Conclusions and recommendations

• Author: Eisele, Katharina
• Pages: 113-115

Part II: Evaluation of the imple mentation of the Re turn Dire ctive

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4 Conclusions and recommendations

Based o n the discuss ion on the implementation of the Ret urn Directive in the ten selected Member

States in Section 2 and the evaluation of the Directive according to the criteria of the Commission’s

Better Regulation Guidelines in Section 3, this section draws the overall conclusions and puts

forward policy recommendations.

4.1 Overall conclusions

The Retur n Directive has two key o bjectives, effective ret urn and ret urn in line with fundamental

rights, although in the current discourse, effectiveness is mainly stressed upon and understood as

the retu rn rate. The four key measures established in the Directive – return decision, enforcement of

the return decision (by means of voluntary return or forcible return), entry ban, and detention –

should be applied in line with both fundamental rights and consideration of effectiveness.

Effect ive nes s:

The fou r key mea sures shou ld be applied in a man ner which contribut e to the effectivenes s of

return . Some modalities of these mea sures ma y however impede the effectiven ess of the ov erall

return while at the same t ime requiring r esources.

A lack of automatic assessment of the principle of non-refoulement before star ting the

return procedure may result in the pr ocedure being applied to th ose whose return is

not poss ible.

The absence of the obligation to withdraw the return decision when the risk of

refoulement is established may imply th at the procedures are being postponed for

pro longed perio ds, wh ich is ine ffective .

Detention extended bey ond the initial period is inefficient because most of the returns

take place in the first few weeks .

Re duci ng v olu nt ary de part ure optio ns is dis adv antag eous fo r st ates, as vo lunt ary return

is cheaper and easier t o organise.

Overly short periods for voluntary departure may preclude departure.

Entry bans imposed alongside voluntary return reduce the incentive to comply with the

ret urn d ecision .

Hence, effectivenes s, efficiency, and internal coherence of the meas ures set for th by the R eturn

Direct ive m ay somet imes be question ed. Member States should apply the relevant measures

consciously, rather than automatically, and based on the individual assessment of each case. Above

all, the effectiveness of the retu rn does not demand reducing hu man rights protections, as the

European Commission’s Recommendation on making return more effective propo ses. As the study

has shown, more and longer detention, lack of voluntary departure options, and systematic entry

bans ma y not necess arily render the EU retur n policy to be mo re effective; such meas ures may not

even increase t he retur n rate.

Fundame ntal ri ghts prot ection:

The Retur n Directive frequently leaves the discretion to states with regard to th e specific

implementation of its provisions. In the context of th e current emphasis on the r eturn rate, t his

leeway may le ad to inter pret ation and applicat ion of th e pro visions o f the Dir ective , which fa ll short

of fundamental rights, in particular:

Ther e is a ris k tha t the principle of non-refoulement is not systematically assessed, in

particular with r espect to peop le who were refused inter national protection.