Evaluation of the implementation of the key measures established in the Return Directive in selected countries

• Author: Eisele, Katharina
• Pages: 42-105

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2 Evaluation of the implementation o f the key measures

established in the Return Directive in selected countries

The evaluatio n of the implementation of the R eturn Directive in the selected coun tries is structured

aroun d four key measures, which were established under the Directive, notably return decis ion (2.1),

implementation of the return decision (2.2), entry bans (2.3), and detention (2.4).

2.1 Return decision

The retur n process starts by issuin g a r eturn d ecision . This sectio n is d evot ed to th e ret urn decision

as it addresses several research questions, notably question 1 on the scope of the Directive,

questions 9–10 on procedural safeguards, question 20 on unaccompanied minors (UAM), and

questions 21–23 on the ret urn decision. Th e discussion ad dresses circumstances that are excluded

from th e scope of the Directive (2.1.1), issuance of a return decision (2.1.2), circumstances where a

return decision may not be issued (2.1.3), return procedure (2.1.4), and specific safeguards

applicable to unacco mpan ied childr en (2.1.5).

Key fi ndings

• Most Me mber States re ly on Article 2 (2)(a) of the Re turn Directive and do not apply the Directive in

“border c ases”. The procedure applicable in such contexts affords fewer guarantees to the person

conce rned and typically in volves the de privation of libe rty.

• The Dire ctive does not contain an e xplicit non-ref oulement e xception to the obligation on th e s tates

to issue a return decision to an y person in an irre gular situation. How ever, this function can be implied

from a joint re ading of the hum an rights clause in Article 5 and Article 6(4), under which states may

issue a residence permit instead of a return decision.

• The risk of refoulement is not syste matically assesse d by the authoritie s on their own m otion when

contemplating the issuing of a return de cision.

• There seems to be an assumption among the states that refused asylum seekers have their risk of

refoulem ent assessed during the asylum pr ocedure. However, such procedures commonly assess only

the con ditions for granti ng the refuge e or subsidi ary protecti on status.

• States provide the possibility of receiving a residence permit on humanitarian or compassionate

grounds, but in m ost countries, these c onsiderati ons are not autom atically as sesse d in the conte xt of

the return proc edure.

• In most countries, an appeal against return is not autom atically suspensive, which may decrease

protection f rom refo ulement and incre ase administrative burde n (as pe ople mus t apply for a n appeal

to be suspe nsive).

• In some Member State s, people in return proceedings c ontinue to face obstacles in accessing l egal aid.

• Unaccompanied children are rarely returned, even though few countries have an offic ial policy

banning their re turn.

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

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2.1.1 Border cases

Under Ar ticle 2(2)(a) of t he R eturn Directive, Member States m ay decide not to apply the Directive

in two “bo rder cases.”26 First, the states are allowed to not apply the Directive to peo ple who are

subject to a refus al of entry in a ccordance with t he Schengen Bor ders Code (SBC). 27 The second

category of people to whom t he stat es do not h ave to apply t he Retur n Directive is more com plex.

States may decide not to apply t he Directive to people “who are apprehended or intercepted by the

competent a uthorities in connection with the irr egular crossing by land, sea or air o f the external

border of a Member State and who have not subsequently obtained an authorisation or a right to

stay in that Member鳥State.” The phrase “in connection with the irregular crossing” is unclear and

may leave a broa d margin of app reciation to th e states. The r isk is that the people apprehen ded in

border a reas may sy stematically be refused the minimu m stan dards laid d own in t he Dire ctive.

In Affum, the Court of Justice of the European Union (CJEU) addressed this exception and interpreted

it narro wly. Accor ding to t he Court, Article 2(2)(a ) requir es a direct tempora l and spe cial link with

crossing the border. States may exclude people who ha ve been apprehen ded or intercepted at the

very time of the irregular crossing the border or near the border after it has been so crossed.28

Indeed, an unduly wide exclusion from the scope of the Return Directive would r un aga inst its

objective as set out in the preamble (§5) – to apply to all people who do not or no longer meet the

conditions o f entry, stay, or residence. The rules of return set out in the Directive are not meant to

apply sole ly to people wh o ha ve lost their regular status.

Under Ar ticle 4(4), the people excluded fr om the scop e of the Directive under A rticle 2(2)(a) should

still be afforded s ome minimum guarantees, including limitat ions on the u se of coercive meas ures,

postpo nement of removal, emergency health care, provisions on detention conditions as well as the

respect of t he principle of non-refoulement. St rangely, Ar ticle 4(4) includes safeguards relating to the

conditions of immigration detention but not rules relating to lawfulness and the length and review

of detention. In practice, the refusal of entry or the simplified return of people apprehended at

border cross ing involves the deprivation of liberty. As such, it is subject to inter nat ional legal

detention s afeguards.29

A few coun tries, including BG and IT, did not transpose Article2(2)(a) into their domestic legislation

and, conseq uently, apply the provisions of the Directive in their border scenarios. IT, for instance,

applies the meas ure of rejection (respingimento) to peo ple who fail to comply with the entry

conditions or enter its t errit ory by avoidin g bord er con trols and who are st opped at the border or

immediately aft er. Most Member States, however, apply th is exception and exclude bor der cases

26 Under Article 2(2)(b) of the Directive, may also decide not to apply the Directive to people who are subject to return

as a crimi nal law sanction or as a consequence of a criminal law sanction, according t o national law, or who are the

subject of extradition procedures. Some insight into how states implement this provision is provided in EMN, Ad-Hoc

Query on the Return Directive (2008/115/EC) Article 2, paragraph 2 a) and 2 b), 2013.

27 Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the

rules governing the movement of persons across borders (Schengen Borders Code). OJ L 77, 23.3.2016, p. 1–5 2.

According to Article 14(1) of the SBC, a person should be refused entry to the territories of Member States if he or she

does not fulfil all the entry conditi ons laid down i n Article 6(1) of t he SBC. These condi tions include having a valid

travel document and a vali d visa, j ustifyi ng the purpose of the intended stay, having sufficie nt means of subsiste nce

for t he stay and retur n, not being liste d in the Sche ngen Informati on System, and not posing a thre at to public pol icy,

internal security, and public health. Under Article 14(1) of the SB C, e ntry may not be r efused on a few account s,

includi ng in accordance wit h the right to int ernati onal protec tion.

28 CJEU, Sélina Affum v. Pré fet du Pas-de-Calais, Procureur général de la cour d’appel de Douai, C-47/15, 7 June 2016,

para 72 .

29 Border detention is discussed in Section 2.4.6.

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from th e rules of the Directive. In pr actical terms, t he exclusion of people appreh ended at a border

crossing is relevant ma inly for the s tates having external Schengen lan d or a mar itime border, as at

internat ional airports, people are sim ply refused entry.

In ES, if the refusal of entry cannot be executed within 72 h ours, peo ple can be detained lo nger (in

a po lice station or detentio n centre), and a new return pr ocedure (devoluci ón) will b e applied. T his

procedure provides for fewer guarantees than t he regular return procedures and is applicab le to

people attempting to enter ES by boat (or through Ceuta or Melilla) or are subject to the entry ban.

People subject t o this procedu re are held in the s ame detention centres a s those slated for ret urn.

In BE, people intercepted while irregular ly crossing the extern al border receive a decision of refusal

of entry . They are subject to a distinct regime of deten tion and ar e placed in a s pecific detention

centre, nam ely the Caricole centre. The same maximum period of detention is applicable to these

people as to peo ple in in-territory detention, namely five months, extendable to eight mo nths if

considerations of public order a pply.

In SE, peo ple covered by the exception under Article 2(2)(a) of the Directive receive a decision on

refusal of entry together with a removal order issued by the police authority. This procedure

pro vides fewer guar antees than t he regular return procedure; for ins tance, there is no v oluntary

departur e period. People refused entry ma y be subject to t he same r egime of det ention as peo ple

in th e regular ret urn procedure and may even be placed in t he same deten tion facilities.

The implemen tation of Art icle 2(2)(a) in EL brought about two parallel regimes . Law 3907/2011

trans posed the Return Directive to dom estic legislation, and it applies to p eople apprehended in

the mainland for irregular stay. Law 3907/2011 does not apply to people apprehended upon

irregular border crossing or arr ested in the regions located a t the external borders (s uch as Evros or

Aegean Islands). Those persons are subject to a distinct law, which predated the Directive, notably

Law 3386/2005. L aw 3386/2005 prov ides few det ention-related guarantees. Given the geographical

location of EL, most people in an irregular situation are captured by the provisions of Article2(2)(a)

of the Directive and a re, thus, excluded from Law 3907/2011. This begs the question of what the rule

and what t he exception is in this cont ext. Also, frequently simplified return procedures are followed

under readmission protocols with some st ates, such as Albania.

The two sets of circumstances under Article 2(2)(a) of the Directive are reflected in two distinct

measur es in DE. On the one han d, there are separate provisions applicable to the refusal of entry,

and on the other, removal following unauthorised entry (Zurückschiebung) is applicable to people

apprehended in conjunction with unlawful entry. Unlike a regular removal, removal follo wing an

unauthorised entry does not require a warning or the granting of a period for a voluntary return and

legal rem edies usually do not have a sus pensive effect either.

If the refusa l of entry canno t be enforced immed iately, the individual concerned is to be ta ken into

custody for “detention pending exit from the federal territory” (Zurückweisungshaft). However, if a

person has reached German territory by air and this form of detention is not applied, the person will

be taken to an airport transit area. DE does not consider holding a person in an airport transit zone

for up to 30 days as detention.

FR has a specific regime, which is applicable to people refus ed entry or apprehended upon irregular

entry. They are placed in so-called waiting z on es (z one d’attente) for th e time prior to their departure,

which is a maximum of 20 days (four days, extendable twice by eight days). An appeal against return

is no t suspensive, except fro m the initial day (grant ed upon request). If the ret urn does not take

place during the period of 20 days, the person is to be admitted into the territory. The Interior

Ministry defines the waiting zones at various ports of entry such as airports, train stations, and

harbours open to international traffic. These zones can be “mobile and temporary” and can be