COMMISSION RECOMMENDATION (EU) 2017/2338

of 16 November 2017

establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return-related tasks

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof,

Whereas:

Directive 2008/115/EC of the European Parliament and of the Council (1) lays down common standards and procedures in Member States for returning illegally staying third-country nationals.

It is necessary to ensure that those common standards and procedures are implemented in a uniform way in all Member States, therefore a common ‘Return Handbook’ providing for common guidelines, best practices and recommendations to be used by Member States' competent authorities when carrying out return-related tasks was established by Commission Recommendation C(2015) 6250 of 1 October 2015 (2) . As there are new developments in the area of return of illegally staying third-country nationals, it is necessary to update the Return Handbook.

Commission Recommendation C(2017) 1600 of 7 March 2017 (3) provides guidance on how the provisions of Directive 2008/115/EC should be used for achieving more effective return procedures, and calls on the Member States to take the necessary measures to remove legal and practical obstacles to return. The Return Handbook should therefore take into account that Recommendation.

The Return Handbook should reflect recent jurisprudence of the Court of Justice of the European Union related to Directive 2008/115/EC.

To enhance the uniform implementation of common Union return standards, the Return Handbook should be used as the main tool for performing return-related tasks and for training purposes,

HAS ADOPTED THIS RECOMMENDATION:

The Return Handbook set out in the Annex should replace the Return Handbook set out in the Annex to the Commission Recommendation C(2015) 6250.

Member States should transmit the Return Handbook to their national authorities competent for carrying out return-related tasks and instruct those authorities to use it as the main tool when performing those tasks.

The Return Handbook should be used for the purpose of training the personnel involved in return-related tasks as well as experts taking part in the evaluation and monitoring mechanism established by Council Regulation (EU) No 1053/2013 (4) to verify application of the Schengen acquis in the Member States.

(1) 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, 24.12.2008, p. 98).

(2) Commission Recommendation C(2015) 6250 of 1 October 2015 establishing a common ‘Return Handbook’ to be used by Member States' competent authorities when carrying out return related tasks.

(3) Commission Recommendation of C(2017) 1600 of 7 March 2017 on making returns more effective when implementing the Directive 2008/115/EC of the European Parliament and of the Council.

(4) Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen (OJ L 295, 6.11.2013, p. 27).

ANNEX

RETURN HANDBOOK

1. DEFINITIONS 87

1.1. Third-country national 87

1.2. Illegal stay 88

1.3. Return 90

1.4. Return decision 90

1.5. Removal order 91

1.6. Risk of absconding 91

1.7. Voluntary departure 93

1.8. Vulnerable persons 94

2. SCOPE 94

2.1. Border cases — Article 2(2)(a) 95

2.2. Special safeguards for ‘border cases’ 96

2.3. Criminal law and extradition cases 97

3. MORE FAVOURABLE PROVISIONS 98

4. SANCTIONS FOR INFRINGEMENTS OF MIGRATION RULES 98

5. APPREHENSION AND OBLIGATION TO ISSUE A RETURN DECISION 100

5.1. Apprehension in the course of an exit check 102

5.2. Holders of a return decision issued by another Member State 102

5.3. Relation with Dublin rules 103

5.4. Illegally staying third-country national holding a right to stay in another Member State 104

5.5. Illegally staying third-country national covered by existing bilateral agreements between Member States 106

5.6. Illegally staying third-country national benefiting from humanitarian (or other) permit/authorisation 107

5.7. Illegally staying third-country national subject of a pending procedure renewing a permit/authorisation 107

5.8. Special rules in legal migration directives on readmission between Member States in cases of intra-Union mobility 108

6. VOLUNTARY DEPARTURE 108

6.1. Extended period for voluntary departure 109

6.2. Obligations pending voluntary departure 110

6.3. Counter-indications 110

6.4. Practical compliance — transit by land 111

6.5. Practical compliance — transit by air 112

6.6. Recording of voluntary departure 113

7. REMOVAL 113

7.1. Removal by air 115

7.2. Transit by air 118

7.3. Joint removal operations by air 118

7.4. Return operations coordinated by the European Border and Coast Guard Agency 119

8. FORCED-RETURN MONITORING 119

9. POSTPONEMENT OF REMOVAL 120

10. RETURN OF UNACCOMPANIED MINORS 121

10.1. Assistance by appropriate bodies 122

10.2. Return to a family member, a nominated guardian or adequate reception facilities 123

11. ENTRY BANS 123

11.1. EU-wide effect 124

11.2. Use of SIS II 125

11.3. Procedural issues 125

11.4. Reasons for issuing entry bans 125

11.5. Length of entry bans 126

11.6. Withdrawal, shortening and suspension of entry bans 127

11.7. Sanctions for non-respect of entry ban 128

11.8. Consultation between Member States 128

11.9. ‘Historic’ entry bans 129

12. PROCEDURAL SAFEGUARDS 130

12.1. Right to good administration and right to be heard 130

12.2. Decisions related to return 131

12.3. Form of decisions and translation 133

12.4. Legal remedies 134

12.5. Linguistic assistance and free legal aid 135

13. SAFEGUARDS PENDING RETURN 137

13.1. Written confirmation 138

13.2. Situations of protracted irregularity 138

14. DETENTION 139

14.1. Circumstances justifying detention 139

14.2. Form and initial review of detention 142

14.3. Regular review of detention 142

14.4. Ending of detention 143

14.4.1. Absence of reasonable prospect of removal 144

14.4.2. Reaching the maximum period of detention 144

14.5. Re-detention of returnees 146

14.6. Application of less coercive measures after ending of detention 146

15. DETENTION CONDITIONS 146

15.1. Initial police custody 146

15.2. Use of specialised facilities as a general rule 147

15.3. Separation from ordinary prisoners 148

15.4. Material detention conditions 148

16. DETENTION OF MINORS AND FAMILIES 153

17. EMERGENCY SITUATIONS 155

18. TRANSPOSITION, INTERPRETATION AND TRANSITIONAL ARRANGEMENTS 156

19. SOURCES AND REFERENCE DOCUMENTS 157

20. ABBREVIATIONS 159

FOREWORD

This Return Handbook provides guidance to national authorities competent for carrying out return related tasks, including police, border guards, migration authorities, staff of detention facilities and monitoring bodies.

It covers standards and procedures in Member States for returning illegally staying third-country nationals and is based on Union legal instruments regulating this issue, primarily Directive 2008/115/EC of the European Parliament and of the Council (1) (the ‘Return Directive’). Return procedures are in practice often linked with other types of procedures (asylum procedures, border control procedures, procedures leading to a right to enter, stay or reside), which are regulated by other relevant Union and national legislation. In those cases, Member States should ensure close cooperation between the different authorities involved in such procedures.

The first version of the Handbook was adopted in October 2015 (2). The current version, revised in 2017, builds upon the Commission Recommendation of 7 March 2017 (3) and features additional guidance to national authorities on how the rules of the Return Directive be used to improve the effectiveness of the return systems, while ensuring full observance of fundamental rights.

Beyond appropriate standards and procedures, an effective return system needs to count on a streamlined and well integrated organisation of competences at national level. This means being able to mobilise all the actors involved in return-related procedures (for example law enforcement and immigration authorities, but also the judiciary, child protection authorities, medical and social services, staff of detention facilities) and coordinate their actions, in accordance with their role and remit, to trigger swift and adequate multi-disciplinary responses to manage individual return case. National return systems need to count on the support of a sufficient number of trained and competent staff, who can be mobilised quickly — if needed on a 24/7 basis — particularly in case of an increasing burden in implementing returns, and who can be deployed, if necessary, at the external border of the Union to take immediate measures in response to migratory pressure. For that purpose, they should ensure continuous exchange of operational information with the European Border and Coast Guard Agency and other Member States, and can rely on the technical and operational support that the Agency can provide.

In order for the return systems to be able to respond to challenges, Member States should make the best use of the flexibility provided for by the Return Directive and regularly review and adapt their structures and return capacity to respond to the actual needs to remain effective.

This Handbook does not create any legally binding obligations upon Member States and it does not establish new rights and duties. It bases itself to a large extent on the work conducted by Member States and the Commission within the ‘Contact Committee Return Directive 2008/115/EC’ in the years 2009-2017 and regroups in a systematic and summarised form the discussions that have taken place within that forum, which do not necessarily reflect a consensus among Member States on the interpretation of the legal acts.

The interpretative part of the Handbook is complemented by guidance on newly arising issues (for example new judgements of the Court of Justice of the European Union, international standards). Only the legal acts on which this Handbook is based on, or refers to, produce legally binding effects and can be invoked before a national jurisdiction. Legally binding interpretations of Union law can only be given by the Court of Justice of the European Union.

1. DEFINITIONS

1.1. Third-country national

Legal basis: Return Directive — Article 3(1); Schengen Borders Code (4) — Article 2(5)

Any person who is not a citizen of the Union within the meaning of Article 17(1) of the Treaty and who is not a person enjoying the right of free movement under Union law, as defined in Article 2(5) of the Schengen Borders Code.

The following categories of person are not considered ‘third-country nationals’:

— Persons who are Union citizens within the meaning of Article 20(1) TFEU (previously Article 17(1) of the Treaty) = persons holding the nationality of an EU Member State (5);

— Persons holding the nationality of EEA/CH;

— Family members of Union citizens exercising their right to free movement under Article 21 TFEU or Directive 2004/38/EC of the European Parliament and of the Council (6);

— Family members of nationals of EEA/CH enjoying rights of free movement equivalent to Union citizens.

Any other person, including a stateless person (7), is to be considered ‘third-country national’.

Further clarification:

— Members of the family of EU/EEA/CH nationals, who therefore have a right of entry and residence with the Union citizen in the host Member State irrespective of their nationality, are: (a) the spouse and, if contracted on the basis of the legislation of a Member State and recognised by the legislation of the host Member State as equivalent to marriage, the partner with whom the EU/EEA/CH citizen has contracted a registered partnership; (b) the direct descendants under the age of 21 or dependants, including those of the spouse or registered partner; (c) the dependent direct relatives in the ascending line, including those of the spouse or registered partner. In addition to the categories referred to in points (a) to (c), other members of the family can, under certain circumstances, also enjoy the right of free movement under Union law — notably when they have been granted the right of entry and residence under national law enacting Article 3(2) of Directive 2004/38/EC.

— Third-country nationals whose claim to be a family member of a Union citizen enjoying a Union right to free movement under Article 21 TFEU or Directive 2004/38/EC was rejected by a Member State may be considered as third-country national. Such persons may therefore fall in the scope of application of the Return Directive and the minimum standards, procedures and rights foreseen therein will have to be applied. However, as regards a possible appeal against the decision rejecting being a beneficiary of Directive 2004/38/EC, the Commission considers that the person will continue — as a more favourable provision under Article 4 of the Return Directive — to be able to rely on the procedural safeguards provided for in Chapter VI of Directive 2004/38/EC (for example, as regards notification and justification of decision, the time allowed to voluntarily leave the territory, redress procedures).

1.2. Illegal stay

Legal basis: Return Directive — Article 3(2); Schengen Borders Code — Article 6

The presence on the territory of a Member State, of a third-country national who does not fulfil, or no longer fulfils the conditions of entry as set out in Article 5 of the Schengen Borders Code or other conditions for entry, stay or residence in that Member State.

This very broad definition covers any third-country national who does not enjoy a legal right to stay in a Member State. Any third-country national physically present on the territory of an EU Member State is either staying legally or illegally. There is no third option.

Legal fictions under national law which consider persons physically staying in specially designated parts of Member State territory (for example transit areas or certain border areas) as not ‘staying in the territory’ are irrelevant in this context, since this would undermine the harmonious application of the EU return acquis. Member States may, however, decide not to apply certain provisions of the return acquis to this category of persons (see section 2 below).

Following the 2016 codification of the Schengen Borders Code (SBC), reference to Article 5 SBC in Article 3(2) of the Return Directive shall be read as reference to current Article 6 SBC.

The following categories of third-country nationals are, for instance, considered as illegally staying in the Member State concerned:

— Holders of an expired residence permit or visa;

— Holders of a withdrawn permit or visa;

— Rejected asylum seekers;

— Asylum applicants who have received a decision ending their right of stay as asylum seeker;

— Persons subject to a refusal of entry at the border;

— Persons intercepted in connection with irregular border crossing;

— Irregular migrants apprehended in Member States' territory;

— Persons intercepted while transiting through a Member State's territory to reach another Member State without legal entitlement;

— Persons enjoying no right to stay in the Member State of apprehension (even though they are holding a right to stay in another Member State);

— Persons present on Member State territory during a period for voluntary departure;

— Persons subject to postponed removal.

The following categories of persons are not considered as illegally staying since they enjoy a legal right to stay (which may only be of temporary nature) in the Member State concerned:

— asylum applicants staying in the Member State in which they enjoy a right to stay pending their asylum procedure,

— stateless persons staying in the Member State in which, according to national law, they enjoy a right to stay during a statelessness determination procedure,

— persons staying in a Member State where they enjoy a formal toleration status (provided such status is considered under national law as ‘legal stay’),

— holders of a fraudulently acquired permit for as long as the permit has not been revoked or withdrawn and continues to be considered as valid permit.

Further clarification:

— Persons subject to a pending application for a residence permit may be either legally or illegally staying, depending on whether they hold a valid visa or another right to stay or not.

— The situation of illegal stay does not require a minimum duration of stay or the intention of the third-country national to stay illegally on the territory of a Member State — see judgment of the ECJ in Case C-47/15, Affum (8) (paragraph 48).

— Applicants for renewal of an already expired permit are illegally staying, unless national law of a Member State provides otherwise (see also section 5.7).

— Third-country nationals to whom the return procedure established by the Return Directive had been applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return (scenario referred to in paragraph 48 of ECJ judgement in Case C-329/11, Achughbabian (9)) are illegally staying. The special reference made by ECJ in Achughbabian relates only to the compatibility of national criminal law measures with the Return Directive. Nothing is said in this judgement on the scope and applicability of the Return Directive, hence the general rule set by Article 2(1) remains applicable: ‘either A or B’, meaning that a person is either staying illegally and the Return Directive applies, or the persons enjoys a right to stay and the Return Directive does not apply.

1.3. Return

Legal basis: Return Directive — Article 3(3)

Means the process of a third-country national going back — whether in voluntary compliance with an obligation to return, or enforced — to:

(1) his or her country of origin; or

(2) a country of transit in accordance with Community or bilateral readmission agreements or other arrangements; or

(3) another third country, to which the third-country national concerned voluntarily decides to return and in which he or she will be accepted.

This definition contains limitations on what can be accepted as ‘return’ and what cannot be accepted as ‘return’ for the purposes of implementing the Return Directive. Passing back an illegally staying third-country national to another Member State cannot be considered ‘return’ under Union law. Such action may, however, be exceptionally possible under bilateral readmission agreements or Dublin rules; it is therefore recommended not to call it ‘return’, but rather ‘passing-back’ or ‘transfer’.

The definition also implies that Member States must only carry out return to a third country in the circumstances exhaustively listed in one of its three indents. Therefore, for instance, it is not possible to remove a returnee to a third country, which is neither the country of origin nor the country of transit, without consent of the returnee.

Further clarification:

— ‘Country of origin’ in the first indent refers to the country of nationality of the third-country national; for stateless persons, this can normally be considered to be the country of former habitual residence.

— ‘Country of transit’ in the second indent covers only third countries, not EU Member States.

— ‘Community or bilateral readmission agreements or other arrangements’ in the second indent relates to agreements with third countries only. Bilateral readmission agreements between Member States are irrelevant in this context. Such agreements between Member States may, however, in certain cases allow for passing back of irregular migrants to other Member States under Article 6(3) of the Return Directive (see section 5.5 below).

— The term ‘voluntarily decides to return’ in the third indent is not tantamount to voluntary departure. ‘Voluntary’ in this context refers to the choice of the destination by the returnee. Such voluntary choice of the destination may also happen in the preparation of a removal operation: there may be cases in which the returnee prefers to be removed to another third country rather than to the country of transit or origin.

— Specification of the country of return in the case of removal: if a period for voluntary departure is granted, then it is the returnee's responsibility to make sure that he/she complies with the obligation to return within the set period and there is in principle no need to specify the country of return. Only if coercive measures have to be used by Member States (removal), then it is necessary to specify to which third country the person will be removed (see section 1.5).

1.4. Return decision

Legal basis: Return Directive — Articles 3(4) and 6(6)

An administrative or judicial decision or act, stating or declaring the stay of a third-country national to be illegal and imposing or stating an obligation to return.

The definition of a ‘return decision’ focuses on two essential elements. A return decision must contain:

(1) a statement concerning the illegality of the stay; and

(2) the imposition of an obligation to return.

A return decision may contain further elements, such as an entry ban, a voluntary departure period, designation of the country of return; when the country of return is not mentioned, Member States must ensure that the principle of non-refoulement is respected in accordance with Article 5 of the Return Directive.

Member States enjoy wide discretion concerning the form (decision or act, judicial or administrative) in which a return decision may be adopted.

Return decisions can be issued in the form of a self-standing act or decision or together with other decisions, such as a removal order or a decision ending legal stay (see section 12.1 below).

A return decision states the illegality of stay in the Member State which issues the decision, while stating the obligation to leave the territories of the EU Member States and Schengen Associated countries. Moreover, it needs to be highlighted that in accordance with Article 11, return decisions may be accompanied by entry bans having an EU-wide effect (binding on all States bound by the Return Directive).

Further clarification:

— The flexible definition of ‘return decision’ does not preclude the decision imposing the obligation to return from being taken in the form of a criminal judgment and in the context of criminal proceedings — see the judgment of the ECJ in Case C-430/11, Sagor (10) (paragraph 39).

1.5. Removal order

Legal basis: Return Directive — Articles 3(5) and 8(3)

Administrative or judicial decision or act ordering the enforcement of the obligation to return, namely the physical transportation out of the Member State.

A removal order can either be issued together with a return decision (one-step procedure) or separately (two-step procedure). In those cases in which return decision and removal order are issued together in a one-step procedure, it must be made clear — in those cases in which a period for voluntary departure is granted — that removal will only take place if the obligation to return within the period for voluntary departure has not been complied with.

In view of the obligation of Member States to always respect the principle of non-refoulement, removal (physical transportation out of the Member State) cannot happen to an unspecified destination, but only to a specified country of return. The returnee must be made aware of the destination of the removal operation in advance so that he or she can express any reasons for believing that removal to the proposed destination would be in breach of the principle of non-refoulement and is able to make use of the right to an appeal. The Commission recommends to mention the country of return in the separate removal decision (two-step procedure), or to mention the country to which the person will be removed in the case of non-compliance with the obligation to return in the combined return and removal decision (one-step procedure), or to inform the third-country national through another decision or act.

1.6. Risk of absconding

Legal basis: Return Directive — Article 3(7), recital 6

The existence of reasons in an individual case which are based on objective criteria defined by law to believe that a third-country national who is the subject of return procedures may abscond.

The existence (or absence) of a ‘risk of absconding’ is a decisive element for determining whether a period for voluntary departure shall be granted or not, as well as for deciding on the need of detention.

Member States must base their assessment on whether there is a risk of absconding on objective criteria fixed in national legislation. The ECJ judgment in Case C-528/15, Al Chodor (11), related to the definition of ‘risk of absconding’ in Article 2(n) (12) of the Dublin Regulation, which text is in essence identical to the definition of Article 3(7) of the Return Directive, indirectly confirms this. In this judgment, the ECJ established that such objective criteria must be clearly set in binding provisions of general application and that settled national case-law confirming a consistent administrative practice cannot suffice. The ECJ also concluded that, in the absence of such criteria in legally binding provisions of general application, detention must be declared unlawful.

While Member States enjoy a wide discretion in determining such criteria, they should take into due account the following ones as an indication that an illegally staying third-country national may abscond:

— lack of documentation,

— lack of residence, fixed abode or reliable address,

— failing to report to relevant authorities,

— explicit expression of intent of non-compliance with return-related measures (for instance return decision, measures for preventing absconding),

— existence of conviction for a criminal offence, including for a serious criminal offence in another Member State (13),

— ongoing criminal investigations and proceedings,

— non-compliance with a return decision, including with an obligation to return within the period for voluntary departure,

— prior conduct (i.e. escaping),

— lack of financial resources,

— being subject of a return decision issued by another Member State,

— non-compliance with the requirement to go to the territory of another Member State that granted a valid residence permit or other authorisation offering a right to stay,

— illegal entry into the territory of the EU Member States and of the Schengen Associated countries.

National legislation may establish other objective criteria to determine the existence of a risk of absconding.

According to general principles of Union law, in particular the principle of proportionality, all decisions taken under the Return Directive must be adopted on the basis of an individual assessment of each case. The above list of criteria should be taken into account at any stage during the return procedure as an element in the overall assessment of each individual situation, but it cannot be the sole basis for assuming automatically a risk of absconding, as frequently it will be a combination of several of the above-listed criteria that will provide a basis for concluding the existence of such a risk. Any automatic conclusion, such as that illegal entry or lack of documents mean the existence of a risk of absconding, must be avoided. Such individual assessment must take into account all relevant factors, including the age and the health and social conditions of the persons concerned that may be directly affecting the risk that the third-country national may abscond, and may in certain cases lead to the conclusion that there is no risk of absconding even though one or more of the criteria fixed in national law are fulfilled.

In addition to the criteria mentioned above that may indicate the existence of a risk of absconding, and without prejudice to the rights of third-country nationals concerned to be heard and to an effective remedy, national legislation may also qualify certain objective circumstances as constituting a rebuttable presumption that there is a risk of absconding (i.e. the third-country national should rebut that, notwithstanding the existence of the circumstances below, such risk does not exist), such as:

— refusing to cooperate in the identification process, using false or forged identity documents, destroying or otherwise disposing of existing documents, or refusing to provide fingerprints;

— opposing violently or fraudulently the return operation;

— not complying with a measure aimed at preventing absconding (see section 6.2),

— not complying with an existing entry ban,

— engaging in unauthorised secondary movement to another Member State.

The Commission recommends providing for such rebuttable presumptions in national legislation.

1.7. Voluntary departure

Legal basis: Return Directive — Article 3(8)

Compliance with the obligation to return within the time-limit fixed for that purpose in the return decision.

Voluntary departure in the context of the Union return acquis refers to the voluntary compliance with an obligation to return to a third country. The term ‘voluntary departure’ does not cover cases in which legally staying third-country nationals decide to go back to their home country based on their own decision. Such ‘truly’ voluntary return (scenario 1 in the below picture) falls outside the scope of the Return Directive, because it concerns legally staying third-country nationals. The departure of illegally staying third-country nationals who have not been detected or apprehended yet (for instance, overstayers) can be considered as covered by the definition of ‘voluntary departure’. These persons are already under an ‘abstract’ obligation to return under the Return Directive and may receive a return decision as well as an entry ban once the authorities obtain knowledge of their illegal stay (at the latest upon exit check — see sections 5.1 and 11.3).

The Return Directive therefore covers only scenarios 2 and 3 below:

Going from the national territory of one Member State to the territory of another Member State in accordance with Article 6(2) (see below section 5.4) cannot be considered as voluntary departure. The definition of voluntary departure always requires departure to a third country. Specific rules on transit by land through territories of other Member States in the context of voluntary departure are set out in section 6.4 below.

1.8. Vulnerable persons

Legal basis: Return Directive — Article 3(9)

Minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

Contrary to the definition of vulnerable persons used in the asylum acquis (see for instance Article 21 of Directive 2013/33/EU of the European Parliament and of the Council (14) (the ‘Reception Conditions Directive’) or Article 20(3) of Directive 2011/95/EU of the European Parliament and of the Council (15) (the ‘Qualification Directive’), the definition in the Return Directive is drafted as an exhaustive list.

The need to pay specific attention to the situation of vulnerable persons and their specific needs in the return context is, however, not limited to the categories of vulnerable persons expressly enumerated in Article 3(9). The Commission recommends that Member States should also pay attention to other special situations of vulnerability, such as those mentioned in the asylum acquis — being a victim of human trafficking or of female genital mutilation, being a person with serious illness or with mental disorders.

The need to pay specific attention to the situation of vulnerable persons should not be limited to the situations expressly referred to by the Return Directive (during the period for voluntary departure, during postponed return and during detention). The Commission therefore recommends that Member States should pay attention to the needs of vulnerable persons at all stages of the return procedure, as part of the assessment of the individual circumstances of each case.

2. SCOPE

Legal basis: Return Directive — Articles 2 and 4(4)

The scope of the Return Directive is broad and covers any third-country national staying illegally on the territory of a Member State. The following Member States are currently bound by the Return Directive:

— all EU Member States, except UK and Ireland,

— Switzerland, Norway, Iceland and Liechtenstein.

Member States may decide not to apply the Directive to certain categories of third-country nationals:

— ‘border cases’, in accordance with Article 2(2)(a) of the Return Directive (see section 2.1), and

— ‘criminal law cases’, in accordance with Article 2(2)(b) of the Return Directive (see section 2.2).

The decision of a Member State to make use of the derogation and not to apply the Directive to ‘border cases’ or ‘criminal law cases’ must be made clear, in advance, in the national implementing legislation (16), otherwise it can develop no legal effects. There are no specific formal requirements for making known such decision. It is, however, important that it clearly derives — explicitly or implicitly — from the national legislation if and to which extent a Member State makes use of the derogation.

If a Member State has not made public, in advance, its decision to use the derogations under Article 2(2)(a) or (b) of the Return Directive, these provisions cannot be used as a justification for not applying the Return Directive subsequently in individual cases.

Nothing prevents Member States from limiting the use of the derogation of Article 2(2)(a) or 2(2)(b) of the Return Directive to certain categories of persons (for example, only refusals of entry at air borders or sea borders), provided that this is made clear in the implementing national legislation.

Member States can decide to make use of the derogation at a later stage following the initial transposition of the Return Directive into national law. This must, however, not have disadvantageous consequences with regard to those persons who were already able to avail themselves of the effects of the Return Directive (see the judgment of the ECJ in Case C-297/12, Filev and Osmani (17): ‘[…] in so far as a Member State has not yet made use of that discretion […] it may not avail itself of the right to restrict the scope of the persons covered by that directive pursuant to Article 2(2)(b) thereof with regard to those persons who were already able to avail themselves of the effects of that directive’).

2.1. Border cases — Article 2(2)(a)

Persons who have been refused entry and who are present in a transit zone or in a border area of a Member State are frequently subject to special rules in Member States: by virtue of a ‘legal fiction’, these persons are sometimes not considered to be ‘staying in the territory of the Member State’ concerned and specific rules are applied. The Return Directive does not follow this approach and it considers any third-country national physically staying on Member State territory as covered by its scope.

Member States are, however, free to decide not to apply the Directive to ‘border cases’, defined as third-country nationals who:

— are subject to a refusal of entry in accordance with Article 13 of the Schengen Borders Code (18) , or

— are apprehended or intercepted by the competent authorities in connection with the irregular crossing by land, sea or air of the external border of a Member State and who have not subsequently obtained an authorisation or a right to stay in that Member State.

The use of this derogation can be useful, for instance, in the case of frontline Member States experiencing significant migratory pressure, when this can provide for more effective procedures; in such cases, the Commission recommends making use of such derogation.

National procedures for ‘border cases’ must respect the general principles of international law and the fundamental rights of the third-country nationals concerned, as well as the safeguards set by Article 4(4) of the Return Directive (see section 2.2).

Further clarification:

— Article 2(2)(a) implies a direct temporal and spatial link with the crossing of the external border. It therefore concerns third-country nationals who have been apprehended or intercepted by the competent authorities at the very time of the irregular crossing of the external border or near that external border after it has been crossed — see judgment of the ECJ in Case C-47/15, Affum (paragraph 72).

— The following categories of persons are for instance covered by the term ‘apprehended or intercepted by the competent authorities in connection with the irregular crossing […] of the external border’ because there is still a DIRECT connection to the act of irregular border crossing: — persons arriving irregularly by boat who are apprehended upon or shortly after arrival, — persons arrested by the police after having climbed a border fence, — irregular entrants who are leaving the train/bus that brought them directly into the territory of a Member State (without previous stopover in Member State territory).

— The following categories of persons are not covered by the term ‘apprehended or intercepted by the competent authorities in connection with the irregular crossing […] of the external border’ because there is no more DIRECT connection to the act of irregular border crossing: — irregular entrants who are apprehended within the Member State's territory, within a certain period after irregular entry, — irregular migrants apprehended in a border region, unless there is still a direct connection to the act of irregular border crossing, — an irregular migrant leaving a bus coming from a third country, if the bus has already made several stops in EU territory, — irregular migrants who, having been expulsed at a previous occasion, infringe a still valid entry ban (unless they are apprehended in direct connection with irregular border crossing), — irregular migrants crossing an internal border — see judgment of the ECJ in Case C-47/15, Affum (paragraph 69), Article 2(2) of the Directive referring to external borders and Article 14 SBC applying at the external borders, — illegally staying third-country nationals who are leaving the territories of the Member States and of the Schengen Associated countries — see judgment of the ECJ in Case C-47/15, Affum (paragraph 71).

— Practical example of cases covered by the clause ‘and who have not subsequently obtained an authorisation or a right to stay in that Member States’, to whom the derogation does not apply: — irregular entrants who have been apprehended at the external border and subsequently obtained a right to remain as asylum seeker. Even if — after final rejection of the asylum application — they become again ‘illegally staying’, they must not be excluded from the scope of the Directive as ‘border case’, — a third-country national who was subject of a refusal of entry and who is staying in the airport transit zone (and thus may be excluded from the scope of the Directive) is transferred to a hospital for medical reasons and given a short-term national permit (and not just a postponement of removal under Article 9(2)(a)) to cover the period of hospitalisation).

— The form, content and legal remedies of decisions issued to third-country nationals excluded from the scope of application of the Return Directive by Article 2(2)(a) are covered by national law.

— Refusals of entry according to Article 14 SBC cover everybody who does not fulfil the entry conditions in accordance with Article 6(1) SBC.

— Persons who are refused entry in an airport transit zone or at a border crossing point situated on Member State territory fall under the scope of the Return Directive (since they are already physically present on the territory). However, Member States can make use of the derogation of Article 2(2)(a) stating that Member States may decide not to apply the Directive to these cases.

— The exceptions for border cases under Article 2(2)(a) only apply to cases of apprehension at the external borders, not at the internal borders — see judgment of the ECJ in Case C-47/15, Affum.

— The temporary reintroduction of internal border controls does not re-convert internal borders to external borders. This situation therefore does not affect the scope of application of the Return Directive.

— ‘Border’ and ‘border-like’ cases which may be excluded from the scope of the Directive in accordance with Article 2(2)(a) of the Directive are not the same as the cases mentioned in Article 12(3) of the same Directive (simplified procedure in case of illegal entry): illegal entry (the term used in Article 12(3)) is not synonymous with the ‘border’ and ‘border-like’ cases described in Article 2(2)(a) of the Return Directive. Example: an illegally staying third-country national who is apprehended in the territory of a Member State three months after his/her illegal entry is not covered by Article 2(2)(a) of the Return Directive but may be covered by Article 12(3) of the same Directive.

2.2. Special safeguards for ‘border cases’

If Member States opt not to apply the Directive to border cases, they must nevertheless respect of the principle of non-refoulement and ensure — in accordance with Article 4(4) of the Return Directive — that the level of protection for affected persons is not less favourable than that set out in the Articles of the Return Directive dealing with:

— limitations on use of coercive measures,

— postponement of removal,

— emergency health care and necessary treatment of the illness, taking into account needs of vulnerable persons, and

— detention conditions.

In addition, it should be highlighted that the safeguards under the Union asylum acquis (such as in particular on access to asylum procedure) are by no means waived by the Member States' choice not to apply the Return Directive to border cases. The obligations under the Union asylum acquis include in particular an obligation of the Member States to:

— inform third-country nationals who may wish to make an application for international protection on the possibility to do so,

— ensure that border guards and other competent authorities have the relevant information and that their personnel receives the necessary level of training on how to recognise applicants and instructions to inform applicants as to where and how applications for international protection may be lodged,

— make arrangements for interpretation to the extent necessary to facilitate access to the procedure,

— ensure effective access by organisations and persons providing advice and counselling to applicants present at border crossing points, including transit zones, at external borders.

Further clarification:

— Practical application of this provision in case of refusal of entry at the border: there are two possibilities: either the person is physically present in the territory of a Member State after refusal of entry at the border (for instance in an airport transit zone) or the person is not physically present in the territory of a Member State (for instance a person who was refused entry at a land border and who is still physically staying on third-country territory). In the first case, the safeguards of Article 4(4) of the Return Directive shall be applied; in the second case, Article 4(4) does not apply.

— The respect of the principle of non-refoulement recognised by Article 4(4)(b) of the Return Directive — and enshrined in Article 19(2) Charter of Fundamental Rights of the European Union (‘CFR’) as well as Article 3 of the European Convention on Human Rights (‘ECHR’) — is absolute and must not be restricted under any circumstances, even if foreigners are a threat to public order or have committed a particularly serious crime. Such persons may be excluded from refugee or subsidiary protection status, but they still cannot be returned to a place where they may be tortured or killed.

2.3. Criminal law and extradition cases

Member States are free to decide not to apply the Directive to third-country nationals who:

— are subject to return as a criminal law sanction, according to national law,

— are subject to return as a consequence of a criminal law sanction, according to national law, or

— are the subjects of extradition procedures.

Further clarification:

— The criminal law cases envisaged by this provision are those typically considered as crime in the national legal orders of Member States. — In C-297/12, Filev and Osmani, the ECJ expressly clarified that offences against the provisions of the national law on narcotics and convictions for drug trafficking may be cases to which the derogation is applicable. — In C-329/11, Achughbabian, the ECJ confirmed that this derogation cannot be used to third-country nationals who have committed only the offence of illegal staying without depriving the Return Directive of its purpose and binding effect. — Minor migration-related infringements, such as mere irregular entry or stay, cannot justify the use of this derogation.

— Extradition procedures are not necessarily related to return procedures. The 1957 European Convention on Extradition (19) circumscribes extradition to surrendering ‘persons against whom the competent authorities of the requesting Party are proceeding for an offence or who are wanted by the said authorities for the carrying out of a sentence or detention order’. However, there may be overlaps and this derogation aims at making clear that Member States have the option not to apply the procedural safeguards contained in the Return Directive when carrying out return in the context of extradition procedures.

3. MORE FAVOURABLE PROVISIONS

Legal basis: Return Directive — Article 4

Even though the Return Directive aims at harmonising return procedures in Member States, it expressly leaves unaffected more favourable provisions contained in bilateral or multilateral international agreements (Article 4(1)).

The Return Directive also leaves unaffected ‘any provision which may be more favourable for the third-country national, laid down in the Community acquis relating to immigration and asylum’ (Article 4(2)) as well as ‘the right of the Member States to adopt or maintain provisions that are more favourable to persons to whom it applies provided that such provisions are compatible with this Directive’ (Article 4(3)).

Further clarification:

— Given that the Return Directive aims at providing for common minimum standards regarding the respect of fundamental rights of the individuals in return procedures, ‘more favourable’ must always be interpreted as ‘more favourable for the returnee’ and not more favourable for the expelling/removing State.

— Member States are not free to apply stricter standards in areas governed by the Return Directive: see the judgment of the ECJ in Case C-61/11, El Dridi (20) (paragraph 33): ‘[…] Directive 2008/115/EC […] does not however allow those States to apply stricter standards in the area that it governs.’

— Imposing a fine instead of issuing a return decision: the Return Directive does not permit a mechanism being put in place which provides, in the event of third-country nationals illegally staying in the territory of a Member State, depending on the circumstances, for either a fine or removal, since the two measures are mutually exclusive (see judgment of the ECJ in Case C-38/14, Zaizoune (21)).

— Applying parts of the Return Directive to persons excluded from its scope under Article 2(2)(a) and (b) is compatible with the Directive and can be considered as covered by Article 4(3), as such practice would be a more favourable one for the third-country national concerned.

4. SANCTIONS FOR INFRINGEMENTS OF MIGRATION RULES

Legal basis: Return Directive — as interpreted by the ECJ in Cases C-61/11, El Dridi, C-329/11, Achughbabian, C-430/11, Sagor, C-297/12, Filev and Osmani, C-38/14, Zaizoune, C-290/14, Celaj, C-47/15, Affum.

Member States are free to lay down effective, proportionate and dissuasive sanctions, including imprisonment as a criminal sanction, in relation to infringements of migration rules, provided such measures do not compromise the application of the Return Directive and ensure the full observance of fundamental rights, particularly those guaranteed by the CFR interpreted in accordance with the corresponding provisions of the ECHR. It is for national law to determine which types of infringements of migration rules are to be sanctioned.

Nothing prevents Member States from addressing and taking into account in their national penal law infringements of migration rules committed also in other Member States.

Non-compliance with an entry ban: Member States can adopt criminal law sanctions against illegally staying third-country nationals who have been returned and who re-enter the territory of a Member State in breach of an entry ban. Such criminal sanction is admissible only on the condition that the entry ban issued against the third-country national complies with the provisions of the Directive. Such criminal sanctions shall ensure full observance of fundamental rights and the 1951 Geneva Convention (22), notably Article 31(1) (23) (see judgment of the ECJ in Case C-290/14, Celaj (24)).

— The Return Directive does not preclude imposing penal sanctions, following national rules of criminal procedure, in relation to third-country nationals to whom the return procedures established by the Directive have been unsuccessfully applied and who are illegally staying in the territory of a Member State without there being any justified ground for non-return. Penal sanctions aimed at dissuading such returnees from remaining illegally must ensure full observance of fundamental rights, particularly those guaranteed by the ECHR (see judgment of the ECJ in Case C-329/11, Achughbabian, paragraphs 48 and 49) and shall comply with the proportionality principle.

— The Commission recommends that Member States foresee effective, proportionate and dissuasive sanctions in national legislation (for example fines, seizure of documents, reduction/refusal of benefits/allowance, refusal of work permit) in relation to third-country nationals who intentionally obstruct the return process (for example disposing of travel document, providing false identity, preventing identification, repeated refusal to embark), provided that such sanctions do not impair achieving the objective of the Return Directive and ensure full observance of fundamental rights.

— Criminalisation of mere illegal stay: Member States cannot impose imprisonment under national criminal law on the sole ground of illegal stay before or during carrying out return procedures since this would delay return (see judgment of the ECJ in Case C-61/11, El Dridi). However, the Return Directive does not prevent Member States from imposing a sentence of imprisonment to punish the commission of offences other than those stemming for the mere fact of illegal stay, including in situations where the return procedures has not yet been completed (see judgment of the ECJ in Case C-47/15, Affum, paragraph 65).

— Financial penalties: the imposition of a (proportionate) financial penalty for illegal stay under national criminal law is not as such incompatible with the objectives of the Return Directive since it does not prevent a return decision from being issued and implemented in full compliance with the conditions set out in the Directive (see judgment of the ECJ in Case C-430/11, Sagor). National legislation which — in the event of illegal stay — provides for either a fine or removal is incompatible with the Return Directive, since the two measures are mutually exclusive, undermining the effectiveness of the Directive (see judgment of the ECJ in Case C-38/14, Zaizoune).

— In accordance with Article 5 of Directive 2009/52/EC of the European Parliament and of the Council (25) (the ‘Employers Sanctions Directive’), employers who employ illegally staying third-country nationals without authorisation are liable to pay a financial sanction that shall include the costs of return in those cases where return procedures are carried out. Member States may decide to reflect at least the average costs of return in the financial sanctions.

— Immediate expulsion under national criminal law (in cases which are not excluded from the scope of the Return Directive under Article 2(2)(b) — see section 2.3 above): this is only allowed in so far as the judgement stating this penalty complies with all safeguards of the Return Directive (including on the form of return decisions, legal safeguards and advance consideration of the possibility of voluntary departure) (see judgment of the ECJ in Case C-430/11, Sagor).

— House arrest under national criminal law: this is only allowed if guarantees are in place that house arrest does not impede return and that it comes to an end as soon as the physical transportation of the individual concerned out of that Member State is possible (see judgment of the ECJ in Case C-430/11, Sagor).

Further clarification:

— ‘Justified reasons for non-return’ may: — either be reasons outside the scope of influence of the returnee (for example delays in obtaining necessary documentation from third countries caused by bad cooperation of third-country authorities, crisis situation in country of return making safe return impossible, granting of formal postponement of return to certain categories of returnees), or — reasons within the sphere of the returnee, which are recognised as legitimate or justified by Union or national law (for example, health problems or family reasons leading to postponement of removal, pending appeal procedure with suspensive effect, decision to cooperate with authorities as witness). The mere subjective wish to stay in the EU can never be as such considered a ‘justified reason’.

— ‘Non-justified reasons for non-return’ may be reasons within the scope of influence of the returnee which are not recognised as legitimate or justified by Union or national law (for instance lack of cooperation in obtaining travel documents, lack of cooperation in disclosing identity, destroying documents, absconding, hampering removal efforts).

5. APPREHENSION AND OBLIGATION TO ISSUE A RETURN DECISION

Legal basis: Return Directive — Article 6(1)

Member States shall issue a return decision to any third-country national staying illegally on their territory.

Member States are obliged to issue a return decision to any third-country national staying illegally on their territory, unless an express derogation is foreseen by Union law (see list of exceptions described below). Member States are not allowed to tolerate in practice the presence of illegally staying third-country nationals on their territory without either launching a return procedure or granting a right to stay. This obligation on Member States to either initiate return procedures or to grant a right to stay aims at reducing ‘grey areas’, to prevent exploitation of illegally staying persons and to improve legal certainty for all involved.

Member States must issue a return decision irrespective of whether the third-country national concerned holds a valid identity or travel document, and regardless of whether readmission to a third country is possible.

The validity of return decisions should not be limited in time. Competent national authorities should be able to enforce return decisions without the need to re-launch the procedure after a certain period of time (for example one year), provided that the individual situation of the third-country national concerned has not significantly changed in fact or in law (for example change in legal status, risk of refoulement) and without prejudice to the rights to be heard and to an effective remedy.

As a general rule, the relevant criterion for determining the Member State in charge of carrying out return procedures is the place of apprehension. Example: if an irregular migrant has entered the EU via Member State A (undetected), subsequently travelled through Member States B and C (undetected) and was finally apprehended in Member State D, Member State D is in charge of carrying out a return procedure. The temporary reintroduction of internal border controls between Schengen States does not affect this principle. Exceptions to this general rule are set out in sections 5.2, 5.3, 5.4, 5.5 and 5.8 below.

Further clarification:

— An administrative fine under national law for illegal stay may be imposed in parallel with the adoption of a return decision. Such administrative fine cannot, however, substitute the obligation of Member States to issue a return decision and to carry out the removal (see judgment of the ECJ in Case C-38/14, Zaizoune).

— Return decisions shall state the obligation that the third-country national concerned must leave the territory of the issuing Member State in order to reach a third country in accordance with the definition of ‘return’ (see section 1.3) or, in other words, that the third-country national must leave the territories of the EU Member States and of the Schengen Associated countries. Lack of clarity on the obligation incumbent on the third-country national may have the unintended consequence of creating a risk of unauthorised secondary movements.

— Return decisions in accordance with the Return Directive must also be taken when a return procedure is carried out using a readmission agreement: the use of readmission agreements with a third country (covering the relations between EU Member States and third countries) does not affect the full and inclusive application of the Return Directive (covering the relation between removing State and returnee) in each individual case of return. In fact the use of the readmission agreement presumes the issuance of the return decision first.

— National legislation may foresee that a third-country national is obliged to leave the territory of the EU, if his stay is illegal. Such abstract legal obligation does not constitute a return decision. It must be substantiated in each case by an individualised return decision.

— Relevant Union IT systems, such as the Schengen Information Syststem II (‘SIS II’), Eurodac and the Visa Information System (‘VIS’), should be fully used by the competent national authorities to support the identification and the individual assessment of each case, as well as to facilitate and support cooperation between the Member States in return and readmission procedures.

— Member States should establish efficient and proportionate measures to locate, detect and apprehend third-country nationals who are staying illegally in their territory in view of fulfilling the obligation to issue return decisions. In this respect, it is recalled that Article 13(1) SBC establishes that Member States shall apprehend and subject to return procedures third-country nationals who have crossed the external borders illegally and who have no right to stay in the EU. Article 14 of the Employers Sanctions Directive further provides that Member States shall ensure that effective and adequate inspections are carried out on their territory to control employment of illegally staying third-country nationals.

Apprehension practices — respect of fundamental rights

The obligation on Member States to issue a return decision to any third-country national staying illegally on their territory is subject to the respect of fundamental rights, including the principle of proportionality (recital 24). The legitimate aim of fighting illegal migration may be balanced against other legitimate State interests, such as general public health considerations, the interest of the State to fight crime, the interest to have comprehensive birth registration, respect for the best interests of the child (expressly highlighted in recital 22), the Geneva Convention (highlighted in recital 23), as well as other relevant fundamental rights recognised by the CFR.

The Commission refers to the considerations set out in the 2012 Fundamental Rights Agency document ‘Apprehension of migrants in an irregular situation — fundamental rights considerations’ (Council document 13847/12) as guidance on how apprehension practices can be carried out in respect of the fundamental rights of the third-country nationals, while ensuring effective return procedures. Member States' practices that respect this guidance can be considered as not affecting the obligation to issue return decisions to third-country nationals staying illegally under Article 6(1) of the Return Directive:

Access to health:

Migrants in an irregular situation seeking medical assistance should not be apprehended at or next to medical facilities.

Medical establishments should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Access to education:

Migrants in an irregular situation should not be apprehended at or next to the school which their children are attending.

Schools should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Freedom of religion:

Migrants in an irregular situation should not be apprehended at or next to recognised religious establishments when practicing their religion.

Birth registration:

Migrants in an irregular situation should be able to register the birth and should be able to obtain a birth certificate for their children without risk of apprehension.

Civil registries issuing birth certificates should not be required to share migrants' personal data with immigration law enforcement authorities for eventual return purposes.

Access to justice:

In the interest of fighting crime, Member States may consider introducing possibilities for victims and witnesses to report crime without fear of being apprehended. To this end, the following good practices may be considered:

— introducing possibilities for anonymous, or semi-anonymous, or other effective reporting facilities,

— offering victims and witnesses of serious crimes the possibility to turn to the police via third parties (such as a migrants ombudsman, specially designated officials; or entities providing humanitarian and legal assistance),

— defining conditions under which victims or witnesses of crime, including domestic violence, could be granted residence permits building upon standards included in Council Directive 2004/81/EC (26) and Directive 2009/52/EC,

— considering the need for delinking the immigration status of victims of violence from the main permit holder, who is at the same time the perpetrator,

— developing leaflets in cooperation with labour inspectorates or other relevant entities to systematically and objectively inform migrants apprehended at their work places of existing possibilities to lodge complaints against their employers, building upon Directive 2009/52/EC, and in this context taking steps to safeguard relevant evidence.

Migrants in an irregular situation who seek legal aid should not be apprehended at or next to trade unions, or other entities offering such support.

In addition, the Commission recommends that third-country nationals in an irregular situation who wish to access public services premises which register international protection applications or applications for statelessness status should not be apprehended at or next to such facilities.

Special cases:

5.1. Apprehension in the course of an exit check

Legal basis: Return Directive — Article 6

A return decision may in certain circumstances also be adopted if an illegally staying third-country national is apprehended at the EU external border when leaving the EU territory, following a case-by-case analysis and taking into account the principle of proportionality. This could be justified in cases in which a significant overstay or illegal stay is detected during exit checks. In such cases, Member States could launch a return procedure when acquiring knowledge about the illegal stay and continue the procedure leading to the issuing of a return decision accompanied by an entry-ban in an ‘in absentia’ procedure, respecting the procedural safeguards set out in sections 11.3 and 12 below.

Even though in such a specific situation the person is anyhow about to leave the EU, the issuing of a return decision can make sense, since it allows Member States to also issue an entry ban and thus prevent further entry and possible risk of illegal stay.

The Commission calls on Member States to establish procedures for issuing return decisions and — if applicable — entry bans directly at the airport, at other external border crossing points or, for entry bans, in absentia (see section 11.3) for such specific cases.

If a third-country national has overstayed his/her visa or permit in a first Member State and leaves the Union via a second/transit Member State, the return decision and entry ban will have to be issued by the second Member State (the ‘overstayer’ will normally also be ‘illegally staying’ within the meaning of the Return Directive in the second Member State).

5.2. Holders of a return decision issued by another Member State

Legal basis: Council Directive 2001/40/EC (27)

Reminder/explanation: The effect of a return decision issued by one Member State in another Member State had been subject of a separate chapter V of the 2005 Commission proposal for the Return Directive (‘Apprehension in other Member States’). This chapter, as well as Article 20 of the Commission proposal which foresaw to delete Directive 2001/40/EC was, however, removed during negotiations and Directive 2001/40/EC remained in force. Directive 2001/40/EC expressly enables the recognition of a return decision issued by a competent authority in one Member State against a third-country national present within the territory of another Member State. Article 6 of the Return Directive does not expressly mention the case that a second Member State recognises a return decision issued by a first Member State in accordance with Directive 2001/40/EC. A literal interpretation of Article 6 which would require in such a case the recognising Member State to also issue a full second return decision in accordance with Directive 2008/115/EC would deprive Directive 2001/40/EC of any added value. In order to give an effet utile to the continued existence of Directive 2001/40/EC, it was necessary to look for an interpretation which gives a useful meaning to the continued co-existence of the two Directives.

If Member State A apprehends a person who is already subject of a return decision issued by Member State B, Member State A has the choice of either:

(a) issuing a new return decision under Article 6(1) of the Return Directive; or

(b) passing back the person to Member State B under an existing bilateral agreement in compliance with Article 6(3) of the Return Directive; or

(c) recognising the return decision issued by Member State B in accordance with Directive 2001/40/EC.

If Member State A recognises the return decision issued by Member State B in accordance with Directive 2001/40/EC, it is still obliged to apply the safeguards related to enforcement of return (removal) foreseen in the Return Directive when enforcing the recognised return decision.

The mutual recognition of return decisions may provide for significant added value in certain constellations — notably in the context of transit of returnees by land (see section 6.4 below). The Commission encourages Member States to make use of the option of mutual recognition, whenever it helps to speed up return procedures and to reduce administrative burden.

5.3. Relation with Dublin rules

Legal basis: Regulation (EU) No 604/2013 of the European Parliament and of the Council (28) (the ‘Dublin Regulation’) — Articles 19 and 24

Article 6 of the Return Directive does not expressly mention the case in which a second Member State makes use of the possibility offered under the Dublin Regulation to ask a first Member State to take back an illegally staying third-country national. A literal interpretation of Article 6 which would require in such a case that the requesting (second) Member State also issue a full return decision in accordance with Directive 2008/115/EC would deprive the relevant Dublin rules of their added value. The wording of the Dublin Regulation expressly addresses this issue and provides for clear rules articulating the application of the Return Directive and the Dublin Regulation.

The cases in which the third-country national has applied for asylum and obtained a right to stay as asylum seeker in the second Member State fall outside the scope of the Return Directive, since the third-country national has a right to stay as asylum seeker and cannot therefore be considered as staying illegally in the second Member State.

On the other hand, the cases in which the third-country national has not applied for asylum and has not obtained a right to stay as asylum seeker in the second Member State fall within the scope of the Return Directive. The following situations (29) could be envisaged:

(a) The third-country national has a status as asylum seeker in the first Member State (on-going procedure, not yet a final decision): the Dublin Regulation applies on the basis of the underlying principle that every third-country national lodging an application for asylum in one of the Member States should have his/her needs for international protection fully assessed by one Member State. A Member State cannot return that third-country national to a third country; instead, it may send him/her to the Member State responsible under Dublin Regulation in order to have his/her claim examined.

(b) The third-country national has withdrawn his/her asylum application in the first Member State: if the withdrawal of the application has led to a rejection of the application (on the basis of Article 27 or 28 of the recast Asylum Procedures Directive), the rules described below under point (c) (choice between applying Dublin rules or the Return Directive) can be applied. If the withdrawal of the application has not led to a rejection of the application, the Dublin Regulation applies (as lex specialis), on the basis of the underlying principle that every third-country national lodging an application for asylum in one of the Member States should have his/her needs for international protection fully assessed by one Member State.

(c) The third-country national has a final decision in the first Member State, rejecting his/her asylum application: a choice can be made between applying the Dublin Regulation or the Return Directive. In the Dublin Regulation, this choice is clearly stipulated in Article 24(4) and the clarification is added that from the moment in which authorities decide to make a Dublin request, the application of the Return Directive and return procedures are suspended and only Dublin rules apply (this also affects rules on detention and on legal remedies).

(d) The third-country national had already been subject to successful return/removal (following rejection or withdrawal of an asylum application) from the first Member State to a third country: should the third-country national re-enter EU territory, the Dublin Regulation stipulates at Article 19(3) that the first Member State can no longer be responsible for the third-country national — therefore no transfer can be foreseen to this Member State. The Return Directive will therefore apply.

Practical examples:

— An applicant for international protection in Member State A travels without an entitlement to a neighbouring Member State B (crossing internal borders) where he/she is apprehended by the police. As a subject to the Dublin Regulation, he/she is transferred back from Member State B to Member State A. Should Member State B in this situation issue a return decision to this person for illegal stay in the territory? — Dublin rules prevail. No return decision can be issued by Member State B.

— Is Member State A (in the scenario described above) allowed to issue a return decision itself (together with an entry ban that will be postponed until the completion of the asylum procedure)? — No. As long as the person enjoys the right to stay as an asylum seeker in Member State A, his/her stay is not illegal in that Member State within the meaning of the Return and no return decision can be issued by Member State A.

— A third-country national granted international protection by Member State A is illegally staying in Member State B (for example overstaying 90 days). Is the Return Directive applicable in such cases? What will be the procedures if the person refuses to go back voluntary to the first Member State that granted protection? — The Dublin Regulation does not contain rules on taking back beneficiaries of international protection. Therefore the ‘general regime’ foreseen in Article 6(2) of the Return Directive will apply. This implies that Member State B will have to ask the person to go back to Member State A and — if the person does not comply voluntarily — Member State B has to consider issuing a return decision, taking into account all safeguards provided by the Return Directive, including in particular the principle of non-refoulement. In certain circumstances, when return/removal to a third country is not possible and ‘passing back’ the person to another Member State can be qualified as a more favourable measure (see section 3), Member State B may enforce the ‘passing-back’ of the person to Member State A; the procedures related to the ‘passing-back’ of illegally staying third-country nationals to another Member State are governed by national law.

— A third-country national who had been fingerprinted following irregular entry into Member State A and who has not requested asylum in Member State A is subsequently apprehended in Member State B. Can Member State B transfer the person back to Member State A in accordance with Dublin rules? — No. Since there is not any link to an asylum procedure, the Dublin Regulation does not apply.

5.4. Illegally staying third-country national holding a right to stay in another Member State

Legal basis: Return Directive — Article 6(2)

Third-country nationals staying illegally on the territory of a Member State and holding a valid residence permit or other authorisation offering a right to stay issued by another Member State shall be required to go to the territory of that other Member State immediately. In the event of non-compliance by the third-country national concerned with this requirement, or where the third-country national's immediate departure is required for reasons of public policy or national security, paragraph 1 shall apply.

This provision — which replaces a similar rule contained in Article 23(2) and (3) of the Schengen Implementing Convention (‘SIC’) (30) — foresees that no return decision should be issued to an illegally staying third-country national who is holding a valid permit to stay in another Member State. In such cases, the third-country national should in the first place be required to go immediately back to the Member State where he/she enjoys a right to stay. Only if the person does not comply with this request or in cases of risk for public policy or national security, a return decision shall be adopted.

Further clarification:

— The form in which the request ‘to go to the territory of that other Member State immediately’ is issued should be determined in accordance with national law. It is recommended to issue decisions in writing and with reasons. In order to avoid confusion, the decision should not be labelled ‘return decision’.

— Period for going back to other Member State: no general indication can be given regarding the time which should elapse between the request to go to the territory of another Member State until the moment at which a return decision in accordance with Article 6(1) is issued. An appropriate time frame should be chosen in accordance with national law, taking into account the individual circumstances, the principle of proportionality and the fact that the term ‘immediately’ is used in the legal provision. The time between the request to go to the other Member State and the issuing of a return decision under Article 6(1) must not be counted as part of an eventual period for voluntary departure, since such period is an element of the return decision and will start running only with the issuing of a return decision.

— Control of departure to another Member State: Union law does not specify how compliance with the obligation to go back to the other Member State has to be controlled. Member States should make sure, in accordance with national law, that appropriate follow-up is given to their decisions.

— Verification of validity of permits/authorisations issued by another Member State: there is currently no central system for exchanging information between Member States on this issue. Member States are encouraged to cooperate bilaterally and provide without delay relevant information to each other, in accordance with national law and bilateral cooperation arrangement. Existing national contact points (for instance those listed in annex 2 of the Schengen Handbook (31)) might also be used for this purpose.

— The term ‘residence permit or other authorisation offering a right to stay’ (32) is very broad and covers any status granted or permit issued by a Member State which offers a right to legal stay, and not just an acceptance of temporary postponement of return/removal. The term covers the following: — long-term visa (it clearly offers a right to stay), — temporary humanitarian permit (in so far as such permit offers a right to stay and not just a mere postponement of return), — an expired residence permit based on a still valid international protection status (the status of international protection is not dependent on validity of the paper demonstrating it), — a valid visa in an invalid (expired) travel document — according to relevant Union legislation, it is not allowed to issue a visa with a validity going beyond the validity of the passport. The case of a valid visa in an expired passport should therefore never appear in practice. If this case nevertheless arises, the third-country national concerned should not be unduly penalised. For detailed guidance on the relevant Visa rules see the updated Visa Handbook — part II, Point 4.1.1 and 4.1.2 (33). The term does not cover the following cases: — an expired residence permit based on an expired residence status, — counterfeit, false and forged passports or residence permits, — paper certifying temporary postponement of removal, — toleration (in so far as toleration does not imply a legal right to stay).

— As a general rule no removal to other Member States: if a third-country national does not agree to go back voluntarily in accordance with Article 6(2) to the Member State of which he/she holds a permit, Article 6(1) becomes applicable and a return decision, providing for direct return to a third country shall be adopted. It is not possible to pass back the person to the other Member State with force, unless an existing bilateral agreementbetween Member States which was already in force on 13 January 2009 (see section 5.5) provides expressly for this possibility or in certain circumstances when return/removal to a third country is not possible and the Member State that issued the permit agrees to take the person back.

— No issuing of EU entry bans when using Article 6(2): when passing back an illegally staying third-country national to another Member State under Article 6(2), no EU entry ban can be issued under Article 11, because Article 11 applies only in connection with the issuing of a return decision and does not apply in cases in case of a ‘passing-back’ to another Member State. Moreover, it is pointless from a practical point of view to issue an EU entry ban in a situation where the person will continue to legally stay in another Member State.

— Immediate departure required for reasons of public policy or national security: in the exceptional circumstances addressed by Article 6(2)(second phrase) (second case), the person shall be immediately made subject of a return decision and removed to a third country. The Member State where the person enjoys the right to stay should be informed about this fact.

Practical example:

— What provisions of the Return Directive should be applied with regard to third-country nationals detected in Member State A, who possess a valid residence permit issued by Member State B and at the same time are subject of an SIS alert (entry ban) initiated by Member State C? — Member State A should apply Article 6(2) of the Directive and ask the person to go back to Member State B. As regards the co-existence of an entry ban issued by Member State C and a residence permit issued by Member State B, this must be clarified bilaterally between the Member State issuing the alert (C) and the Member State which had issued the permit (B) in accordance with Article 25(2) Schengen Implementing Convention.

5.5. Illegally staying third-country national covered by existing bilateral agreements between Member States

Legal basis: Return Directive — Article 6(3)

— An indicative list of existing bilateral readmission agreements between Member States can be found at: http://rsc.eui.eu/RDP/research/analyses/ra/

Member States may refrain from issuing a return decision to a third-country national staying illegally on their territory if the third-country national concerned is taken back by another Member State under bilateral agreements or arrangements existing on the date of entry into force of this Directive (i.e. 13 January 2009). In such a case the Member State which has taken back the third-country national concerned shall apply paragraph 1.

This provision foresees — as an exception and in the form of a ‘standstill clause’ — the possibility for Member States to pass back irregular migrants to other Member States under bilateral agreements or arrangements existing on 13 January 2009.

Historic reminder/explanation: this provision was included into the text of the Return Directive at a late stage of negotiations following a strong request from certain Member States which insisted that the Directive should not oblige them to change well-established practices of taking/passing back illegally staying third-country nationals to other Member States under bilateral agreements.

The principle upon which the Return Directive is based is direct return of illegally staying third-country nationals from the EU to third countries. Article 6(3) of the Directive therefore lays down an exception that concerns solely the obligation of the Member States on whose territory the third-country national is present to issue a return decision, that obligation then falling to the Member State that takes him back. It does not lay down an exception to the scope of the Return Directive additional to those set by Article 2(2) — see judgment of the ECJ in Case C-47/15, Affum (paragraphs 82-85).

Further clarification:

— Subsequent use of bilateral agreements between Member States A-B and B-C: the Return Directive, notably Article 6(3), does not expressly interdict ‘domino’ taking back under existing bilateral arrangements. It is, however, important that in the end a full return procedure in accordance with the Directive will be carried out by one Member State. Since this kind of subsequent procedures is cost intensive for administrations and involves additional discomfort for the returnee, Member States are encouraged to refrain from applying this practice.

— No EU-wide entry bans when using Article 6(3): when passing back an illegally staying third-country national to another Member State under Article 6(3) no EU entry ban can be issued under Article 11, since Article 11 applies only in connection with the issuing of a return decision and does not apply in case of mere ‘passing back’ to another Member State. Moreover, it is pointless from a practical point of view to issue an EU entry ban in a situation in which the person does not yet leave the EU. As regards the possibility to issue purely national entry bans in exceptional circumstances under Article 25(2) SIC, see section 11.8.

— Decision to transfer the third-country national to another Member State: such decision constitutes one of the measures provided for by the Return Directive to bring the illegal stay to an end and is a stage preparatory to removal from the territory of the Union. Member States must therefore adopt such decision with diligence and speedily, so that the transfer to the Member State responsible for the return procedure takes place as soon as possible — see judgment of the ECJ in Case C-47/15, Affum (paragraph 87).

— Since the notion of ‘return’ under the Return Directive always implies return to a third country, it is recommended to call this kind of national decision ‘transfer decision’ or ‘passing-back decision’ and not to call it ‘return decision’.

— Standstill clause: Article 6(3) is an express ‘standstill’ clause. Member States may only use the option offered by Article 6(3) in relation to bilateral readmission arrangements that entered into force before 13 January 2009. Existing agreements which were renegotiated or renewed after 13 January 2009 may continue to be covered by Article 6(3) if the renegotiated/renewed agreement is an amendment of the already existing agreement and clearly labelled as such. If the renegotiated/renewed agreement is an aliud (an entirely new agreement with different substance), then Article 6(3) would not cover it anymore.

— Readmission agreements between Schengen Member States and the UK: for the purposes of interpreting Article 6(3), the UK is to be considered as a Member State.

5.6. Illegally staying third-country national benefiting from humanitarian (or other) permit/authorisation

Legal basis: Return Directive — Article 6(4)

Member States may at any moment decide to grant an autonomous residence permit or other authorisation offering a right to stay for compassionate, humanitarian or other reasons to a third-country national staying illegally on their territory. In that event no return decision shall be issued. Where a return decision has already been issued, it shall be withdrawn or suspended for the duration of validity of the residence permit or other authorisation offering a right to stay.

Member States are free — at any moment — to grant a permit or right to stay to an illegally staying third-country national. In this event, any pending return procedures shall be closed and an already issued return decision or removal order must be withdrawn or suspended, depending on the nature of the permit. The same applies in cases in which Member States have to grant a right to stay, for example following the submission of an asylum application.

It is up to Member States to decide which approach (withdrawal or suspension of the return decision) should be applied, taking into account the nature and likely duration of the permit or right to stay which was granted, and the need to ensure effective return procedures. However, according to the judgment of the ECJ in Case C-601/15, J.N. (34) (paragraphs 75-80), when a Member State grants the right to remain on its territory to a third-country national who applied for international protection and who was already subject to a return decision prior to the application, Member States should suspend the enforcement of the return decision (and not withdraw the decision) until a decision on the application for international protection is taken (see also section 7).

5.7. Illegally staying third-country national subject of a pending procedure renewing a permit/authorisation

Legal basis: Return Directive — Article 6(5)

If a third-country national staying illegally on the territory of a Member State is the subject of a pending procedure for renewing his or her residence permit or other authorisation offering a right to stay, that Member State shall consider refraining from issuing a return decision, until the pending procedure is finished, without prejudice to paragraph 6.

Member States are free to refrain from issuing a return decision to illegally staying third-country nationals who are waiting for a decision on the renewal of their permit. This provision is intended to protect third-country nationals who were legally staying in a Member State for a certain time and who — because of delays in the procedure leading to a renewal of their permit — temporarily become illegally staying. This provision refers to a pending procedure forrenewal of a residence permit in the Member State of apprehension only (‘that Member State’). Member States are encouraged to make use of this provision also in cases in which it is likely that the application for renewal will be successful and to provide the persons concerned at least with the same treatment as the one offered to returnees during a period for voluntary departure or during postponed return.

This provision does not cover pending procedures for renewal of a residence permit in another Member State. The fact that a person is subject to a pending procedure for renewal of a residence permit in another Member State may, however, in specific circumstances justify postponement of return in accordance with Article 9(2) or the application of more favourable measures in accordance with Article 4(3).

5.8. Special rules in legal migration directives on readmission between Member States in cases of intra-Union mobility

Legal basis: Directive 2014/66/EU of the European Parliament and of the Council (35) (the ‘Intra-Corporate Transfers Directive’) — Article 23; Council Directive 2003/109/EC (36) (the ‘LTR Directive’) (amended by Council Directive 2011/51/EU (37)) — Articles 12 and 22; Council Directive 2009/50/EC (38) (the ‘Blue Card Directive’) — Article 18

The above-quoted Directives contain special rules on readmission between Member States in cases of intra-EU mobility of certain categories of third-country nationals (intra-corporate transfers, holders of EU Blue Cards, long-term residents). These provisions are to be considered as leges speciales (more specific rules) which have to be followed in the first place in those cases expressly covered by the said Directives.

6. VOLUNTARY DEPARTURE

Legal basis: Return Directive — Article 7(1)

A return decision shall provide for an appropriate period for voluntary departure of between seven and thirty days, without prejudice to the exceptions referred to in paragraphs 2 and 4. Member States may provide in their national legislation that such a period shall be granted only following an application by the third-country national concerned. In such a case, Member States shall inform the third-country nationals concerned of the possibility of submitting such an application.

The promotion of voluntary departure is one of the key objectives of the Return Directive. Unless there are reasons to conclude that this would undermine the purpose of return, voluntary departure in compliance with an obligation to return is preferable to removal for the threefold reason that it is a more dignified, safer and frequently more cost-effective return option.

During the period for voluntary departure, the third-country national concerned is under the obligation to return, although this obligation cannot be enforced until the expiry of such period, or if a risk of absconding or a risk to public policy, public security or national security emerge, or an application for legal stay is dismissed as manifestly unfounded or fraudulent (see section 6.3). Member States are encouraged to provide the possibility of voluntary departure to the largest possible number of returnees and to refrain from doing so in those cases in which there is a risk that this might hamper the purpose of the return procedure.

The last sentence of Article 7(1) allows Member States to decide to subject access to a period for voluntary departure to an application by the third-country nationals. In such case, information about the possibility to apply for a period for voluntary departure must be given individually to the third-country nationals concerned. General information sheets for the public (for example an announcement of the possibility of submitting such application on the website of the immigration offices or printing adds and posting them on information panels in the premises of the local immigration authorities) may be helpful but needs to be complemented with individualised information. Such information should be provided to minors in a child-sensitive and age- and context-appropriate manner, and particular attention should be paid to the situation of unaccompanied minors.

Member States may also decide to grant a period for voluntary departure upon application for certain categories of illegally staying third-country nationals (for example those whose application for legal stay is rejected as manifestly unfounded or fraudulent) or for or obtaining support (for instance reintegration assistance), and to grant it without prior application in other cases.

The Commission recommends granting a period for voluntary departure following a request by the third-country nationals concerned, while ensuring that the necessary information for submitting an application is duly and systematically provided to the third-country nationals.

Assisted voluntary return programmes: while the Return Directive does not require Member States to establish an assisted voluntary return programme, its recital 10 affirms that ‘in order to promote voluntary return, Member States should provide for enhanced return assistance and counselling and make best use of relevant funding possibilities’. Member States are therefore strongly encouraged to make assisted voluntary return programmes available throughout the procedures, as part of the efforts to promote a more humane and dignified return and, in general, to increase the effectiveness of return. To facilitate access to such schemes and to ensure that an informed decision is taken by the third-country nationals concerned, Member States should ensure adequate dissemination of information on voluntary return and assisted voluntary return programmes, also in cooperation with national authorities who may be in direct contact with third-country nationals (for example education, social and health services), non-governmental organisations and other bodies. When providing such information to minors, this should be done in a child-sensitive and age- and context- appropriate manner. National programmes should follow the Non-binding Common Standards for Assisted Voluntary Return (and Reintegration) Programmes implemented by Member States (39) developed by the Commission in cooperation with the Member States, and endorsed by the JHA Council in its Conclusions of 9-10 June 2016 (40).

The Return Expert Group (REG) of the European Migration Network (EMN) aims at facilitating improved practical cooperation among States and stakeholders in the field of return, assisted voluntary return and reintegration programmes. It should be a key tool for the gathering and sharing of information and Member States are encouraged to make active use of it.

Further clarification:

— The time frame of 7-30 days constitutes a general principle. It is binding for Member States to fix a period which respects this frame, unless specific circumstances of the individual case justify an extension in accordance with Article 7(2) of the Return Directive (see section 6.1).

— Granting 60 days as a general rule would be incompatible with the harmonisation and common discipline provided for by the Return Directive to have a frame of 7-30 days, therefore it cannot be justified as more favourable provision under Article 4(3). However, periods between 30-60 days (exceeding the range harmonised by paragraph 1) which may be granted only in the presence of specific circumstances (referred to in paragraph 2) are covered by Article 7(2) of the Return Directive.

— In line with the requirements deriving from the right to be heard, as recognised Article 41(2) CFR, Member States should provide the returnee with a possibility to specify individual circumstances and needs to be taken into account when determining the period to be granted, both in cases where the period for voluntary departure is determined ex officio and in cases in which the period is fixed following an application by the returnee.

— Although the Return Directive prohibits to forcibly return an illegally staying third-country national during the period for voluntary departure, it does not prevent Member States from launching the necessary administrative procedures during that period in view of the possible enforcement of a return decision (for example establishing contacts with the authorities of third countries for obtaining travel documents, organising the logistics for the removal operation).

Based on an individual assessment of the situation of the third-country national, and taking particularly into account the prospect of return and the willingness of the third-country national to cooperate with the competent authorities, the Commission recommends that Member States grant the shortest period for voluntary departure that is needed to organise and carry out the return. A period longer than seven days should be granted only when the third-country national actively cooperates in the return process.

6.1. Extended period for voluntary departure

Legal basis: Return Directive — Article 7(2)

Member States shall, where necessary, extend the period for voluntary departure by an appropriate period, taking into account the specific circumstances of the individual case, such as the length of stay, the existence of children attending school and the existence of other family and social links.

There is no pre-fixed maximum time limit for the extension of the period for voluntary departure and each individual case should be treated on its own merits in accordance with national implementing legislation and administrative practice. Member States enjoy a wide margin of discretion in determining whether the extension of the period for voluntary departure would be ‘appropriate’. Taking into account the reference in the text to children attending school, extensions of the period for voluntary departure until the end of the semester or of the school year, or for up to one school year, may be granted provided that this is in the child's best interests and that all relevant circumstances of the case are duly taken into account.

An extension of the period beyond 30 days can be granted from the outset (the point of time when the return decision is issued), if justified by the individual assessment of the circumstances of the case. It is not necessary to first issue a 30-day period and to subsequently extend it.

The term ‘where necessary’ refers to circumstances both in the sphere