EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

POST 13 OF THE SERIES OF THE ODYSSEUS BLOG ON THE PACT ON MIGRATION & ASYLUM

By Madalina Moraru, Assoc. Prof. of EU Law at the University of Bologna, PI of the ACCESS Project and part-time Assis. Prof at the Centre for Judicial Cooperation (EUI) and

By Carmen López Esquitino, former student of the Odysseus Executive Master

The 2024 EU asylum and immigration reform did not include a recast of the 2008 Return Directive. Although the European Commission proposed a recast of the Return Directive in 2018, negotiations between the European Parliament and the Council have been deadlocked for the past four years, preventing any amendments. Given this stalemate and the focus in the Pact on combating illegal migration and improving the efficiency of the EU’s return policy, parts of the recast proposal have been incorporated into various instruments of the 2024 reform. These changes introduce exceptions and derogations from the common return procedure, challenging the Return Directive’s role as the main EU legal framework for returning third-country nationals staying or entering irregularly in the EU.

First, the return decision must be part of the asylum rejection decision, reducing Member States’ autonomy to issue separate decisions. Second, based on the Commission’s initial recast proposal, the 2024 Return Border Procedure Regulation introduces a streamlined return process for third-country nationals rejected in border asylum procedures, allowing for extended detention and curbing voluntary departure options. Third, the revised 2024 revised Schengen Border Code includes a broad derogation from the principle of direct return of irregularly staying third-country nationals, introducing a new transfer procedure.

These scattered derogations from the common return procedure are likely to reduce procedural and human rights protection as set out in the Return Directive. This policy approach is not surprising given the Member States’ criticisms of the Directive as an ineffective framework for effective returns, due to the judicial enhancement of returnees’ rights. This post analyzes how the common return procedure will be impacted by the key return-related amendments in the 2024 reform.

The Seamless Link between Return and Asylum: added value and potential challenges

Under the Return Directive, Member States have procedural freedom to combine decisions ending legal stay (such as rejection of asylum applications or visa withdrawal) with return-related decisions (like return, removal, or entry bans), as long as individual safeguards are respected (Article 6(6)). The recast Return Directive proposal aimed to limit this freedom, requiring to issue return decisions immediately after decisions ending legal stay, including asylum rejections. Due to the recast’s stalemate, this obligation was reintroduced in the 2020 Pact (Article 35a). The 2024 Asylum Procedure Regulation maintains the link between asylum and return through optional and mandatory procedures.

First, Article 37 of the Asylum Procedure Regulation mandates that return decisions must accompany asylum rejections when claims are inadmissible, unfounded, or withdrawn. Both decisions should be issued simultaneously, either within the same administrative act or in separate but concurrent decisions.

Second, the seamless link is introduced also for the appeal phase. Article 67(1) last paragraph of the Asylum Procedure Regulation establishes that return decisions must be appealed jointly with asylum rejections in the same proceedings, with appeal time limits between five and ten days. If return decisions are issued as separate acts, they can be appealed separately.

Third, Article 68 extends the automatic suspensive effect of asylum appeals to return appeals when procedures are combined. However, in inadmissible or unfounded asylum claims, suspensive effect must be requested individually by the applicant or competent courts can decide on it ex officio.

In cases of ex officio assessment of the suspensive effect of appeal, Article 68(5) of the Asylum Procedure Regulation requires the conferral of defense rights. Appellants are entitled to interpretation services during hearings and free legal assistance if requested. They cannot be removed from the Member State until the request is resolved. Applicants must also be informed promptly about their rights during the appeal process. However, Member States can deny the right to remain in cases of abusive appeals. The implementation of this provision will be challenging given the discretion allowed when interpreting what is an abusive appeal (CJEU, Arslan), though unaccompanied minors are exempt. This attempt at procedural harmonisation has its advantages in terms of ensuring procedural efficiency and effective access to legal remedies. The separation of asylum from return procedures and institutions has in practice led to a number of negative results. Firstly, it has led to procedural inertia due to lack of inter-institutional access to documents, particularly between judicial or quasi-judicial institutions adjudicating on returns and administrative authorities on asylum (see CPAS Seraing and CPAS Liège). Next, it has led to rule of law issues due to conferral of adjudication of return appeals to institutions not fulfilling the requirements of Article 47 EU Charter (chapter of di Pascale in Moraru et all 2020, and FMS). It could thus be argued that the maze of procedural intersection between asylum and return procedure has been simplified. However, the main challenge will be to ensure that the combined procedure will fully respect the protection of the principle of non-refoulement which does not admit any derogations (M and others).

Key Legal Principles Guiding the Future Application of the Combined Asylum and Return Procedure

While the CJEU found this compressed model permissible under the Return Directive (Gnandi) its implementation has been found by the European Parliament to fall short of good administration obligations, rights of defence, and non-refoulement guarantees (see the chapters by Ilareva and Slama in Moraru et all 2020). Among the reasons for this deficient play-out of the combined model, the European Parliament study referred to ‘risk of refoulement which is not systematically assessed by the authorities on their own initiative when contemplating the issuing of a return decision’ (EP Resolution, p 23). The asylum procedure assesses violations of the principle of non-refoulement only on limited grounds, eluding a full assessment of the risk of refoulement in compliance with Articles 2, 3 ECHR, Article 19 of the Charter and Article 5 Return Directive. In order to ensure the protection of these absolute fundamental rights, the third-country national ‘must be able to express his/her point of view on the legality of his or her stay; [express] facts that could justify the authorities to refrain from adopting a particular return related decision; [express] facts that justify exception(s) to the expulsion; [express] social circumstances of the irregular migrant, including the best interests of the child, family life and the state of health of the third-country national concerned and risks of non-refoulement.’ (see Mukarubega and Boudjlida).

A return border procedure: main characteristics and its relationship with the common return procedure 

Another novelty introduced by the Pact is an expedited return procedure at the borders, governed by the 2024 Return Border Procedure Regulation (RBP Regulation). The raison d’être of the return border procedure is mainly to guarantee the continuity between an asylum procedure carried out in a border context and a return mechanism that follows the same system (Recital 7). As such, the RBP Regulation makes the return border procedure of mandatory application to third-country nationals whose application was rejected in the context of the asylum border procedure (Article 1(1)). The return border procedure shall have a maximum duration of 12 weeks (an extra period of up to 6 weeks is allowed in times of crisis), including the finalisation of appeals lodged against first instance return decisions (Article 6(1)(a) RBP Regulation and Article 51(2) 2024 Asylum Procedure Regulation). The return of individuals not subject to the border procedure will continue to be carried out via the common procedure of the Return Directive.

Positively, the RBP Regulation introduces new important procedural guarantees and refers to certain crucial fundamental rights provisions enshrined in the Return Directive. Nevertheless, the border regime curtails the figure of voluntary departure and risks resulting in widespread detention.

A logic of containment – an aggravated risk of widespread detention

Grounded in a logic of containment which relies on the “fiction of non-entry”, Member States shall restrict third-country nationals’ freedom of movement or deprive them of liberty during the return border procedure. Accordingly, returnees’ freedom of movement shall be restricted to locations at or in proximity to the external borders or transit zones, or even within the territory (Article 4(2) RBP Regulation). Although the RBP Regulation declares that deprivation of liberty can only be imposed as a measure of last resort, on the basis of an individual assessment and if no less coercive measures can be applied (Article 5(1)), the overall system introduced by the instrument risks leading to widespread deprivation of liberty

In this regard, the RBP Regulation introduces two broad detention grounds. First, Member States may continue the detention of third-country nationals deprived of liberty during the asylum border procedure for the purpose of preventing entry into the territory, preparing return or carrying out removal (Article 5(2)). The majority of asylum seekers in the EU will be channelled to the Asylum Border Procedure, and detention during such procedure may be more easily justified since being subject to the asylum border procedure itself constitutes a detention ground (Article 54(1) Asylum Procedure Regulation and 10(4)(d) 2024 Reception Conditions Directive). Therefore, since the RBP Regulation allows for continued detention while progressing from the asylum to the return stage, the majority of returnees will also be deprived of liberty during the return procedure. Moreover, the wording of Article 5(2) suggests that the detention grounds will not be re-assessed when a person is channelled from the asylum to the return procedure, allowing thus for automatic detention. Second, rejected asylum seekers who were not deprived of liberty during the asylum border procedure may be detained on three grounds: if there is a risk of absconding, if they avoid or hamper return, or if they are a risk to public policy, and public or national security. The latter constitutes an additional detention ground compared to those allowed under the common return procedure, resulting therefore in further deprivation of liberty (Article 15(1) Return Directive and 5(3) RBP Regulation).

In addition, there is a risk of de facto detention. The Commission held in the past that border procedures were to “be used only in exceptional circumstances, since they imply detention”. Hence, what in theory should be a restriction of movement, in reality could be a deprivation of liberty given that the difference is one of degree and intensity (ECtHR, Guzzardi v. Italy) and that contemporary migration governance increasingly blurs the lines between both (Cornelisse, 2022).

Voluntary departure – a more restrictive regime than in the common return procedure

The obligation to implement return decisions through voluntary departure as a first step derives from the EU general principle of proportionality and fundamental rights (CJEU, Zh. and O.). The RBP Regulation undermines such principle and creates a more restrictive regime than that of the common return procedure.

In the border procedure, the obligation to confer a voluntary departure period is only “activated” if returnees request it. This can render the obligation to grant voluntary departure meaningless as third-country nationals might not be able to make such request, particularly since the RBP Regulation, does not expressly mention that Member States shall inform returnees about voluntary departure. Moreover, the strict upper limit of 15 days for departing voluntarily (Article 4(5) RBP Regulation) might impact on the effectiveness of voluntary departure since time limits are often too short in practice (EMN, 2018). Furthermore, the RBP Regulation introduces a crucial novelty compared to the Return Directive. Whereas the latter contemplates the possibility of not granting a voluntary departure period or of shortening it (Article 7(4)), the RBP Regulation eliminates the option of shorter voluntary departure and introduces a mandatory refusal of voluntary departure (Article 4(5)). Thus, the regime introduced by the RBP Regulation departs from the approach of the Return Directive i.e. the prioritisation of voluntary departure.

Procedural guarantees – enhancing the effectiveness of judicial review

On the one hand, the same requirements regarding the form for issuing a return decision apply to the common and border return procedures (Article 12 Return Directive and 4(3) RBP Regulation). On the other hand, the system of remedies against return decisions in the border context constitutes a positive development as it contributes to the effectiveness of judicial review. Indeed, while a return decision in the ordinary procedure can be appealed before a judicial or administrative authority (Article 13 Return Directive), the review in the border procedure is to be carried out only by a court or tribunal. Moreover, judicial scrutiny is extended to both facts and law in the border procedure, which constitutes a key development in light of the negative consequences of the current legal framework (Article 67(1) Asylum Procedure Regulation).

The RBP Regulation does not regulate many aspects of return and makes a vast number of provisions of the Return Directive applicable (Article 4(3) RBP Regulation). Importantly, the references to the Return Directive mean that certain fundamental rights safeguards enshrined in the instrument shall be also observed during the border procedure, including the mandatory stages for implementing return; guarantees including but not limited to non-refoulement and best interests of the child; as well as detention standards.

Moreover, and crucially, the border procedure ends if a return decision cannot be enforced within the 12-week limit. In such case, the Return Directive becomes fully applicable and return is implemented via the common procedure (Article 4(4) RBP Regulation).

Clearly, Member States will have to dedicate vast resources and carry out extensive planning to make border procedures function. In this regard, will they be able to complete the return border procedure within 12 weeks and guarantee adequate reception and detention standards at the borders? If they are not able to comply with these, will they be able to allocate sufficient resources to ensuring a swift channelling from the return border procedure to the common return system? If they cannot overcome these challenges, border procedures will prove unsuccessful not only in efficiency terms, as returns will end up being primarily enforced through the common return procedure, but also in terms of respect and commitment to fundamental rights.

The new Schengen based transfer procedure: added value and potential risks

Article 23(a) of the 2024 revised Schengen Border Code introduces a derogation to Article 6(3) of the Return Directive, whereby Member States can transfer within maximum 24 hours third-country nationals caught without a right to entry at internal borders areas to a neighbouring Member State as long as there is a bilateral cooperation framework allowing for such readmissions. This new provision eliminates the standstill clause on conclusion of readmission agreements between the Member States that was set out in Article 6(3) of the Return Directive. Member States will thus be allowed to swiftly return irregularly staying third-country nationals, and shift the responsibility to comply with the Return Directive upon the receiving Member State not only on the basis of past readmission agreements, but also based on readmission agreements to be concluded from now on. This flexibility has been argued by France to be necessary, especially in cases of reintroduction of internal border controls (see ADDE and others).

The added value of the new intra-EU transfer procedures is that it introduces several procedural safeguards, which were not applied under Article 6(3) Return Directive based transfer procedures. In practice, transferring procedures based on historical readmission agreements varied substantially between the Member States in terms of form, length and the nature. Article 23(a) introduces a common transfer procedure whereby the Member State of transfer must issue written transfer decisions following a certain template. Furthermore, third-country nationals have a right to appeal before a court (Article 23(a)(3)). The appeal is not automatically suspensory of the transfer, but based on the principle of non-refoulement it could be decided to have suspensive effect.

Key Legal Principles Guiding the Future Application of the Combined Asylum and Return Procedure

Article 23(a) seems to codify some of the current readmission practices based on bilateral agreements that have not been ratified by national parliaments (1996 Readmission Agreement between Italy and Slovenia), and which have been held to be unconstitutional and hindering the right to asylum (Tribunal of Rome: N.R.G.56420/2020). The major challenge posed by the new transfer procedure is the wide discretionary powers left to the Member States to conclude future readmission agreements in formats that may conflict with the rule of law and the principle of effectiveness of the Return Directive (Pistoia 2024). Article 23 does not refer to readmission agreements but to the wider “framework of bilateral cooperation, which may include, in particular, joint police patrols.” Thus, the new transfer procedure extends the scope of derogations from the common return procedure to such an extent that the effective application of the principle of direct return set out by the Return Directive could be endangered (Moraru The Interplay between the Schengen Borders Code and the Return Directive forthcoming 2024).

Two leading principles that have been developed by the CJEU in the Affum–Arib–ADDE and others line of judgments, should be recalled as regards derogations from the application of the common return procedure in intra-EU border situations. First, in cases when Member States issue refusals of entry at the borders and rapidly transfer irregular third-country nationals based on a readmission agreement, the common return procedure should be applied by the receiving Member State. Second, both the transferring Member State and the receiving Member State are acting within the scope of the Return Directive, which means that both States are bound by the EU Charter of Fundamental Rights when relying on the transfer procedure (for an extensive analysis see Slovenian Administrative Court: Decision I U, 1490/2019 ).

Mutual Recognition of Return Decisions 

Since March 7, 2023, return decisions issued by one Member State are visible to all other Member States through the alert system under SIS. The European Commission has recommended that Member States ensure the mutual recognition of these return decisions. According to the Commission, updating the SIS, alongside mutual recognition, can significantly accelerate and streamline the return process, especially when enforcement can occur immediately—such as when the period for voluntary departure has expired, and all legal remedies have been exhausted. However, when relying on mutual recognition, Member States must still assess compliance with the principle of non-refoulement, whether direct or indirect, if there is sufficient evidence of potential violation (see Ministero dell’Interno).

Conclusions

In conclusion, the Pact introduces significant changes to the EU’s return procedures for irregularly staying third-country nationals in different legal instruments of the 2024 Pact, instead of amending the Return Directive. These reforms aim at enhancing procedural efficiency and ensuring legal consistency, yet they present new challenges, particularly in safeguarding fundamental rights and ensuring non-refoulement. The seamless link between asylum and return procedures, the mandatory return border procedure, and the revised Schengen-based transfer procedures reflect a shift towards a more integrated and expedited system. However, the practical implementation of these reforms will require careful monitoring to balance efficiency with the protection of individual rights and compliance with European jurisprudential principles.