The Regulation of Shame: When Far-Right Ideas Become EU Return Law

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.

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.

 

 

European Return Orders and the European Human Rights Convention: The Commission’s Proposal for a Return Regulation

 

 

Professor Elspeth Guild, University of Liverpool

 

Photo credit: Marcelx42, via Wikimedia Commons

 

In March 2025 the European Commission published a proposal for a re-cast return regulation. It has been met with mixed responses, a certain jubilation in some parts of Europe’s extreme right, a certain concern not least from a human rights perspective in other quarters. For an excellent analysis of this proposal see Majcher’s blog on this site. One of the innovations in the proposal is a European Return Order which any Member State may enforce without issuing its own expulsion decision (Articles 7-9). (‘Return’ is the EU term for ‘expulsion’ which is the term used in the European Convention on Human Rights and the International Covenant on Civil and Political Rights. I will use the term ‘expulsion’, consistent with European and international human rights law).

 

In this blog I will examine the human rights problems which Member States are likely to encounter where they seek to expel someone on the basis of a European Return Order issued by another Member State. I will focus in particular on the case law of the European Court of Human Rights regarding the human rights assessments which states must carry out before expelling a person. These requirements were recently reviewed, expanded and confirmed by the ECtHR in its 4 February 2025 judgment in A.B. and Y.W. v Malta in the context of Article 3 ECHR (the prohibition on torture, inhuman or degrading treatment or punishment). I will also examine the duty on states to carry out a human rights assessment in the context of Article 8 (the duty to respect private and family life). Although this is a qualified right, states must justify on grounds of necessity and proportionality any interference with it. The facts of each situation need to be considered and weighed against the interest of the person.

 

The European Return Order

 

According to the Commission’s explanatory memorandum, the European Return Order (ERO) will not replace each Member State’s own return decisions. Instead, the ERO will extend the scope of application of Member States' return decisions in order to make them actionable across the Union by Member States other than the one which made the order. The ERO will be in a common form which includes the key elements of the national expulsion decision. It will be made available through the Schengen Information System (the EU information sharing system for security and border management). In so far as technical changes may be required for this purpose, they will be addressed in amendments to SIS rules.

 

An implementing act will make it mandatory for all Member States to recognise and enforce an expulsion (return) decision issued by another Member State in the form of the ERO (with limited derogations). Among those derogations is a provision (Article 9(4)) which allows Member States not to recognise or enforce the expulsion decision of another Member State on ground that it is manifestly contrary to public policy. In EU law public policy does not expressly include fundamental or human rights grounds, although the similarly worded public policy derogation in the Brussels Regulation on the mutual recognition of civil judgments does include manifest human rights breaches, according to the case law of the CJEU (see the judgment in Real Madrid, for example).

 

More relevant may be Article 5 of the proposed regulation, which requires that Member States implement the regulation in compliance with the principle of non-refoulement, and with fundamental rights including the Charter, with relevant international law. However, there is no indication of how a Member State is to reconcile the duty to recognise and enforce expulsion orders made by other Member States with the Article 5 duties.

 

Again, according to the Commission, the Member State that issues an expulsion decision remains responsible for its enforcement. It must use all appropriate means to ensure effective expulsion of the person named therein. The new proposal is intended to be a mechanism for recognition of expulsion decisions issued by another Member State, underpinned and facilitated by the ERO. The explanatory memorandum states that the proposal clarifies the process and relevant procedural safeguards and remedies based on the lessons learnt from the implementation of the 2023 Commission Recommendation on mutual recognition of return decisions. 

 

The objective of mutual recognition of expulsion decisions among the Member States has long been on the EU agenda. In 2001, a directive (2001/40) was adopted to achieve this end. As noted by Peers, that directive does not apply to the process or substance of the decision and permits expulsion by another Member State as an option not an obligation. Under that directive, enforcement takes place under national law which must include the Returns Directive 2008/115 (which will be repealed if the proposed regulation is adopted in the current form). Thus, the main purpose of the 2001 directive appears to be to avoid a state having to send an irregularly present migrant back to the Member State which issued the expulsion decision. A system for financial compensation was adopted in 2004. The criticisms which Peers makes of the directive include: its application to persons with rights under international agreements agreed by the EU, inappropriate extension of Schengen (and the SIS II rules) to persons already present on the territory, inadequate application of human rights standards, opacity as regards as regards costs and inconsistency with the Returns Directive.

 

As for the Commission’s recommendation on mutual recognition of expulsion decisions, the Commission claimed that this would facilitate and accelerate the return processes for the Member State responsible for return and enhance cooperation and mutual trust between Member States by further increasing convergence between Member States on managing migration. This is a rather large claim as will be explained below. In particular, the Commission claimed that obstacles to cooperation and communication among national authorities responsible for the asylum and the return procedures represent a key structural challenge for a more efficient expulsion processes. This logic underpins the current proposal for an ERO.

 

The Human Rights Obstacles to EROs

 

The key problem, however, with mutual recognition of expulsion decisions among Member States is the duty in international and European human rights law that a state seeking to expel an individual must carry out an assessment which consists of two parts which are not necessarily part of the same proceedings depending on the national law of the state. First there must be an ex nunc rigorous assessment of any risk which the person might face if returned to the proposed country, for the purposes of ensuring that the prohibition on refoulement is fully complied with (para 72 A.B. and Y.W. v Malta). This is required by Article 3 ECHR and the subject of substantial caselaw. Secondly, there must be a full assessment of the proportionality of the expulsion decision in light of the right to respect for his or her private and family life (Article 8 ECHR). It is for the state to show that the decision is proportionate and the threat sufficient to outweigh the individual’s right to respect for his or her private or family life.

 

Assessing the risk of refoulement

 

On the first ground, the prohibition on refoulement, it is for the person to make the claim. But thereafter, the risk assessment must focus on the foreseeable consequences of the applicant’s removal to the country of destination, in the light of the general situation there and of his or her personal circumstances. It must be considered whether, having regard to all the circumstances of the case, substantial grounds have been shown for believing that the person concerned, if returned, would face a real risk of being subjected to treatment contrary to Article 3 ECHR. If the existence of such a risk is established, the applicant’s removal would necessarily breach Article 3, regardless of whether the risk emanates from a general situation of violence, a personal characteristic of the applicant, or a combination of the two (para 61 A.B. and Y.W. v Malta).

 

As regards the distribution of the burden of proof, the ECtHR has clarified that there is a shared duty between the applicant and the immigration authorities to ascertain and evaluate all relevant facts in asylum proceedings. This includes a procedural obligation (part of the Article 3 duty) to assess the risk before expelling the individual. There are two main consequences of the Article 3 ECHR requirements. First, the authorities of a Member State executing an expulsion order (or an ERO) must be satisfied that the expulsion will not constitute refoulement. This will have to be on the basis of its own assessment not that of another Member State as the difference in assessment of risk in countries of origin by different Member States vary widely (as regards the same country of origin and where the risk is the same: generalised violence or civil war). Thus, an assessment of a country of origin by one Member State may result in granting protection while the assessment of the same country by another Member State may result in no protection and the issue of an expulsion order. Secondly, the assessment must be ex nunc and carried out in close temporal proximity to the proposed date of expulsion. Where there is an extended delay between adopting an expulsion order and its proposed execution, the state must carry out a new assessment to ensure that the risk remains below the threshold required by Article 3. All assessments must be rigorous.

 

Assessing the right to respect for private and family life

 

The second human rights ground which may defeat an expulsion decision is the right to respect for the person’s private and family life (Article 8 ECHR). Expulsion will always be an interference with private and family life (there is no need for expulsion where the person wishes and chooses to leave the country thus exercising his or her own choice regarding private and family life). The grounds on which a state can interfere with the right are set out in Article 8(2) and in all cases must be in accordance with the law and necessary in a democratic society. The grounds are limited to the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The ECtHR has elaborated an extensive list of elements which must be considered when assessing the proportionality of the state’s claim to interfere with the right which include: in all cases, the length of the applicant’s stay in the country from which he or she is to be expelled and the solidity of his, her or their social, cultural and family ties with the host country and with the country of destination.

 

In the case of expulsion on grounds of criminal conviction, the nature and seriousness of the offence committed by the person in the expelling state and the time elapsed since the offence was committed and the person’s conduct during that period must be assessed. Where family life is at issue, the assessment must include consideration of the nationalities of the person and any family members concerned, the family situation, such as the length of marriage, and other factors expressing the effectiveness of a couple´s family life, whether or not the spouse knew about the offence at the time when he or she entered into a family relationship, whether or not there are children of the marriage and, if so, their age(s), the seriousness of the difficulties that the spouse is likely to encounter in the country to which the applicant is to be expelled, the best interests and well-being of any children involved, in particular any difficulties they would encounter if they had to follow the person to the country to which he or she is to be expelled.

 

The assessment of the person’s entitlement to respect for privacy and family life in the context of the state’s claim to the necessity and proportionality of an interference with it must take place when the actual expulsion of the individual is planned to take place. It must be up to date. Where the state knew (or ought to have known) of the existence of the person’s relevant private and/or family life in accordance with Article 8, it is under a duty to undertake a thorough assessment, subject to procedural safeguards including a right of appeal.

 

In the context of an ERO, it is difficult to see how an expelling state which is other than that where the person’s private and family life is situated will be in a position to make such an assessment. Reliance on an assessment made in another state may be insufficient depending on the temporal relationship of the assessment and the proposed expulsion.

 

Similarly, while the objective is to ensure that persons named in an expulsion order by any Member State are expelled as quickly as possible to a third country or another Member State, it is not clear that this will be rapid. Nor is it self-evident that a person will not have developed family life in the expelling Member State. Such family life could have commenced in the issuing Member State then continued in that Member State which is responsible for the expulsion. There are myriad circumstances which occur in practice which blur the lines of where family and private life have developed and been exercised. It is worth remembering that in EU law as regards the expulsion of a third country national from one Member State who is in possession of a residence permit in another Member State, the CJEU has held that the person must be permitted to return the Member State which issued the residence permit and only expelled to a third country where the person refuses to do so. This relieves the Member State where the person is present from the obligation to carry out a human rights compliant private or family life assessment.

Conclusion

 

The Commission’s proposal for an ERO to facilitate the expulsion of third country nationals from the EU by requiring a Member State other than that which has taken the decision to expel the person raises substantial issues as regards human rights. International and European human rights require states to make an up to date risk assessment before expulsion where a person has claimed a fear of persecution, of the application of the death penalty or is otherwise at risk of deprivation of life, torture, inhuman or degrading treatment or punishment or arbitrary disappearance. This duty will apply to the expelling Member States in spite of the fact that the issuing state may have carried out such an assessment. This is particularly so where the original assessment is out of date or where there are substantial differences in protection rates for persons from the same country and in generally similar circumstances in the issuing state and the state which is to carry out the expulsion. The expelling state may also be required to carry out an assessment of the necessity, legality and proportionality of the expulsion decision in light of the person’s right to respect for their private and family life (Article 8 ECHR). In many cases, the elements of private and/or family life will be in the issuing state. The expelling state is likely to have difficulties as regards accessing of such elements and in the event that its assessment is that the interference is not proportionate, the fate of the person will be ambiguous. The required assessments may also be hampered by lack of access to and translation of documents. While Article 9(4) of the proposal permits a Member State to decide not to recognise another Member State’s expulsion order, this must be on the ground that to do so is manifestly contrary to public policy, and the proposal does not explicitly confirm that fundamental and human rights could be part of a public policy assessment.  

 

In sum, this proposal does not appear likely to speed up human rights’ compliant expulsions. Rather it is likely to result in lengthy procedures fraught with cross border problems for both states. A better approach to the issue of persons subject to expulsion decisions who move from one Member State to another is to facilitate their return to the first Member State. However, if the person claims a fear that the first Member State will expel them contrary to the prohibition on non-refoulement, the expelling state cannot simply disregard the claim without breaching its own human rights obligations.