# EUR-Lex - 52014DC0199 - EN

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# 52014DC0199

**COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on EU Return Policy /* COM/2014/0199 final */**

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COMMUNICATION
ON EU RETURN POLICY

Part I - Introduction

The EU has been working since 1999 on developing a
comprehensive approach on migration, which covers the harmonisation of admission
conditions, the rights of legally staying third-country nationals[1] and the development of
legal measures and practical cooperation to prevent irregular migration flows.

This Communication focuses on EU policy on the
return of irregular migrants, which — together with efficient border management,
effective sanctions against employers of irregularly staying third-country
nationals, and the fight against smuggling and trafficking of human beings — is
an important tool for facing the challenge of irregular migration, while fully ensuring
respect for the fundamental rights and dignity of the individuals concerned, in
line with the  EU Charter of Fundamental Rights, the European Convention on
Human Rights and all other relevant international human rights conventions. The
return of third-country nationals without legal grounds to stay in the EU or a need
to be granted protection is essential to the credibility of EU legal migration and
asylum policy.

This
Communication reports on the changes to EU return policy over recent years,
analyses its impact, and presents some ideas for future developments. It responds
to the Commission’s obligation to submit a report to the European Parliament
and the Council on the implementation of the Return Directive, the main piece of EU acquis
on return[2]
(see the detailed part  IV of this Communication), as well as to the political
commitment made by the Commission when the amended FRONTEX Regulation was
adopted in 2011 to report on the monitoring of return operations coordinated by
FRONTEX (see section II.4.2).

Return policy is
closely interlinked with readmission and reintegration policy, and both are an
integral part of the Global Approach to Migration and Mobility (GAMM),[3] which
is the overarching framework for external asylum and migration policy.
Through the GAMM, the EU is working to strengthen its political dialogue and
operational cooperation with non-EU countries on migration issues, including
return and readmission, in a spirit of partnership and based on shared
interests. While EU readmission policy is not addressed in detail here,[4] the external dimension
of return policy is a key aspect in ensuring its effectiveness and in
addressing issues such as voluntary departure and reintegration of returnees in
countries of origin, as well as identification and documentation of returnees.

Part II - EU return
policy to date

1. Facts
and figures

The number of
apprehensions of irregular migrants in the EU has fallen every year since 2008,
with a cumulative decline between 2008 and 2012 of almost 30 %. The figure
has now gone down from about 610 000 apprehensions in 2008 to around 440 000.
The precise reason for this decrease is difficult to gauge, but a number of
factors such as improved controls at the external borders, the economic crisis
in Europe and an improved economic situation in some significant source
countries have contributed to this change. In spite of this decline, irregular
migration will undoubtedly continue to present challenges to the EU, given the
complexity and multi-faceted nature of this issue. Irregular migration is, by
definition, likely to be subject to unpredictable quantitative (numbers of
migrants), geographic (non-EU countries concerned and Member States affected)
and qualitative (motivation for migration) fluctuations. With regard to the
return of those without the right to stay in the EU, statistics demonstrate
that there is a considerable gap between the persons issued with a return
decision (approximately 484 000 persons in 2012, 491 000 in 2011 and 540
000 in 2010) and those who, as a consequence, have left the EU (approximately 178 000
in 2012, 167 000 in 2011 and 199 000 in 2010).[5]
Provisional 2013 data confirms this trend, with a slight downward trend in apprehensions
as compared to 2012 as well as a continued existence of a large gap between
return decisions issued and effected returns.

There are
multiple reasons for this gap, including in particular lack of cooperation from
the  non-EU country of origin or transit (e.g. problems in obtaining the
necessary documentation from non-EU consular authorities) and lack of
cooperation from the individual concerned (i.e. he/she conceals his/her
identity or absconds).

2. The EU
legal framework on return

In recent years,
considerable progress has been made towards putting in place a consistent legal
framework for return measures in Member States across the Union, notably with
the adoption of the Return Directive. The Directive’s aim is to ensure
that the return of third-country nationals without legal grounds to stay in the
EU is carried out effectively, through fair and transparent procedures that
fully respect the fundamental rights and dignity of the people concerned. A series
of ECJ rulings have clarified a number of key aspects of the Directive (e.g.
detention), with a significant impact on Member States’ implementation of the
Directive itself. A detailed assessment of the impact of the Return Directive
on Member States’[6]
return policies and practices and an overview of the ECJ jurisprudence is given
in part IV of this Communication.

Other ‘flanking’
legal instruments adopted at EU level also play an important role in the
area of return.  The Visa Information System (VIS) Regulation (EC) No 767/2008 is
expected to become a significant tool for identification and documentation of
returnees. One of its objectives, according to Article 2(e), is ‘to assist
in the identification of any person who may not, or may no longer, fulfil the
conditions for entry to, stay or residence on the territory of the Member States.’
Articles 19(1) and 20(1) allow access by migration authorities to certain VIS data for verification and identification purposes. Article 31(2)[7] allows this data to be
transferred to or shared with a non-EU country to prove the identity of third-country
nationals for the purpose of return. According to a recent European Migration
Network (EMN) ad-hoc enquiry,[8]
some Member States have already started to use VIS data for return and
readmission purposes and this seemed to have a positive impact both in terms of
length of return procedures and rates of return. VIS is also explicitly
mentioned as one of the possible means of evidence of nationality under some of
the most recent EU Readmission Agreements (EURAs).

The Schengen
Information System (SIS) has proved to be a helpful tool for giving full effect
to the European aspect of entry bans issued under the Return Directive. These Schengen-wide
entry bans are primarily preventive. During the period 2008-2013 an average of approximately
700 000 Schengen-wide entry bans were stored in the system. However, even using
these tools more efficiently will not solve all the issues around
identification and re-documentation for irregular migrants who have come into
the European Union without a visa, or who have simply entered without documents
and claim a false or real identity that cannot be verified. For those cases —
which take up significant migration authority time and are a major challenge to
return management — new, innovative solutions must be found, based on increased
cooperation with non-EU countries and in full respect of fundamental rights.

3. Financial
support at EU level

The Return
Fund (2008-2013) provided for a financial support mechanism, which allowed
considerable EU funds to be channelled to Member States to help address their challenges
in the area of return management. The total allocation for all Member States in
the period 2008-2013 amounted to € 674 million. Since the start of the
programming period in 2008, annual programmes in the Member States have developed
significantly. They include a wider range of measures which put increasing emphasis
on voluntary return programmes and compliance with common standards of the
Return Directive, including humane and dignified detention conditions and
promotion of sustainable return and reintegration.[9] NGOs played an important role in carrying out actions and projects to assist returnees. NGOs
enjoy access to migrant diaspora community, have experience in working with
irregular migrants and are perceived as moderators not representing the State.
They were frequently able to de-escalate, to establish trust and better
cooperation between authorities and returnees and to improve the situation of
irregular migrants in general. The upcoming Asylum,  Migration and
Integration Fund (AMIF) will build on experience gained over the last six years
and will continue to offer financial support for efforts to meet the objectives
of EU return policy, supporting - inter alia - alternative
measures to detention, provision of social assistance, counseling
and legal aid, specific assistance for vulnerable persons, independent and effective forced return monitoring, improvement of reception infrastructure, services and conditions as
well as training of staff.

Under the EU
external cooperation instruments, the EU has also supported capacity building
for non-EU countries for several aspects of return management, including the integration
of returnees. Since 2005, the Commission has financed over 40 projects under EU
development cooperation instruments which included a strong focus on capacity building
for return and reintegration for an amount of more than EUR 70 million.

4. Practical
and operational cooperation

4.1.
Programmes promoting voluntary departure

Key elements of
sustainable return include voluntary return advice, tailor-made return
packages, efficient reintegration assistance and information about the
possibilities for legal migration. Relevant governmental and non-governmental
actors, in particular the International Organization for Migration (IOM), have played
an important role in facilitating voluntary departure
by carrying out Assisted Voluntary Return (AVR) programmes providing
comprehensive return assistance, including activities aimed at ensuring
sustainable reintegration in countries of origin. IOM is currently operating
over 70 AVR projects in 26 EU Member States. Over the last six
years, approximately 148 000 migrants have been assisted to return
voluntarily.  When running the programmes, IOM emphasised the importance of
cooperating with countries of origin and maintaining a link to on-going efforts
by the EU and Member States in addressing return and relevant migration
matters through partnerships. The ratio between voluntary departure and forced
return (according to FRONTEX 2013 annual risk analysis data[10]) in the EU in 2012 was
about 44:56. Further promotion of voluntary departure will continue to be one
of the main policy objectives of the EU’s return policy.

4.2. Joint
return operations coordinated by FRONTEX

As part of
operational cooperation measures between Member States, States increasingly
used joint flights for removal. In this context, the FRONTEX agency played an
important role as a vehicle for promoting joint return operations. Between 2006
and December 2013, FRONTEX coordinated 209 Joint Return Operations (JROs)
returning 10 855 people.[11] 
Since 2007, FRONTEX has provided standardised training for return officers
focusing on safeguarding returnees’ fundamental rights and dignity during
forced return operations.[12]
Since Article 8(6) of the Return Directive on forced return monitoring became
binding in 2010, half of all JROs have been the subject of monitoring by
independent monitors who were physically present from the start of the
operation until arrival at the airport of destination. To date, these monitors
have not reported any violation of returnees’ fundamental rights.

Table 1: Monitoring of FRONTEX coordinated JROs:

|| Number of JROs + overall number of returnees || Number of JROs with monitors present on board || Percentage of JROs with monitors present || Percentage of returnees in monitored JROs || Nationality of monitors (NB: in some JROs 2 or 3 monitors were present)

2011 || 39 JROs with 2 059 returnees || 23 JROs with 1 147 returnees || 59 % || 56 % || AT: 15; NL: 7; UK: 4; LV: 3; BE: 2; DK: 1; FR: 1; LU: 1

2012 || 38 JROs with 2 110 returnees || 23 JROs with 1 059 returnees || 60 % || 50 % || AT: 21; NL: 3; LV: 2; LU: 1; NO: 1

2013 || 39 JROs with 2 152 returnees || 20 JROs with 937 returnees || 51 % || 44 % || AT: 10; DE: 3; NL: 3; IE: 1; UK: 1; CH: 1; BE:2; ES:1; IS: 1;

A FRONTEX Code
of Conduct (CoC) for JROs was adopted on 7 October 2013, focusing on effective
forced return monitoring procedures and respect of returnees’ fundamental
rights and dignity during return operations. The CoC foresees that the monitor (an
independent outside observer who frequently represents an NGO or another
independent monitoring body entrusted by a Member State with forced return
monitoring tasks under Article 8(6) of the Directive) will be given all
necessary information in advance of the operation and will be involved in the
return process from the pre-return phase (internal briefings) until the post-return
phase (debriefing). He/she will have access to all information and physical
access to any place he wishes. The observations/reports of the monitor will be
included in the reporting on the JRO. Even though this is not expressly
required under current legislation, the Commission considers that given the
visibility and sensitivity of such operations an independent monitor should be
present in each JRO.  Therefore the revision of the CoC shall be
considered as a matter of priority.

An EU-financed
project run by the International Centre for Migration Policy Development (ICMPD)[13] currently seeks to
further harmonise the different approaches to monitoring taken by Member States.
It seeks to develop objective, transparent criteria and common rules for
monitoring, and to provide a pool of independent monitors to Member States
which may also be used in JROs.

In 2012, the position
of independent FRONTEX Fundamental Rights Officer (FRO) was created and on 17
December 2012 the first FRO was appointed. The FRO’s role is to monitor, assess
and make recommendations on the protection and guarantees of fundamental rights
in all FRONTEX activities and operations including those related to JROs. The
FRO should have access to all information on issues that impact on fundamental
rights for all FRONTEX activities.

Part III -- Future
developments

EU return policy
has developed considerably in recent years, mainly due to the transposition into
national law and implementation by Member States of the Return Directive, which
has led to improved and more consistent practice in this area. The implementation
report, forming part of this Communication, shows that a number of shortcomings
remain in several Member States, such as aspects of detention conditions in
some Member States and an absence of independent forced return monitoring systems.
In addition, there is scope for improvement in many Member States, with a more
systematic use of alternatives to detention and the promotion of voluntary departure.

The Commission
will follow up on all shortcomings identified by the implementation report and will
pay particular attention to the implementation by Member States of those
provisions of the Directive which relate to the detention of returnees,
safeguards and legal remedies, as well as the treatment of minors and other
vulnerable persons in return procedures. The evaluation system established
under the new Schengen Evaluation Mechanism, coordinated and supervised by the
Commission, will provide new opportunities to examine and assess the concrete
practices of Member States in these areas, and to check whether Member States
are fully complying with the Directive and international human rights
standards.

Return policy alone
cannot deal effectively with the management of irregular migration flows to the
EU but needs to be part of a more comprehensive approach, including the GAMM,
which puts an emphasis on:

enhanced
  dialogue and cooperation with non-EU countries of origin and transit on
  migratory issues, with the objective of establishing partnerships based on
  mutual interests; 
 increased
  practical cooperation amongst Member States, with FRONTEX, and with
  international organisations and NGOs; 
 parallel enhancement
  of other tools and policies such as effective border management, fight
  against trafficking and smuggling;
 integration of
  foreign policy aspects into the EU migration policy and ensuring linkages
  between the internal and the external dimensions. The advantages offered
  by the EEAS' overview of EU's overall external relations should be
  exploited.

Any future
action aimed at developing EU return policy will thus have to take into account
all of these aspects and elements.

Future action will
focus on the issues and suggestions set out below.

1. Ensure proper
and effective implementation of the Return Directive

One of the key priorities for the future will be
to strengthen monitoring of the implementation of
the Return Directive. The Commission will systematically
follow up on all shortcomings identified. Several EU Pilot procedures have
already been initiated in relation to issues covered by this report and others
will be launched in the near future. National courts already play a very
positive role in this process, as a point of first reference for making Union
law a reality in Member States and by asking, where necessary, for
interpretation via references for preliminary ruling from the ECJ.

Several parties will play an active role in
further improving implementation of the Return Directive:

Þ   First and foremost, the
Commission, as the Guardian of Union law, in accordance with its powers
under Article 258 of the TFEU;

Þ The Commission and Member State s, by putting a stronger emphasis on compliance with the EU return acquis in
the framework of the new Schengen Evaluation Mechanism;

Þ National forced return monitoring
bodies under Article 8(6) of the Directive,
by fulfilling their role as the inbuilt control mechanism for day-to-day return
practices;

2. Promote
more consistent and fundamental rights-compatible practices

In addition to working
to ensure a proper implementation of the acquis, the Commission intends developing
a number of guidelines and recommendations on the issues below. These
will promote more consistent return practices, fully compliant with fundamental
rights standards.

Þ The Commission will adopt within one year a ‘Return Handbook’,
on which the Return Contact Group will be consulted. This will contain common
guidelines, best practice and recommendations to be used by Member States’
competent authorities when carrying out return-related activities and as a
point of reference for return-related Schengen evaluations. It will refer to
the EU return acquis and relevant international standards such as those
developed by the European Committee for the Prevention of Torture and the UN
Committee on the rights of the child General Comment No 14 (2013) on the right
of the child to have his or her best interests taken as a primary consideration
and will address – inter alia – promotion of voluntary departure, proportionate
use of coercive measures, forced return monitoring, postponement of removal,
return of minors, effective legal remedies, safeguards pending return, human
and dignified detention conditions as well as safeguards for vulnerable persons.

Þ   Fundamental rights
compatible apprehension practices: The
Commission will continue to address this issue in the Contact Group and will include
recommendations in the Return
Handbook, based on a 2012 Fundamental Rights Agency (FRA) study.

Þ Promotion of alternatives to detention: The European
Migration Network will carry out a study in 2014 on alternatives to detention
in order to identify and spread best practices in this area.

Þ ‘Criminalisation’ of irregular stay
of returnees: The Commission will take up ECJ case law in the Return
Handbook on the limits and constraints upon Member States as regards criminal
law sanctions for returnees.

Þ ‘Non-removable’
returnees: The Commission will collect best
practice, based on existing best practices at national level, to avoid
protracted situations and to ensure that people who cannot be removed are not
left indefinitely without basic rights and don ́t risk being unlawfully re-detained.

Þ Codified Council of Europe detention
standards: The Commission supports the declaration of the European National
Preventative Mechanisms against torture issued during the Conference on
Immigration Detention in Europe (Strasbourg 21-22 November 2013) to call on the
Council of Europe to codify a set of detailed immigration detention rules based
on existing international and regional human rights standards applicable to
deprivation of liberty on the grounds of immigration status.

3. Further develop dialogue and cooperation with non-EU countries

Cooperation with
immigrants’ non-EU countries of origin and transit is essential to improve capacity
for managing migration flows and to address challenges linked to the return of third-country
nationals who do not have (or who no longer have) a legal right to stay in the
EU.

The EU is
engaged in a vast number of bilateral and regional dialogues and cooperation
frameworks with non-EU countries in order to build mutually beneficial
cooperation in this field. These cover a broad range of issues, from
institution and capacity building and effective integration of legal migrants
to return management and the effective implementation of readmission
obligations. In line with the GAMM, countries of origin and transit should also
be encouraged to provide international protection to persons in need thereof in
accordance with international standards, to improve their asylum and reception
capacities and the development of properly functioning migration systems as
well as to protect migrants' fundamental rights paying special attention to vulnerable
migrants, such as unaccompanied minors, victims of trafficking, women and
children. Cooperation assistance should be provided to these countries to
support their efforts in this regard, and the EU should expand its cooperation
with relevant non-EU countries in order to build capacity in the field of
return and readmission and to assist partner countries in their negotiation of
readmission agreements with other non-EU countries.

Þ Return policy will continue to be consistently included in implementing
and developing the GAMM, including the Mobility Partnerships and Common
Agendas on Migration and Mobility with non-EU countries;

Þ Incentives: Care will be taken
to ensure that cooperation on return, readmission and reintegration issues is part
of a balanced and consolidated EU policy towards a non-EU country, based on
shared interest, e.g. linked to enhanced mobility provisions and other policy
areas such as trade, enterprise and industry.

Þ Capacity building: Efforts to
build capacity in non-EU countries in the field of
return and readmission will be strengthened by, for example, improving the
ability of the responsible authorities in partner countries to respond in a
timely manner to readmission applications, identify the people to be returned,
and provide appropriate assistance and reintegration support to those who are
being returned.

Þ Within the Asylum, Migration and Integration Fund focus will be
given to sustainable return and re-integration of irregular migrants in
their countries of origin, including through developing the capacity of these
countries to better manage return and reintegration.

Þ The Commission will actively follow up on the challenges identified
in the 2011 Evaluation of EU Readmission agreements, and its recommendations,
such as the preference for voluntary return (rec no 13) and the launch of a
pilot project to monitor the situation of persons after their return (rec no
15).

4. Improve
operational cooperation between Member States on return

Fundamental
rights compatible return procedures and coherent return policies will be
enhanced by practical and operational cooperation in areas such as:

promotion of
  voluntary departure; 
 respect of the
  child’s best interests in return procedures;
 interaction
  between national monitoring bodies; 
 improved
  statistics; 
 exchange of personal
  data;
 issue of
  travel documents.

Þ The Commission will use the European Migration Network as a platform
to facilitate improved cooperation among States and stakeholders especially
in the field of voluntary departure, as a key tool for the gathering and
sharing of information.

Þ The Asylum, Migration and Integration Fund will focus on measures to
encourage voluntary departure, whilst taking care that voluntary return
incentives do not develop an unwanted pull effect. Measures, in close
cooperation with non-EU countries, to facilitate returnees’ obtaining necessary
travel documents will also be promoted.

Þ As regards transit by land of voluntary returnees, improvements
could be made through the use of Annex 39 of the Schengen Handbook (Standard
form for recognising a return decision for the purposes of transit by land).
Those Member States which do not yet use this are encouraged to do so.

Þ Further operational cooperation should be promoted between Member States
and between Member States and non-EU countries in implementing return and
reintegration processes applied to unaccompanied minors. Cooperation
between child protection systems of Member States and non-EU countries should also
be encouraged, making best use of the funding options in the Asylum, Migration and
Integration Fund.

Þ Emphasis will be given to improving return-related statistical
information, in particular by making use of the detailed information which
FRONTEX has started to obtain from Member States, considering ways to improve
information on voluntary departures and encouraging more consistent data
collection.

Þ The Commission will encourage enhanced best practices exchange
between national forced return monitoring bodies under Article 8(6) of the
Directive, to foster more consistent monitoring, particularly in the context of
FRONTEX coordinated joint operations

Þ The potential of VIS and SIS in the field of return policy should
be further enhanced. In particular the review of SIS II, due by 2016, will
be an opportunity to improve consistency between the return policy and SIS II
and to suggest introducing an obligation on Member States to enter a refusal of
entry alert in SIS II for entry bans issued under the Return Directive.

Þ Operational cooperation between Member States and Member States and non-EU countries will be promoted, focusing in particular on identification
and issue of travel documents in compliance with data protection
requirements.

Þ The European Migration Network will carry out a study in 2014 on ‘Good
practices in the return and reintegration of irregular migrants: Member States’
entry bans, policy and use of readmission agreements’. The aim of this
study is to enhance the effectiveness of return policies by compiling and
comparing Member States’ experiences related to these specific aspects of the
return process.

5.
Enhance role of FRONTEX in the field of return

There
is a clear added value in performing certain operational aspects of return
jointly at Union level. FRONTEX has a significant coordination role in this
field and should continue to make use of it in a proactive manner. In
performing its tasks, FRONTEX also has to make sure that operations are carried
out in line with Union acquis and the EU Charter of Fundamental Rights.

Þ FRONTEX should further increase
coordination of JROs in a way which ensures that common
standards related to humane and dignified treatment of returnees will be
met in an exemplary way, going beyond mere compliance with legal obligations. As
a matter of priority the Commission therefore asks FRONTEX to adapt its CoC
on JROs and to spell out clearly that each JRO will be subject to
independent monitoring.

Þ FRONTEX is encouraged to further
support Member States by offering training on return issues with a
special focus on safeguarding returnees’ fundamental rights during the return
procedure.

Part IV - Implementation Report: The
impact of the Return Directive 2008/115/EC on Member States’ return policies
and practices

The deadline for
implementation of the Return Directive expired on 24 December 2010. All Member States, except UK and Ireland, as well as the four Schengen associated States are bound
by the Directive. Four Member States (EE, ES, PT, SK) notified full
transposition before the deadline. Nineteen Member States notified
transposition in 2011, and five (BE, LT, NL, PL and SE) notified it in the
course of 2012. The Commission opened 20 infringement procedures for
non-communication, all of which were closed after Member States belatedly
notified their national transposition measures[14]. Only Iceland has not yet notified full transposition.

Since the Directive was adopted, the Commission services have held 14
Contact Group meetings[15] with Member State experts. The aim of the Contact Group is to
facilitate the identification of possible problems and remaining questions at an
early stage and to offer an opportunity for open and informal discussion. These meetings contributed considerably to a consistent
implementation of the Directive at national level. Inspired by the discussion at Contact Group level, six comparative
studies[16] were carried out relating to:

Minors in return procedures 
 Forced return monitoring
 Reintegration of returnees
 Situation of non-removable returnees
 Proper legal transposition of the Return Directive by Member
  States
 The practical impact of the Return Directive

Based on the
findings of the study on the transposition of the Return Directive into national
law, the Commission carried out an organised programme of work on the
transposition of the Return Directive (2012-2013), during which the
Commission questioned Member States about any remaining issues with their
transposition of the Directive. In technical bilateral meetings, details of
identified shortcomings and possible solutions were discussed. These meetings
and discussions proved to be very helpful and the majority of transposition issues
were able to be settled. The remaining issues concerned, in particular, the
following provisions:

EU-wide effect
  of entry bans; 
 definition of
  risk of absconding; 
 criteria for
  prolonging the period of voluntary departure; 
 rules to be
  respected when removing by air; 
 forced return
  monitoring; 
 criteria for
  imposing detention; 
 detention
  conditions.

With regard to
these remaining issues, seven Member States have already amended their national
law in order to comply with requests made by the Commission. Thirteen Member
States are currently in the process of doing so and six Member States have
committed themselves formally to changing their national legislation in the
near future, subject to close supervision (bimonthly reporting) by the
Commission.

Tangible results
of this organised programme have already materialised, notably in relation to
detention:

- Six Member
States, out of the eleven that had not fully transposed Articles 3(7) and 15(1),
changed their legislation to legally define objective criteria to assess whether
there are reasons to believe that an irregular migrant will abscond. This helps
limiting the number of migrants kept in detention.

- Six Member
States, out of the seven that had not fully transposed Article 15(4) of the
Directive, have amended or are currently amending their national laws to provide
that detention will cease if there is no reasonable prospect of removal.

- Four Member
States, out of the six that had thus far not allowed NGOs and international
organisations to visit detention centres, have amended or are in the process of
amending their laws.

- Four Member
States, out of the six who had not yet done so, have now revised their rules on
the access to free legal assistance (Article 13(4)).

- Thirteen Member
States, out of the sixteen that had not transposed Article 8(6), have already
or are currently adopting legislation to set up a forced return monitoring
system;

- Eleven Member
States, out of the fourteen who had not yet done so, have formalised or are in
the process of formalising the commitment that any removal by air will be carried
out in line with the Common guidelines on security provisions for joint
removals by air annexed to Decision 2004/573/EC.

In those
remaining cases in which it was not possible to find agreement and to obtain
commitment from Member States to change their legislation in accordance with
requests from the Commission, several EU Pilot procedures have already been
launched.

As regards the practical
implementation of the Return Directive in Member States, a study was
carried out in 2012-2013 and finalised in October 2013. This study was designed
as a ‘meta-study’ based on different types of existing information and studies,
as well as input from all relevant stakeholders.[17]

To obtain a
broader picture of the situation on the ground, the Commission has also examined
focused studies and reports e.g. by the Fundamental Rights Agency, Council of Europe
bodies, UNHCR, and NGOs (Amnesty International, Human Rights Watch, Pro-Asyl
and others) into the practical situation in Member States. A major difficulty
encountered by this information collection exercise was that little
quantitative data was systematically collected at Member State level on most of
the issues covered by the study. For example, data on basic parameters such as
average length of detention, grounds for detention, number of failed returns,
and use of entry bans proved to be available in only a limited number of Member
States. Moreover, common definitions and approaches concerning data collection
are frequently absent, impacting on the comparability of such data across the
EU.

As highlighted
above, the Commission will systematically follow up on all shortcomings
identified by the present implementation report. Several EU Pilot
procedures have already been launched in relation to issues identified in this
report and others will be launched in the near future.

1. Detention of returnees for the purpose of removal

a) Grounds for and length of detention (Article 15)

Article 15 of the Directive states that third-country nationals subject to return
procedures may only be kept in detention — for ‘as short a period as possible’,
and ‘as long as removal arrangements are in progress’  — if there is a risk of
absconding or if he/she avoids or hampers the preparation of return or the
removal process. The detention, which must be ordered by a decision of
administrative or judicial authorities, must be reviewed at ‘reasonable
intervals’ and must cease ‘when it appears that a reasonable prospect of
removal no longer exists for legal or other considerations’. Member States must
set a maximum limit of detention, which cannot exceed six months as a general
rule and, in exceptional cases, 18 months in total. ECJ case law has clarified
several aspects of the Directive’s provisions on detention. In its judgment in case C-357/09 (Kadzoev), the ECJ
expressly confirmed the protective elements of the detention-related
articles of the Return Directive by highlighting that detention ceases to be
justified and the person concerned must be released immediately if there is no
real prospect of removal to a non-EU country within the authorised maximum
period of detention. Moreover the ECJ clarified that reasons of public order
and safety cannot be used as justification for detention under the Return
Directive. A judgment in case C 534-11 (Arslan) dealt with the
relation between return-related detention and asylum-related detention (under
Directive 2003/9) and clarified that the existence of the two differing
regimes does not imply an obligation on Member States to automatically release
detained returnees once they make an asylum application, provided that States take
a prompt decision under national law to continue detention in compliance with
the asylum acquis.

The assessment has shown that, while Member States have generally amended
their legislation to ensure it is in line with Article 15, there is great
variation as regards practical implementation. For example, the interpretation of what constitutes ‘reasonable intervals’
by which reviews of detention are to take place varies considerably.
Reviews in some Member States take place on a weekly basis, whereas in others
it is only guaranteed at the end of the detention period (thus up to six
months). This therefore constitutes an area where more consistency is needed,
and where several stakeholders have called for further guidance on the
interpretation of ‘reasonable intervals’.

On the other hand, the practice is more uniform
as regards the grounds for imposing detention on returnees, where the
risks of absconding and/or hampering return are the main reasons in most Member
States. Another frequently cited reason is the need to clarify documentation
and identification of the person in question in cooperation with non-EU countries. The concept of ‘risk
of absconding’, of Article 3(7) of the Directive, has had an impact on Member
States’ definition and use of criteria upon which decisions to detain are
based, thereby contributing — to varying extent — to more legal security. In
the majority of Member States, the ‘lack of documentation’ provided by
returnees or the ‘use of false identity’ are the main grounds on which the risk
of absconding is assessed. Other frequently used criteria for assessing the
risk of absconding are:

use of false documents or destruction of documents; 
 lack of residence; 
 explicit expression of intent of non-compliance; 
 existence of convictions for criminal offences.

Table 2:
Criteria to assess the ‘risk of absconding’

Frequently used criteria for determining ‘risk of absconding’ || Number of Member States applying the criteria

Lack of documentation || 13

No cooperation to determinate his/ her identity || 11

Lack of residence || 7

Use of false documentation or destroying existing documents || 7

Failing repeatedly to report to relevant authorities   || 7

Explicit expression of intent of non-compliance || 6

Existence of conviction for criminal offence || 6

Non-compliance with existing entry ban || 5

Violation of a return decision || 5

Prior conduct (i.e. escaping) || 4

Lack of financial resources || 4

Being subject of return decision made in another MS || 4

Non-compliance with voluntary departure obligation || 3

Source:
extracted from MATRIX 2013.

It is to be noted that there has also been a
consistent movement towards a wider implementation of alternatives to
detention across the Member States examined. A large number of Member States
now provide for alternatives to detention in their national legislation.
Research has shown that alternatives to detention can have several benefits
compared to detention and can also, under certain conditions, lead to
significant cost savings. In practice, however, several Member States only
apply alternatives to detention in rare cases. The main alternatives applied in
practice seem to be requiring ‘regular reporting to authorities’ and an ‘order
to take up accommodation in premises specified by the authorities’. The
‘obligation to surrender passports and documents’ is also among the most
frequently applied alternatives to detention.

Table 3:
Legal and practical application of alternatives to detention

|| Residence restrictions || Regular reporting to authorities || Obligation to surrender documents || Deposit of financial guarantee || Electronic monitoring

|| Legal application || Practical application || Legal application || Practical application || Legal application || Practical application || Legal application || Practical application || Legal application || Practical application

AT || yes || yes || yes || yes || no || no || yes || yes || no || no

BE[18] || no || no || no || no || no || no || no || no || no || no

BG || no || no || yes || n.i. || yes || n.i. || no || no || no || no

CY || no || no || no || no || no || no || no || no || no || no

CZ || no || no || yes || yes || no || no || yes || no || no || no

DE || yes || n.i. || yes || yes || yes || yes || no || no || no || no

DK || yes || yes || yes || yes || yes || yes || yes || no || yes || no

EE || yes || yes || yes || yes || yes || yes || no || no || no || no

EL || yes || no || yes || no || yes || no || yes || no || no || no

ES || yes || n.i. || yes || n.i. || yes || yes || no || no || no || no

FI || no || no || yes || n.i. || yes || n.i. || yes || n.i. || no || no

FR || yes || n.i. || yes || no || yes || yes || no || no || yes || n.i.

HU || yes || n.i. || yes || n.i. || yes || n.i. || no || no || no || no

IT || yes || n.i. || yes || n.i. || yes || n.i. || yes || n.i. || no || no

LT || yes || yes || yes || yes || no || no || no || no || no || no

LU || yes || no || yes || no || no || no || no || no || no || no

LV || no || no || yes || yes || yes || yes || no || no || no || no

MT || no || no || yes || yes || no || no || yes || yes || no || no

NL || yes || n.i. || yes || n.i. || yes || n.i. || yes || yes || no || no

PL || yes || no || yes || no || no || no || no || no || no || no

PT || yes || n.i. || yes || n.i. || yes || n.i. || yes || n.i. || yes || n.i.

RO || yes || n.i. || yes || n.i. || no || no || no || no || no || no

SE || yes || n.i. || yes || n.i. || yes || n.i. || no || no || no || no

SI || yes || yes || yes || yes || yes || no || yes || no || no || no

SK || yes || no || yes || no || no || no || yes || no || no || no

CH || yes || no || yes || yes || yes || no || yes || no || no || no

IS || yes || n.i. || yes || yes || yes || n.i. || no || no || no || no

LI || yes || yes || no || no || yes || yes || no || no || no || no

NO || yes || n.i. || yes || n.i. || yes || n.i. || no || no || no || no

IE || yes || n.i. || yes || yes || yes || n.i. || yes || no || no || no

UK || yes || n.i. || yes || n.i. || yes || n.i. || yes || n.i. || yes || n.i.

n.i.:
‘no information available’

Source: extracted from MATRIX 2013

In most Member States, there is a lack of
public support structures for irregular migrants who are released from
detention because no reasonable prospect of removal exists. In the absence of a
concrete legal obligation on Member States to provide for material subsistence
to this group of people, they find themselves in a ‘legal limbo’ situation,
left to rely on the private or voluntary sectors, or potentially being forced
to resort to non-authorised employment for subsistence. A few Member States are
currently setting a good example, providing a monthly allowance and helping
these people to find accommodation.

Before the Return Directive was adopted, the maximum
length of detention varied quite significantly across Member States and in
at least nine there was no upper ceiling on how long returnees could be
detained. The Return Directive has contributed to a convergence — and overall
to a reduction — of maximum detention periods across the EU.

Table 4:
Maximum length of detention before and after transposition of Return Directive

Source: MATRIX 2013.

While the legal time limits of detention have
increased in eight Member States, they have decreased in 12 Member States. It
is to be noted that the average length of detention applied in practice appears
to be considerably lower than the maximum limit provided for.

Table 5:
Length of detention experienced in practice

MS || Length of detention in practice (in days) || Source || Period ||

AT || 16.6* || National Statistics || 2012 ||

BG || 64* || Study by NGO || 2011 ||

DE || Less than 42*** || National Statistics || 2011 ||

DK || 31* || Study by NGO || 2011 ||

EE || 85* || National Statistics || 2011 ||

EL || At least 180** || International Organisation || 2012 ||

FI || 5-6** || National Public Authorities || - ||

FR || 13* || National Public Authorities || - ||

IT || 31* || Public Authorities in the city of Bologna || - ||

LU || 16* || National Public Authorities || - ||

NL || 120-180** || NGO and International Organisation || - ||

RO || 50* || National Statistics || 2012 ||

SE || Less than 14** || Ministry of Justice || - ||

IS || 1** || Public Authorities and NGOs || - ||

LI || 1-2** || Public Authorities and NGOs || - ||

UK || 7** || National Public Authorities || -

*
Average calculated on the basis of available data. The source of the data is
provided in the third column from the left.

**
The most frequently applied length of detention estimated by stakeholders
interviewed.

***
In Germany 73 % of detainees are kept for less than 42 days according to
official statistics.

Source:
Matrix 2013.

b) Detention conditions, including of minors and
families (Articles 16 and 17)

The Directive sets some basic conditions that must be
respected in relation to the detention of returnees, such as the fact that
their detention must take place in specialised facilities (not prisons) or at
least they should be kept separated from ordinary prisoners. Returnees kept in
detention must be provided with emergency health care and essential treatment
of illness and must be allowed to contact legal representatives, family members
and consular authorities. NGOs and bodies must be allowed to visit returnees,
subject to any requirements set by Member States for advance authorisation.
Returnees must be adequately informed of their rights and obligations. As
regards minors (both unaccompanied and with their families) — who
must be detained only as a measure of ‘last resort’ and for the ‘shortest
appropriate period of time’ — their needs must be taken particularly into
account (the ‘best interests of the child shall be a primary consideration’),
and they must have the opportunity to engage in leisure activities and
(depending on the length of their stay) have access to education.

The Directive does not regulate in detail issues such as
the size of rooms, access to sanitary facilities, access to open air,
nutrition, etc. during detention. Recital 17 provides, however, that detainees
should be treated in a ‘humane and dignified manner’ with respect for
their fundamental rights and in compliance with international law. Whenever Member
States impose detention under Articles 15-17 of the Directive, this must be
done under conditions that comply with Article 4 of the EU Charter, which
prohibits inhuman or degrading treatment. The practical impact of this
obligation on Member States is set out in detail in the standards established
by the Council of Europe Committee on the Prevention of Torture (‘CPT standards’[19]). These standards represent a generally recognised
description of the detention-related obligations which must be complied with by
Member States in any detention as an absolute minimum, in order to ensure
compliance with European Convention on Human Rights obligations and obligations
resulting from the EU Charter when applying EU law. The
Commission will follow the situation closely and will, in particular, use the
possibilities offered by the new Schengen Evaluation Mechanism to evaluate
facilities used by Member States for pre-removal detention to make sure these
benchmarks are met by all Member States. In order to
address the most striking cases of inhuman detention conditions, EU Pilot
procedures against several Member States have already been launched by the
Commission in recent months.

Nine Member States have legislation that does not fully comply
with Article 16(1), which requires States to strictly separate detainees
from ordinary prisoners. Two of these Member States have committed
themselves to changing their legislation. EU Pilot procedures have already been
opened or will have to be opened against the other Member States concerned. In
practice, only half of Member States always provide specialised detention
facilities. The other half still detains, occasionally or frequently, irregular
migrants in prisons. In this regard, German courts
submitted three preliminary references to the ECJ in 2013: In cases C 473-13
(Bero) and C 514-13 (Bouzalmate) the Court was asked whether a Member State is
obliged under 16(1) of the Directive to only detain returnees in specialised
detention facilities if it only possesses specialised detention facilities in
some of its regional sub-entities (but not in others). Case C-474/13 (Thi Ly
Pham) concerns the compatibility with Article 16(1) of a national
administrative practice to place a pre-removal detainee in accommodation
together with ordinary prisoners if he/she consents to such accommodation. These
three cases are still pending at ECJ.

The obligation under Article 16(2) to allow detainees to contact
legal representatives, family members and consular authorities was properly
transposed by all Member States. Evidence collected suggests that in practice
this opportunity is not always provided in two Member States. The obligation
under Article 16(3) to ensure that access to health services in emergency
situations is guaranteed was also transposed by all Member States. There
are, however, allegations that in six Member States access to this right is
occasionally impaired in practice. The Commission will follow up on all
identified shortcomings.

The legal transposition of the self-standing right under
Article 16(4) of national, international and non-governmental organisations and
bodies to have full access to detention centres is still problematic in
seven Member States. Three of these Member States have already committed
themselves to amending their legislation. Practice in four other Member States
does not seem to be fully compliant.

Legislation in all Member States complies with the
rules in Article 17 on detention of minors and families. However in
practice, shortcomings were reported to exist with regard to separate
accommodation for families in two Member States, access to leisure activities
in three Member States, and access to education in five Member States. With
regard to the practical use made of the provision under Article 17 to detain
minors as a measure of last resort, the evaluation findings reveal that
seventeen Member States detain — at least sometimes — unaccompanied minors and
nineteen Member States detain — at least sometimes — families with minors.
Since the definition of ‘measure of last resort’ in the Return Directive leaves
scope for interpretation, some stakeholders have suggested that Member States
should be encouraged to include in their national law a presumption against
detention of children, and to use alternatives to detention for unaccompanied
minors and families with children.

With regard to assistance to unaccompanied
minors (Article 10), the evaluation has shown that this is provided
in very different ways and by a variety of different bodies.

Table 6:
Authority responsible for offering assistance to unaccompanied minors (UAMs)

Countries || NGOs || International Organisation for Migration || Institution specialised in irregular UAMs || Government Department || General Youth or Social Services || Local Government || General Asylum or Immigrant Services || Prosecutor or Court || Police or Border Guards || No institution formally in charge

AT || || || || || P || || || || ||

BE || || || || P || || || || || ||

BG || || || || || P || || || || ||

CZ || || P || || || P || || || || ||

CY || || || || || P || || || || ||

DE || || || || || P || || || || ||

DK || P || P || || || || || P || || ||

EE || || || || || P || P || || || ||

EL || P || P || || || || || || P || ||

ES || || || || || || P || || || ||

FI || || || || || || || || || || P

FR || || || || || P || || || || ||

HU || || || P || || || || || || ||

IT || || P || || || || || || || ||

LT || || || || || || || P || || ||

LU || || P || || || || || || || ||

LV || || || || || || || || P || P ||

MT || || || || || || || P || || ||

NL || P || || || || P || || || || ||

PL || || P || || || || || || P || P ||

PT || P || || || || P || || || || ||

RO || P || || || || || || || || ||

SI || || || || || P || || || || ||

SK || || || || P || || || || || ||

SE || || || || || P || || || || ||

CH || || || || || || P || || || ||

IS || || || || P || P || || || || ||

LI || || || || P || || || || || ||

NO[20] || || P || P || P || || || || || ||

IE || || || || || P || || || || ||

UK || || || || || P || P || || || ||

Source:
MATRIX 2013.

While most Member States do return minors in
practice, only seven Member States report having used the option of returning
UAMs to reception centres or social services in their country of origin.

The main areas of change in the field of detention due to the implementation
of the Return Directive were found to be the following:

Table 7: Main
areas of change in detention due to implementation of Return Directive

Change || Member State

Shorter length of time in detention || BG, CZ, DK, EE, LT, LV, RO, SI, SK, NO

Longer length of time in detention || EL, ES, FI, FR, IT, LU

Specific policy on minors and families with minors (and vulnerable persons) || AT, CZ, SI

Better conditions in detention centres || DK, LU, LV, RO,

Specialised detention facilities/ separation from prisoners || DE, DK, LU

Use of alternatives || BE,DE, LV, NL

Provide legal counselling || AT, SK

Fixed time limit judicial review/ decision of court || CZ, SK

Possibility to appeal || LV

Decision in writing || DK

Source:
MATRIX 2013.

2. Voluntary
departure (Article 7) and monitoring of forced return (Article 8(6))

The introduction of the Return Directive has
positively influenced national law and practice regarding voluntary
departure. Article 7 obliges Member States to allow an appropriate period
for voluntary departure of between seven and thirty days. In some Member States,
a period for voluntary departure was not previously provided for in national
law, or the length was not specified. All Member States have now introduced
such a limit. In the majority of Member States examined, the voluntary
departure period is provided automatically; only three Member States
made use of the option under Article 7(1) of the Directive to grant the period
only upon application. In October 2013, a Dutch court submitted a
preliminary reference to the ECJ (case C-554/13) related
to the provision in Article 7(4) not to grant a
period of voluntary departure for public order reasons.

The study also
demonstrates that the Return Directive has been a driver for change in
forced return monitoring. A large number of Member States have established
monitoring bodies as a direct result of the Directive, often with support from
the European Return Fund. Seven Member States were not compliant with the
obligation to set up a forced return monitoring system and the Commission has
already opened (or will open shortly) related EU Pilot procedures. In those Member
States with a monitoring body in place, there tends to be a broad split with monitoring
done by civil society (human rights NGOs), Ombudsmen or authorities with ties
to a national Ministry. Monitoring systems are provided for either by law or by
cooperation agreement. The evaluation demonstrates that the Return Directive
has had substantial impact in the establishment of return monitoring bodies and
that there are on-going developments as monitoring systems are becoming more
established. These monitoring bodies will play an important role as an inbuilt
control mechanism for national day-to-day return practices.

Table 8:
Forced return monitoring bodies

Country || Monitoring Body || Type of Monitoring Body

AT || √ || Ombudsman and NGO

BE || √ || Body affiliated to the Belgian Police

BG || √[21] || Ombudsman and NGO

CY || √ || Ombudsman

CZ || √ || Body affiliated to the Czech Parliament

DE || Informal || NGO

DK || √ || Ombudsman and NGO

EE || √ || NGO

EL || √ || Ombudsman

ES || √ || Ombudsman

FI || √ || Ombudsman

FR || No || -

HU || √ || Ombudsman

IT || No || -

LT || √ || NGO

LU || √ || NGO

LV || √ || Ombudsman

MT || √ || Body affiliated to the Ministry of Home affairs and National Security

NL || √ || Body affiliated to the Ministry of Security and Justice

PL || √ || Ombudsman and NGO

PT || √ || Body affiliated to the Ministry of Home Affairs

RO || √ || NGO

SE || No || The Courts, the Parliamentary Ombudsman and the Chancellor of Justice partly perform the function of a monitoring body

SI || No[22] || -

SK || √ || Ombudsman and NGO

CH || √ || Body affiliated to the Federal Department of Justice and Police

IS || No || -

LI || No || -

NO || √ || Ombudsman

IE || No || -

UK || √ || Bodies affiliated to the Ministry of Justice

Source:
MATRIX 2013.

3. Safeguards (Articles 12 and 14) and remedies
(Article 13)

The evaluation found that the majority of the Member
States examined make use of the option to apply derogations from the scope
of the Directive under its Article 2(2).[23] The evaluation found that protective obligations
under Article 4(4) are applied in the majority of the cases and that there is a
similar level of protection between those third-country nationals falling under the scope of the Directive and ‘border
cases’ excluded by Member States from its scope.

The evaluation found that the procedural
safeguards related to the rights of irregular migrants during the return
process are broadly implemented in the national law of Member States. The
research findings show that the safeguards of Article 12(1) of the Directive
regarding the form of the return decision (in writing, providing reasons in
fact and in law and information on available legal remedies) are also generally
applied in practice. However some concerns were raised among stakeholders
regarding the formulation of the grounds for the decision (lack of detail and
motivation). In almost half of the Member States applying the Directive,
stakeholders flagged up translation (of the main elements of the return
decision) and, to a lesser extent, interpretation as areas for potential
improvement.

The evaluation
was unable to detect major trends or to measure change over time with regard to
safeguards pending postponed return. (Article 14 of the Directive covers
family unity, health care, access to schooling, needs of vulnerable persons as
well as the right to obtain a written confirmation in cases of postponed return.)
Basic safeguards appear to be primarily provided by implementing international
conventions and universal access legislation (emergency health care and
schooling, in particular).

Regarding the obligation for Member States to
provide returnees with an effective legal remedy, pursuant to Article
13, the evaluation concludes that, even though a legal provision for appeal
exists in national law of all Member States, in practice a number of factors
come into play that can compromise the right to a real legal remedy. Firstly
information about the available remedies is — in spite of proper legal
transposition of the Directive — not always sufficiently communicated in
practice to third-country
nationals in all Member States in a language the returnee understands
(translation and explanation/legal aid issue). Secondly, related to the
previous point, the possibility of an effective appeal may be reduced due to ineffective
provision of legal aid, in cases in which Member States make extensive use of
the provision under Article 13(4) of the Directive to make free legal aid
subject to conditions listed in Articles 15(3) to (6) of Directive 2005/85/EC.
The evaluation found that as a result, in several Member States return
decisions were not often appealed in practice, or to a lesser extent than
expected. The Commission will closely follow up on this issue.

The Directive allows Member States to decide whether
an appeal has an automatic suspensive effect, or whether such effect may
only be granted on a case by case basis by the appeals body. The evaluation
found that an appeal generally temporarily suspends enforcement of the return
and/or removal decision automatically under national law in only nine Member
States. In most Member States the immigrant has to apply for the temporary
suspending effect, which can be rejected (or granted) by the judge in specific
circumstances.

Table 9: Suspensive effect of an appeal

Temporary suspensive effect of enforcement of return decision when appeal is lodged ||

Yes: Automatic || AT, CZ, DK, FR, LT, MT, PL, RO, SI, UK

Sometimes: In a decision of a competent judicial or administrative authority || BE, BG, CY, DE, EE, EL, ES, FI, HU, IT, LU, LV, NL, PT, SE, SK, CH, LI, IS, NO, IE

Source:
MATRIX 2013.

In this respect, it is important to stress that the ECJ, in its
judgment in case C- 383/13 PPU (G and R),[24] confirmed that the rights of the defendant referred to in
Article 41(2) of the EU Charter (the right to be heard and the right to
have access to the file) must be observed when taking decisions under the
Return Directive even when this Directive does not expressly provide for these.

4. Criminalisation of irregular entry and stay

The findings of the evaluation as well as a
recent study conducted by FRA show that there are laws
in place criminalising ‘irregular entry and/or
stay’, in different forms, in the
majority of Member States. Neither the Return Directive nor any other EU legal
instrument prevent Member States from considering irregular entry and/or stay
as a criminal offence under their national criminal law. However, several ECJ
judgments have limited and constrained Member States’ ability to keep returnees
in prison as a consequence of this. In particular, in case C-61/11 (El Dridi) the ECJ found that the Return Directive
precludes national rules criminalising irregular stay in so far as such
rules undermine the effectiveness of the Return Directive. In this respect, the
ECJ found that imposing a prison term on an irregularly staying third-country national who has committed no other offence than
not complying with an order to leave the national territory is contrary to the
Directive. A judgment in a similar
case (C-329/11 Achoughbabian) confirmed the findings of the El Dridi judgment
and found that national law sanctioning mere irregular stay with a threat of
criminal law imprisonment was incompatible with the Return Directive. The
judgment in case C-430/11 (Sagor) confirmed
that the criminal law sanction of a financial fine which may be replaced by an
expulsion order can be applied, provided that the expulsion procedure respects
all relevant procedural safeguards of the Return Directive, and that the
criminal law sanction of home detention can be applied only insofar as there
are guarantees in place to make sure that its conduct does not delay return.

The above-mentioned rulings have resulted in a wide range of
changes to national legislation in the countries examined and several Member
States have recently changed their legislation as a consequence of this
jurisprudence. The Commission is following the
situation closely and has already launched EU Pilot procedures against certain Member
States.

Table 10: Criminalisation of irregular
entry

Source: FRA 2014.

Table 11: Criminalisation of irregular
stay

Source: FRA 2014.

5. Launch of return procedures (Article 6) and entry bans (Article
11)

With regard to
Article 6 of the Return Directive there is a high level of consistency between Member
States on the definition of irregular stay. In most Member States,
national legislation provides detailed lists of circumstances under which a third-country
national can be considered to be irregularly staying, the five main categories being:
expired visa; expired residence permit; revocation of residence permit; withdrawal
of refugee status; irregular entrance. Most Member States apply more favourable
rules to person's subject of a pending procedure for obtaining or renewing a
permit or visa. The majority of Member States has opted for a one-step
procedure where the return decision and the removal decision are issued in
a single (administrative) act, only nine Member States (IT, LT, LV, MT, PL, SE,
IS, IE, UK) have a two-step procedure in place. The Directive has also brought
more EU-wide harmonisation regarding the issue of residence permits or other
authorisation offering a right to stay for compassionate, humanitarian or
other reasons to third-country nationals staying irregularly on their
territory: All Member States allow for this possibility in their legal
framework. The obligation to launch a return procedure has not
substantially altered the practice of apprehension of third-country
nationals and numbers of apprehensions. Whether a Member State seeks irregular third-country
nationals through mainstream actions by the general police or on an ad hoc
basis is not determined by the Directive, but instead depends on domestic
factors and considerations. Since the
Directive does not explicitly define the concept of apprehension nor
provides guidance on how to carry out such procedures, Member States have left
the existing institutional settings almost unchanged. There are two main types
of apprehension practices in Member States: First, apprehension on the basis of
routine police controls or targeted operations on sites where there is a
reasonable suspicion that undocumented migrants are present. Second,
apprehensions initiated at the request of the immigration authorities with
regard to persons not respecting an order to leave the territory or not
complying with a decision to depart voluntarily.

The Return Directive requires Member States to issue an entry ban with
a return decision when no period of voluntary departure has been granted[25] or when the obligation to return has not been complied with. In
other cases, the issue of an entry ban is optional. In terms of determining the
length of the entry ban, all relevant circumstances must be taken into account,
and the maximum duration of five years may be exceeded only if the person
represents a serious threat to public policy, public security or national
security. The evaluation showed that overall the Return Directive contributed
to convergence across Member States regarding the (maximum) length of return-related
entry bans of five years, as provided for in Article 11(2) of the
Directive. Most Member States also determine a maximum length of entry bans for
cases where the returnee is regarded as a threat to national security and where,
in accordance with the Directive, the length can exceptionally exceed five years.
In eight Member States, the length of entry bans was reduced as a result of the
implementation of the Directive. However, the research also revealed that in
six Member States, the number of entry bans that are issued to returnees has
increased. In practice, all Member States offer the opportunity for irregular
migrants to request withdrawal or suspension of the entry ban in exceptional
humanitarian circumstances. Every entry ban decision is entered into the
Schengen Information System, preventing migrants from re-entering the Schengen
area. In its judgment in case C 297/12 (Filev/Osmani) the ECJ
reaffirmed that the maximum time-limits for entry bans provided in the
Directive also apply to ‘historic entry bans’ which had been issued before the
entry into force of the Directive.

Table 12: Entry
bans

Grounds for use of entry bans || MSs making use of these grounds

Entry ban is automatically imposed on all return decision cases || AT, CY, DE, EE, EL, ES, IT, LT, MT, PL, PT, IS, IE, UK

Entry ban is not imposed in all cases but is (at least) automatically issued (a) if no period for voluntary departure has been granted (b) if the obligation to return has not been complied with || BE, BG, CZ, DK, FI, HU, LU, LV, NL, RO, SE, SK, CH, NO

Entry bans are issued on a case by case basis (different grounds) || FR, SI, LI

Changes due to Return Directive || Member State

Reduction in length of entry bans || DE, ES, IT, LV, PL, PT, CH, NO

Increased number of entry bans issued || AT, BE, DK, FI, NL, CH

Specific regulation on entry bans/ standardisation throughout the country || LT, MT, SI

Possibility of withdrawal || ES, PL

Entry ban in writing || LU, PL

Decreased number of entry bans issued || SK

Source:
MATRIX 2013.

6. ECJ
case law related to the Return Directive

Over the last
five years, national Courts submitted several preliminary references related to
the interpretation of the Return Directive to the ECJ:

On detention:

In its judgement in case C-357/09 (Kadzoev)
of 30 November 2009 the ECJ expressly confirmed the protective elements of
the detention related provisions of the Return Directive, in particular the
obligation to release the person concerned immediately once the grounds
prescribed by the Directive are not fulfilled any more.

Three
preliminary references from German courts were submitted in summer 2013: In
cases C 473-13 (Bero) and C 514-13 (Bouzalmate) (pending) the Court was
asked whether a Member State is obliged under Article 16(1) of the Directive to
only detain returnees in specialised detention facilities if it disposes of
specialised detention facilities only in some of its regional sub entities (and
in others not).  Case C-474/13 (Thi Ly Pham) (pending) concerns the
compatibility with Article 16(1) of the Directive with a national
administrative practice to place a pre-removal detainee in accommodation
together with ordinary prisoners if he/she consents to such accommodation

On criminalisation of irregular stay:

On 28 April 2011, the ECJ delivered a judgement
in case C-61/11 (El Dridi). In this far reaching judgement, the ECJ
found that the Return Directive precludes national rules imposing a prison term
on an illegally staying third-country national who does not comply with an
order to leave the national territory, because such penalty is liable to
jeopardise the attainment of the objective of introducing an effective policy
for removal and repatriation in keeping with fundamental rights. A judgement in
a similar case (case C-329/11 Achoughbabian) related to the situation in
  France was delivered in December 2011. It confirmed the findings of the El
Dridi judgement and found national law sanctioning illegal stay with a
threat of criminal law imprisonment incompatible with the Return Directive. The
judgement in case C-430/11 (Sagor) (related to compatibility of provisions of Italian national
legislation imposing the penal sanctions of assignment to stay at home and immediate
expulsion for illegal stay) was delivered in December 2012 and further refined
the ECJs case law on this issue. In its order of 21.3.2013 in case C-522/11
(Mbaye) the ECJ referred to the above case-law and repeated its
conclusions. Case C 189/13 (Da Silva) (pending) is a follow-up case to
Achoughbabian and relates to compatibility of Return Directive with national law sanctioning illegal entry
with a threat of criminal law imprisonment.

On relation
between Return Directive and Asylum acquis:

The May 2013
judgment in case C 534-11 (Arslan) dealt with the relation between
return related detention (under Directive 2008/115/EC) and Asylum related
detention (under Directive 2003/9/EC) in a situation where a third-country
national is detained under the Return Directive and submits an application for
asylum with the objective of postponing return. The judgment confirms that
asylum-related detention and return-related detention are covered by two
different legal regimes with respective legal safeguards adapted to the
specific situation of asylum seekers and returnees. The Court made clear that
the existence of these two differing regimes doesn ́t imply an obligation on Member State to automatically release detained returnees once they make an asylum
application: The judgement expressly confirms that detention may be continued –
provided Member States take without delay a decision under national law to
continue detention in compliance with the asylum acquis.

On entry
bans:

A judgement of
19.9.2013, in case C 297/12 (Filev/Osmani) relates to the validity of
"historic" entry bans issued before the entry into force of the
return directive as well as rules on the length of entry bans. In this
judgement the ECJ

- confirmed that
Article 11(2) precludes a provision of national law which makes the limitation
of the length of an entry ban subject to making an application seeking
to obtain the benefit of such a limit.

- clarified that
an entry ban which was handed down more than five years before the date of the
entry into force of the national legislation implementing that directive cannot
develop further effects, unless the person constitutes a serious threat to
public order, public security or national security.

- precludes
Member States from excluding under Article 2(2)(b) of that directive persons
which during the date on which that directive should have been implemented and
the date on which it was implemented, benefited from more favourable direct
effect of the Directive.

On voluntary departure:

A preliminary
reference from the Dutch Raad van State was lodged in October 2013 in case
C-554/13 (Zh. and O.) (pending), related to the interpretation of the
notion of "risk to public policy" as a reason for not granting a
period of voluntary departure in the context of Article 7.

On right to
be heard (Article 41 of the EU Charter) in Return Directive context:

-Two preliminary
references from French judges on this issue were submitted in spring 2013: In
cases C 166/13 (Mukarubega) and C 249/13 (Boudjilida) (pending) the
Court was asked whether the right to be heard before a decision is taken under
Article 41(2) of the Charter applies to return procedures (Mukarubega) and to
specify the exact extent of this right (Boudjilida).

In its judgement
of 10.9.2013 in case C- 383/13 PPU (G and R), the Court confirmed that
the rights of the defence are to be respected when deciding on the extension of
detention. It clarified that not every irregularity in the observation of the
rights of the defence brings about the annulment of the decision. Such effect
would only take place if the national court considers that the infringement at
issue actually would have led to a different outcome.

Part V - Conclusions

This
Communication shows that the establishment of an EU return acquis over
the last decade has led to significant legislative and practical changes in all
Member States. The Return Directive has positively
influenced national law and practice regarding voluntary departure and has
been a driver for change in forced return monitoring. It contributed to a convergence — and overall to a reduction —
of maximum detention periods across the EU and there has also been consistent
movement towards a wider implementation of alternatives to detention across Member
States. It also limited Member States’ ability to criminalise mere irregular stay, and its
procedural safeguards have contributed to more legal security.

The concern,
expressed by some Member States at the time of its adoption, that its
protective provisions would undermine the efficiency of return procedures has
not materialised: Experience confirms that the procedures foreseen in the
Return Directive allow for determined action. The main reasons for non-return
relate to practical problems in the identification of returnees and in
obtaining the necessary documentation from non-EU authorities.

Joint ownership
of and support for the key policy objectives of this new EU policy have
gradually developed. All Member States now generally accept the following
policy objectives:

respect for
  fundamental rights; 
 fair and
  efficient procedures; 
 reduction
  of cases in which migrants are left without clear legal status; 
 primacy of
  voluntary departure; 
 promotion
  of reintegration and fostering of alternatives to detention.

This has become
apparent during recent policy dialogues with Member States, conducted in 2013.
These positive changes have also been confirmed by the United Nations International
Law Commission’s eighth report on the expulsion of aliens, in which the UN
Special Rapporteur acknowledges that the EU’s Return Directive ‘contains
extremely progressive provisions on such matters that are far more advanced
than the norms found in other regions of the world.’

Despite these
positive developments, and the fact that Member States have generally ensured that
the Return Directive is transposed in their national law, there is still scope
for improvement in the practical implementation of the Directive and of return
policies in general, ensuring respect for fundamental rights standards (e.g.
detention conditions, effective legal remedies) and effectiveness (e.g. faster
procedures and higher rates of — voluntary — return).

The action set
out in this Communication focuses on ensuring proper and effective implementation
of the existing rules, promotion of fundamental rights-compatible practice,
cooperation between Member States as well as cooperation with non-EU States.
This action will ensure better implementation and practical application of
return policies, consolidating and deepening the achievements of the EUs return
policy over the next years, in full respect of the inalienable rights and
dignity of all people — whatever their migratory status may be.

[1] "Third-country national" means any person who is
not an EU citizen and who is not a person enjoying the right of free movement
under Union law.

[2] Directive 2008/115/EC of the European Parliament and of the Council
of 16 December 2008 on common standards and procedures in Member States for
returning illegally staying third-country nationals, OJ L 348/98 of 24.12.2008.

[3] Communication on the Global Approach to Migration and Mobility —
COM(2011)
743.

[4] For more detail on this aspect, see the Communication on the
Evaluation of EU Readmission Agreements (EURAs), COM(2011) 76 of
23.2.2011.

[5]
Eurostat data: Statistics
may however give a distorted picture as there is currently no obligation for MS
to collect data on voluntary returns and these are also not properly recorded on
a voluntary basis. This statistical gap can only be closed once a systematic
recording of voluntary departures will be in place. The EU Entry-Exit system
currently under negotiation has the potential of significantly facilitating
such data collection.

[6] The term "Member States" used in the Return
Directive context refers to 30 States: the 28 EU Member States minus UK and Ireland, plus CH, NO, Icl and Lie. Explanation: The Return Directive is a hybrid
instrument and on the one hand is part of the Schengen acquis. It
applies thus to Switzerland, Norway, Iceland and Liechtenstein.  The UK and Ireland are not bound by that part of the Schengen acquis in accordance with Protocol 19. On
the other hand, the Return Directive is a development of the acquis covered by
Title V of Part Three of the Treaty, into which UK and Ireland could opt into in accordance with Protocol 21. However, these MS have not exercised
such an opt-in.

[7] Article 31(2) of the VIS Regulation provides a derogation from the
general principle that data processed in the VIS shall not be transferred or
made available to a third country or to an international organisation: certain
types of data may be transferred or made available to a third country if
necessary in individual cases for the purpose of proving the identity of
third-country nationals, including for the purpose of return, and only where
specific conditions are met in order to ensure compliance with the requirements
of EU data protection.

[8] Available at the EMN websites ́ ad-hoc query section: http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/index_en.htm

[9]
A detailed assessment of the first years of experiences with the Return Fund is
given in the spring 2014 Commission ‘Report on the results achieved and on
qualitative and quantitative aspects of implementation of the European Return
Fund for the period 2008-2010’.

[10] Published at: http://frontex.europa.eu/publications
(‘FRAN’).

[11] Since 2010, the Commission ‘Annual Report on Immigration and Asylum’
provides for regular reporting on FRONTEX coordinated JROs.

[12] 225 escort leaders have been trained between 2007 and 2013.

[13] See: http://www.icmpd.org/Ongoing-Projects.1570.0.html.

[14] Links to the national transposition measures are available in the
MNE section of EUR-Lex:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:72008L0115:EN:NOT

[15] The compiled minutes of these Contact Group meetings (in the form
of a Q&A document) are accessible via the Register of Commission Expert
Groups.

[16] Most of these studies are publicly available in the e-library of 
DG HOME ́s Europa website under:
ec.europa.eu/dgs/home-affairs/e-library/documents/categories/studies.

[17] The stakeholders which had to be consulted by the contractors were:

1. The judicial authorities/judges in
charge of monitoring/hearing appeals on return policy (via national and
international judges’ associations);

2. The lawyers and institutions
providing legal aid to returnees (via national and international lawyers’
associations);

3. The return monitoring bodies
(bodies established under Article 8(6) of the Return Directive);

4. The stakeholders assisting
migrants or advocating on their behalf (NGOs, advocacy bodies);

5. The stakeholders commenting on /
studying return policy (NGOs, academia, etc.);

6. International organisations
(UNHCR, IOM, Red Cross, etc.) with an interest on return issues.

[18] While Belgium does not apply any of the
listed alternatives to detention, since 2008 it has offered special housing and
counselling for families, which has been singled out as a best practice in a
recent NGO publication.

[19] document CPT/Inf/E (2002) 1 — Rev. 2013, available at:
www.cpt.coe.int/en/docsstandards.htm

[20] European
Commission (2013) Conformity Assessment of Directive 2008/115/EC Norway. Version
3.0 – 20.06.2013. Unpublished Article 10(1).

[21]
Proposed only (2012 data via FRA).

[22] A dual
monitoring system is currently debated in government which envisages monitoring
by the Ombudsman along with NGOs.

[23] Article 2(2)(a) allows MS not to apply the Directive in certain ‘border
situations’ (people refused entry at the border and people apprehended in
connection with an irregular border crossing). In this case a set of basic
minimum safeguards listed in Article 4(4) still applies. Article 2(2)(b) allows
MS not to apply the Directive in certain ‘criminal law situations’ people
subject to return as a criminal law sanction or people who are the subject of
extradition procedures).

[24] Two other pending preliminary references — C 166/13 (Mukarubega)
and C 249/13 (Boudjilida) — relate to similar questions.

[25] This may be the case when there is a risk of absconding, or if an
application for a legal stay has been dismissed as manifestly unfounded or
fraudulent, or if the person concerned poses a risk to public policy, public
security or national security.