ECRE Comments Paper: Proposal for a Return Regulation

ECRE has published a comments paper on the European Commission’s (EC) 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. The comments paper includes ECRE’s analysis of all nine chapters of the proposal and its recommendations to both the European Parliament and EU member states (MS).

With the proposal, the EC aims to support MS to meet the long-standing objective of increasing the return rate – that is, increasing the percentage of third-country nationals issued with a return decision who ultimately return to their country of origin or who are deported to a third country. It also seeks to harmonise return policies across MS. However, ECRE’s analysis of the proposal suggests that it falls short of these objectives. The proposal introduces a return procedure that is more complex, costly and bureaucratic than the current one. Moreover, a number of its provisions undermine its aim of establishing a common system by allowing MS to revert to national legal frameworks in specific cases.

The proposal also carries significant risks to the fundamental rights of people in return procedures through a variety of different measures. For instance, it provides for a significant expansion of the list of countries to which third-country nationals can be returned against their will beyond their countries of origin. It also paves the way for the establishment of the much discussed concept of “return hubs” in third countries by providing a legal basis for MS to set them up if they reach an agreement or an arrangement with a third country.

The proposal also introduces expanded criteria for assessing “risk of absconding” and includes vague obligations for third-country nationals to co-operate during the return procedure. The criteria are also used to justify detention and to deny the option of voluntary departure. In addition, the criteria are so broad that their use risks leading to systematic detention, effectively reversing the principle that detention should be a last resort. This severely limits individuals’ ability to choose a more humane voluntary return.

Additional restrictions on voluntary departure include the absence of a minimum time limit and the imposition of co-operation obligations. As a result, the proposal effectively makes forced return the default, while voluntary departure becomes the exception, undermining long-term investments in voluntary return and raising concerns about the sustainability and dignity of return procedures. Legal remedies have been restricted both in terms of imposing extremely tight time-limits, as well as reducing the possibilities for appeal and the automatic suspensive effect of appeal.

The proposed Return Regulation does very little to incentivise co-operation which constitutes a more dignified approach to increasing return numbers. Combined with the reduction of procedural rights, which may increase the pool of people to return, and the harsh measures, including significantly expanded use of detention, which evidence shows lead to absconding, the overall impact on the return rate of the proposal is uncertain.

ECRE strongly urges a different approach to this objective: reducing the pool of people to return through ensuring that asylum systems function effectively in granting protection status and through a massively expanded use of national legal statuses – protection and non-protection related. Managed transfer of people into regularised status and out of the return system is in the economic interest of MS as it is more cost effective than expanding detention and deportation apparatus and allows for a strategic rather than ad hoc response to labour market needs.

Overall, the lack of an impact assessment (required by law) justified by reference to urgency has become a standard approach to legislative proposals. It undermines legal standards and leads to policy proposals that raise significant concerns regarding fundamental rights impact.

The comments paper is available here.