Proposal for a Directive of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals {SEC(2005) 1057}
Date: 2005-09-01
Institutions: European Commission
Subjects: EU migration policy, fundamental rights, human rights, illegal migration, international law, removal, return migration, third country

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 1.9.2005 
COM(2005) 391 final 

2005/0167 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on common standards and procedures in Member States for returning illegally staying 
third-country nationals 

(presented by the Commission) 

{SEC(2005) 1057} 

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EXPLANATORY MEMORANDUM 

1) 

CONTEXT OF THE PROPOSAL 

In its Communication of 15 November 2001 on a Common Policy on Illegal Immigration the 
Commission pointed out that return policy is an integral and crucial part of the fight against 
illegal immigration. Return policy needs to be based on three elements: common principles, 
common standards and common measures. The Green Paper on a Community Return Policy 
of  10  April  2002  elaborated  in  more  detail  on  the  issue  of  return  as  an  integral  part  of  a 
comprehensive  Community  Immigration  and  Asylum  Policy.  It  highlighted  the  need  for 
approximation  and  improved  co-operation  on  return  among  Member  States  and  put  on  the 
table a number of possible elements for a future legislative proposal on common standards in 
order to trigger a broad debate among relevant stakeholders.  

The  ensuing  Commission  Communication  on  a  Community  Return  Policy  on  Illegal 
Residents of 14 October 2002 took into account the results of this public consultation process 
and  sketched  a  concrete  programme  for  further  action,  putting  particular  emphasis  on  a 
holistic approach. It made clear that “…for Community action for return to be fully effective, 
it  must  fit  smoothly  into  a  genuine  management  of  migration  issues,  requiring  crystal-clear 
consolidation  of  legal  immigration  channels  and  of  the  situation  of  legal  immigrants,  an 
effective  and  generous  asylum  system  based  on  rapid  procedures  offering  access  to  true 
protection  for  those  needing  it  and  enhanced  dialogue  with  third  countries  which  will 
increasingly  be  invited  to  be  partners  in  dealing  with  migration.”  Based  on  this 
Communication, the Council adopted its Return Action Programme of 28 November 2002 in 
which it called for improved operational co-operation among Member States, intensified co-
operation  with  third  countries  and  the  establishment  of  common  standards  with  the  aim  of 
facilitating operational return.  

Finally  “The  Hague  Programme”,  adopted  by  the  4/5  November  2004  Brussels  European 
Council, resumed this issue and expressly asked for the establishment of common standards 
for persons to be returned in a humane manner and with full respect for their human rights and 
dignity. It called for the submission of a Commission proposal in early 2005.  

The objective of this proposal is to respond to this call and to provide for clear, transparent 
and  fair  common  rules  concerning  return,  removal,  use  of  coercive  measures,  temporary 
custody  and  re-entry,  which  take  into  full  account  the  respect  for  human  rights  and 
fundamental freedoms of the persons concerned.  

Co-operation  among  Member  States  is  likely  to  be  successful  if  it  is  based  on  a  common 
understanding  on  key  issues.  Consequently  common  standards  should  be  set  in  order  to 
facilitate  the  work  of  the  authorities  involved  and  to  allow  enhanced  co-operation  among 
Member  States.  In  the  long  term  such  standards  will  provide  the  ground  for  adequate  and 
similar treatment of illegally staying third-country nationals, regardless of the Member State 
which carries out the return procedure. 

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•  Existing provisions in the area of the proposal 

Manifold legislative and non-legislative measures have been adopted as a concrete follow-up 
of the November 2002 Action Plan on Return1. In the context of cooperation in the field of 
return, Council Directive 2003/110/EC of 25 November 2003 on assistance in cases of transit 
for the purposes of removal by air and Council Decision 2004/573/EC of 29 April 2004 on the 
organisation of joint flights for removals represent first important legal milestones. 

Directive  2001/40/EC  on  mutual  recognition  of  decisions  on  the  expulsion  of  third-country 
nationals  in  combination  with  Council  Decision  2004/191/EC  setting  out  the  criteria  and 
practical arrangements for the compensation of the financial imbalances provides for a legal 
frame for mutual recognition of expulsion decisions.  

Regarding the financial dimension of return, the Commission has proposed the establishment 
of  a  European  Return  Fund  for  the  period  2008-2013  as  part  of  the  general  programme: 
“Solidarity  and  Management  of  Migration  Flows”  -  COM(2005)  123,  6.4.2005.  Preparatory 
actions for 2005-2007 will help phase in this planned financial instrument.  

2) 

CONSULTATION  OF 
ASSESSMENT 

INTERESTED 

PARTIES  AND 

IMPACT 

The 2002 Green Paper on a Community Return Policy - COM(2002) 175 - triggered a broad 
discussion  process,  including  a  public  hearing  attended  by  over  200  people  at  which  some 
thirty  experts  spoke.  The  hearing  provided  all  relevant  stakeholders  with  an  opportunity  to 
express their views and opinions on the issues covered by the present proposal. On the basis 
of the ideas set out in the Green Paper, the present practices of return policies and options for 
a  future  common  EU  policy  on  the  return  of  illegally  staying  third-country  nationals  were 
discussed.  The  hearing  allowed  an  open  exchange  of  views  between  representatives  of  the 
European institutions, Member States, candidate countries, countries of origin and transit of 
illegal  migratory  movements,  other  countries  of  destination,  international  organisations, 
regional and municipal authorities, non-governmental organisations and academic institutions. 
The  written  contributions  made  in  this  consultation  process  were  made  publicly  available 
through the internet. 

In  addition,  in  the  second  half  of  2004,  Member  States  experts  active  in  the  field  of  return 
were consulted on a preliminary draft of a Directive on return procedures.  

3) 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

An effective return policy is a necessary component of a well managed and credible policy on 
migration.  Clear,  transparent  and  fair  rules  have  to  be  agreed  which  take  into  account  this 
need, whilst respecting the human rights and fundamental freedoms of the person concerned. 
The present proposal seeks to achieve these aims as follows: 

1 

An exhaustive list of these measures is given in the Commission Staff Working Paper “Annual report 
on  the  development  of  a  common  policy  on  illegal  immigration,  smuggling  and  trafficking  of  human 
beings, external borders, and the return of illegal residents” of 25.10.2004 - SEC(2004) 1349. 

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1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

12. 

Establishing  a  rule  that  illegal  stay  should  be  ended  through  a  fair  and  transparent 
procedure.  

Promoting  the  principle  of  voluntary  return  by  establishing  a  general  rule  that  a 
"period for departure" should normally be granted. 

Establishing – as a general principle – a harmonised two-step procedure: involving a 
return decision as a first step and – if necessary – the issuing of a removal order as a 
second step, thus aligning to a certain extent the currently divergent Member States 
systems. 

Addressing the situation of persons who are staying illegally but who cannot (as yet) 
be removed. 

Providing for a minimum set of procedural safeguards. 

Limiting the use of coercive measures, binding it to the principle of proportionality 
and establishing minimum safeguards for the conduct of forced return. 

Giving  a  European  dimension  to  the  effects  of  national  return  measures  by 
establishing a re-entry ban valid throughout the EU. 

Rewarding good compliance (including an option to withdraw any re-entry ban) and 
penalising non-compliance (including an option to extend any re-entry ban). 

Protecting  the  interests  of  the  state  in  cases  of  serious  threat  to  national  and  public 
security (including an option to extend any re-entry ban). 

Limiting  the  use  of  temporary  custody  and  binding  it  to  the  principle  of 
proportionality. 

Establishing minimum safeguards for the conduct of temporary custody. 

Addressing situations where a third-country national who is the subject of a removal 
order or return decision issued by a Member State is apprehended in the territory of 
another Member State 

Consideration  was  given  to  whether  the  issue  of  expulsion/removal  for  reasons  of  national 
and  public  security  should  be  addressed  within  the  context  of  the  present  proposal,  in 
particular with respect to the expulsion of presumed terrorists. The proposal does not contain 
an express provision on this issue for three reasons: 

–  All EC Directives adopted in the field of asylum and immigration already contain “public 
order”  clauses  which  allow  Member  States  to  withdraw  residence  permits  and  to  expel 
third-country  nationals  who  constitute  a  threat  to  public  policy  or  public  security.  The 
Commission,  in  its  “post-September  11”  working  document  COM(2001)  743  of  5 
December 2001 concluded that, “It appears that a scrupulous application of these clauses 
is a more appropriate way of enhancing security than to substantially change the different 
Proposals at stake.” 

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–  It  may  not  always  be  in  the  interest  of  the  State  to  expel  a  suspected  terrorist.  It  may 
sometimes  be  preferable  to  bring  criminal  charges  against  such  person  or  to  keep  him 
under surveillance in a Member State rather than to expel him to a third country. 

–  Even  if  there  was  a  case  for  further  harmonizing  the  issue  of  “expulsion  for  reasons  of 
public order/security”, such harmonization should not be proposed within the context of a 
Directive dealing with the ending of illegal stay/return, but rather within the context of the 
Directives regulating the conditions of entry and stay - and ending - of legal residence/stay. 

However, once the legal stay of a third country national has been ended for reasons of public 
order,  this  person  becomes  a  third  country  national  staying  illegally  in  the  territory  of  a 
Member State for the purposes of the present directive and the provisions of this directive will 
be applied to this person. 

•  Legal basis 

Article 63(3) b of the Treaty. 

•  Fundamental rights 

This proposal was  made  subject  of an in-depth scrutiny to make sure that its provisions  are 
fully compatibility with fundamental rights as general principles of Community law as well as 
international law, including refugee protection and human rights obligations derived from the 
European  Convention  of  Human  Rights.  As  a  result,  a  particular  emphasis  was  put  on  the 
provisions dealing with procedural safeguards, family unity, temporary custody and coercive 
measures. 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Community. The objectives of the proposal cannot be sufficiently achieved 
by the Member States for the following reasons: 

The objective of this proposal is to provide for common rules on return, removal, the use of 
coercive measures, temporary custody and re-entry. These common rules, which aim to assure 
adequate  and  similar  treatment  of  illegal  residents  throughout  the  EU,  regardless  of  the 
Member State where they are apprehended, can only be agreed at Community level.  

Community rules are in particular indispensable for addressing cases in which a third country 
national who is already subject of a return decision, removal order and/or re-entry ban issued 
by  one  Member  State,  is  apprehended  in  another  Member  State  or  tries  to  enter  another 
Member State. 

The  “Hague  Programme”  expressly  calls  for  the  submission  of  this  Commission  proposal. 
This  request  is  evidence  of  Member  States’  recognition  that  they  themselves  cannot 
satisfactorily achieve the aim of an effective European return policy and that the EU is in a 
better position to do so.  

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•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The  proposed  Directive  lays  down  general  principles  but  leaves  it  to  the  Member  States  to 
which  it  is  addressed  to  choose  the  most  appropriate  form  and  methods  for  giving  effect  to 
these principles in their respective national legal systems and general context.  

The  proposal  aims  to  support  effective  national  removal  efforts  and  to  avoid  duplication  of 
national  efforts.  It  should  thus  -  once  adopted  -  lead  to  a  reduction  of  the  overall 
administrative burden of the authorities charged with its application. 

•  Choice of instruments 

Proposed instrument: Directive.  

It was necessary to choose a binding legal instrument which can easily be incorporated into 
the diverging national systems. A regulation would have been too rigid, whilst an act of soft-
law (such as a recommendation) would have lacked the necessary binding legal force. 

•  Participation in the legal instrument 

The legal basis for this proposal is to be found in Title IV of the EC Treaty. It constitutes - to 
the extent that it applies to third country nationals who do not fulfil or who no longer fulfil the 
conditions  of  entry  in  accordance  with  the  Convention  Implementing  the  Schengen 
Agreement - a development of the Schengen acquis which must be proposed and adopted in 
compliance with the Protocols annexed to the Amsterdam Treaty on the position of the United 
Kingdom  and  Ireland  and  on  the  position  of  Denmark  and  the  Protocol  integrating  the 
Schengen  acquis  into  the  framework  of  the  European  Union.  In  accordance  with  the 
respective agreements with Iceland and Norway as well as with Switzerland, it constitutes – to 
the extent mentioned above – a development of provisions of the Schengen acquis. 

4) 

ADDITIONAL INFORMATION 

•  Detailed explanation of the proposal 

The following explanations focus on the most critical aspects of the proposal. More detailed 
comments are attached in the annex. 

Chapter I 

The starting point for the applicability of the proposed Directive is "illegal stay". The proposal 
aims  -  as  a  measure  on  illegal  immigration  based  on  Article  63(3)(b)  of  the  Treaty  -  to 
establish  a  horizontal  set  of  rules,  applicable  to  any  illegally  staying  third-country  national, 
whatever the reason of the  illegality of the stay (e.g.  expiry of a visa,  expiry of a residence 
permit, revocation or withdrawal of a residence permit, negative final decision on an asylum 
application, withdrawal of refugee status, illegal entrance) This proposal for a Directive does 
not address the reasons or procedures for ending legal residence.  

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Chapter II 

The proposal provides for a two-step procedure, leading to the ending of illegal stay. A return 
decision must be issued to any third-country national staying illegally. Priority must be given 
to  voluntary  return.  If  the  third-country  national  concerned  does  not  return  voluntarily, 
Member  States  shall  execute  the  obligation  to  return  by  means  of  a  removal  order.  In 
[advance] consultations, many Member States expressed concern that the two-step procedure 
could lead to procedural delays. In response to this concern, the proposal expressly clarifies 
that Member States are free to issue both the return decision and the removal order within one 
act or decision. The substantive provisions of this chapter, in particular concerning protection 
against removal and the possibility for voluntary return will have to be respected by Member 
States, notwithstanding their choice of whether to issue the return decision and removal order 
as two separate or one joint act or decision. 

The  proposal  provides  for  the  introduction  of  a  "re-entry  ban",  preventing  re-entry  into  the 
territory of all the Member States, to accompany removal orders. This "Europeanisation" of 
the effects of  national  return  measures is intended to have preventative effects and to foster 
the  credibility  of  a  truly  European  return  policy.  The  length  of  the  re-entry  ban  will  be 
determined  with  due  consideration  of  all  relevant  circumstances  of  the  individual  case. 
Normally, the ban should not exceed 5 years. Only in cases of serious threat to public policy 
or public security, may the re-entry ban be issued for a longer period. 

Chapter III 

The proposal provides for a right to an effective judicial remedy against return decisions and 
removal orders. The judicial remedy shall either have suspensive effect or comprise the right 
of  the  third  country  national  to  apply  for  the  suspension  of  the  enforcement  of  the  return 
decision  or  removal  order  in  which  case  the  return  decision  or  removal  order  shall  be 
postponed  until  it  is  confirmed  or  is  no  longer  subject  to  a  remedy  which  has  suspensive 
effects. 

Chapter IV 

This  chapter  seeks  to  limit  the  use  of  temporary  custody  and  to  bind  it  to  the  principle  of 
proportionality. Temporary custody shall only be used if this is necessary to prevent the risk 
of absconding and if the application of less coercive measures is not sufficient. The reasons 
for  maintaining  a  person  in  temporary  custody  must  be  regularly  reviewed  by  a  judicial 
authority.  Maximum  time  limits  shall  ensure  that  temporary  custody  cannot  be  unduly 
extended.  This  harmonisation  of  national  rules  on  temporary  custody  is  also  aimed  at 
preventing secondary movements between Member States of illegally staying persons subject 
to measures under this Directive. 

Chapter V 

This chapter provides for a flexible set of rules, applicable if a third-country national who is 
the subject of a removal order or return decision issued in a Member State ("the first Member 
State") is apprehended in the territory of another Member State ("the second Member State"). 
Member States may select different options, depending on the circumstances of the particular 
case. 

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On  the  one  hand,  the  second  Member  State  may  recognise  the  return  decision  or  removal 
order issued by the first Member State. The financial compensation mechanism agreed upon 
in Decision 2004/191/EC is made applicable to these cases.  

Alternatively, a second Member State may ask the first Member State to take back an illegally 
staying third-country national or decide to launch a new/autonomous return procedure under 
its national legislation. 

Link to the Schengen Information System: 

Information  sharing  with  other  Member  States  will  be  vital  for  the  effective  and  swift 
implementation  of  the  provisions  contained  in  this  proposal.  Member  States  need  to  have 
rapid  access  to  information  on  return  decisions,  removal  orders  and  re-entry  bans  issued  by 
other  Member  States.  This  information  sharing  will  take  place  in  accordance  with  the  rules 
concerning  the  establishment,  operation  and  use  of  the  Second  Generation  Schengen 
Information System (SIS II). 

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2005/0167 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

on common standards and procedures in Member States for returning illegally staying 
third-country nationals 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  establishing  the  European  Community,  and  in  particular 
Article 63(3)(b) thereof, 

Having regard to the proposal from the Commission2, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty, 

Whereas: 

(1) 

(2) 

(3) 

The  Brussels  European  Council  of  4  and  5  November  2004  called  for  the 
establishment  of  an  effective  removal  and  repatriation  policy,  based  on  common 
standards,  for  persons  to  be  returned  in  a  humane  manner  and  with  full  respect  for 
their fundamental rights and dignity.  

Clear,  transparent  and  fair  rules  need  to  be  fixed  to  provide  for  an  effective  return 
policy as a necessary element of a well managed migration policy.  

This Directive should establish a horizontal set of rules, applicable to all third-country 
nationals who do not or who no longer fulfil the conditions for stay in a Member State.  

(4)  Member  States  should  ensure  that  the  ending  of  illegal  stay  is  carried  out  through  a 

fair and transparent procedure. 

(5) 

As a general principle, a harmonised two-step procedure should be applied, involving 
a return decision as a first step and, where necessary, the issuing of a removal order as 
a second step. However, in order to avoid possible procedural delays, Member States 
should be allowed to issue both a return decision and a removal order within a single 
act or decision. 

(6)  Where  there  are  no  reasons  to  believe  that  this  would  undermine  the  purpose  of  a 
return procedure, voluntary return should be preferred over forced return and a period 
for voluntary departure should be granted. 

2 

OJ C […], p. […]. 

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(7) 

(8) 

(9) 

A common minimum set of legal safeguards on return and removal decisions should 
be  established  to  guarantee  effective  protection  of  the  interests  of  the  individuals 
concerned. 

The  situation  of  persons  who  are  staying  illegally  but  who  cannot  (yet)  be  removed 
should  be  addressed.  Minimum  standards  for  the  conditions  of  stay  of  these  persons 
should be established, with reference to the provisions of Council Directive 2003/9/EC 
of  27  January  2003  laying  down  minimum  standards  for  the  reception  of  asylum 
seekers3. 

The  use  of  coercive  measures  should  be  expressly  bound  to  the  principle  of 
proportionality  and  minimum  safeguards  for  the  conduct  of  forced  return  should  be 
established,  taking  into  account  Council  Decision  2004/573/EC  of  29  April  2004  on 
the organisation of joint flights for removals from the territory of two or more Member 
States, of third-country nationals who are subject of individual removal orders4. 

(10)  The  effects  of  national  return  measures  should  be  given  a  European  dimension  by 
establishing  a  re-entry  ban  preventing  re-entry  into  the  territory  of  all  the  Member 
States. 

The length of the re-entry ban should be determined with due regard to all relevant 
circumstances of an individual case and should not normally exceed 5 years. In cases 
of  serious  threat  to  public  policy  or  public  security,  Member  States  should  be 
allowed to impose a longer re-entry ban. 

(11)  The  use  of  temporary  custody  should  be  limited  and  bound  to  the  principle  of 
proportionality.  Temporary  custody  should  only  be  used  if  necessary  to  prevent  the 
risk  of  absconding  and  if  the  application  of  less  coercive  measures  would  not  be 
sufficient. 

(12)  Provision should be made to deal with the situation of a third-country national who is 
the  subject  of  a  removal  order  or  return  decision  issued  by  a  Member  State  and  is 
apprehended in the territory of another Member State. 

(13)  This  Directive  includes  provisions  on  the  recognition  of  return  decisions  or  removal 
orders  which  supersede  Council  Directive  2001/40/EC  on  mutual  recognition  of 
decisions on the expulsion of third-country nationals5. That Directive should therefore 
be repealed. 

(14)  Council  Decision  2004/191/EC6  sets  out  criteria  and  practical  arrangements  for  the 
compensation of financial imbalances resulting from mutual recognition of expulsion 
decisions,  which  should  be  applied  mutatis  mutandis  when  recognising  return 
decisions or removal orders according to this Directive. 

(15)  Member States should have rapid access to information on return decisions, removal 
orders  and  re-entry  bans  issued  by  other  Member  States.  This  information  sharing 

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6 

OJ L 31, 6.2.2003, p. 18. 
OJ L 261, 6.8.2004. p. 28. 
OJ L 149, 2.6.2001, p. 34. 
OJ L 60, 27.2.2004, p. 55. 

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should  take  place  in  accordance  with  [Decision/Regulation  …  on  the  establishment, 
operation and use of the Second Generation Schengen Information System (SIS II)]7  

(16)  Since  the  objective  of  this  Directive,  namely  to  establish  common  rules  concerning 
return, removal, use of coercive measures, temporary custody and re-entry, cannot be 
sufficiently achieved by the Member States and can therefore, by reason of the scale 
and  effects  be  better  achieved  at  Community  level,  the  Community  may  adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. In accordance with the principle of proportionality, as set out in that Article, 
this Directive does not go beyond what is necessary to achieve that objective. 

(17)  Member  States  should  give  effect  to  the  provisions  of  this  Directive  without 
discrimination  on  the  basis  of  sex,  race,  colour,  ethnic  or  social  origin,  genetic 
features, language, religion or belief, political or any other opinions, membership of a 
national minority, property, birth, disability, age or sexual orientation. 

(18) 

In line with the 1989 United Nations Convention on the Rights of the Child, the “best 
interests  of  the  child”  should  be  a  primary  consideration  of  Member  States  when 
implementing this Directive. In line with the European Convention on Human Rights, 
respect  for  family  life  should  be  a  primary  consideration  of  Member  States  when 
implementing this Directive. 

(19)  Application of this Directive is without prejudice to the obligations resulting from the 
Geneva Convention relating to the Status of Refugees of 28 July 1951, as amended by 
the New York Protocol of 31 January 1967. 

(20)  This Directive respects the fundamental rights and observes the principles recognised 

in particular by the Charter of Fundamental Rights of the European Union. 

(21) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark 
annexed  to  the  Treaty  on  European  Union  and  the  Treaty  establishing  the  European 
Community,  Denmark  is  not  taking  part  in  the  adoption  of  this  Directive  and  is  not 
bound by it or subject to its application. Given that this Directive builds - to the extent 
that it applies to third country nationals who do not fulfil or who no longer fulfil the 
conditions  of  entry  in  accordance  with  the  Convention  Implementing  the  Schengen 
Agreement8 - upon the Schengen acquis under the provisions of Title IV of Part Three 
of the Treaty establishing the European Community, Denmark should, in accordance 
with  Article  5  of  the  said  Protocol,  decide,  within  a  period  of  six  months  after  the 
adoption of this Directive, whether it will implement it in its national law. 

(22)  This Directive constitutes - to the extent that it applies to third country nationals who 
do  not  fulfil  or  who  no  longer  fulfil  the  conditions  of  entry  in  accordance  with  the 
Convention Implementing the Schengen Agreement - a development of provisions of 
the Schengen acquis within the meaning of the Agreement concluded by the Council 
of  the  European  Union  and  the  Republic  of  Iceland  and  the  Kingdom  of  Norway 
concerning  the  association  of  those  two  States  with  the  implementation,  application 
and  development  of  the  Schengen  acquis,  which  fall  within  the  area  referred  to  in 

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OJ L 239, 22.9.2000, p. 19. 

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Article 1, point C of Council Decision 1999/437/EC  9on certain arrangements for the 
application of that Agreement. 

(23)  This  Directive  constitutes  a  development  of  the  provisions  of  the  Schengen  acquis 
within  the  meaning  of  the  Agreement  signed  by  the  European  Union,  the  European 
Community  and  the  Swiss  Confederation  on  the  latter's  association  with  the 
implementation,  application  and  development  of  the  Schengen  acquis  which  fall 
within the area referred to in Article 4(1) of Council Decision 2004/860/EC10 on the 
provisional application of certain provisions of that Agreement. 

(24)  This Directive constitutes - to the extent that it applies to third country nationals who 
do  not  fulfil  or  who  no  longer  fulfil  the  conditions  of  entry  in  accordance  with  the 
Convention Implementing the Schengen Agreement - an act building on the Schengen 
acquis  or  otherwise  related  to  it  within  the  meaning  of  Article  3(2)  of  the  Act  of 
Accession, 

HAVE ADOPTED THIS DIRECTIVE:  

Chapter I 
GENERAL PROVISIONS 

Article 1  
Subject matter 

This Directive sets out common standards and procedures to be applied in Member States for 
returning  illegally  staying  third-country  nationals,  in  accordance  with  fundamental  rights  as 
general  principles  of  Community  law  as  well  as  international  law,  including  refugee 
protection and human rights obligations. 

Article 2 
Scope 

1. 

This Directive applies to third-country nationals staying illegally in the territory of a 
Member State, i.e. 

(a) 

who do not fulfil or who no longer fulfil the conditions of entry as set out in 
Article 5 of the Convention Implementing the Schengen Agreement, or 

(b) 

who are otherwise illegally staying in the territory of a Member State. 

2. 

Member States may decide not to apply this Directive to third-country nationals who 
have  been  refused  entry  in  a  transit  zone  of  a  Member  State.  However,  they  shall 
ensure that the treatment and the level of protection of such third-country nationals is 
not less favourable than set out in Articles 8, 10, 13 and 15. 

9 
10 

OJ L 176, 10.7.1999, p. 31. 
OJ L 370, 17.12.2004, p. 78. 

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12 

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3. 

This Directive shall not apply to third-country nationals  

(a) 

(b) 

who  are  family  members  of  citizens  of  the  Union  who  have  exercised  their 
right to free movement within the Community or 

who, under agreements between the Community and its Member States, on the 
one  hand,  and  the  countries  of  which  they  are  nationals,  on  the  other,  enjoy 
rights of free movement equivalent to those of citizens of the Union. 

Article 3  
Definitions 

For the purpose of this Directive the following definitions shall apply: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

‘third-country national’ means any person  who is not  a  citizen of the Union within 
the meaning of Article 17(1) of the Treaty; 

‘illegal  stay’  means  the  presence  on  the  territory  of  a  Member  State,  of  a  third-
country  national  who  does  not  fulfil,  or  no  longer  fulfils  the  conditions  for  stay  or 
residence in that Member State; 

‘return’ means the process of going back to one’s country of origin, transit or another 
third country, whether voluntary or enforced; 

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

‘removal’  means  the  execution  of  the  obligation  to  return,  namely  the  physical 
transportation out of the country; 

‘removal  order’  means  an  administrative  or  judicial  decision  or  act  ordering  the 
removal; 

“re-entry ban” means an administrative or judicial decision or act preventing re-entry 
into the territory of the Member States for a specified period. 

Article 4  
More favourable provisions 

1. 

This Directive shall be without prejudice to more favourable provisions of: 

(a) 

(b) 

bilateral or multilateral agreements between the Community or the Community 
and its Member States and one or more third countries;  

bilateral  or  multilateral  agreements  between  one  or  more  Member  States  and 
one or more third countries. 

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2. 

This  Directive  shall  be  without  prejudice  to  any  provision  which  may  be  more 
favourable for the third country national laid down in Community legislation in the 
field of immigration and asylum, in particular in: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

Council Directive 2003/86/EC on the right to family reunification11,  

Council Directive 2003/109/EC concerning the status of third country nationals 
who are long-term residents12,  

Council Directive 2004/81/EC on the residence permit issued to third-country 
nationals who are victims of trafficking in human beings or who have been the 
subject  of  an  action  to  facilitate  illegal  immigration,  who  cooperate  with  the 
competent authorities13, 

Council Directive 2004/83/EC on minimum standards for the qualification and 
status of third country nationals or stateless persons as refugees or as persons 
who  otherwise  need  international  protection  and  the  content  of  the  protection 
granted14, 

Council Directive 2004/114/EC on the conditions of admission of third country 
nationals for the purpose of studies, pupil exchange, unremunerated training or 
voluntary service15, 

Council  Directive  2005/XX/EC  on  a  specific  procedure  for  admitting  third-
country nationals for purposes of scientific research16.  

3. 

This Directive shall be without prejudice to 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 5 
Family relationships and best interest of the child 

When implementing this Directive, Member States shall take due account of the  nature  and 
solidity  of  the  third  country  national´s  family  relationships,  the  duration  of  his  stay  in  the 
Member  State  and  of  the  existence  of  family,  cultural  and  social  ties  with  his  country  of 
origin. They shall also take account of the best interests of the child in accordance with the 
1989 United Nations Convention on the Rights of the Child. 

11 
12 
13 
14 
15 
16 

OJ L 251, 3.10.2003, p. 12. 
OJ L 16, 23.1.2004, p. 44. 
OJ L 261, 6.8.2004, p. 19. 
OJ L 304, 30.9.2004, p. 12. 
OJ L 375, 23.12.2004, p. 12. 
OJ L XX 

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Chapter II 
TERMINATION OF ILLEGAL STAY 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Article 6 
Return decision 

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

The return decision shall provide for an appropriate period for voluntary departure of 
up to four weeks, unless there are reasons to believe that the person concerned might 
abscond  during  such  a  period.  Certain  obligations  aimed  at  avoiding  the  risk  of 
absconding,  such  as  regular  reporting  to  the  authorities,  deposit  of  a  financial 
guarantee, submission of documents or the obligation to stay at a certain place may 
be imposed for the duration of that period. 

The  return  decision  shall  be  issued  as  a  separate  act  or  decision  or  together  with  a 
removal order. 

Where Member States are subject to obligations derived from fundamental rights as 
resulting, in particular, from the European Convention on Human Rights, such as the 
right to non-refoulment, the right to education and the right to family unity, no return 
decision shall be issued. Where a return decision has already been issued, it shall be 
withdrawn. 

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

Where  a  third-country  national  staying  illegally  in  the  territory  of  a  Member  State 
holds  a  valid  residence  permit  issued  by  another  Member  State,  the  first  Member 
State  shall  refrain  from  issuing  a  return  decision  where  that  person  goes  back 
voluntarily to the territory of the Member State which issued the residence permit.. 

If a third-country national staying illegally in its territory is the subject of a pending 
procedure for renewing his residence permit or any other permit offering the right to 
stay, that Member State shall refrain from issuing a return decision, until the pending 
procedure is finished. 

If a third-country national staying illegally in its territory is the subject of a pending 
procedure for granting his residence permit or any other permit offering the right to 
stay, that Member State may refrain from issuing a return decision, until the pending 
procedure is finished. 

EN 

15 

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1. 

2. 

3. 

1. 

2. 

3. 

Article 7 
Removal order 

Member States shall issue a removal order concerning a third-country national who 
is subject of a return decision, if there is a risk of absconding or if the obligation to 
return has not been complied with within the period of voluntary departure granted in 
accordance with Article 6(2). 

The removal order shall specify the delay within which the removal will be enforced 
and the country of return.  

The removal order shall be issued as a separate act or decision or together with the 
return decision. 

Article 8 
Postponement 

Member States may postpone the enforcement of a return decision for an appropriate 
period, taking into account the specific circumstances of the individual case. 

Member  States  shall  postpone  the  execution  of  a  removal  order  in  the  following 
circumstances, for as long as those circumstances prevail:  

(a) 

(b) 

(c) 

 inability  of  the  third-country  national  to  travel  or  to  be  transported  to  the 
country of return due to his or her physical state or mental capacity; 

 technical  reasons,  such  as  lack  of  transport  capacity  or  other  difficulties 
making it impossible to enforce the removal in a humane manner and with full 
respect for the third-country national’s fundamental rights and dignity; 

 lack of assurance that unaccompanied minors can be handed over at the point 
of departure or upon arrival to a family member, an equivalent representative, a 
guardian  of  the  minor  or  a  competent  official  of  the  country  of  return, 
following an assessment of the conditions to which the minor will be returned. 

If enforcement of a return decision or execution of a removal order is postponed as 
provided for in paragraphs 1 and 2, certain obligations may be imposed on the third 
country national concerned, with a view to avoiding the risk of absconding, such as 
regular  reporting  to  the  authorities,  deposit  of  a  financial  guarantee,  submission  of 
documents or the obligation to stay at a certain place. 

Article 9 
Re-entry ban 

1. 

Removal orders shall include a re-entry ban of a maximum of 5 years.  

Return decisions may include such a re-entry ban. 

EN 

16 

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2. 

The  length  of  the  re-entry  ban  shall  be  determined  with  due  regard  to  all  relevant 
circumstances  of  the  individual  case,  and  in  particular  if  the  third-country  national 
concerned: 

(a) is the subject of a removal order for the first time; 

(b) has already been the subject of more than one removal order; 

(c) entered the Member State during a re-entry ban; 

(d) constitutes a threat to public policy or public security. 

The  re-entry  ban  may  be  issued  for  a  period  exceeding  5  years  where  the  third-
country  national  concerned  constitutes  a  serious  threat  to  public  policy  or  public 
security. 

3. 

The re-entry ban may be withdrawn, in particular in cases in which the third-country 
national concerned : 

(a) 

is the subject of a return decision or a removal order for the first time; 

(b) 

has reported back to a consular post of a Member State; 

(c) 

has reimbursed all costs of his previous return procedure. 

The  re-entry  ban  may  be  suspended  on  an  exceptional  and  temporary  basis  in 
appropriate individual cases. 

Paragraphs 1 to 4 apply without prejudice to the right to seek asylum in one of the 
Member States. 

Article 10 
Removal 

Where  Member  States  use  coercive  measures  to  carry  out  the  removal  of  a  third-
country national who resists removal, such measures shall be proportional and shall 
not  exceed  reasonable  force.  They  shall  be  implemented  in  accordance  with 
fundamental rights and with due respect for the dignity of the third-country national 
concerned. 

In  carrying  out  removals,  Member  States  shall  take  into  account  the  common 
Guidelines  on  security  provisions  for  joint  removal  by  air,  attached  to  Decision 
2004/573/EC. 

4. 

5. 

1. 

2. 

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Chapter III 
PROCEDURAL SAFEGUARDS 

1. 

Return decisions and removal orders shall be issued in writing.  

Article 11 
Form  

Member  States  shall  ensure  that  the  reasons  in  fact  and  in  law  are  stated  in  the 
decision and/or order and that the third-country national concerned is informed about 
the available legal remedies in writing. 

Member States shall provide, upon request, a written or oral translation of the main 
elements of the return decision and/or removal order in a language the third-country 
national may reasonably be supposed to understand. 

Article 12 
Judicial remedies  

Member States shall ensure that the third-country national concerned has the right to 
an  effective  judicial  remedy  before  a  court  or  tribunal  to  appeal  against  or  to  seek 
review of a return decision and/or removal order. 

The judicial remedy shall either have suspensive effect or comprise the right of the 
third  country  national  to  apply  for  the  suspension  of  the  enforcement  of  the  return 
decision or removal order in which case the return decision or removal order shall be 
postponed  until  it  is  confirmed  or  is  no  longer  subject  to  a  remedy  which  has 
suspensive effects. 

Member  States  shall  ensure  that  the  third-country  national  concerned  has  the 
possibility  to  obtain  legal  advice,  representation  and,  where  necessary,  linguistic 
assistance. Legal aid shall be made available to those who lack sufficient resources 
insofar as such aid is necessary to ensure effective access to justice. 

Article 13 
Safeguards pending return 

Member States shall ensure that the conditions of stay of third-country nationals for 
whom  the  enforcement  of  a  return  decision  has  been  postponed  or  who  cannot  be 
removed  for  the  reasons  referred  to  in  Article  8  of  this  Directive  are  not  less 
favourable than those set out in Articles 7 to 10, Article 15 and Articles 17 to 20 of 
Directive 2003/9/EC.  

Member  States  shall  provide  the  persons  referred  to  in  paragraph  1  with  a  written 
confirmation  that  the  enforcement  of  the  return  decision  has  been  postponed  for  a 
specified period or that the removal order will temporarily not be executed. 

2. 

1. 

2. 

3. 

1. 

2. 

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18 

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Chapter IV 
TEMPORARY CUSTODY FOR THE PURPOSE OF 
REMOVAL 

Article 14 
Temporary custody 

Where  there  are  serious  grounds  to  believe  that  there  is  a  risk  of  absconding  and 
where  it  would  not  be  sufficient  to  apply  less  coercive  measures,  such  as  regular 
reporting to the authorities, the deposit of a financial guarantee, the handing over of 
documents, an obligation to stay at a designated place or other measures to prevent 
that risk, Member States shall keep under temporary custody a third-country national, 
who is or will be subject of a removal order or a return decision, 

Temporary custody orders shall be issued by judicial authorities. In urgent cases they 
may  be  issued  by  administrative  authorities,  in  which  case  the  temporary  custody 
order shall be confirmed by judicial authorities within 72 hours from the beginning 
of the temporary custody.  

Temporary  custody  orders  shall  be  subject  to  review  by  judicial  authorities  at  least 
once a month. 

Temporary  custody  may  be  extended  by  judicial  authorities  to  a  maximum  of  six 
months.  

Article 15 
Conditions of temporary custody 

Member States shall ensure that third-country nationals under temporary custody are 
treated in a humane and dignified manner with respect  for their  fundamental rights 
and  in  compliance  with  international  and  national  law.  Upon  request  they  shall  be 
allowed  without  delay  to  establish  contact  with  legal  representatives,  family 
members  and  competent  consular  authorities  as  well  as  with  relevant  international 
and non-governmental organisations. 

Temporary  custody  shall  be  carried  out  in  specialised  temporary  custody  facilities. 
Where  a  Member  State  cannot  provide  accommodation  in  a  specialised  temporary 
custody facility and has to resort to prison accommodation, it shall ensure that third-
country  nationals  under  temporary  custody  are  permanently  physically  separated 
from ordinary prisoners. 

Particular  attention  shall  be  paid  to  the  situation  of  vulnerable  persons.  Member 
States shall ensure that minors are not kept in temporary custody in common prison 
accommodation.  Unaccompanied  minors  shall  be  separated  from  adults  unless  it  is 
considered in the child's best interest not to do so. 

Member  States  shall  ensure  that  international  and  non-governmental  organisations 
have  the  possibility  to  visit  temporary  custody  facilities  in  order  to  assess  the 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

4. 

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19 

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adequacy  of  the  temporary  custody  conditions.  Such  visits  may  be  subject  to 
authorisation. 

Chapter V 
APPREHENSION IN OTHER MEMBER STATES 

Article 16 
Apprehension in other Member States 

Where a third-country national who does not fulfil or who no longer fulfil the conditions of 
entry  as  set  out  in  Article  5  of  the  Convention  Implementing  the  Schengen  Agreement  and 
who is the subject of a return decision or removal order issued in a Member State (“the first 
Member  State”)  is  apprehended  in  the  territory  of  another  Member  State  (“the  second 
Member State”), the second Member State may take one of the following steps: 

(a) 

(b) 

(c) 

(d) 

recognise the return decision or removal order issued by the first Member State and 
carry out the removal, in which case Member States shall compensate each other for 
any financial imbalance which may caused, applying Council Decision 2004/191/EC 
mutatis mutandis;  

request  the  first  Member  State  to  take  back  the  third-country  national  concerned 
without delay, in which case the first Member State shall be obliged to comply with 
the request, unless it can demonstrate that the person concerned has left the territory 
of the Member States following the issuing of the return decision or removal order 
by the first Member State;  

launch the return procedure under its national legislation;  

maintain or issue a residence permit or another authorisation offering a right to stay 
for  protection-related,  compassionate,  humanitarian  or  other  reasons,  after 
consultation  with  the  first  Member  State  in  accordance  with  Article  25  of  the 
Convention Implementing the Schengen Agreement. 

Chapter VI 
FINAL PROVISIONS 

Article 17 
Reporting 

The Commission shall periodically report to the European Parliament and the Council on the 
application of this Directive in the Member States and, if appropriate, propose amendments.  

The Commission shall report for the first time four years after the date referred to in Article 
18(1) at the latest. 

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Article 18 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by, (24 months from the date of 
publication in the Official Journal of the European Union) at the latest. They shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive.  

Article 19 
Relationship with Schengen Convention  

This  Directive  replaces  Articles  23  and  24  of  the  Convention  implementing  the  Schengen 
Agreement. 

Directive 2001/40/EC is repealed. 

Article 20 
Repeal 

Article 21 
Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 22 
Addressees 

This Directive is addressed to the Member States in accordance with the Treaty establishing 
the European Community. 

Done at Brussels, […] 

For the European Parliament 
The President 

For the Council 
The President 

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