Key findings
Author | Eisele, Katharina |
Pages | 17-20 |
The Return Directive 2008/115/EC
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5. Key findings
The key f indings presented in this se ction are base d on the two e xternal stu dies con ducted on the evaluation
of the implementation of the Return Directive (see Part II) and on the external dimensi on of the Return
Direc tive (se e Part III). The findings presented here are a synthesis. For a full list of the key findings as identified
in the two studi es, see pages 29 and 133.
Return decis ion
1) The r isk of refoulement is not systematically assessed by the authorities on their own initiative
when contemplating the issuing of a return decision. States seem to assume that refused asylum
seekers are assessed for their ris k of ref oulement during the asylum pr ocedure. However , such
procedures commonly assess only the conditions for granting refugee or subsidiary protection
status.95
2) The absence of an obligatory non-refoulement exception to the Member States' obliga tio n t o issue
a ret urn decisio n to every pe rson in an irreg ular sit uation not only weakens compliance with human
rights bu t also ques tions the effectiveness of the retu rn procedure.96
3) In most countries, an appeal against return is not automatically suspensive, which may decrease
protection from refoulement and increase administrative burden (as people must apply for an appeal
to be suspens ive).97
4) Most Member States rely on Ar ticle 2(2)(a) of the R eturn Directive a nd do not a pply the Directive
in 'border cases'. The pr ocedure applicable in such contexts affor ds fewer guar antees to the person
concerned and t ypically involves the deprivation of liberty.98 This finding underscores the point in
the external po licy dimension t hat EU readmission agr eements (EURAs) by themselves ar e not an
issue, but rather the fact that they operate in increasingly informal contexts (or are indeed replaced
by informa l agreements).99
5) St ate s pro vide t he pos sibilit y of r eceivin g a re sidence perm it on h uma nitarian o r comp assionate
grounds, but in most countries, these considerations are not automatically assessed in the context
of the ret urn procedu re.100
Enforcement of the return decision
6) To prioritise the return rate as the primary indicator for 'effectiveness' of the return of irregular
migrants, as the European Commission has done, runs the risk of incentivising 'return a t all costs',
without taking stock of the full human, foreign relations and other costs.101
95 See Part II – Study on the evaluation of the implementation of the Return Directive, Key findings and Secti on 2.1.
96 See Part II – Study on the evaluation of the implementation of the Return Directive, Key findings and Sec tion 3.
97 See Part II – Study on the evaluation of the implementation of the Return Directive, Key findings and Secti on 2.1.
98 See Part II – Study on the evaluation of the implementation of the Return Directive, Key findings and Secti on 2.1.
99 See Part III – Study on the exter nal dimension of t he Ret urn Dire ctive, Ke y findings and Sect ions 5.1, 5 .2, 6.1 and 6.2.
100 See Part II – Study on the evaluation of the implement ation of the Ret urn Dire ctive, Ke y findings and Sec tion 2.1.
101 See Part III – Study on the exte rnal di mension of the Retur n Directive , Sections 1.1 and 8; see also Eisele K., Th e
proposed Return Directive (recast) – Substi tut e Im pact Assessme nt, EPR S, European Parliament, February 2019, p. 40;
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