Policy recommendations

• Author: Eisele, Katharina
• Pages: 21-22

The Return Directive 2008/115/EC

21

6. Policy recommendations

The policy recommendations in this section are taken from the two external studies

conducted on the evaluation of the implementation of the Return Directive (see pages 113 and 199 of Parts

II and III of this EPRS European Implementation Assessment).

Policy recommendations: evaluation of the implementation of the Return

Directive (Part II)

To ensure that the return policy is both effective and compliant with the fundamental rights of the

people concerned, Member St ates should comply with the following recomm endations:

adhere to the principle of non-refoulement and conduct an ex-officio assessment prior

to is suin g a re tur n decisio n;

repeal the return decision and grant the person concerned a residence title when

rem oval is deeme d in vio lation of th e prin ciple of non-refoulement;

ensure that people have access to an effective remedy against return, including

adequate time and legal aid to prepare for an appeal, while also allowing for an

autom atic suspensive effect of appeal;

prioritise voluntary return by refusing it only in the cases of a clear and genuine risk of

absconding a nd affording adequate time for the person to depart;

ensure adequate funding for the bodies in charge of monitoring forced returns;

impose entr y bans based o n the individual assessment of necessity and avoid imposing

them when the person has complied with the obligation to return;

put straightforward procedures in place t o repeal the entry b an when the person has

proven t o have complied with a ret urn decision;

use detent ion only as a measure of last res ort, to be imposed only where ther e is a clear

and genuine risk of absconding, which cannot be mitigated by non-cu st od ial

alternatives to detention;

main tain d etent ion for as s hort a per iod as pos sible, when remo val is imm inent ;

cease the detention of unaccompanied children and families with children as a matter

of policy.

Policy recommendations: external dimension of the Return Directive (Part III)

Safeguarding of fundamental rights

Recommend ation 1: Avenu es should be explored to o btain commitments from third

countries of return that ensure readmitted persons have access to the substantive rights

contained in the international human rights treaties identified in EURAs, inclu ding

access to the asy lum procedur e if returned under the Safe Third Country concept

pro visions .

Recommend ation 2: Further research should be undert aken to determine the extent to

which t ime limit s con tained in EUR As t hat are linked to a maximu m period of det ention

in requ esting states are used in practice and t heir impact, if a ny, on the legality o f a

person's d ete nti on.

Recommendation 3: The European Commission should undertake fundamental rights

impact assessments before concluding a EURA with a third country.

Recommend ation 4: Frontex Working Arrangements should contain express references

to fundamental rights guarantees that reflect Frontex's obligation to guarantee

fundamental rights under the Eur opea n Border and Coa st Guard (EBCG) Re gu lat io n.

Recommend ation 5: There s hould be an obligation to suspend or terminate an action

under a St atus A greement in the case of a brea ch of fundament al rights.