European Parliament Draft Report on Return Regulation

On 11 November, the European Parliament’s (EP) rapporteur on the proposal for a Regulation establishing a common system for the return of third country nationals (TCNs) staying illegally in the Union (commonly referred to as the Return Regulation) presented their draft report to the Committee on Civil Liberties, Justice and Home Affairs.

Although the draft report introduces a number of improvements in terms of procedural safeguards and language, it largely perpetuates the European Commission’s (EC) overall rhetoric and narrative on return policies. The rapporteur (Malik Azmani MEP (Renew Europe, Netherlands)) defends the proposed amendments as necessary to reform the “outdated Return Directive” (from 2008), citing ‘’the low return rates’’ and the need to bolster “public trust in the system”, arguments that are consistently invoked to justify a more restrictive policy framework.

A number of proposed changes that are included in the draft report are summarised below.

1. Expansion of countries of return and return hubs

The draft report endorses the proposal’s significant expansion of the list of countries to which TCNs may be transferred against their will, including transfers to so-called “return hubs” (i.e. deportation centres in third countries). However, it also introduces several important safeguards. Notably, it specifies that a return hub may only be established based on a formal agreement, thus removing the EC’s reference to less formal “arrangements.” It also further clarifies that return hubs should only be used as a measure of last resort; when individuals have not returned voluntarily and cannot be returned to their country of origin.

In addition, the draft report explicitly excludes the return of unaccompanied children and families with children to return hubs. It also introduces a requirement for EU member states (MS) to inform both the EC and the EP before concluding any agreement establishing a return hub, and provides that a return hub can also be established by the EU. Finally, it calls for comprehensive monitoring, including oversight of compliance with fundamental rights within return hubs.

2. Blanket obligations to return and mutual recognition of return decisions

The draft report endorses the proposal’s blanket obligation for MS to issue a return decision to any TCN ‘’illegally’’ on their territory. However, it weakens the safeguards that were included in the proposal by allowing return decisions to be issued even without specifying a country of return in cases where such a country cannot be determined.

The draft report also expresses strong support for the mandatory mutual recognition of return decisions as a means of preventing secondary movements and reducing the administrative burden on MS. In addition, it reduces the length of the transitional period for the mutual recognition mechanism to become mandatory to one year after the entry into force of the Regulation.

3. Voluntary departure versus forced return

The draft report places greater emphasis on “voluntary return” over forced return, primarily by reordering the relevant articles and strengthening the corresponding language. It also reintroduces the minimum seven-day period for voluntary departure, as provided under the current Return Directive.

4. Obligations of TCNs to co-operate

Overall, the draft report retains the proposal’s obligations for TCNs to co-operate during return procedures. However, it also introduces some improvements to ensure proportionality and fairness. It stipulates that under Article 21(a), obligations must be proportionate and take into account the specific circumstances of each individual. In addition, it removes some of the punitive consequences of non-co-operation, such as financial penalties and the refusal or withdrawal of work permits.

5. Suspensive effect of appeal

The draft report further reduces the level of safeguards related to the lodging of an appeal by providing that not all appeals should have automatic suspensive effect. It justifies this move on the grounds that that it would unduly delay return procedures.

6. Detention and alternatives to detention

The draft report places greater emphasis on the use of alternatives to detention. Importantly, it stipulates that detention should only be applied as a measure of last resort and for the shortest possible duration. It also maintains the maximum detention period of 12 months, with the possibility of a six-month extension, thus significantly reducing the 24-month detention period included in the proposal and maintaining the timeframe set out under the current Return Directive.

7. Readmission procedure and role of the European Border and coast Guard Agency (Frontex)

The draft report removes the controversial Article 37 which covers co-operation with non-recognised entities. At the same time, it proposes an expanded role for Frontex throughout the return process,  from the implementation of return operations, including onward returns from third countries, to the establishment of a centralised European monitoring system that it would manage.

The deadline for MEPs to table amendments to the draft report is Thursday 27 November.

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