendments : a) revised definition of the risk of absconding and deletion of the criteria listed in the Commission's proposal to assess whether such a risk exists; b) introduction of an obligation for Member States to provide information to returnees on the return procedure, the return decision and their rights and obligations in a language they understand; c) deletion of most of the obligations imposed on returnees in the Commission’s proposal; d) general extension of the time limit for voluntary departure to 30 days; e) obligation to carry out an individual best interest assessment in relation to every minor before issuing a return decision, to ensure that return procedures are child-sensitive, to appoint an independent guardian to assist unaccompanied and separated minors and ensure that they are returned to a first or second-degree member of their family or a legal guardian; g) modify the provisions on entry- bans in order to reduce the possibilities opened for Member States to impose them; h) deletion of the new grounds for detention of returnees proposed by the Commission and the limitation of the detention period of returnees to a maximum of three months (extendable to six in certain circumstances); i) inclusion of a general ban on detention of children and families; j) deletion of the border procedure for returns. The deadline for tabling amendments, originally scheduled for 16 April 2020, was postponed until the 23 September 2020. In total, 754 amendments were tabled. The LIBE Committee has not been able to agree on the report related to this file. Discussions between the Parliament rapporteurs on the revised directive resumed on 6 November 2023, with rapporteur scheduling three further meetings in November in order to reach an agreement. 

At the Council, a partial general approach covering all aspects of the proposal, apart from those relating to the border procedure for returns, was reached at the Justice and Home Affairs meeting of 6/7 June 2019. Council agreed on the necessity to define the objective criteria to determine the existence of a risk of absconding for the purpose of detaining returnees, on imposing an obligation to cooperate on third country nationals subject to return procedures, on leaving freedom to Member States to shorten the period for voluntary departure and on extending the maximum period of detention of returnees. However, Council proposed to delete some of the criteria to define the risk of absconding suggested by the Commission (lack of documentation, residence or financial resources and ongoing criminal investigations and proceedings) and to modify the definition of the remaining criteria. It also proposed to impose further obligations on returnees, including an obligation to provide a reliable address, to appear in person before the competent authorities if required and to provide biometric data to verify identity. It proposed specific safeguards for children and families, allowing Member States to provide for shorter periods of detention for children and to grant children and families a period of voluntary departure even when there is a risk of absconding or when they pose a risk to public order, public security or national security. Finally, Council proposed to extend the maximum duration of entry-bans from five to ten years; to widen the possible countries of destination of returnees; several measures aiming to strengthen the coordination between Member States for the purpose of issuing and implementing return decisions; and various amendments providing for judicial (and not only administrative) review of return decisions.

References:

• European Parliament, Procedure file on Common standards and procedures in Member States for returning illegally staying third-country nationals (Recast), 2018/0329(COD)
• European Parliament, Draft report on the proposal for a directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast), 21 February 2020.
• European Commission, Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals (recast), COM(2018) 634
• Council, Partial general approach on the Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in member States for returning illegally staying third-country nationals (recast), 13 June 2019
• European Economic and Social Committee, Opinion on Common standards and procedures in Member States for returning illegally staying third-country nationals (recast), 23 January 2019.
• Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

Further reading:

• European parliament, EPRS, Data on returns of irregular migrants, Infographic, March 2021.
• European Parliament, EPRS, Recasting the Return Directive, Legislative briefing, March 2021.
• European Parliament, EPRS, The Return Directive 2008/115/EC, European Implementation Assessment, 2020.
• European Parliament, EPRS, Substitute impact assessment on the proposed return directive (recast), 2019.

Author: Anja Radjenovic, Members' Research Service, legislative-train@europarl.europa.eu

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