On Wednesday 22 May, the Member States' ambassadors to the European Union (Coreper) will discuss the agenda for the EU Home Affairs Council of 7 June in Luxembourg. In particular, they will be invited to accept the proposal of the Romanian Presidency of the Council of the EU to obtain a partial political agreement ('general approach') on the revision of the Return Directive as proposed in September 2018 by the European Commission (see EUROPE 12095/13).
The Romanian Presidency is only aiming at a partial general approach, as not all elements are finalised, in particular those covering the so-called 'border' procedures. These must first be governed by the Asylum Procedures Regulation, which is a component of the 2016 Asylum Package. However, this regulation has not yet been finalised at EU Council level or in the European Parliament.
In the absence of being able to resolve this aspect of border procedures, the Presidency will therefore try to obtain partial agreement on the other elements of the text, which concern, inter alia, the cooperation of the person targeted by a return act to facilitate their removal from the EU or the criteria for determining whether a person who is the subject of a return act is at risk of escaping and must therefore be subject to specific measures such as detention.
On these criteria, the competent authorities of the Member States would thus be called upon to examine whether the person in question is involved in judicial proceedings, or whether they have entered the territory of another Member State illegally, or whether they are already the subject of an unenforced return order or simply do not cooperate, according to a EU Council working document dated 8 May. This document also emphasises that a return order must be issued without undue delay after the rejection of the application for legal residence in the territory.
A person who is not at risk will always be entitled to a "voluntary departure" period of up to 30 days. Otherwise, a detention may be decided which could be set at between three and six months maximum and is renewable. The Commission had proposed a minimum of three months, considering that one of the problems related to the effectiveness of return decisions in Member States is that these detention periods are too short. In 2017, the effective return rate in the EU was 36%.
The Directive also sets deadlines for appealing a return order, which should be 14 days after the return order is issued. The suspensory effect of the appeal must be maintained as soon as there is a risk that the principle of non-refoulement will be violated.
For border procedures (transit areas, airport areas, for example), the Commission had proposed not to give any 'voluntary' return deadlines to rejected persons and to immediately report the mandatory nature of their return. The text of 8 May provides for this right to voluntary return if the person has a valid travel document, which they must then submit. The maximum period of detention for a person who is the subject of a return decision in this context must not exceed four months. Appeals against return orders must be filed very quickly and appeals may, in some cases, not be suspensory.
On Wednesday, ambassadors will also be invited to discuss whether ministers will be able to agree on 7 June on the Asylum and Migration Fund and the Integrated Border Management Fund. (Original version in French by Solenn Paulic)