Background: the 2008 Return Directive

• Author: Eisele, Katharina
• Pages: 1-11

The Return Directive 2008/115/EC

1

Par t I – Introduction

1. Background: the 2008 Return Directive

1.1. Scope and content

The return and readmission of irregular migrants1 in Europe ha s been a key priority for the EU

inst itutions and the Member States alike, including in the context o f unsucces sful as ylum claims.

Return and readmission are an integral part of the EU's immig ration an d asylum policy s ince the

1999 Tamper e Eu ro pean Council Conclusions2 and the adoption of the Treaty of Amsterdam.

On 16 December 2008, the European Parliament and the Council of the EU adopted Directive

2008 /115/ EC on common standards and procedures in Member States for returning illegally staying

third-country nationals (the 'Return Directive').3 The Ret urn Directive was one of th e first legislative

instruments in the area of EU immigration and asylum th at fell under the co-decision procedure

(today: ordinary legislative procedure) at that time.

The objective of the Retur n Directive is to ensure that the return of third-country nationals (non-EU

nationals) without legal grounds to stay in the EU is car ried ou t effectively through fair and

transparent procedures that fully respect the fundamental rights and dignity of the people

concer ned. The fundamental rights obligations under primary and secondary EU law (including

under th e EU Charter of Fundamental Rights) and international law include in part icular th e principle

of non-refoulement;4 the right to a n effective remedy; the pro hibition on collective expulsion; the

right to liberty; and the right to the protection of personal data.

Return and asylum policies are in terlinked. Through the Common European Asylum System (CEAS),

the EU has developed legal and policy instrum ents for t he management of asy lum in the EU that

apply from the moment someone has lodged an asylum application until the moment the

application has been recognised or rejected upon appea l, at which st age the individual becomes

eligible for ret urn. 5 Import ant ly, t he E urop ean B ord er an d Co ast Gua rd A gency (Fr ont ex) pla ys a key

role in the imp lemen tation of retu rn policy , as well as its co operatio n with t hird cou ntries on re turn.6

1Irregular migrants are non-EU nationals who are rejected asylum seekers, and those who enter, stay or work i n a

country wi thout the necessary authorisati on or docume nts r equire d under immigration regulations, see Inter national

Organization for Migration (IOM) key mig ration te rms.

2Tampere Europe an Counci l Presidenc y Conclusions, 15-16 October 1999.

3Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning

illegally staying third-country nationals.

4See Article 33(1) of the Refugee Convention; this principle prohibits the expulsion or return of a person to the frontiers

of territories where the person's life or freedom would be threatened.

5See Van Ballegoo ij, W., wi th Navarra, C., The Co st of non-Europe in Asylum Policy, EPRS, European Parliament, 2018;

see also Scherrer A., Dublin Re gulation on int ernational prote ction applications, Eur opean I mplementati on

Assessment, EPRS, European Parliament, 2020.

6See Part III – Study on the external dimension of the Return Directive.