Evaluation of the Return Directive according to criteria of the European Commission's Better Regulation Guidelines

• Author: Eisele, Katharina
• Pages: 106-112

EPRS | European Parli amentary Re search Servic e

106

3 Evaluation of the Return Directive according to criteria of

the European Commission’s Better Regulation Guidelines

This s ection examines whether th e Return Directive has been effective in attaining its objective.

When pres enting its pro posal of the Directive in 2005, the Euro pean Commission stressed that “the

objective of this proposal is to provide for clear, transparent and fair common rules concerning

return , removal, use of coercive meas ures, temporary custody a nd re-entry, which take into full

account the respect for human rights and fundamental freedoms of the persons concerned.” 143

Accor ding t o th e CJEU, “th e objective of Directive 2008/115 is to est ablish an effective rem oval and

repatriation policy, based on common standards and common legal safeguards, for persons to be

returned in a humane manner and with full respect for their fundamental rights and dignity.”144

From t hese statements, it can be inferred tha t the objective of th e Return Directive is to es tablish

clear r ules governing four key measures: ret urn decision, implemen tation of the ret urn decision,

entry ba n, and detent ion; whereby, these r ules are bot h effective and compliant with fundam ental

righ ts.

Did the Directive r each its objective, or does it require a daptation to better meet evolving needs?

The ensuing discussion assesses whether the objective of the Return Directive has been achieved in

terms of the criteria s et in the Eur opean Commission’s Bet ter Regulation Guidelines, 145 no ta bly

effectiveness, efficiency, releva nce, and coherence.

Effect ive ness

How successful has the R eturn Directive been in achieving or pr ogressing towards its

objective?

What are the factors that hinder progress?

As out lined above, the o bjective of the Return Directive was to set out a co mmon return policy that

would be bo th effective and compliant with funda mental rights. Precisely, the Directive aimed to

establish fo ur key measures – retu rn decision, enforcement of the return decision, en try ban, and

detention – which are both effective and compliant with fundamental rights.

Return decision

Regarding the issuance of the r eturn decision, the basic premis e set in Article 6(1) of the Directive is

that the Member States should issue a return decision to any person staying in an undocumented

manner, without prejudice to a few exceptions. None of thes e exceptions explicitly addresses

human rights’ obstacles to return, notably the principle of non-refoulement and the right to family

and p rivat e life.

The pr inciple of non-refoulement an d the r ight to family life are enumer ated in the gen eral human

rights claus e in Article 5 of the Directive; ho wever, an explicit mention in Ar ticle 6 would strengthen

143 European Commission, P roposal for a Dire ctive of the European Parli ament and of the Council on Common Standards

and Procedures in Member States for Returning Illegally Staying Third-Country Nationals, COM(2005)391, (September

1, 2005).

144 CJEU, Bash ir Mohame d Ali Mahdi, C-146/14 PPU, (June 5, 2014), para. 38.

145 European Commission, Better regulation: guidelines and toolbox (2017), https://ec.europa.eu/info/law/law-maki ng -

process/planni ng-and-proposing-law/better-regulation-why-and-how/ bette r-regulation-guidelines-and-

toolbox_e n