PURPOSE: to improve the efficiency of common
procedures applicable in Member States for the return of illegally
staying third-country nationals.
PROPOSED ACT: Directive of the European
Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: the European
Parliament decides in accordance with the ordinary legislative
procedure on an equal footing with council.
BACKGROUND: the effective return of
third-country nationals who do not have a right to stay in the
EU is an essential component of the European Agenda on Migration.
At EU level, return policy is regulated by Directive 2008/115/EC of
the European Parliament and of the Council (the Return Directive).
Since the entry into force of the Return Directive in 2010,
migratory pressure on Member States and the Union as a whole has
increased.
Two main challenges may be
identified:
-
national practices implementing the EU
framework vary between Member States and are not as effective as they should be. Among
other things, inconsistent definitions and interpretations of the
risk of absconding and of the use of detention result in the
absconding of irregular migrants and in secondary movements. Lack
of cooperation on the part of the third-country nationals leads
also to obstructing return procedures;
-
the efficiency of the EU's return policy
depends also on the cooperation of countries of
origin. Several legally non-binding
arrangements for return and readmission have been put in place. All
Member States should make full use of the arrangements to increase
returns to the countries concerned.
The Commission adopted a
Recommendation in 2017, setting out a series of measures to be
taken up by the Member States to make returns more effective,
including by making full use of the flexibility provided by the
Return Directive. Despite these efforts, there has been little
progress in increasing the effectiveness of returns. On the
contrary, a decrease in the return rate throughout the EU was
observed from 45.8% in 2016 to merely 36.6% in
2017.
This proposal is part of a package of measures
proposed by the Commission as a follow up to the European Council
of 28 June 2018 which underlined the necessity to significantly
step up the effective return of irregular migrants, and
welcomed the intention of the Commission to make legislative
proposals for a more effective and coherent European return
policy.
CONTENT: the proposal to recast Directive
2008/115/EC aims to address the key shortcomings and obstacles
encountered by Member States when carrying out returns, notably to
reduce the length of return procedures, secure a better link
between asylum and return procedures and ensure a more effective
use of measures to prevent absconding. The proposed amendments do
not affect the rights of the migrants and ensures full respect of
fundamental rights, in particular the principle of
non-refoulement.
Specifically, the proposal for
recast:
-
establishes a new border procedure
for the rapid return of applicants for
international protections whose application was rejected following
an asylum border procedure. The proposal provides for specific,
simplified rules applicable to third-country nationals who were
subject to asylum border procedures: (i) issuance of a decision
through a simplified form, (ii) no period for voluntary return
granted as a rule (except if the third-country national holds a
valid travel document and cooperates with the national
authorities), (iii) shorter time-limit for lodging an appeal, and
specific ground for detention. This border procedure for return
will follow up the asylum border procedure;
- sets out a common, non-exhaustive, list of
objective criteria to determine the existence of a risk of
absconding as part of an overall assessment of the specific
circumstances of the individual case;
- introduces an explicit obligation for third-country
nationals to cooperate with national authorities at all stages
of the return procedures, in particular for establishing and
verifying their identity in view of obtaining a valid travel
document and ensuring the successful enforcement of a return
decision;
- clarifies the need to issue a return decision
immediately after a decision rejecting or terminating the legal
stay is taken;
- adapts the rules for granting a period for
voluntary departure, which should not be longer than 30
days. However, the proposal deletes the obligation to grant a
minimum of seven days when determining the duration of the period
for voluntary departure;
- introduces the possibility for Member States to impose
an entry ban without issuing a return decision on an
illegally staying third-country national who is detected for the
first time while leaving the Union in certain cases and taking into
account the principle of proportionality;
- establishes the obligation to have national return
management systems providing timely information on the identity
and legal situation of the third-country nationals that are
relevant for monitoring and following upon individual cases. These
are to be linked to a central system established by the European
Border and Coast Guard Agency in accordance with the new Regulation
that is part of this package;
- sets an obligation for Member States to establish
voluntary return programmes that may also include
reintegration support;
- provides for a specific time-limit (five days) for
lodging appeals against return decisions issued in cases where
the return decision is the consequence of a decision rejecting an
application for international protection that became final. If the
risk of a breach of the principle of non-refoulement has not been
already assessed by a judicial authority in asylum procedures, an
automatic suspensive effect of the appeal against a return decision
must be granted. A decision on temporary suspension shall be made
quickly, within 48 hours as a rule;
-
sets out clear time-limits for
detention: while the maximum period
for detention of 6 months and the possibility of extension in
specific circumstances are not modified, the proposal requires that
national legislation provide for not less than 3 months as an
initial minimum period of detention, in order to more
appropriately reflect the period of time needed to successfully
carry out return and readmission procedures with third countries.
In addition, Member States may now also detain returnees when they
pose a threat to public order or national
security.