Introduction

• Author: Eisele, Katharina
• Pages: 145-149

Part III: The External Di mension of the EU Return Dire ctive

145

1. Introduction

1.1. Background

The European Union’s policy on the return of irregularly staying third-country nationals consists of

both an internal and external dimensi on.

The interna l dimension is governed by th e operation of the Retur n Directive1 which pr ovides for

harmonised rules on the return and removal of irregularly staying third country nationals from the

territory of a Member State. A third country national may also fall within the scope of the Return

Direct ive through the operation of EU secondary legislation on asylum on account of the person’s

uns uccessfu l subst ant ive ap plication o r his or h er inadm issible app lication u nder th e Safe Third

Country or First Country of Asylum concepts.2 However, Member St ates retain the discretion not to

apply the Return Directive in connection with an external border crossing or criminal sanction,3 but

which must, in any event, ensur e certain standards of protection under the Directive, including

respect for the principle of non-refoulement.4

The external dimension of the retur n policy is operat iona lised by EU r eadmiss ion a gree ments

(“EURAs”) with third countries and informal agreements having an equivalent effect as well as

operation al measures carried out by t he Europe an Bo rder a nd Coa st Gua rd A gency (“F ro nte x”) that

facilitate retur n. The purpos e of these a greements is to secure coopera tion with third countries for

“a s wift and efficient read mission pr ocedure” 5 to readmit the ir nationals and, in s ome circums tances,

non-nationals, from the territories of EU Member States.

Cooperation with third countries can have human rights consequences for those subject to a return

decision in EU Member States . EURAs are the medium t hrough which EU internal remov al policy

1 Directive 2008/115/EC of the European Parli ament and of t he Council of 1 6 De cember 2 008 on common standards and

procedures in Member States for returning illegally staying third-country nati onals (“Re turn Directive ”).

2 An asylum applic atio n may be substantive ly e xamin ed (that is, on its merits) or may be declared to be procedurally

inadmissible (that is, the application is administratively precluded from being examined on its merits) on at least two

bases. Fir st, under the “fir st countr y of asyl um” pro visions where that a per son has been recognised as a refugee in

another countr y or “ot herwise enjoys sufficie nt prote ction” and that the person wi ll be readmit ted to t hat count ry –

see Articles 33(2)(b) and 35 of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013

on common pro cedure s for granting and withdrawi ng inte rnational prote ction (rec ast) (“the recast Pr ocedure s

Direct ive”). Second, an application for int ernati onal protec tion could be sent to a “safe third country” if certain general

conditi ons i n the third countr y are met (i ncluding the principl e of non-refoulement “in accordance with the Geneva

Convention” being “respected”) – see Articles 33(2)(c) and 38 of the recast Procedures Directive. An appl icant is

granted a right to remain on the territory of a Member State up until a negative decision has been made on their

application, afte r which (and subject t o any remedy which also allows for the right to re main), the applicant is

conside red an ill egally staying third count ry national and falls wi thin the scope of the Re turn Dir ective . See Art icles 9

of the recast Procedures Directive; and Recital 9, Articles 3(1) and (2) and 6(5) of the Return Directive; Case C-357/09

PPU Kadzoev 20 November 2009, Grand Chamber, para 41; Case C-534/11 Arsl an, 30 May 2013, para 49.

3 Arti cle 2(2 )(a) and (b) of the R eturn Di recti ve, namely in ci rcumstances whe re a person is re fused entry i n accordance with

the Article 13 (currently Article 14) of the Schenge n Borders Code, is apprehended or intercepted in relation to an

irregular crossing of a Member State’s external border or who is subject to re tur n as, or as a consequ ence of, a cri minal

law sanction or who is subject to an ext radition order.

4 Article 4(a) and (b) of the Return Directive; Member States cannot exclude the scope of the Directive when a person is

apprehende d in connect ion with crossing an int ernal border when internal border control s have been set up, see

Case C-444/17 Préfet des Pyrénées-Orientales v Abdelaziz Arib and others, Judgment, Grand Chamber, 19 March 2019

paras 47, 59 and 67. The extradition or criminal sanctions exclude those stemming from an illegal entry or stay, see

Case C-329/11 Alexandre Achughb abian v Préfet du Va l-de-Marne , Judgment, Grand Chamber, 6 December 2011.

5 European Commission (2011), Communication from the Commission to the European Par liament and the Council –

Evaluation of EU Readmission Agreements COM(2011) 76 final, 2 3 Febr uary, p.11