The European Parliament’s role in shaping the EU rules on return: from safeguards to securitisation

 

 

Dr. Izabella Majcher, Independent Consultant

Photo credit: Alamy stock photo

 

The current revision of the EU rules on return has progressed rapidly since the European Commission published its proposal for a Return Regulation on 11 March 2025 (discussed here and here). The Council of the European Union adopted its “general approach” to the proposal on 8 December 2025 (discussed here). In addition to numerous critical opinions from civil society organisations (see, for instance, here, here and here), on 26 January 2026, in an unprecedented step, 16 UN experts addressed a joint letter to both the Commission and the Council expressing serious concerns about the proposal. The measures attracting particular criticism included weakened procedural safeguards; expanded immigration detention; the de-prioritisation of “voluntary” departure; increased cooperation obligations, penalties and restrictions; risks of racial and religious profiling; limitations on access to socio-economic rights; insufficient protection of persons in vulnerable situations; and the introduction of “return hubs”. To date, neither institution has responded to the UN experts.

On the side of the European Parliament, within the Committee on Civil Liberties, Justice and Home Affairs (LIBE), the rapporteurship for this file was assigned to the Renew political group. The Rapporteur presented his draft report on 30 October 2025, which attracted over 2,200 amendments from political groups. As intra-LIBE negotiations on these amendments proved challenging, shortly before the planned vote, the largest political group, the European People’s Party (EPP), tabled alternative compromise amendments with the support of right-wing and far-right groups (European Conservatives and Reformists, Patriots for Europe and Europe of Sovereign Nations). Holding a majority within LIBE, these groups secured the report's adoption on 9 March 2026. Despite mobilisation by civil society and observations issued by the Council of Europe Commissioner for Human Rights, the Parliament adopted the report in plenary on 26 March 2026, with 389 votes in favour, 209 against, and 32 abstentions.

This blog post provides a brief discussion of the European Parliament’s position on selected key measures proposed by the Commission and may be read alongside the previous analysis.

 

Detection measures: As a rare instance in which the Parliament prevents the application of coercive measures, it removed the detection measures proposed by the Commission in Art. 6. These measures, aimed at identifying persons staying in an irregular situation for the purpose of their removal, had been criticised as likely to lead to racial profiling.

Return decision and safeguards (Art. 7, 12 and 26–28): The Parliament expanded the possibility, already envisaged in the Commission’s draft, of not indicating the country of return in the return decision. It provides that, where the country of return cannot be determined at the time of issuing the return decision, the decision may provisionally designate none, one or several countries of return. It further clarifies that the country of return may be determined either in the return decision itself or subsequently, in the removal order. Moreover, where a country of removal has not previously been specified in the return decision, or where it differs from the country designated therein, the Member State is required only to notify the person in accordance with national law. In such cases, the issuance of a new return decision or removal order is not required. This approach may prevent individuals from effectively appealing removal to a specific country, as notifications falling short of a formal decision or act may not be subject to review. It therefore risks undermining the principle of non-refoulement, the right to an effective remedy, and the principle of good administration.

The absence of an indication of the country of return in the return decision is highly problematic from a non-refoulement perspective, as it suggests that an individual assessment of the risk of refoulement may not be carried out at that stage of the procedure. Indeed, the Parliament’s report requires Member States to determine the country of return only “prior to carrying out the removal.” In addition, it weakens the risk assessment envisaged in the Commission’s proposal by transforming what appears to be an obligatory assessment into one that is triggered only when the person raises the risk or when the authorities otherwise become aware of it.

These concerns are compounded by a further weakening of remedies. The Parliament’s report explicitly states that an appeal does not have an automatic suspensive effect, while merely preserving the possibility for national law to provide for such an effect.

Mutual recognition of return decisions (Art. 9): The Parliament largely retains the Commission’s provisions on mutual recognition. It adds, however, that not only return decisions but also removal orders may be enforced by another Member State. This raises practical challenges, as only the main elements of the return decision are to be included in the standardised form (European Return Order) made available through the Schengen Information System. Crucially, given the expanded possibility of not indicating the country of return in the return decision, the enforcing Member State may in practice need to carry out a new procedure to issue a return decision. The Parliament further clarifies that Member States are not required to adopt administrative decisions or acts for the purposes of recognition, which may further limit the individual’s ability to challenge enforcement measures.

Voluntary departure (Art. 13): Compared to the Commission’s proposal, the Parliament further deprioritises “voluntary” departure. While the Commission’s draft implicitly allows for a period of zero days for voluntary departure, the Parliament’s report explicitly provides for the possibility of imposing immediate “voluntary” departure. It also makes the granting of a longer period contingent upon a request by the person concerned and removes the non-exhaustive list of circumstances justifying such an extension, including family links and children’s schooling. The Parliament appears to overlook that voluntary departure is not only more favourable to the individual, and consistent with the principle of proportionality, but also serves the interests of the State.

Safeguards pending removal (Art. 14): The Parliament removes the basic rights to which persons are, in principle, entitled during the period of postponement. This list includes the fulfilment of basic needs, respect for family unity, emergency health care and essential treatment of illness, access to the basic education system, and the protection of the special needs of vulnerable persons. These safeguards are laid down in the current Directive (Art. 14(1)), and the Commission’s proposal slightly expanded this list. They also reflect human rights obligations, including the rights to education, health, and basic subsistence.

Monitoring of removal (Art. 15): The detailed provisions on return monitoring included in the Commission’s proposal have been significantly curtailed. Notably, the Parliament removed key elements relating to the powers and capacities of the independent monitoring mechanism, including the requirement to ensure appropriate means, autonomy in action, and a mandate to communicate substantiated allegations of failures to respect fundamental rights to the competent national authorities.

Detention (Art. 29–35): The Parliament’s report retains the Commission proposal’s deletion of the current requirement that detention may be imposed only where no sufficient but less coercive measures can be applied in a specific case (Art. 15(1)). It also expands the grounds for detention to include non-compliance with cooperation duties. Given this extensive list of grounds, detention risks becoming a regular measure, in violation of the principles of necessity and proportionality inherent in the right to liberty. The maximum detention period of two years (12 months + 12 months) in a given Member State is maintained, representing a significant increase from the current 18-month limit (Art. 15(5)-(6)). In contrast to the Commission’s draft, the review of detention would no longer need to be concluded within 15 days. On a positive note, the Parliament introduced, in the preamble (§32), a provision stating that children, as a rule, should not be detained.

As regards detention conditions, the Parliament retains the limitations proposed by the Commission and, in some respects, further amplifies them. Compared to the current directive (Art. 16), the proposed rules significantly lower standards governing detention conditions and treatment. Detention may take place not only in specialised facilities but also in designated sections of other facilities, and where prisons are used, migrants are to be kept separated from ordinary prisoners only where possible. Temporary measures may be adopted to expand capacity in exceptional return situations. Access to open-air spaces, introduced by the Commission, may be temporarily restricted where necessary and proportionate to ensure the proper functioning of detention facilities. Contact with the outside world will be subject to security and administrative considerations. Families without children will not be entitled to separate accommodation ensuring privacy.

Entry ban (Art. 10–11): The Parliament further broadens the already expanded scope of entry bans proposed by the Commission. It removes the maximum duration of 10 years for entry bans (compared to the current maximum of 5 years in cases not involving security threats under Art. 11(2)) and also eliminates any maximum period for persons considered to pose security risks. In addition, the Parliament renders less explicit the circumstances in which an entry ban may be withdrawn, suspended, or shortened.

It also removes the safeguards proposed by the Commission for entry bans imposed when a person’s irregular stay is detected at exit, including the requirement for justification based on the specific circumstances of the individual case, respect for the principle of proportionality, and the rights of defence. Furthermore, the Parliament’s report introduces additional situations in which entry bans may be imposed in the context of departure, such as where a person leaves the territory without a return decision having been issued, or departs before such a decision is adopted. Entry bans imposed on persons seeking to leave the territory without completing a return procedure are counterproductive, disproportionate, and disregard the requirement of an individual assessment.

Return hubs (Art. 4(3) and 17): The Parliament’s report provides that the agreement or arrangement forming the basis for return hubs may be concluded not only by a Member State but also by the Union. It also weakens notification obligations towards the Commission and removes families with children from the category of persons exempted from removal to return hubs, leaving only unaccompanied children exempted. Crucially, the list of countries of return, which includes countries hosting return hubs at its end, clarifies that the order of the list does not determine the sequence in which those countries may be applied. This suggests that a person may be removed to a return hub even before any attempt is made to return them to their country of origin, raising concerns as to compliance with the principle of good faith and increasing the risk of human rights violations associated with transfers to third countries.

Alternatives to return (Art. 7(9)): The Parliament retains the approach in the Commission’s proposal whereby the current possibility under Art. 6(4) of not issuing a return decision is removed from the list of situations in which such a decision is not adopted. Under the Parliament’s proposal, decisions by Member States to grant an autonomous residence permit, long-stay visa, or other authorisation granting a right to stay on compassionate, humanitarian, or other grounds may only result in the withdrawal or suspension of a return decision, rather than its non-issuance.

References to national law: Finally, the Parliament defers to national law in defining a range of measures, which sits uneasily with the nature of a regulation, as opposed to a directive, and may give rise to disproportionate and arbitrary outcomes. The measures whose applicability or scope may be determined at the national level include removal (Art. 12(1)), cooperation duties (Art. 21(2)), penalties for non-compliance with such duties (Art. 22(1)), detention (Art. 29(3)), and restrictive measures (so-called alternatives to detention) (Art. 31(2)). The notion of “security risks”, which triggers the application of multiple coercive measures, also encompasses threats defined under national law.

 

Concluding thoughts

The European Parliament’s report on the proposed Return Regulation reflects a markedly coercive approach towards persons in an irregular situation, raising serious concerns as to its compatibility with fundamental rights. These include the prohibition of refoulement, arbitrary detention, torture and ill-treatment, the right to due process and procedural safeguards, the rights of the child, as well as socio-economic rights, alongside broader principles of proportionality and human dignity. This approach stands in stark contrast to the Parliament’s December 2020 resolution, which reflected safeguards developed by UN human rights mechanisms and may be regarded as a counterbalance to the Commission’s 2017 recommendation on the implementation of the Return Directive. In that resolution, the Parliament emphasised that voluntary return should be prioritised over forced return; unaccompanied children should only be returned where this is demonstrably in their best interests; children should never be detained for immigration purposes; and detention must remain a measure of last resort. It also expressed concern over the widespread automatic imposition of entry bans and broad criteria for assessing the risk of absconding, and encouraged greater use of autonomous residence permits.

The current European Parliament does not appear to provide an effective counterweight to executive proposals that raise concerns from both a human rights and effectiveness perspective. While the Commission’s proposal for the Return Regulation had already been widely criticised as disproportionate and problematic from a fundamental rights standpoint, the Parliament largely retains its most contentious elements and, in many respects, further reinforces their coercive nature. In practice, the Parliament’s position is closely aligned with that of the Council, itself regarded as particularly restrictive. As a result, trilogue negotiations are expected to proceed swiftly, mirroring the accelerated adoption of recent instruments such as the regulations on safe third countries and safe countries of origin.

This marks a striking departure from the legislative dynamics during the 2005–2008 legislative process leading to the adoption of the Return Directive (discussed here, here and here). At that time, acting under the then newly established co-decision procedure, which placed it on equal footing with the Council, the European Parliament was widely regarded as a key defender of fundamental rights. It significantly strengthened safeguards in the draft Directive proposed by the Commission and, during the subsequent negotiations with the Council, played a decisive role in preventing the adoption of some of the Council’s more restrictive proposals. The institutional dynamics were famously characterised as a triad of the “Good” (Parliament), the “Bad” (Council), and the “Ugly” (Commission). Nearly two decades later, however, this configuration appears to have shifted, with all three actors now converging towards the “Bad.”