The Council of the EU’s Position on the Return Proposal: Trump-Inspired Approaches Dominate

 

Dr. Izabella Majcher, Independent Consultant

Photo credit: Alamy stock photo

 

On 11 March 2025, the European Commission published a proposal for a Return Regulation intended to replace the 2008 Return Directive. The stated objective of the proposal is to increase the number of people returned, with the Commission regretting that only around 20% of persons issued with a return decision actually leave. As the proposal explains, it seeks to streamline and harmonise return procedures, attributing the perceived ineffectiveness of EU return policy to divergent national approaches. In this spirit, the Commission proposes replacing the directive with a regulation that would establish “modern, simplified and common” procedures. EU institutions have repeatedly asserted that the current return framework is complex and outdated. However, this claim is difficult to verify, as is the assumption that the proposed regulation would effectively increase return rates. This is largely due to the Commission’s failure to conduct a prior impact assessment, despite this being required under its own Better Regulation Guidelines.

On the side of the European Parliament, the draft report on the Commission’s proposal was presented to the Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 11 November 2025, and the Parliament is currently working towards adopting its final position. The other co-legislator, the Council of the European Union, adopted its “general approach” on 8 December 2025, during the Justice and Home Affairs (JHA) Council, alongside its position on the safe third country concept and on a common EU list of safe countries of origin. This JHA Council was the final meeting under Denmark’s Presidency. Denmark—widely known for its restrictive asylum and migration policies—sought to secure Member States’ agreement on these files before the end of its term (for instance, the Council removes the future mandatory character of the mutual recognition of return decision proposed by the Commission, on which the agreement among Member States proved difficult).

While the Commission’s proposal already displays an overall coercive approach and restricts human rights safeguards—as highlighted in a joint statement by over 200 civil society organisations—the Council’s position further erodes existing protections. This non-exhaustive analysis examines ten key measures introduced or reinforced by the Council that are particularly problematic from a human rights perspective.

 

1) Return decision and the risk of refoulement: the Council explicitly allows disregard of the principle of non-refoulement. It provides that authorities should not be precluded from issuing a return decision where there is a risk of refoulement (Art. 7(4a)). In such cases, the return decision should state that removal to the country concerned is postponed under Art. 14(1)(a). Given that a return decision may be enforceable, issuing it despite an identified risk of refoulement engages the State’s responsibility under Article 3 ECHR. Issuing a return decision in such circumstances—irrespective of a possible postponement of removal—may lead to refoulement in practice, for example if the postponement decision is not adopted in time. Moreover, as the suspensive effect of appeals is significantly curtailed (see below (2)), a person may be removed before such a decision is taken. This approach is also questionable in terms of effectiveness: postponement procedures would still need to be carried out, while the person would remain in an irregular situation, thereby undermining the stated objective of increasing return rates.

In practice, this provision appears to facilitate transfers to third countries acting as “return hubs” (see below (9)) during the postponement of removal to the country designated in the return decision. However, the prohibition of refoulement also covers indirect (chain) refoulement. Transfer to an intermediary country does not absolve the sending State of its responsibility under Article 3 ECHR to ensure that the “return hub” offers sufficient guarantees against onward removal to a risk of refoulement.

2) Procedural safeguards and the right to an effective remedy: the proposal further increases the risk of refoulement by weakening procedural safeguards to challenge return decisions. As introduced by the Commission and reinforced by the Council, a return decision need not specify the country of return (Art. 7(4)), while a removal decision may identify more than one country (Art. 4(4b)). This undermines legal certainty and clarity and places an excessive burden on individuals, who may be required to challenge removal in relation to several potential destinations. The proposal foresees a non-refoulement assessment prior to removal, which is particularly important given that a return decision may be issued despite an identified risk of refoulement (see above (1)). Accordingly, where there are indicators that removal would breach the principle of non-refoulement, the person should be referred to an appropriate procedure, including the asylum procedure, or the risk should be assessed in accordance with national law. However, this assessment may be carried out by the same authorities that issued or enforce the return decision, and may be dispensed with entirely where a prior assessment exists or where the relevant information is deemed insufficiently substantiated (Art. 12(3)–(3a)).

Remedies are also weakened. The Council deletes the Commission’s proposal to suspend enforcement of a return decision where there is a risk of refoulement. Automatic suspensive effect is no longer guaranteed; instead, Member States may grant it only upon request (Art. 28(1)). Given the irreversible nature of the harm, Art. 13 ECHR requires automatic suspensive effect where return is challenged on non-refoulement grounds.

3) Grounds for non-return: under the current Return Directive, Member States may grant an autonomous residence permit or other authorisation offering a right to stay for humanitarian, compassionate or other reasons. In such cases, no return decision shall be issued, or an existing decision must be withdrawn or suspended for the duration of the authorisation (Art. 6(4), current Directive). While the Commission retains this possibility (Art. 7(9), Commission proposal)—albeit outside the exceptions to the obligation to issue a return decision in Art. 8—the Council removes it entirely. Its position contains no human-rights-based exception to the obligation to issue a return decision. Yet such exceptions are essential to ensure respect for rights that may prevent removal, including non-refoulement, the right to private and family life, or other circumstances rendering return unlawful or inappropriate, such as serious health conditions. Eliminating the possibility to grant a residence permit in such situations risks violations of international and EU human rights obligations and conflicts with Member States’ own legal frameworks, many of which provide for regularisation mechanisms. Not every person in an irregular situation can be removed. Issuing return decisions in cases where removal would violate human rights is likely to generate litigation and leave individuals in legal limbo—ultimately undermining, rather than enhancing, the effectiveness of return policy.

4) Detention: the Commission’s proposal significantly expands the legal basis for detention. In addition to the two grounds provided under the Return Directive—risk of absconding and hampering return—it introduces three new grounds: “security risks” (see below (8)), determination or verification of identity or nationality, and non-compliance with restrictive measures (see below (5)) (Art. 29(3)). As discussed elsewhere, these grounds are broadly framed and raise serious concerns as to their necessity and justification. The Council further extends this list by allowing detention on “other relevant, necessary and proportionate grounds” to ensure an effective return procedure, as defined in national law. This open-ended clause undermines legal certainty and permits unchecked and potentially arbitrary detention, in violation of the right to liberty.

The Commission also introduces extensive criteria for assessing the risk of absconding, including three criteria establishing a rebuttable presumption and eight criteria for an overall assessment (Art. 30, Commission proposal). The Council expands both lists further, adding undefined criteria under national law (Art. 21a, Council version). This disproportionate approach risks categorising nearly every person in an irregular situation as a potential absconder, thereby transforming immigration detention from an exceptional measure of last resort into a standard tool of migration control, contrary to international human rights standards.

Despite the requirement under international law that immigration detention be as short as possible, the Commission extends the maximum period of detention from 18 months (6 + 12) to 24 months (12 + 12) (Art. 32(3), Commission proposal). This detention period is exceptionally long and unnecessary, particularly given that immigration detention concerns persons who have not committed a criminal offence and who do not benefit from safeguards applicable under criminal law. The Council allows for repeated six-month extensions of the detention period where there is a risk of absconding and a reasonable prospect of removal arises from specific changes in circumstances (Article 32(3a), Council version). Such potentially indefinite detention amounts to arbitrary detention and violates the right to liberty. In addition, the Council clarifies that these detention limits apply per Member State, allowing a new period of detention to be imposed if the person moves to another EU country (Art. 32(3)).

Procedural safeguards are further weakened: the Council reduces the frequency of detention reviews from three to six months and removes the 15-day deadline for an initial judicial review (Art. 33).

5) Cooperation duties and restrictive measures: the Commission’s proposal imposes extensive cooperation obligations and restrictive measures on persons subject to return, which the Council substantially expands. The resulting web of detailed—and at times overlapping—obligations undermines legal clarity and proportionality. The obligation to cooperate (Art. 21) encompasses fifteen categories of obligations, including remaining available to authorities (such as appearing before third-country authorities for the issuance of travel documents or verification of identity or nationality), providing extensive information, and complying with third-country entry requirements, including health-related conditions. The list is open-ended, as it refers to national law. In practice, many of these obligations may be difficult or impossible for individuals to fulfil.

Non-compliance with cooperation duties triggers the mandatory imposition of restrictive measures, including residence requirements, reporting obligations, and other measures under national law (Art. 23(1)). It may also lead to further sanctions, such as refusal of allowances, extension of entry bans up to 20 years, criminal sanctions including imprisonment, or other penalties provided for under national law (Art. 23b(1)). Failure to cooperate also constitutes a criterion for establishing a risk of absconding (Art. 21a(2)(g)), which may in turn justify the imposition of so-called “alternatives to detention for preventing absconding”—including electronic monitoring and measures defined in national law (Art. 23c(1))—as well as detention itself (Art. 29(3)(a)). Moreover, failure to comply with specific cooperation duties is an independent ground for detention (Art. 29(3)(e)).

In practice, virtually any person subject to return may fail to comply with one or more of these extensive obligations and thus become exposed to a cascading set of restrictive measures and sanctions. The breadth of these measures fails to meet the principles of necessity and proportionality and leaves significant scope for arbitrary application.

6) “Investigative measures”: the Council introduces “investigative measures” (Art. 23a), allowing 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. Such measures may also be further defined under national law. While safeguards are foreseen, such as necessity, proportionality, respect for fundamental rights and access to remedies, the breadth of this provision raises serious concerns. In practice, it would permit police to raid homes, shelters and other premises that accommodate or support persons in an irregular situation, with significant implications for the right to privacy.

7) Entry ban: while the Commission already expands the use and duration of entry bans, the Council amplifies this approach further. The Commission introduces the possibility of imposing an entry ban without a prior return decision where an irregular stay is detected during exit border checks. The Council removes the Commission’s safeguards, namely the requirements that such a ban be justified by the individual circumstances of the case, respect the principle of proportionality, and safeguard the rights of defence. The Council’s position effectively eliminates the rights of defence by allowing an entry ban to be imposed and notified after the person has already left the territory (Art. 10(4)). It further allows the imposition of an entry ban without a prior return decision where a person departs before such a decision is issued (Art. 10(4a)). This raises serious concerns as to how authorities can assume, without any prior assessment, that a person in an irregular situation would not have a right to stay. Crucially, this deprives individuals of any effective remedy, in breach of Art. 47 of the Charter of Fundamental Rights of the EU.

As regards duration, in cases not involving a threat to public order or security, the Commission extends the maximum length of an entry ban from five to ten years, while the Council further increases it to twenty years (Art. 10(6)). Such durations may severely interfere with the right to private and family life under Art. 8 ECHR, particularly for individuals who have established strong personal and social ties in the EU prior to removal. Although the Council retains the possibility to withdraw, suspend or shorten an entry ban in justified individual cases (Art. 11(2)), it significantly restricts individuals’ ability to request such measures (Art. 11(3)).

8) Persons posing “security risks”: the Commission introduces a distinct category of persons subject to return to whom heightened coercive measures may apply: those deemed to pose “security risks” (Art. 16). The Council further expands this already vaguely defined category. In particular, it includes within the notion of a threat to public policy or security and national security persons subject to an alert in the Schengen Information System (SIS), which itself encompasses situations as minor as attempts to circumvent rules on entry or residence. The Council also defers to national law for defining “other security threats,” further diluting legal certainty. Persons falling within this category may be subjected to additional coercive measures, including detention—which may be carried out in prisons and potentially be of indefinite duration—and entry bans exceeding twenty years. This approach blurs the distinction between criminal and migration law, reinforces harmful stereotypes linking migration and security risks, and circumvents the procedural safeguards that apply in criminal proceedings. While States have a legitimate interest in protecting public order and national security, criminal law should apply equally to all persons under a State’s jurisdiction. Using migration law as a substitute for criminal justice undermines fundamental legal principles and the rule of law.

9) “Return hubs”: among the Commission’s so-called “innovative solutions” to increase return rate is the establishment of “return hubs.” The proposal allows Member States to remove individuals to a third country with which they have concluded an agreement or arrangement (Art. 17). The person need not have any link to that country, nor must the country qualify as a safe third country, although certain conditions are envisaged. The Council’s position clarifies that such agreements or arrangements may regulate the modalities of onward return and that detention may result from their implementation (Art. 17(2a)). It also relaxes notification obligations vis-à-vis the Commission and other Member States (Art. 17(3)), reducing transparency and oversight.

While the externalisation of returns may appear attractive to Member States, recent migration arrangements show that such models often entail significant legal challenges, operational difficulties and high financial costs for the outsourcing State. More fundamentally, return hubs raise serious human rights concerns, in particular regarding detention and onward return. States cannot evade their international obligations by outsourcing migration control. Depending on the degree of involvement, responsibility for violations may be attributed to the externalising State, the third State, or both, including through complicity in internationally wrongful acts.

10) Children: the Council reduces child-specific safeguards throughout the proposal. It weakens protections relating to age assessment (Art. 19), the appointment and role of a guardian for unaccompanied children (Art. 20(2)), and legal assistance and representation (Art. 25). The Council also removes the provision in the current Directive (Art. 10(1)) that requires assistance for an unaccompanied child by bodies other than the authorities enforcing return to be granted before issuing a return decision. This safeguard is crucial to ensure that the best interests of the child are properly assessed prior to any return decision. Under international law, children may be returned only where this is in their best interests. The Council further removes schooling from the explicit grounds for extending the period for voluntary departure (Art. 7(1c)). It also deletes the Commission’s proposed exemption of families with children from return to “return hubs” (Art. 17(4)), leaving only unaccompanied children excluded from this measure. Moreover, children are not exempt from newly introduced coercive measures, including cooperation obligations and sanctions for non-compliance (see above (5)), as well as investigative measures (see above (6)).

As regards detention, both the Commission and the Council disregard international standards according to which children should not be placed in immigration detention at all. The expanded detention regime (see above (4)) applies equally to children. The Council further removes the mandatory ex officio review of detention of unaccompanied children (Art. 33(2)) and relaxes requirements concerning conditions and services in detention, including access to education (Art. 35(2)–(3)). These changes are incompatible with the best interests of the child and with children’s rights to liberty and education under the UN Convention on the Rights of the Child.

 

Concluding thoughts

The Council: as this assessment demonstrates, the Council’s position lacks proportionality and opens the door to arbitrary measures. Human rights safeguards are systematically weakened. Even the fundamental, non-derogable prohibition of refoulement no longer prevents the issuance of a return decision. The accumulation of multiple—and at times overlapping—coercive measures, including far-reaching cooperation obligations and sanctions for non-compliance, runs counter to the stated objective of the reform, namely to streamline and simplify return procedures. Moreover, the Council’s frequent deferrals to national law—including on core issues such as grounds for detention, criteria for establishing a risk of absconding, and the definition of a security threat—undermine the very rationale for replacing a directive with a regulation and defeats the goal of harmonisation of return procedures.

Other players: the Council’s position was made possible by the Commission. The Commission has consistently relied on the narrative of a low return rate, while maintaining a taboo on non-return and regularisation, despite having funded multiple research projects that provided evidence on this matter. The Commission’s proposal itself already contained several measures raising serious concerns from a human rights perspective. By advancing this proposal in a context of political polarisation on migration—where centrist parties increasingly adopt right-wing and enforcement-driven approaches—the Commission has fallen short of its role as guardian of the Treaties and defender of the Union’s fundamental values. Attention now turns to the European Parliament, with the hope that its final report will offer a human-rights-compliant position to restore a measure of balance before inter-institutional negotiations begin.

First they came for migrants: the Council’s position reflects the view, advanced by some States, that the European Court of Human Rights—or human rights more broadly—has become excessively protective of migrants in an irregular situation and unduly restrictive of States’ prerogatives to expel them. To be clear, any attempt to narrow the scope or application of human rights conventions in relation to migrants constitutes an attack not only on migrants’ rights, but on the rights of all persons. Once human rights are weakened for one group deemed politically expendable, derogations and qualifications can be expected to follow for others. What is presented as an exceptional response to migration thus risks becoming a broader erosion of the universality and indivisibility of human rights protection.