Executive summary

AuthorEisele, Katharina
Pages29-32
Part I I: Evaluation of the im pleme ntation of the Return D irective
29
Executive summary
This s tudy asses ses the implementat ion of the Retur n Directive in ten selected Member St ates,
namely, Belgium, Bulgaria, Germany, Greece, Spain, France, Italy, the Netherlands, Poland, and
Sweden. It a lso eva luates the Return Directive aga inst the crit eria of t he Euro pean Com mission’s
Better Regulation Guidelines, including effectiveness, efficiency, relevance, and coherence.
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.”1 More
recently, the Cour t of Justice o f the European Union stressed that “the objective of Directive
2008/115 is […] to es tablis h an effective removal and repatriat ion 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.”2 The underlying ob jectives of the Return
Direct ive effectiveness and compliance with human rights are still r eleva nt t oday.
The R eturn Directive lays down four key measures: r eturn decision, enfor cement of the return
decision (by mean s of voluntary return or forcible return), entry ban, and detention. These measures
should be implemen ted in accordance with Member States’ human rights obligations. Under Article
5 of the Directive, when implementing the Directive, Member States s hould obs erve the best
interests of the child, family life, and st ate of health of the person concerned and respect the
princip le of non-refoulement. In addition, under EU and international human rights law, states
should als o observe t he right to priva te life.
Fur ther , the principle of p roportiona lity, inclu ding the r equirement o f individu al assessme nt, applies
at all s tages of t he return pro cess. It is in light of these no rms and principles tha t the Member States
are supp osed to implemen t the meas ures laid down in the Directive. From th is perspective, A rticle
6(4) sho uld be interpret ed as requiring states not to issue o r to withdraw the ret urn decision when
fundamental rights are at stake and, consequently, provide the perso n with a per mit of residence.
Further , voluntary departure should be a default option tha t could be refused o nly if a genuine risk
of absconding is established. Entry ban should only be issued if a person poses a clear risk to public
policy or safet y. Finally, detention is to be conceived as an exceptional measure to be applied shortly
before return when the risk of absconding cannot be prevented by the application of alternatives
to detention.
The four k ey measures s hould be applied in a manner such th at they contribute to the effectivenes s
of retur n. Some modalities of these m easures may, however, impede the effectiveness of the overall
return and, at t he same time, r equire resources.
For instance, a lack of automatic assessment of the principle of non-refoulement bef or e s ta r ting the
return procedure may result in the pr ocedure being applied to people whose r eturn is not possible.
In addition, the absence of the obligation to withdraw a return decision when the risk of refoulement
is established may imply that pr ocedures are postponed for pr olonged per iods, wh ich is in effective.
Detention extended bey ond the initial period is inefficient because most ret urns take place in the
first few weeks. O verly short periods for voluntary departure may preclude departure and entry bans
impo sed along side voluntary return may reduce the incentive to comply with the return decision.
Hence, efficiency a nd internal coher ence of the measures set fort h by the R eturn Directive may be
1European 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).
2CJEU, Bash ir Mohame d Ali Mahdi, C-146/14 PPU, (June 5, 2014), para. 38.

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