Legislating without Evidence: The Recast of the EU Return Directive

Izabella Majcher,Tineke Strik

doi:10.1163/15718166-12340096

Abstract

Abstract The article discusses the recast of the EU Return Directive (2008/115/EC) from the perspective of effectiveness and fundamental rights protection, as two underlying objectives of the Directive. Relying on the implementation assessment of the Directive carried out by the European Parliamentary Research Service, the article analyses the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive. If adopted as proposed, will the recast strengthen or further undermine the effectiveness? The assessment focuses on return decision, voluntary departure, entry ban, and detention. It also looks at omissions in the recast proposal, namely a missed opportunity to remedy the current shortcomings as regards non-returnable people. As the article concludes, the recast proposal will hardly improve the effectiveness of return and may lead to violations of fundamental rights of people in an irregular situation.

Highlights

At the launch of the New Pact on Migration and Asylum in September 20201 and the first responses and discussions, return was one of the buzz words, mentioned over 100 times in the Pact, often in the context of the reasoning that a successful asylum policy requires an effective return policy.[2]
Relying on the implementation assessment of the Directive carried out by the European Parliamentary Research Service, the article analyses the way in which Member States have implemented the Directive and how this has impacted the effectiveness of the Directive
In order to find an answer to the questions posed above, we will analyse the way in which Member States have implemented the Return Directive, and how this has impacted the objectives of the Directive

Summary

Introduction

At the launch of the New Pact on Migration and Asylum in September 20201 and the first responses and discussions, return was one of the buzz words, mentioned over 100 times in the Pact, often in the context of the reasoning that a successful asylum policy requires an effective return policy.[2]. In order to find an answer to the questions posed above, we will analyse the way in which Member States have implemented the Return Directive, and how this has impacted the objectives of the Directive This information is mainly based on a European Parliamentary Research Service (EPRS) study on the implementation of the Directive in ten Member States.[5] After outlining two processes concerning the Directive (Section 2), we assess to what extent the proposal for a recast may resolve the current problem issues. We take this approach for four selected themes regulated by the Return Directive: the return decision, voluntary departure, entry bans and detention (Sections 3–6). We highlight one problem issue which is not addressed by the Directive, namely the legal and humanitarian position of returnees who cannot be returned (Section 7) and end with a few concluding thoughts (Section 8)

The Political and Legislative Processes concerning the Return Directive

Return Decision

Voluntary Departure

Entry Ban

Findings

Conclusion