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Questions and Answers on the Commission proposal for a new Common European System for Returns
What is the Commission presenting today?
The Commission is proposing a legislative framework for a new Common European System for Returns to increase efficiency of the return process by providing Member States with clear, simplified and uniform rules for managing returns in the form of a Regulation.
In line with the new asylum legislation under the Pact, there will be clear obligations for third-country nationals to cooperate with authorities in the return process. This is complemented by clear consequences for non-cooperation, alongside positive incentives and the right to information, ensuring that individuals are fully informed of their rights and obligations. Through the European Return Order and the new mechanism of mutual recognition and enforcement of return decisions issued by another Member State, we are introducing an important procedural simplification, eliminating a step in the process and improving the effectiveness of the EU system as a whole.
The proposal will ensure that forced returns take place where necessary thus strengthening incentives for voluntary returns. Member States will have to carry out checks to identify third-country nationals posing a security risk to ensure that these persons can be returned faster.
Fundamental rights of returnees will be protected through all steps of the return process, with clear procedural safeguards, including the prohibition of refoulement, and with due attention to vulnerable people and the best interests of the child.
The proposal also includes important elements as regards the international dimension of returns: it facilitates readmission requests and data transfers with partner countries, and introduces the possibility to return people with no legal right to stay to a non-EU country, other than their country of origin or transit, where international human rights standards are respected.
Why do we need new rules now?
The current Return Directive has been in force since 2008. Since then, EU migration policy has considerably changed. The Commission proposed to revise the Return Directive in 2018 but no agreement could be reached between the co-legislators (Council and the European Parliament).
There is a need for more modern rules equipping Member States to deal with today's challenges when it comes to returns – for instance rules on obligations of the third-country national to cooperate and common rules on how to return third-country nationals posing a security risk.
In recent years only around one in five of those ordered to leave the EU were effectively returned. This also risks undermining the implementation of the Pact on Migration and Asylum, which foresees an efficient EU return system for the comprehensive migration management system to work. It also erodes citizens' trust in the EU's capacity to manage migration fairly and effectively. This proposal aims to address these issues by increasing the efficiency of return.
What are the main problems with returns?
Several interconnected problems undermine the efficiency and effectiveness of current return and readmission procedures. The current system is too complex and too fragmented leading to inefficiencies in the cooperation of the authorities involved in the return process, both at national level and between the authorities of different Member States.
In addition, many returnees don't fully cooperate with the authorities. The current EU return legislation does not contain an obligation for third-country nationals to cooperate in the return procedure. Absconding, including by moving to another Member State, represents a further challenge in the framework of return.
Another issue is the insufficient efficiency of readmission procedures. While readmitting own nationals is an obligation under international law, some countries of origin do not cooperate sufficiently.
How will the new rules ensure that people's rights are protected during all the steps?
Respect of fundamental rights is enshrined in the proposal. All steps under the return procedure must be carried out under the framework of the Charter of Fundamental Rights.
The new rules protect the fundamental rights of returnees through clear procedural safeguards, including the right to appeal and the prohibition of refoulement, with due attention given to the best interests of the child at every stage. Provisions for the protection of minors including on age assessment, have been aligned with the recently agreed asylum rules under the Pact. At operational level, the proposal ensures a number of support systems, including counselling and potentially reintegration support.
What are the safeguards for children and families?
Member States will need to pay particular attention to unaccompanied minors and families with minors. The principle of the best interests of the child is of primary consideration when returning minors. The proposal aligns with key novelties of the Pact rules: age assessments of minors must follow the same rules as applicable in the area of asylum and the proposal also foresees that a representative is appointed to see to the interests of the minor. The proposal provides for strong safeguards on detention conditions in case minors are detained, which in any case remains a measure of last resort.
In case of return of unaccompanied minors, the proposal ensures a representative must be appointed to represent, assist and act on behalf of an unaccompanied minor in the return process. The appointed representative needs to be appropriately trained in child-friendly and age-appropriate communication and speak a language that the minor understands.
Why are you extending possibilities for detention?
Absconding and secondary movements are a major issue that Member States are confronted with when implementing return procedures. Ensuring the availability of people during return procedures, including through detention, will remain a necessity. The Commission, the EU Agencies and the Member States continue to work on enhancing the effectiveness, availability and use of alternatives to detention.
Detention can only be used in so far as it is necessary and proportionate. Third-country nationals in detention should be treated in a humane and dignified manner with respect for their fundamental rights and in compliance with international and national law. The use of detention is always subject to the supervision of a judge.
How will the proposal incentivise voluntary returns?
The proposal recognises the continued importance of voluntary return and further incentivises it. The right to information is reinforced to ensure that individuals are fully aware of their choices and their rights in the return process. This is done also by providing reinforced rules for return counselling and reintegration to ensure that the returnees are properly informed about what is expected of them in the return process. Voluntary return also comes with incentive financial assistance.
The proposal also clarifies and strengthens the rules for forced returns, thus creating clarity and predictability for both the authorities responsible and third-country nationals. This approach incentivises voluntary return within the given deadlines for departure from the EU. For example, if a returnee does not leave within the timeline given or absconds to another Member State, then he or she would be subject to forced return, with the consequence of possible detention and entry ban. With forced return becoming a credible instrument, incentives for voluntary returns increase further, making it clear for returnees it is in their best interest to return voluntarily.
Will the mutual recognition of return decisions be mandatory?
The proposed Regulation provides the possibility for Member States to recognise the return decisions issued by another Member State. With the new European Return Order, mutual recognition becomes easier. The aim is to move to a situation where, based on operational developments, the mutual recognition becomes mandatory. Therefore, one year after the Pact enters into application, the Commission will review whether Member States have established appropriate legal and technical arrangements to effectively process European Return Orders and adopt an implementing decision that will make it mandatory to recognise and enforce a return decision issued by another Member State.
What is the EU Return Order?
The European Return Order is a form in which Member States will have to insert the key elements of the return decision. The European Return Order will then be made available in the Schengen Information System in case the third-country national absconds and appears on the territory of another Member State.
This will make clear that an order to leave one Member State is an order to leave all Member States of the European Union. If a person issued a return order moves on to a second Member State, they will be able to directly enforce the return decision issued by the first Member State based on the elements in the European Return Order.
The European Return Order will be established through an implementing act and there will be an opportunity to consult Member States on its content.
The European Return Order will give a stronger European dimension to return decisions and will disincentivise people from absconding and moving to another Member State as doing so will not alter their chances of remaining in the EU. This will encourage compliance and incentivise cooperation of returnees.
Do you propose special rules for persons who pose a security risk?
Yes. The proposal defines which individuals fall under the category of a security risk, for instance when a crime of a certain level of gravity has been committed. These third-country nationals will be subject to forced return, longer entry bans and a separate detention ground as well as the possibility for longer detention periods. These rules mirror the rules under the newly adopted Pact, as well as those under the Schengen Borders Code, all of which include rules to specifically deal with migrants posing security risks. The proposal also introduces new rules for Member States to carry out security checks to identify whether a person poses security risks early in the process. The new rules also provide clear safeguards to protect fundamental rights.
How can we improve the cooperation of third countries in accepting returning migrants?
Effective cooperation on return and readmission is a key component of the EU's comprehensive, tailor-made and mutually beneficial partnerships with third countries. The Commission regularly monitors cooperation in the framework of the existing bilateral and multilateral readmission instruments and through the annual assessment on readmission cooperation under Article 25a of the Visa Code. In case of insufficient cooperation, the Commission can propose restrictive visa measures, which are then adopted by the Council. To date, six countries have been proposed for restrictive visa measures, triggering improvements in cooperation.
What is the Commission proposing on return hubs?
The Commission is laying down the legal ground rules for the operation of return hubs.
With this new proposal, returnees will be able to be returned to a third country with which there is a bilateral or EU-level agreement or arrangement, provided certain conditions are met, including in particular the respect of international human rights standards and principles in accordance with international law.
How will fundamental rights in the return hubs be ensured? Will the Commission monitor their implementation?
Agreements or arrangements with a non-EU country hosting a return hub will have to include strong protection conditions. Return to return hubs must be limited to people with enforceable return decisions, having exhausted all appeals. Return hubs would have to be based on an agreement or arrangement with a third country and can only happen with third countries that respect international human rights standards and principles in accordance with international law, including the principle of non-refoulement. A clear number of safeguards would have to be part of the agreements or arrangements, such as the existence of an independent body or mechanism to monitor the application of the agreement or arrangement Unaccompanied minors and families with children are excluded from returns to return hubs.
For More Information
Factsheet - A Comprehensive Migration Approach
Factsheet - A New Common European System for Return