Dr. Izabella Majcher, Independent
Consultant
Photo credit:
Shutterstock
*References to the Regulation's provisions reflect the
agreed text at the time of writing and may change following legal-linguistic
revision
Amid chants
of "send them back" from some Members of the European Parliament, the
Parliament adopted the EU Return Regulation on 17 June 2026 by 418 votes to
218, with 30 abstentions. Such a broad majority on legislation that would
otherwise have been highly divisive was made possible by the European People's
Party (EPP)'s alliance with far-right groups, breaking the political firewall
traditionally maintained in several Member States. The vote drew criticism from
NGOs, academics and journalists, and also prompted concern within the United
Nations. Ahead of the vote, nearly 50 current and former international
human rights experts
issued a joint statement expressing their concerns. Following its adoption, the
UN High Commissioner for Human
Rights publicly
expressed his deep regret.
The parliamentary
vote marked the culmination of an exceptionally rapid legislative process. As
announced in European Commission President Ursula von der Leyen's Political
Guidelines for her second Commission, the Commission presented its proposal for a Return Regulation on 11 March 2025 (discussed here). The Council adopted its position on 8 December 2025 (discussed here), followed by the European Parliament's report on 26 March 2026 (discussed here). The subsequent interinstitutional
negotiations progressed at an equal pace, culminating in the final trilogue on
1 June 2026. Once the text has undergone legal-linguistic revision, it will be
published in the Official Journal of the European Union. The Regulation will
become applicable one year later, replacing the Return Directive, although several provisions—including those
on return hubs, preparations for the European Return Order form and readmission
procedures—will apply immediately.
Given the
political support from right-wing groups and the underlying objective of the
proposal of increasing returns, it is unsurprising that the Regulation relies
heavily on coercive measures while lowering safeguards across the board. What
remains less clear is whether it will actually increase the number of returns,
except perhaps at the expense of compliance with international and EU human
rights standards. This blog highlights ten aspects of the Regulation that raise
particularly serious human rights concerns before offering some concluding
reflections.
1)
Return decisions and effective remedy
The Regulation introduces several changes that collectively
weaken the assessment of the risk of refoulement. It allows return decisions
either to omit the country of return or to designate several possible countries
of return. The person need only be informed of the intended country of return
sufficiently in advance of removal (Articles 7, 13 and 24). The Regulation also
clarifies that Member States are not precluded from issuing a return decision
where a hindrance to removal exists; where a risk of refoulement has been
identified, removal to the country concerned must simply be postponed. Where
the person indicates, or the authorities otherwise become aware, that removal
would breach the principle of non-refoulement, the competent authorities must
either refer the person to the appropriate procedure, including the asylum
procedure, or assess the risk of refoulement themselves. In doing so, they may
rely on or take into account any previous assessment of that risk. It is
possible that the risk of refoulement is assessed by authorities issuing or
enforcing a return decision.
This approach makes the right to an effective remedy all the
more important. Compared with the Directive, the Regulation provides greater
detail on the applicable standards (Article 26). It requires that the remedy
provide for a full examination of both facts and points of law. Where material
brought to the attention of the court or tribunal hearing the appeal, as
supplemented or clarified through adversarial proceedings, indicates that the
principle of non-refoulement may be at risk, the court or tribunal must verify
compliance with the obligations arising from that principle. As regards the
suspensive effect of appeals, the Regulation does not establish an automatic
right to suspension. Instead, it clarifies that Member States must ensure, in
full compliance with Article 47 of the Charter, that removal can be suspended
before it is carried out (Article 28). Suspension may be granted upon request
by the person concerned, unless national law also provides for suspension ex
officio.
2)
Mutual recognition of return decisions
Mutual recognition of return decisions is presented as one
of the Regulation's key innovations and as a part of the broader "common
system for returns" (Article 42). In reality, however, the mechanism is
neither new nor straightforward to implement. Under it, a Member State that
apprehends a person who has already received a return decision in another
Member State may recognise and enforce that decision instead of issuing a new
one (Article 9). This is facilitated through a European Return Order—a standard
form containing the main elements of the return decision—which is made
available to Member States through the Schengen Information System. The
mechanism itself is not new. It was already established by a 2001 Council Directive,
although it appears to have been used only sparingly in practice. The
Commission originally proposed making mutual recognition mandatory, but this
approach did not receive the support of the co-legislators. As adopted, the
mechanism therefore remains optional. Nevertheless, Member States are required
to put in place preparatory measures, and the Commission may submit legislative
proposals following an assessment to be carried out within two years of the
Regulation becoming applicable. Recognising another Member State's return
decision raises both practical and legal challenges. Since the grounds for
lawful stay are not harmonised across the EU, a person may be in an irregular
situation in one Member State but lawfully present in another. The enforcing
Member State may therefore face litigation while also bearing the costs of
removal and, where applicable, detention. More fundamentally, mutual
recognition of return decisions and entry bans raises proportionality concerns because
it exports the most restrictive national approaches across the Union, while no
equivalent system exists for the mutual recognition of lawful residence
statuses.
3) Voluntary
departure
The Regulation adopts a confusing approach to so-called
voluntary departure. Under the Directive, Member States are required to grant a
period for voluntary departure of between seven and thirty days, subject to
three exceptions: where there is a risk of absconding, where an application for
legal stay has been rejected as manifestly unfounded or fraudulent, or where
the person poses a risk to public policy, public security or national security
(Article 7). The Regulation removes this obligation and instead leaves Member
States with a choice between granting a period for voluntary departure and
requiring the person to leave immediately (Article 7). Moreover, where a period
for voluntary departure is granted, it need no longer be at least seven days. These
changes sit uneasily with the EU's broader approach to return, which has
consistently favoured
voluntary departure over forced removal and has invested considerable
resources in assisted voluntary return and reintegration programmes. Indeed,
the Regulation itself requires Member States to ensure the availability of
return and reintegration programmes, which may be supported or financed by the
EU. It further specifies that such programmes should provide a broad ranging assistance
and incentives, including reintegration support (Article 46). Voluntary return
is generally more conducive to a safe and dignified return and is also in the
interest of Member States, given that forced removals are considerably more
costly and complex to organise. Arguably, these amendments are intended
primarily to signal a more coercive approach rather than to produce a
significant change in practice. Even under the Directive, Member States are not
required to grant a period for voluntary departure where there is a risk of
absconding or concerns relating to public policy or security. Conversely, the
Regulation still allows Member States to grant voluntary departure at their
discretion, except for persons considered to pose security risks (see more on
this category here).
4)
Duties and sanctions
The
Regulation establishes an extensive—and at times overlapping—set of obligations
for persons subject to return, raising concerns regarding legal certainty and
proportionality. It introduces a general duty to cooperate (Article 21),
encompassing more than a dozen specific obligations. These include appearing
before third-country authorities for the issuance of travel documents or the
verification of identity or nationality, and complying with third-country entry
requirements, including health-related requirements. The list is open-ended, as
it also incorporates obligations provided for under national law.
The
Regulation also empowers Member States to impose various restrictive measures,
including obligations to remain within a designated geographical area, reside
at a specific address, or report periodically to those authorities (Article
23). Under international human rights law, these measures constitute
restrictions on freedom of movement. Nevertheless, the Regulation does not
require that they be necessary to achieve a legitimate objective. In addition,
it introduces a further category of movement restrictions that may be imposed,
implicitly, where there is a risk of absconding (Article 23c), including bail
and electronic monitoring. Although labelled "alternatives to
detention", these measures may also be imposed where detention itself
would be unlawful—for example, after the maximum permissible period of
detention has expired.
Failure to
comply with some of these obligations may be treated as evidence of a risk of
absconding, or it may directly justify detention. Other consequences include
reductions in social allowances, financial penalties, extensions of entry bans
and criminal sanctions, including imprisonment (Article 23b). In practice,
almost any person subject to return could fail to comply with one or more of
these numerous obligations, thereby exposing them to a cascade of restrictive
measures and sanctions. The breadth of this regime falls short of the
requirements of necessity and proportionality, leaving considerable scope for
arbitrary application.
5)
Investigative measures
At the
Council's initiative, the Regulation introduces a new category of so-called
"investigative measures" (Article 23a). These measures authorise the
authorities, without the person's consent, to search persons subject to return,
their homes and other relevant premises, and to seize personal belongings,
including electronic devices. The Regulation also permits the use of additional
investigative measures provided for under national law. Searches of homes and
other premises require either prior judicial authorisation or, where permitted
under national law, an administrative order where the search is necessary,
proportionate and duly justified by urgency. The Regulation specifies that
investigative measures may be used where necessary, proportionate, and duly
justified to ensure an effective return. It also requires that they respect
fundamental rights and remain subject to the safeguards and remedies available
under Union and national law. Nevertheless, the provision raises significant
concerns in practice. It may facilitate police raids on homes, shelters and
other premises accommodating or supporting people in an irregular situation,
potentially relying on racial profiling and creating a climate of fear within
migrant communities.
6)
Detention
The
Regulation significantly expands the legal framework governing detention, both
by broadening the grounds and by increasing its maximum duration (Article 29).
Under the Directive, Member States may impose pre-removal detention on two
grounds only: where there is a risk of absconding or where the person avoids or
hampers the preparation of return (Article 15(1)). Unlike the Directive, the
Regulation lays down detailed criteria for determining whether a person poses a
risk of absconding (Article 21a). However, these criteria are drafted so broadly
that most persons in an irregular situation are likely to satisfy at least one
of them and, crucially, many bear little relation to the person's actual
propensity to abscond. The Regulation establishes four criteria that give rise
to a rebuttable presumption of a risk of absconding, including irregular entry
into the territory. It further lists seven additional criteria—including the
absence of a reliable address—and permits Member States to rely on criteria
laid down in national law to assess the risk of absconding.
In addition
to the two detention grounds contained in the Directive, the Regulation adds three
further grounds. First, Member States may detain a person considered to pose a
security risk, including a threat to public policy, public security, national
security or any other security threat identified under national law. This broad
ground blurs the distinction between administrative immigration detention and
criminal detention. Given that immigration detention affords significantly
fewer procedural safeguards than criminal detention, it should remain limited
to grounds directly related to the enforcement of removal. Second, detention
may be imposed in order to determine or verify a person's identity or
nationality. This ground is particularly problematic because such procedures
may take considerable time, for example, when a person is stateless, or their
identity documents are not recognised. Moreover, detention may be imposed on
this ground even in the absence of any risk of absconding. Third, a person may
be detained for failing to comply with one of the Regulation's numerous
cooperation obligations (discussed above), such as complying with carriers'
travel requirements, fulfilling third countries' entry requirements, or
complying with electronic monitoring requirements. Fourth, Member States may
also rely on detention grounds established under their national law where these
are considered necessary to ensure an effective return procedure. Leaving the
determination of detention grounds to national law undermines the very
objective of harmonising return-related measures across the EU.
The
Regulation also dramatically extends the maximum permissible period of
detention. Under the Directive, detention may last up to six months and may be
extended by a further twelve months where the removal operation is delayed due
to a lack of cooperation by the person concerned or the third country. Under
the Regulation, the initial detention period may last up to 12 months and may
then be extended by a further 12 months on the same grounds, as well as in
"exceptional" circumstances provided for under national law. The
resulting two-year period may be prolonged by an additional six months where
there is a risk of absconding and one of three vaguely defined changes in
circumstances gives rise to a reasonable prospect of removal. However, it is
difficult to understand why a reasonable prospect of removal would emerge only
after a person has already spent two years in detention. Such lengthy periods
of detention are manifestly disproportionate and seriously undermine the
fundamental right to liberty.
Finally,
the Regulation weakens the safeguards requiring migrants to be detained in
specialised detention facilities. This approach is at odds with the standards
consistently advocated by the UN Working Group on Arbitrary Detention and the European Committee for the Prevention of Torture.
7)
Entry bans
An entry
ban is a punitive measure that links return policy with border and visa policy
by preventing a person from re-entering the EU through regular channels. The
Regulation significantly expands the scope of this measure (Article 10). Under
the Directive, an entry ban accompanies a return decision and is mandatory
where no period for voluntary departure has been granted or where the person
has failed to comply with that period (Article 11). The Regulation introduces
the possibility of imposing an entry ban even in the absence of a prior return
decision, where a person's irregular stay is detected during exit border checks
or where they leave the territory before a return decision has been issued. This
new possibility is both disproportionate and highly punitive, as it penalises
individuals who are attempting to leave the territory. Moreover, where no
formal decision is issued, a person may not even be aware that they are subject
to an entry ban and may effectively be deprived of their rights of defence and
to an effective remedy. Such an approach sits uneasily with the principles of
good administration and legal certainty and creates a significant risk of
arbitrary decision-making. The Regulation also doubles the maximum duration of
entry bans in ordinary cases, from five to ten years, and allows them to be
extended to twenty years where necessary to prevent re-entry. As under the
Directive, the duration of an entry ban may nevertheless be reduced, or the ban
withdrawn or suspended, in individual cases. In this context, the person's
private and family life established in the Member States is a key consideration.
8)
Children
The
Regulation introduces several safeguards for unaccompanied children, including
the appointment of a guardian, the right to be heard during the return procedure
and a review of detention every three months (Articles 20 and 33). At the same
time, however, it weakens several of the protections currently provided under
the Directive. These include removing schooling from the express grounds for
extending the period for voluntary departure, reducing the entitlement to
education in detention to the provision of "educational activities",
and no longer requiring that assistance be provided to unaccompanied children
before a return decision is issued. Crucially, almost all of the Regulation's
new intrusive measures—including investigative measures and restrictions on
freedom of movement (discussed above) —apply equally to children. Only
unaccompanied children are exempt from removal to return hubs; families with
children can be subject to this possibility. The Regulation's approach to
detention is particularly concerning. Since the adoption of the Directive in
2008, international human rights standards have evolved considerably. The UN Committee on the Rights of the Child and the UN Committee on Migrant
Workers, the UN Special Rapporteur on the Human
Rights of Migrants,
and the UN Working Group on Arbitrary Detention have all recognised that children
should never be placed in immigration detention. Rather than reflecting this
well-established standard, the Regulation substantially expands both the
grounds for detention and its maximum duration, while failing to exclude
children from its scope. On balance, the Regulation is likely to have a
detrimental impact on children's rights.
9)
Alternatives to return
The Regulation largely ignores the reality that not every
person in an irregular situation can be returned. Most notably, it removes the
existing option to grant regular status rather than issue a return decision.
Under Article 6(4) of the Directive, Member States may grant an autonomous
residence permit on compassionate, humanitarian or other grounds to a person in
an irregular situation. In such cases, no return decision is issued, or, where
one has already been adopted, it must be withdrawn or suspended for the
duration of the residence permit. As a result of this deletion, the Regulation
no longer recognises any humanitarian or human rights-based exception to the
obligation to issue a return decision for every person in an irregular
situation. Granting regular status enables individuals to access socio-economic
rights and justice, while reducing their vulnerability to exploitation. It is
equally in the interest of Member States to ensure that people residing on
their territory have a lawful status. Given that Member States already provide
a range of humanitarian
and compassionate residence permits, a genuinely common return system
should also preserve avenues for regularisation, which are intrinsically linked
to return policy.
10)
Return hubs
One of the Regulation's most significant innovations is the
possibility of removing a person to a third country with which they may have no
prior connection—a so-called "return hub" (Article 17). This
mechanism requires the Member State concerned to conclude an agreement or
arrangement with the third country. Notably, that country is not required to
satisfy the criteria applicable to safe third countries under the Asylum Procedure
Regulation. Instead, the Regulation merely provides that it must respect
international human rights standards and principles in accordance with
international law, including the principle of non-refoulement. However, it does
not specify who is responsible for assessing compliance with these requirements
or by which criteria such an assessment should be conducted. Only unaccompanied
children are exempt from transfer to return hubs. The concept has attracted
interest among some Member States, with Rwanda,
Uganda and Uzbekistan reportedly among the countries recently considered as
potential locations for return hubs. The Italy–Albania Protocol has undoubtedly
served as the model for this mechanism. Yet beyond the serious human rights
concerns it raises, the Italian experience has also demonstrated the
considerable financial and practical challenges of its implementation.
Following several transfers blocked by Italian courts, the compatibility of the
arrangement with EU law is yet to be decided by the Court of Justice of the
European Union (CJEU) (see here
and here).
Return hubs have also been considered a form of externalisation
of migration governance by the UN Special Rapporteur on the Human Rights of
Migrants. The Rapporteur warned that they create a risk of violating the
principle of non-refoulement, including chain refoulement, exposing individuals
to arbitrary detention and undermining procedural safeguards. As the Rapporteur
emphasised, States cannot outsource their human rights obligations and may
remain internationally responsible for violations committed in the cooperating
third country.
Concluding thoughts
During the negotiations on the Return Directive, a Latin
American head of state famously described it as the "Directive of
Shame" (Directiva de la Vergüenza). From the perspectives of human
rights, proportionality, good faith and, indeed, common sense, the future
Return Regulation may well deserve to be regarded as the EU's "Regulation
of Shame". As the preceding analysis illustrates, the Regulation creates a
significant risk of human rights violations, most notably breaches of the
principle of non-refoulement—including chain refoulement—and the prohibition of
arbitrary detention. It introduces a range of highly intrusive and coercive
measures, even though they are part of administrative migration procedures
concerning people who have committed no crime. The Regulation also raises
serious concerns regarding legal certainty and the prohibition of arbitrariness
by deferring to national law on core aspects of the return procedure, including
the grounds for detention, the criteria for establishing a risk of absconding,
restrictions on freedom of movement, investigative measures and the
consequences of non-compliance. In doing so, it undermines one of its own
stated objectives: the harmonisation of return rules across the EU. The
Regulation is also unlikely to achieve its central policy objective of
increasing the number of returns. There is little evidence that reducing
opportunities for regularisation while expanding detention and entry bans will
make return systems more effective. On the contrary, greater reliance on
detention and reduced use of voluntary return are difficult to reconcile with
considerations of financial efficiency, itself a guiding principle of EU
law-making.
Reaching agreement on such a coercive text was made possible
by Parliament's position. Unlike during the negotiations on the Return
Directive between 2005 and 2008, the Parliament did not serve as a counterweight
to the positions of the Commission and the Council. Whereas interinstitutional negotiations
on the relatively short Directive lasted around nine months, agreement on the
considerably longer Regulation was reached after only a handful of trilogues over
approximately two months. During the negotiations on the Directive, Parliament
was instrumental in preserving and strengthening a number of safeguards. By
contrast, its position on the Regulation remained largely aligned with the
Council's. The alliance between the EPP and far-right groups secured the
necessary majority, but support also came from some centrist and liberal MEPs.
This reflects a broader shift in the European political landscape, in which
restrictive migration narratives have become increasingly mainstream.
With the Regulation now adopted, much will depend on its
implementation and interpretation. National courts and the CJEU will have a
crucial role in ensuring that its provisions are applied consistently with
Member States' obligations under international law, EU law and domestic
constitutional standards. Beyond litigation, financial oversight bodies may
increasingly scrutinise expenditure on costly detention systems and return
hubs. Given that the Commission's proposal was not accompanied by an impact
assessment, independent research will be essential to evaluate whether the
Regulation's coercive approach actually increases returns. Investigative
journalism and advocacy will likewise remain indispensable in documenting its
impact and challenging practices that undermine fundamental rights. Perhaps,
ultimately, this legislation—shaped by ideas that only a few years ago remained
largely confined to the political margins—will also serve as a reminder that
the erosion of rights rarely remains limited to a single group. Once exceptions
to fundamental guarantees become normalised, the boundaries of exclusion tend
to expand, placing ever more people beyond the protection of the law.
