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
Date: 2008-12-16
Institutions: Council of the European Union, European Parliament
Subjects: EU Member State, foreign national, illegal migration, residence permit, return migration, right of asylum

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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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

establishing the European

ation should go beyond the mere fact of an illegal stay.
When using standard forms for decisions related to
return, namely return decisions and, if issued, entry-ban
decisions and decisions on removal, Member States
should respect that principle and fully comply with all
applicable provisions of this Directive.

Having regard to the proposal from the Commission,

Acting in accordance with the procedure
Article 251 of the Treaty (1),

laid down in

Whereas:

(1)

(2)

(3)

(4)

(5)

(6)

The Tampere European Council of 15 and 16 October
1999 established a coherent approach in the field of
immigration and asylum, dealing together with the
immi­
creation of a common asylum system, a legal
gration policy and the fight against illegal immigration.

the

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

respect

their

On 4 May 2005 the Committee of Ministers of
Council of Europe
forced return’.

the
adopted ‘Twenty guidelines on

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 entry, stay or
residence in a Member State.

Member States should ensure that the ending of illegal
stay of third-country nationals is carried out through a
fair and transparent procedure. According to general
principles of EU law, decisions
this
Directive should be adopted on a case-by-case basis
and based on objective criteria, implying that consider­

taken under

(1) Opinion of the European Parliament of 18 June 2008 (not yet
and Council Decision of

Journal)

published in the Official
9 December 2008.

(7)

(8)

(9)

The need for Community and bilateral
readmission
agreements with third countries to facilitate the return
process is underlined.
International cooperation with
countries of origin at all stages of the return process is
a prerequisite to achieving sustainable return.

It is recognised that it is legitimate for Member States to
return illegally staying third-country nationals, provided
that fair and efficient asylum systems are in place which
fully respect the principle of non-refoulement.

In accordance with Council Directive 2005/85/EC of
1 December 2005 on minimum standards on procedures
in Member States for granting and withdrawing refugee
status (2), a third-country national who has applied for
asylum in a Member State should not be regarded as
staying illegally on the territory of that Member State
until a negative decision on the application, or a
decision ending his or her right of stay as asylum
seeker has entered into force.

(10) 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. An
extension of the period for voluntary departure should
be provided for when considered necessary because of
the specific circumstances of an individual case.
In
order
to promote voluntary return, Member States
should provide for enhanced return assistance and coun­
selling and make best use of the relevant funding possi­
bilities offered under the European Return Fund.

(11) A common minimum set of legal safeguards on decisions
related to return should be established to guarantee
effective protection of
the individuals
concerned. The necessary legal aid should be made
resources.
available
Member States should provide in their national
legis­
lation for which cases legal aid is to be considered
necessary.

to those who lack

the interests of

sufficient

(2) OJ L 326, 13.12.2005, p. 13.

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(12)

(13)

(14)

(15)

(16)

The situation of third-country nationals who are staying
illegally but who cannot yet be removed should be
addressed. Their basic conditions of subsistence should
be defined according to national legislation. In order to
be able to demonstrate their specific situation in the
event of
such
persons should be provided with written confirmation
their situation. Member States should enjoy wide
of
discretion concerning the form and format of
the
written confirmation and should also be able to include
it
in decisions related to return adopted under this
Directive.

administrative

controls or

checks,

The use of coercive measures should be expressly subject
to the principles of proportionality and effectiveness with
regard to the means used and objectives pursued.
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 organ­
isation of joint flights for removals from the territory of
two or more Member States, of third-country nationals
removal orders (1).
who are
Member States should be able to rely on various possi­
bilities to monitor forced return.

subjects of

individual

The effects of national return measures should be given a
European dimension by establishing an entry ban prohi­
biting entry into and stay on the territory of all the
Member States. The length of the entry ban should be
determined with due regard to all relevant circumstances
of an individual case and should not normally exceed five
years. In this context, particular account should be taken
of the fact that the third-country national concerned has
already been the subject of more than one return
decision or removal order or has entered the territory
of a Member State during an entry ban.

hension by law-enforcement authorities,
national
place in specialised detention facilities.

legislation, detention should, as a rule,

regulated by
take

(18) Member States should have rapid access to information
on entry bans issued by other Member States. This infor­
mation sharing should take place in accordance with
Regulation (EC) No 1987/2006 of
the European
Parliament and of the Council of 20 December 2006
on the establishment, operation and use of the second
generation Schengen Information System (SIS II) (2).

(19)

(20)

Cooperation between the institutions involved at all
levels
in the return process and the exchange and
promotion of best practices should accompany the im­
plementation of
this Directive and provide European
added value.

Since the objective of this Directive, namely to establish
removal, use of
concerning return,
common rules
coercive measures, detention and entry bans, cannot be
sufficiently achieved by the Member States and can
therefore, by reason of its scale and effects, be better
the Community may
achieved at Community level,
in accordance with the principle of
adopt measures,
subsidiarity as set out
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.

in Article 5 of

the Treaty.

(21) Member States should implement 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 orien­
tation.

It should be for the Member States to decide whether or
not the review of decisions related to return implies the
power for the reviewing authority or body to substitute
its own decision related to the return for the earlier
decision.

(22)

The use of detention for the purpose of removal should
be limited and subject to the principle of proportionality
with regard to the means used and objectives pursued.
Detention is justified only to prepare the return or carry
out the removal process and if the application of less
coercive measures would not be sufficient.

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 im­
plementing this Directive.
In line with the European
Convention for the Protection of Human Rights and
Fundamental Freedoms, respect
for family life should
be a primary consideration of Member States when im­
plementing this Directive.

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

(17)

Third-country nationals in detention should be treated in
a humane and dignified manner with respect for their
fundamental rights and in compliance with international
and national law. Without prejudice to the initial appre­

(24)

This Directive respects
rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

the fundamental

(1) OJ L 261, 6.8.2004, p. 28.

(2) OJ L 381, 28.12.2006, p. 4.

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(25)

(26)

(27)

establishing

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
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 Schengen
Borders Code (1) — upon the Schengen acquis under
the provisions of Title IV of Part Three of the Treaty
establishing the European Community, Denmark shall,
the said Protocol,
in accordance with Article 5 of
decide, within a period of
the
adoption of this Directive, whether it will implement it
in its national law.

six months

after

take part,

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 Schengen Borders Code,
this Directive constitutes a development of provisions of
the Schengen acquis in which the United Kingdom does
not
in accordance with Council Decision
2000/365/EC of 29 May 2000 concerning the request
of the United Kingdom of Great Britain and Northern
Ireland to take part in some of the provisions of the
Schengen acquis (2); moreover,
in accordance with
Articles 1 and 2 of the Protocol on the position of the
United Kingdom and Ireland annexed to the Treaty on
European Union and to the Treaty establishing the
European Community,
to
Article 4 of the said Protocol, the United Kingdom is
not taking part in the adoption of this Directive and is
therefore not bound by it in its entirety or subject to its
application.

and without

prejudice

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 Schengen Borders Code,
this Directive constitutes a development of provisions of
the Schengen acquis in which Ireland does not take part,
in accordance with Council Decision 2002/192/EC of
28 February 2002 concerning Ireland’s request to take
part in some of the provisions of the Schengen acquis (3);
moreover,
in accordance with Articles 1 and 2 of the
Protocol on the position of the United Kingdom and
Ireland annexed to the Treaty on European Union and
to the Treaty establishing the European Community, and
the said Protocol,
without prejudice to Article 4 of
this
Ireland is not
Directive and is
in its
entirety or subject to its application.

therefore not bound by it

in the adoption of

taking part

(28) As regards Iceland and Norway, 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 Schengen Borders Code
— a development of provisions of the Schengen acquis
within the meaning of the Agreement concluded by the

(1) Regulation (EC) No 562/2006 of the European Parliament and of
the Council of 15 March 2006 establishing a Community Code on
the rules governing the movement of persons across borders
(Schengen Borders Code) (OJ L 105, 13.4.2006, p. 1).

(2) OJ L 131, 1.6.2000, p. 43.
(3) OJ L 64, 7.3.2002, p. 20.

the European Union and the Republic of
Council 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 Article 1,
point C, of Council Decision 1999/437/EC (4) on
certain arrangements
that
Agreement.

application of

the

for

(29) As regards Switzerland, 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 Schengen Borders Code —
the Schengen acquis
a development of provisions of
the Agreement between the
within the meaning of
European Union,
the European Community and the
Swiss Confederation on the Swiss Confederation’s asso­
ciation with the implementation, application and devel­
opment of the Schengen acquis, which fall within the
area referred to in Article 1, point C, of Decision
1999/437/EC read in conjunction with Article 3 of
Council Decision 2008/146/EC (5) on the conclusion,
that
on behalf of
Agreement.

the European Community, of

(30) As regards Liechtenstein, 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 Schengen Borders Code —
a development of provisions of
the Schengen acquis
the Protocol between the
within the meaning of
European Union, the European Community, the Swiss
Confederation and the Principality of Liechtenstein on
the accession of the Principality of Liechtenstein to the
Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss
Confederation’s association with the implementation,
application and development of
the Schengen acquis,
which fall within the area referred to in Article 1,
point C, of Decision 1999/437/EC read in conjunction
with Article 3 of Council Decision 2008/261/EC (6) on
the signature, on behalf of the European Community,
and on the provisional application of, certain provisions
of that Protocol,

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.

(4) OJ L 176, 10.7.1999, p. 31.
(5) OJ L 53, 27.2.2008, p. 1.
(6) OJ L 83, 26.3.2008, p. 3.

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Article 2

Scope

This Directive applies to third-country nationals staying

1.
illegally on the territory of a Member State.

2. Member States may decide not to apply this Directive to
third-country nationals who:

(a) are subject

to a refusal of entry in accordance with
Article 13 of the Schengen Borders Code, or who are appre­
intercepted by the competent authorities in
hended or
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;

(b) are subject to return as a criminal

consequence of a criminal
law, or who are
national
procedures.

law sanction or as a
law sanction, according to
extradition
the

subject of

This Directive shall not apply to persons enjoying the
3.
Community right of free movement as defined in Article 2(5)
of the Schengen Borders Code.

Article 3

Definitions

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

1.

2.

‘third-country national’ means any person who is not a
citizen of the Union within the meaning of Article 17(1)
the Treaty and who is not a person enjoying the
of
Community
as defined in
Article 2(5) of the Schengen Borders Code;

free movement,

right of

‘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 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;

3.

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

— his or her country of origin, or

— another

third country,

third-country
national concerned voluntarily decides to return and in
which he or she will be accepted;

to which the

4.

‘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 or stating an obligation
to return;

5.

‘removal’ means the enforcement of the obligation to return,
namely the physical transportation out of the Member State;

6.

7.

8.

9.

‘entry ban’ means an administrative or judicial decision or
act prohibiting entry into and stay on the territory of the
Member States for a specified period, accompanying a return
decision;

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

‘voluntary departure’ means compliance with the obligation
to return within the time-limit fixed for that purpose in the
return decision;

‘vulnerable persons’ means 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 psycho­
logical, physical or sexual violence.

Article 4

More favourable provisions

1.
This Directive
favourable provisions of:

shall be without prejudice

to more

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

(b) bilateral or multilateral agreements between one or more

Member States and one or more third countries.

This Directive shall be without prejudice to any provision
2.
which may be more favourable for the third-country national,
laid down in the Community acquis relating to immigration and
asylum.

— a country of transit in accordance with Community or
bilateral readmission agreements or other arrangements,
or

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.

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4. With regard to third-country nationals excluded from the
scope of
this Directive in accordance with Article 2(2)(a),
Member States shall:

such a case the Member State which has taken back the
third-country national concerned shall apply paragraph 1.

(a) ensure that their treatment and level of protection are no
less favourable than as set out
in Article 8(4) and (5)
(limitations on use of coercive measures), Article 9(2)(a)
(postponement of
(b) and (d)
(emergency health care and taking into account needs of
vulnerable persons), and Articles 16 and 17 (detention
conditions) and

removal), Article 14(1)

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.

(b) respect the principle of non-refoulement.

Article 5

Non-refoulement, best interests of the child, family life and
state of health

When implementing this Directive, Member States shall take
due account of:

(a)

the best interests of the child;

(b) family life;

(c)

the state of health of the third-country national concerned,

and respect the principle of non-refoulement.

CHAPTER II

TERMINATION OF ILLEGAL STAY

Article 6

Return decision

1. Member States shall issue a return decision to any third-
country national staying illegally on their territory, without
prejudice to the exceptions referred to in paragraphs 2 to 5.

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.

3. 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. In

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
that Member State shall consider
offering a right
refraining from issuing a return decision, until
the pending
procedure is finished, without prejudice to paragraph 6.

to stay,

6.
This Directive shall not prevent Member States from
adopting a decision on the ending of a legal stay together
with a return decision and/or a decision on a removal and/or
entry ban in a single administrative or judicial decision or act as
provided for in their national legislation, without prejudice to
the procedural safeguards available under Chapter III and under
other relevant provisions of Community and national law.

Article 7

Voluntary departure

A return decision shall provide for an appropriate period
1.
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
legis­
lation 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 time period provided for in the first subparagraph shall not
exclude the possibility for the third-country nationals concerned
to leave earlier.

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.

such as

aimed at

Certain obligations

risk of
3.
reporting to the authorities,
absconding,
deposit of an adequate financial guarantee,
submission of
documents or the obligation to stay at a certain place may be
imposed for the duration of the period for voluntary departure.

avoiding the

regular

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If there is a risk of absconding, or if an application for a
4.
legal stay has been dismissed as manifestly unfounded or frau­
dulent, or if the person concerned poses a risk to public policy,
public security or national security, Member States may refrain
from granting a period for voluntary departure, or may grant a
period shorter than seven days.

individual case. Member States shall
account:

in particular take into

(a)

third-country national’s physical

the
capacity;

state or mental

Article 8

Removal

(b) technical reasons, such as lack of transport capacity, or

failure of the removal due to lack of identification.

1. Member States shall take all necessary measures to enforce
the return decision if no period for voluntary departure has
been granted in accordance with Article 7(4) or if the obligation
to return has not been complied with within the period for
voluntary departure granted in accordance with Article 7.

If a Member State has granted a period for voluntary
2.
departure in accordance with Article 7,
the return decision
may be enforced only after the period has expired, unless a
risk as referred to in Article 7(4) arises during that period.

3. Member States may adopt a separate administrative or
judicial decision or act ordering the removal.

4. Where Member States use — as a last resort — coercive
measures to carry out the removal of a third-country national
who resists removal, such measures shall be proportionate and
shall not exceed reasonable force. They shall be implemented as
provided for in national legislation in accordance with funda­
mental rights and with due respect for the dignity and physical
integrity of the third-country national concerned.

3.
If a removal is postponed as provided for in paragraphs 1
and 2, the obligations set out in Article 7(3) may be imposed
on the third-country national concerned.

Article 10

Return and removal of unaccompanied minors

1.
Before deciding to issue a return decision in respect of an
unaccompanied minor, assistance by appropriate bodies other
than the authorities enforcing return shall be granted with due
consideration being given to the best interests of the child.

Before removing an unaccompanied minor

from the
2.
territory of a Member State, the authorities of that Member
State shall be satisfied that he or she will be returned to a
member of his or her
family, a nominated guardian or
adequate reception facilities in the State of return.

Article 11

Entry ban

5.
In carrying out removals by air, Member States shall take
into account the Common Guidelines on security provisions for
joint removals by air annexed to Decision 2004/573/EC.

1.

Return decisions shall be accompanied by an entry ban:

(a)

if no period for voluntary departure has been granted, or

6. Member States shall provide for an effective forced-return
monitoring system.

(b) if the obligation to return has not been complied with.

Article 9

Postponement of removal

1. Member States shall postpone removal:

(a) when it would violate the principle of non-refoulement, or

(b) for as long as a suspensory effect is granted in accordance

with Article 13(2).

2. Member States may postpone removal for an appropriate
period taking into account the specific circumstances of the

In other cases return decisions may be accompanied by an entry
ban.

2.
The length of the entry ban shall be determined with due
regard to all relevant circumstances of the individual case and
shall not in principle exceed five years. It may however exceed
the third-country national represents a serious
five years if
threat to public policy, public security or national security.

3. Member States shall consider withdrawing or suspending
an entry ban where a third-country national who is the subject
of an entry ban issued in accordance with paragraph 1, second
subparagraph, can demonstrate that he or she has left
the
territory of a Member State in full compliance with a return
decision.

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Victims of trafficking in human beings who have been granted a
residence permit pursuant to Council Directive 2004/81/EC of
29 April 2004 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 authorities (1)
shall not be subject of an entry ban without prejudice to
paragraph 1, first subparagraph, point (b), and provided that
the third-country national concerned does not
represent a
threat to public policy, public security or national security.

national understands or may reasonably be presumed to
understand.

3. Member States may decide not to apply paragraph 2 to
third country nationals who have illegally entered the territory
of a Member State and who have not subsequently obtained an
authorisation or a right to stay in that Member State.

Member States may refrain from issuing, withdraw or suspend
an entry ban in individual cases for humanitarian reasons.

In such cases decisions related to return, as referred to in
paragraph 1, shall be given by means of a standard form as
set out under national legislation.

Member States may withdraw or suspend an entry ban in indi­
vidual cases or certain categories of cases for other reasons.

4. Where a Member State is considering issuing a residence
permit or other authorisation offering a right to stay to a third-
country national who is the subject of an entry ban issued by
another Member State, it shall first consult the Member State
having issued the entry ban and shall
its
interests in accordance with Article 25 of the Convention im­
plementing the Schengen Agreement (2).

take account of

5.
Paragraphs 1 to 4 shall apply without prejudice to the
right to international protection, as defined in Article 2(a) of
Council Directive 2004/83/EC of 29 April 2004 on minimum
third country
standards for the qualification and status of
nationals or stateless persons as refugees or as persons who
otherwise need international protection and the content of the
protection granted (3), in the Member States.

CHAPTER III

PROCEDURAL SAFEGUARDS

Article 12

Form

Return decisions and,

1.
if issued, entry-ban decisions and
decisions on removal shall be issued in writing and give
reasons in fact and in law as well as information about
available legal remedies.

The information on reasons in fact may be limited where
national law allows for the right to information to be restricted,
in particular in order to safeguard national security, defence,
public security and for the prevention, investigation, detection
and prosecution of criminal offences.

2. Member States shall provide, upon request, a written or
oral translation of the main elements of decisions related to
including information
return, as referred to in paragraph 1,
on the available legal remedies in a language the third-country

(1) OJ L 261, 6.8.2004, p. 19.
(2) OJ L 239, 22.9.2000, p. 19.
(3) OJ L 304, 30.9.2004, p. 12.

Member States shall make available generalised information
sheets explaining the main elements of the standard form in
at least five of those languages which are most frequently used
or understood by illegal migrants entering the Member State
concerned.

Article 13

Remedies

1.
The third-country national concerned shall be afforded an
effective remedy to appeal against or seek review of decisions
related to return, as referred to in Article 12(1), before a
competent judicial or administrative authority or a competent
body composed of members who are impartial and who enjoy
safeguards of independence.

The authority or body mentioned in paragraph 1 shall
2.
to review decisions related to return, as
have the power
including the possibility of
referred to in Article 12(1),
temporarily suspending their enforcement, unless a temporary
suspension is already applicable under national legislation.

The third-country national concerned shall have the possi­
representation and, where

3.
bility to obtain legal
necessary, linguistic assistance.

advice,

4. Member States
the necessary legal
shall ensure that
assistance and/or representation is granted on request free of
charge in accordance with relevant national legislation or rules
regarding legal aid, and may provide that such free legal
assistance and/or representation is subject to conditions as set
out in Article 15(3) to (6) of Directive 2005/85/EC.

Article 14

Safeguards pending return

1. Member States shall, with the exception of the situation
covered in Articles 16 and 17, ensure that the following prin­
ciples are taken into account as far as possible in relation to
third-country nationals during
voluntary
departure granted in accordance with Article 7 and during
periods for which removal has been postponed in accordance
with Article 9:

the period for

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(a)

family unity with family members present in their territory
is maintained;

the relevant proceedings. In such a case Member States shall
immediately inform the third-country national concerned
about the possibility of taking such proceedings.

(b) emergency health care and essential treatment of illness are

provided;

(c) minors are granted access to the basic education system

subject to the length of their stay;

(d) special needs of vulnerable persons are taken into account.

2. Member States shall provide the persons referred to in
paragraph 1 with a written confirmation in accordance with
national legislation that the period for voluntary departure has
been extended in accordance with Article 7(2) or that the return
decision will temporarily not be enforced.

CHAPTER IV

DETENTION FOR THE PURPOSE OF REMOVAL

Article 15

Detention

Unless other sufficient but less coercive measures can be
1.
applied effectively in a specific case, Member States may only
keep in detention a third-country national who is the subject of
return procedures in order to prepare the return and/or carry
out the removal process, in particular when:

(a)

there is a risk of absconding or

(b) the third-country national concerned avoids or hampers the

preparation of return or the removal process.

Any detention shall be for as short a period as possible and
removal arrangements are in
only maintained as
progress and executed with due diligence.

long as

Detention shall be ordered by administrative or judicial

2.
authorities.

Detention shall be ordered in writing with reasons being given
in fact and in law.

When detention has been ordered by administrative authorities,
Member States shall:

The third-country national concerned shall be released immedi­
ately if the detention is not lawful.

In every case, detention shall be reviewed at reasonable
3.
time either on application by the third-country
intervals of
national concerned or ex officio.
In the case of prolonged
detention periods, reviews shall be subject to the supervision
of a judicial authority.

4. When it appears that a reasonable prospect of removal no
longer exists for legal or other considerations or the conditions
laid down in paragraph 1 no longer exist, detention ceases to be
justified and the person concerned shall be released immedi­
ately.

5.
Detention shall be maintained for as long a period as the
conditions laid down in paragraph 1 are fulfilled and it is
necessary to ensure successful removal. Each Member State
shall set a limited period of detention, which may not exceed
six months.

6. Member States may not extend the period referred to in
paragraph 5 except for a limited period not exceeding a further
twelve months in accordance with national law in cases where
regardless of all their reasonable efforts the removal operation is
likely to last longer owing to:

(a) a

lack of
concerned, or

cooperation by the

third-country national

(b) delays in obtaining the necessary documentation from third

countries.

Article 16

Conditions of detention

Detention shall take place as a rule in specialised detention
1.
facilities. Where a Member State cannot provide accommo­
dation in a specialised detention facility and is obliged to
resort to prison accommodation, the third-country nationals
in detention shall be kept separated from ordinary prisoners.

(a) either provide for a speedy judicial review of the lawfulness
of detention to be decided on as speedily as possible from
the beginning of detention;

Third-country nationals in detention shall be allowed —
2.
on request — to establish in due time contact with legal repre­
sentatives, family members and competent consular authorities.

(b) or grant the third-country national concerned the right to
take proceedings by means of which the lawfulness of
detention shall be subject to a speedy judicial review to
be decided on as speedily as possible after the launch of

Particular attention shall be paid to the situation of
and essential

3.
vulnerable persons. Emergency health care
treatment of illness shall be provided.

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Relevant and competent national, international and non-
4.
governmental organisations and bodies shall have the possibility
to visit detention facilities, as referred to in paragraph 1, to the
extent
they are being used for detaining third-country
nationals in accordance with this Chapter. Such visits may be
subject to authorisation.

that

5.
Third-country nationals kept in detention shall be system­
atically provided with information which explains the rules
applied in the facility and sets out their rights and obligations.
Such information shall include information on their entitlement
under national
the organisations and bodies
referred to in paragraph 4.

law to contact

Article 17

Detention of minors and families

Unaccompanied minors and families with minors shall
last resort and for the

1.
only be detained as a measure of
shortest appropriate period of time.

Families detained pending removal shall be provided with

2.
separate accommodation guaranteeing adequate privacy.

3. Minors in detention shall have the possibility to engage in
leisure activities, including play and recreational activities appro­
priate to their age, and shall have, depending on the length of
their stay, access to education.

Unaccompanied minors

4.
far as possible be
provided with accommodation in institutions provided with
personnel and facilities which take into account the needs of
persons of their age.

shall as

Nothing in this Article shall be interpreted as allowing
3.
Member States to derogate from their general obligation to
take all appropriate measures, whether general or particular,
to ensure fulfilment of their obligations under this Directive.

CHAPTER V

FINAL PROVISIONS

Article 19

Reporting

The Commission shall report every three years 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 by 24 December
2013 and focus on that occasion in particular on the appli­
cation of Article 11, Article 13(4) and Article 15 in Member
States. In relation to Article 13(4) the Commission shall assess
in particular the additional financial and administrative impact
in Member States.

Article 20

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 24 December 2010. In relation to Article 13(4),
Member States shall bring into force the laws, regulations and
administrative provisions necessary
to comply with this
Directive by 24 December 2011. They shall forthwith commu­
nicate to the Commission the text of those measures.

The best interests of the child shall be a primary consider­
the detention of minors pending

5.
ation in the context of
removal.

When Member States adopt those measures, 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.

Article 18

Emergency situations

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.

1.
In situations where an exceptionally large number of
third-country nationals to be returned places an unforeseen
heavy burden on the capacity of the detention facilities of a
Member State or on its administrative or judicial staff, such a
Member State may, as long as the exceptional situation persists,
decide to allow for periods for judicial review longer than those
provided for under the third subparagraph of Article 15(2) and
to take urgent measures
the conditions of
detention derogating from those set out in Articles 16(1) and
17(2).

in respect of

2. When resorting to such exceptional measures, the Member
State concerned shall
It shall also
inform the Commission as soon as the reasons for applying
these exceptional measures have ceased to exist.

inform the Commission.

Article 21

Relationship with the Schengen Convention

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

Article 22

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.

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Article 23

Addressees

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

Done at Strasbourg, 16 December 2008.

For the European Parliament

The President

H.-G. PÖTTERING

For the Council

The President

B. LE MAIRE