Salvo
Nicolosi, Associate Professor and Jean Monnet Chair in European Law
and Migration Policies, Faculty of Law, Economics and Governance, Utrecht
University
Photo credit: Rock Cohen, via Wikimedia
Commons
With the entry into application of the Pact on
Migration and Asylum (COM/2020/609) on 12 June 2026, the legislative compass has shifted
to the complementary area of the return policy, with the adoption of the Return Regulation 2026/2280 and the European Commission’s unveiling of the
proposal to amend the Regulation on the European Border and Coast Guard (COM/2026/1030), on 27 October 2026. Such a proposal, which marks
the fifth round of changes to the mandate of Frontex (the European Border and
Coast Guard Agency) since its establishment by Regulation (EC) 2007/2004, aims to strengthen Frontex’s mandate,
including in supporting Member States with returns, and to reinforce its
standing corps. As highlighted by the European Commission in its 2026 State of
Schengen Report (COM/2026/ 150), Frontex provided significant support to Member
States in the area of returns, deploying in 2025 140 Return Specialists and
supporting 63,500 effective returns, representing 42% of the total.
What would the role of Frontex be in the new
design of the EU return policy? The question raises important issues in light
of the continual struggle for externalisation, understood as cooperation at the
EU and national levels with third countries to manage flows and returns. The new
Return Regulation introduces a legal basis for creating return hubs in third
countries. This calls for reflection on the operational support that Frontex
could provide in light of the new proposal, whose analysis unearths significant
legal shortcomings, as explained in this short post.
The impact of
externalisation on the reform of return policy
The trend towards externalising migration
management has been expanding from departure prevention (e.g. 2017 Italy-Libya
cooperation) to offshore asylum processing (e.g. 2023 United Kingdom-Rwanda) to
prototyping return hubs (Italy-Albania, since March 2025). This contributes to corroborating
what scholars call ‘cooperative
deterrence’ or the ‘architecture
of repulsion’. Since the 2016 EU–Turkey Statement, the EU has actively contributed to an
escalation of the cooperative deterrence paradigm through a series of
initiatives that include a Memorandum of Understanding with Tunisia, a Joint Declaration with Egypt, and plans first with Lebanon and then with Jordan. These actions are also pursued through the external
activities of EU agencies such as Frontex (Regulation 2019/1896).
The consolidation of the external dimension of
EU asylum and immigration policy was confirmed by several recent policy
documents, including the Commission’s Communication of 13 March 2024 (COM/2024/126), which noted ‘a clear impetus to forge stronger
partnerships with key third countries.’ It is worth noting that since 2022,
MOCADEM, the Operational Coordination Mechanism for the External Dimension of
Migration, has also been active (Council Implementing Decision (EU) 2022/60).
The reform of the return policy also revolves
around externalisation. In a letter to the Commission in May 2024, 15 Member States asked for new
solutions to irregular migration, including potential cooperation with third
countries on return hubs, to which returnees could be transferred pending their
final removal. The Commission addressed the issue in its evaluation report on
the Schengen area (COM/2025/185), stressing that EU efforts, for example,
strengthened partnerships with third countries, have led to a significant
reduction in irregular border crossings. Finally, among their priorities, the
recent Council Presidencies featured cooperation with third countries to strengthen
the effectiveness of return policy prominently.
Return hubs respond to this priority. At the
legislative level, they found a legal basis in Article 14 of the new Return
Regulation, which provides that the return of third-country nationals staying
irregularly and subject to a return decision (based on a common template) may
be carried out to a third country with which an agreement or arrangement
exists.
The problems of compatibility with fundamental
rights and with the principle of non-refoulement have been extensively
highlighted (inter alia Bornemann, 2025; Majcher, 2025). As the Court of Justice has reaffirmed (C-156/23), non-refoulement serves as a parameter for enforcing
the return decision. Further reflection is needed on the management of the hubs
and the execution of returns. A report of the EU Agency for Fundamental Rights confirms that the hubs would be subject to the
fundamental rights safeguards of international and European law. Yet the
effectiveness of those safeguards could be weakened, or at least affected, by
possible opacity about the authorities involved. It is unclear whether hubs
will be run directly by Member State authorities or jointly with the EU through
Frontex, and what role third-country authorities will play. In particular, it
is worth asking to what extent Frontex’s new legal and operational framework
allows the Agency to exercise its mandate in relation to return hubs in third
countries.
Frontex’s current mandate
in return operations in third countries
Frontex has been operating on the territory of
third countries based on status agreements provided for by Article 73 of
Regulation 2019/1896. These are concluded between the EU and specific third
countries under the procedure of Article 218 TFEU. Agreements
are currently in force with several countries in the Western Balkans and the wider
neighbourhood (Albania, North Macedonia, Moldova, Montenegro and Serbia). They
allow the Agency, at those countries’ request, to send ‘border management teams’
drawn from the standing corps of the European Border and Coast Guard (Article 54(1)
of Regulation 2019/1896).
Assistance with return operations is among the
tasks set out in the current Regulation. Article 53(1) provides that the Agency
shall, on its own initiative and with the agreement of the Member State
concerned, or at that Member State’s request, provide the necessary technical
and operational assistance in the form of a return intervention. To that end,
Frontex can send ‘return teams’, without going into the merits of return
decisions. These remain the exclusive responsibility of Member States, as
Article 48 of Regulation 2019/1896 provides and as confirmed by the Grand
Chamber in WS and Others (C-679/23
P, para 92).
The limits of the current Agency’s mandate on
return outside the territory of the Member States, and therefore in potential
return hubs in third countries, are less clear. A grammatical reading of the
Regulation’s provisions and the legislative work preceding its adoption excludes
a role in this connection. Article 73(5) states that ‘the Agency shall
contribute to the implementation of the Union’s external policy on return and
readmission.’ That provision must be read systematically, in light of the
Regulation’s return provisions. Read together, Articles 48(1)(a) and 50(3) on
return operations point to a coordinating role for the Agency in activities
before the return is carried out, such as gathering information (for example,
identity documents), or after it, through reintegration assistance in countries
of origin. In 2023, for example, as the Agency’s report on cooperation with third
countries shows, Frontex
worked with the Egyptian national authorities to organise a seminar on return
and reintegration practices.
It is also true that Regulation 2019/1896 does
not expressly exclude Frontex’s involvement in carrying out returns from the
territory of third countries, where return hubs could be created in future.
However, Article 73(3) limits the type of teams that can be sent to third
countries to border management teams, which must be kept distinct from return
teams. As the provision itself makes clear, border management teams may operate
on the basis of a status agreement drawn up on the model in Article 76(1) of
the Regulation. That model agreement is set out in a Commission communication (COM/2021/829), which clarifies that Regulation 2019/1896 does not
provide for the operational deployment of teams other than border management
teams in third countries. It adds that a status agreement ‘would not
constitute… the appropriate instrument through which to organise return
operations.’
The legislative history supports this
conclusion. The Commission’s first proposal (COM/2018/631) envisaged a much broader mandate for Frontex,
including returns from third transit countries to countries of origin. Draft
Article 75(4) provided that Frontex would assist with organising return
operations in a third country, and introduced the possibility of mixed return
operations involving several Member States (see Vitiello, 2020). The proposal was not accepted in the final
text, following firm opposition from the European Parliament.
Upscaling Frontex’s
mandate in return operations in third countries
The recast proposal points to enhanced powers in the
area of returns. The accompanying Legislative, Financial and Digital Statement
confirms that Frontex ‘should be able to carry out return-related activities
in, or from, third countries.’ Through a preliminary reading of the proposal,
the major changes concern the involvement of the Agency in direct assistance to
third countries with returns (Article 11).
While under the existing Regulation, external
return activities mostly related to supporting Member States in identifying
third-country nationals, acquiring travel documents and organisation and
coordination of return operations (Article 48(1)(a)), the Proposal expands the
mandate of the Agency at least in relation to three tasks.
To this aim, Articles 63 to 65 of the proposal
set out the framework for the assistance the Agency can offer to third
countries. Pursuant to Article 63, this could be of a technical nature (e.g.
training or capacity building activities), but, Article 64 also introduces a
new operational framework, marking a major shift in the Agency’s mandate. This
will allow Frontex to directly conduct and support return activities taking
place outside EU territory, in light of two operational scenarios.
On the one hand, the Agency may assist in
returning individuals from a third country, based on a return decision issued
by a Member State (Article 64 (2) a)). On the other
hand, Frontex may assist a third country in executing returns based on an individual
obligation to leave established under that third country’s own national law (Article
64 (2) b)). This could be an EU candidate country (an example could be Albania),
a State Party to the ECHR (an example could be Turkey), an EU-designated safe
third country (based on the recent Regulation
2026/464, an example could be
Tunisia), or another third country respecting international human rights
standards where an EU strategic interest exists ‘in relation to the return
caseload and the geopolitical context’ (one may here wonder whether Jordan, in
light of the recent initiatives undertaken by the EU, could be an example).
To fulfil such an operational mandate, under
Article 88 of the proposal, Frontex, based on a status agreement negotiated
under the procedure under Article 218 TFEU, will be expressly tasked with the
deployment of return teams that can also exercise executive powers that can
directly enforce a public authority’s decision.
Tilting fundamental rights safeguards
The new operational design essentially
transforms the EU Agency into a powerful global actor. Despite these statutory
safeguards, outlined in Article 64 (4) and
(5), including the commitment by the
third country to respect human rights and non-refoulement, some critical
tensions must be mentioned.
First, one of the most problematic aspects
concerns the enforcement of returns from the territory of a third country. It
is not clear under which framework Frontex would act when enforcing a return
from the territory of a third country. Article 64(2)(b) contemplates the
enforcement of return decisions issued under non-EU national legal systems. Article 85(3)
of the proposal provides that Frontex ‘shall comply with Union law, including
norms and standards which form part of the Union acquis, including where
cooperation with third countries takes place on the territory of those third
countries’. Article 86(3) of the proposal also reiterates that the
establishment of return hubs through specific agreements or arrangements must also
comply with EU and international law on fundamental rights and on international
protection, including the Charter, the ECHR, the Refugee Convention and in
particular the principle of non-refoulement. This provision is further
echoed by Article 88(2) of the proposal, which, in relation to cooperation with
third countries, states that ‘the Agency shall act within the framework of the
external action policy of the Union, including with regard to the protection of
fundamental rights and personal data, the principle of non-refoulement, the
prohibition of arbitrary detention and the prohibition of torture and inhuman
or degrading treatment or punishment.’
While, on the one hand, these obligations set
clear fundamental rights obligations binding on Frontex, as an EU agency, on
the other hand, Article 64(2)(b), as mentioned, envisages the Agency’s
involvement in the execution of return based on the national law of the third
country, which, despite the safeguards and commitments mentioned in Articles
64(2)(b) and (4), does not arguably meet the due process requirements under EU
law, notably under Article 47 of the Charter. Article 64(4)(b), for instance,
requires that the agreement between the EU and the third country shall include the
commitment that ‘any person to be subject of Agency’s return-related assistance
is under the individual obligation to leave that third country in accordance
with national law, following a due process, and that the Agency is satisfied of
that obligation at the time of return.’ This seems to leave too broad
discretion to an agency, whose position is in any event external to the legal
system of the third country, and whose assessment might not be thorough. The
proposal only requires an appreciation of the obligation most probably in light
of the general human rights framework of the country, which might not be
representative of the individual circumstances.
Article 64(4)(e) requires the establishment of
an independent monitoring mechanism. However, effective oversight on non-EU
territory relies on third-country cooperation, which may be withdrawn. This weakens
the fundamental rights monitoring and makes the safeguards contingent on the
political relationship with the third country.
Another crucial point builds directly on the judicial
saga on shared
responsibility in multi-actor situations, involving Frontex. The involvement of
the Agency in executing returns from third countries complicates the already complex
responsibility framework. As confirmed by the Grand Chamber in the Grand Chamber in WS and
Others (C-679/23
P), the Agency must
comply with fundamental rights obligations and remains subject to the EU’s
non-contractual liability regime (Article 340(2) TFEU). However, if so far, a
clear allocation of responsibility between the Agency and the Member States has
proved extremely difficult at the judicial level, the cooperation on return
with third countries that are not subject to the jurisdiction of the EU Court
of Justice risks creating further loopholes in an already precarious
system of judicial protection at the external borders of the EU.
Concluding remarks
The proposal to recast the Regulation on the
European Border and Coast Guard and expand the mandate of Frontex resonates
with the enhanced efforts in cooperation with third countries also in relation
to the management of returns of irregular migrants. After the adoption of the
Return Regulation and the legal basis to establish return hubs in third
countries, the fact that Frontex would acquire an express legal basis to
conduct and support returns in third countries comes as no surprise.
Nevertheless, the proposed framework shifts the agency to a global actor that
can assist third countries in returns from their territories. This requires a
thorough reflection on the extent to which Frontex can effectively be placed in
a position to comply with its fundamental rights obligations, when its role
becomes dependent on decisions adopted by third countries based on their own
legal systems.
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