Executive summary

AuthorEisele, Katharina
Pages1-1
The Return Directive 2008/115/EC
Executive summary
The return and readmission of irregular migrants in Europe has been a key priority for the
EU institutions and the Member States alike, including in the context of unsuccessful asylum claims.
Return and readmission of irregular migrants to third countries has been an integral part of the EU's
immigration and asylum policy since the 1999 Tampere Council Conclusions 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').
The objective of the Return Directive is to ensure that the return of third-country nationals (non-EU
nationals) without legal grounds to stay in the EU is carried out effectively through fair
and transparent procedures that fully respect the fundamental rights and dignity of the
people concerned. The fundamental rights obligations under primary and secondary EU law
(including under the EU Charter of Fundamental Rights) and international law include, in
particular, the principle of non-refoulement; the right to an effective remedy; the prohibition
on collective expulsion; the right to liberty; and the right to the protection of personal data.
The European Commission first evaluated the Return Directive in 2013. It found that the Return
Directive had an overall positive effect on return policy in Europe, because it streamlined Member
States' practices with regard to: the maximum length of detention; the promotion of
voluntary departures and return monitoring; as well as harmonising the length and conditions of
entry bans. However, the evaluation also found that the Return Directive did not seem to have much
influence on the postponement of removal and on procedural safeguards. It furthermore
concluded that there is a lack of data availability at the national level, and that common
definitions around data collection are missing.
No further Commission evaluation of the Return Directive was conducted after that evaluation,
which is contrary to Article 19 of the Directive and the principles of better law-making.
In September 2018, the Commission published a recast proposal of the Return Directive without an
accompanying impact assessment. Given the lack of a Commission impact assessment, the
European Parliament's Committee on Civil Liberties, Justice and Home Affairs (LIBE) asked the
European Parliamentary Research Service (EPRS) to conduct an EP targeted substitute impact
assessment. This impact assessment concluded, inter alia, that there is no clear evidence that the
Commission proposal would lead to more effective returns of irregular migrants.
Considering the lack of a Commission implementation assessment, in November 2019, the
LIBE Committee launched an implementation report on the Return Directive. Tineke Strik
(Greens/EFA, the Netherlands) was appointed as the rapporteur.
This EPRS European Implementation Assessment is based on two external studies: 1) a
study evaluating the implementation of the Return Directive in ten selected Member States; 2) a
study examining the external dimension of the Return Directive. It finds several protection
gaps and shortcomings regarding the four key measures of the Return Directive return
decision, enforcement of the return decision, entry ban, and detention which may lead to
fundamental rights violations for irregular migrants. Moreover, EU return and readmission policy
has increasingly resorted to informal cooperation in the external policy dimension. There have
been, and continue to be, rule of law, fundamental rights, budgetary and external affairs implications
flowing from the pursuit, conclusion and implementation of EU readmission agreements and
agreements having an equivalent effect with third countries.
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